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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  TREATISE 


ON  THE   LAW  OF 


TELEGRAPH  and  TELEPHONE 
COMPANIES 

INCLUDING  ELECTRIC  LAW 


SECOND   EDITION 


BY 

S.  WALTER  JONES 

AUTHOR  OF  INSOLVENT  AND   FAILING  CORPORATIONS,    DEAN   OF 

THE   UNIVERSITY  OF   MEMPHIS  LAW  SCHOOL,  AND 

A   MEMBER   OF  THE   MEMPHIS  BAR 


KANSAS  CITY,  MO. 

VERNON  LAW  BOOK  COMPANY 
1916 


COPYKIGHT,  1906 
BY 

VERNON  LAW  BOOK  CO. 


CoPTBionT,  1916 

BT 

VERNON  LAW  BOOK  CO. 
(Jones  Tel.  2d  Ed.) 


PREFACE  TO  THE  SECOND  EDITION 


In  preparing  this  book  for  a  second  edition,  it  has  been  my  purpose 
to  follow  out  the  plan  and  scope  of  the  original  work,  and  to  present 
an  exhaustive  treatise  of  the  law  upon  every  point  relating  to  tele- 
graph and  telephone  companies.  Many  new  sections  have  been  added, 
some  revisions  have  been  made  in  the  original  sections,  and  some 
minor  changes  have  been  made  in  the  arrangement  of  the  latter.  The 
footnotes  have  been  greatly  enlarged,  and  in  these  all  the  important 
cases  on  the  subject  have  been  cited.  I  have  discussed  the  subject 
of  electric  law  in  so  far  as  the  construction  and  maintenance  of 
electrical  wires  were  concerned,  and  in  so  far  as  the  general  duties 
and  liabili..es  of  electric  companies  to  the  public  were  applicable  and 
where  the  same  had  any  connection  or  relation  with  or  to  the  main 
subject  of  this  work.  In  conclusion,  I  desire  to  thank  the  bench  and 
bar  for  the  favorable  approval  accorded  the  first  edition.  The  deci- 
sions quoting  and  citing  the  original  text  have  been  very  helpful  in 
the  preparation  of  this  second  edition.  S.  W.  J. 

Memphis,  Tenn.,  October,  1916. 

(iii) 


TABLE  OF  CONTENTS 


CHAPTER  I 

GENERAL  NATURE   OF  TELEGRAPH  AND   TELEPHONE  COMPANIES 

Section 

1.  Definition  of  telegraph. 

2.  Wireless  telegraph  defined. 

3.  Submarine  telegraph  or  cable  defined. 

4.  Telegraphy. 

5.  Telegram. 

6.  Telegraph  stations. 

7.  Telephone  defined. 

8.  Telephone  exchange. 

9.  Line. 

10.  Wireless  telephony. 

11.  Distinction  between  telegraph   and   telephone  companies — similarities. 

12.  Same  continued — dissimilarities. 

13.  Same  continued — liabilities  of  one  greater  than  the  other. 
13a.  Telegraph  in  statutes — embrace  telephone. 

14.  Same  continued — reason. 

15.  Same  continued — reasons  as  compared  to  improvements  on  other  cor- 

porations. 

16.  Same  continued — under  statutes. 

17.  Same  continued — construction  of  statutes. 

18.  Same  continued — illustrated. 

19.  Same  continued. 

20.  Same  continued. 

21.  Same  continued — when  applied. 

22.  When  different  rule  obtains — intent  of  lawmakers. 


CHAPTER  II 

LEGAL  STATUS  OF  TELEGRAPH,  TELEPHONE,  AND  ELECTRIC  COM- 
PANIES 

23.  As  to  public  use — in  general. 

24.  As  to  character  of  property. 

25.  As  to  common  carriers — in  general. 

26.  Common-law  theories. 

27.  Same  continued — decision  criticized. 

28.  Common-law  theory  continued — distinction  between  these  and  common 

carriers — reasons. 

29.  Common-law  theory  continued — analogy  to  common  carriers  of  goods 

and  passengers. 

Jones  Tel. (2d  Ed.)  (iy) 


TABLE   OF   CONTENTS  ▼ 

Section 

30.  Ck)mmon-law  theory  continued— degree  of  care. 

31.  Common-law  theory  continued — bailees  for  hire— analogy. 

32.  Common-law  theory  continued — quasi-common  carrier   of  news. 

33.  Common   carriers   continued— law    applicable    to    both    telegraph    and 

telephone  companies. 

34.  Statutory  theory. 

35.  Common  carriers  in  absence  of  statute  are  not — reason. 

36.  Reasonableness  of  statutes— making  them  common  carriers. 

37.  Statutes  superior  to  any  agreement. 

38.  Binding  in  foreign  states— relation  to  commerce. 

39.  Alarm  system — messenger  service. 

40.  Telephone  for  private  business. 


CHAPTER  III 
CORPORATE  RIGHTS  AND  FRANCHISES 

41.  Incorporation. 

42.  Franchise — distinguished  from  charter. 

43.  Same— kinds  of  franchises— primary  and  secondary. 

44.  License  not  a  franchise — acceptance  of — a  contract. 

45.  Alienability  of  franchise— primary. 

46.  Same  continued — secondary. 

47.  Same  continued — leases. 

48.  Legislature  may  authorize  sale  or  lease. 

49.  Contracts  and  combinations. 


CHAPTER  IV 
CONSTRUCTION,    MAINTENANCE   AND   REGULATION 

50.  Right  of  way— definition. 

51.  Interest  in  land  acquired. 

52.  Same  continued — compensation. 

53.  Same  continued — owner  not  estopped. 

54.  Further  considered — how  and  from  whom  acquired. 

55.  Same  continued — federal  grant. 

56.  Same  continued — what  is  granted. 

57.  Statutes  defining  what  are  post  roads,  etc. 

58.  Must  comply  with  conditions — character  of. 

59.  Scope  and  effect  of  act — statute  permissive  only. 

60.  State  cannot  prohibit  company  from  doing  business  therein  on  com- 

pliance with  said  act. 

61.  Same  continued — exception  to  power — police  regulations. 

62.  Does  not  interfere  with  right  to  compensation. 

63.  Same  continued — reason  of  rule. 

64.  Same    continued — along    railroads — compensation,    when    allowed    to 

owner  of  fee. 

65.  Same  continued — compensation  to  road — reason  for  allowing. 


Vl  TABLE   OF   CONTENTS 

Section 

66.  Same  continued — must  obtain  consent  or  condemn. 

67.  Same  continued — riglit  accjuired  by  agreement. 

68.  Same  continued — exclusive  use — cannot  be  acquired. 

69.  Condenniation  proceedings  must  be  under  state  statutes, 

70.  Companies  not  subject  to  act. 

71.  Subsidized  acts. 

72.  State  grants — distinguislied  from  federal  grants. 

73.  On  railroad. 

74.  Same  continued — conditions  not  to  interfere  with  running  trains. 

75.  Same  continued — award. 

76.  Canal — under  same  statutes. 

77.  The  term  "highway"  embraces  city  streets. 

78.  Condition  of  grantee. 

79.  Municipal  grants — right  to — how  acquired. 

80.  Duties  and  rights  of  municipality  under. 

81.  Same  continued — unconditional  statutes. 

82.  Must  obtain  consent  of  municipality. 

83.  Compensation  to  nuinicipality — charge  must  be  reasonable. 

84.  Termination  of  franchise  to  occupy  streets. 

85.  Grants  to  electric  companies — municipal  ownership — liability  of. 
85a.  Use  of  force  to  set  or  remove  poles  on  land. 


CHAPTER  V 

CONSTRUCTION  AND  MAINTENANCE  OF  TELEGRAPH  AND  TELE- 
PHONE LINES 

• 

86.  In  streets — in  general. 

87.  Same — interest  acquired  in  streets. 

88.  City  control  in  the  erection  and  constiiiction  of. 

89.  Place  of  location  of  line  in  streets. 

90.  Same — cannot  exclude  under  guise  of  regulation. 

91.  Same — electrical  companies. 

92.  Removal  or  change  of  location  of  line. 

93.  Underground  conduits. 

94.  Same — existing   lines   removable   to   conduits   without   impairment   of 

contract. 

95.  Same — independent  companies  may  construct  conduits. 

96.  Same — municipality  without  authority  cannot  compel  removal  to  con- 

duits. 

97.  Additional  servitude — in  general. 

98.  Taking  of  property  for  public  use — what  is. 

99.  Same  continued — illustration. 

100.  When  dedicated  for  street  purposes — not  an  imposition. 

101.  The  different  uses  to  which  streets  and  highways  may  be  put. 

102.  Cases  holding  not  entitled  to  compensation. 

103.  Same  continued — expensiveness  of  easement. 

104.  Same  continued — new  use  of  the  easement. 

105.  Same  continued — upholding  same — on  highways  same  rule. 

106.  The  ground  upon  which  these  cases  are  sustained. 


TABLE   OF   CONTEXTS  '  Vll 

Section 
107.     Same  continued— rule  not  changed  by  fact  that  they  are  not  things  of 

motion. 
lOS.     Contrary  view — additional  servitude— so  held. 

109.  Same  continued— what  rights  included  in  an  easement. 

110.  When  fee  in  abutting  owner— meaning  of  taking  property  of  another 

under  constitution. 

111.  Same  continued— abutter's  interest  in  soil— to  what  use  he  may  put  it. 

112.  Same  continued— additional  use  of  easement  is  for  quasi-public  and 

not  for  public  use. 

113.  Same  continued— easement  put  to  different  use  than  that  for  which 

it  was  originally  acquired. 

114.  When  the  fee  is  in  the  public — not  entitled  to  compensation. 

115.  The  distinction — test  whether  fee  is  in  abutter  or  public. 

116.  Same  continued— when  fee  in  the  public— effect  of. 

•  117.  When  title  or  fee  is  in  third  party— effect  of  as  to  compensation. 

118.  Effect  of  legislative  grant— not  a  nuisance. 

119.  Amount  of  compensation  to  abutter. 

120.  Damages  to  abutting  owners — amount. 

121.  Remedies  of  adjoining  lot  owner — when  a  nuisance. 

122.  Same  continued — ignorance  of  rights. 

123.  Same  continued — action  for  damages. 

124.  Further  considered — unauthorized  use  of  street — may  be  enjoined. 

125.  Waien   poles   and   wires   of   an   electric   light   company   an   additional 

burden. 

126.  Liabilities  for  cutting  trees  overhanging  sidewalks. 

127.  Same  continued — punitory  damages. 

128.  Willful  intent — question  for  jury. 

129.  Trees  on  the  sidewalk. 


CHAPTER  VI 

OVER  PRIVATE  PROPERTY 

130.  By  consent. 

131.  By  condemnation  proceedings. 

132.  General  rule — conditions  precedent. 

133.  Same  continued — petition — contents. 

134.  Same  continued — ^name  of  petitioners — who  may  be. 

135.  Same   continued — name   of   landowners — their   residence   and.  interest 

in  lands — several  tracts  or  interests. 

136.  Same  continued — description  of  route. 

137.  Same  continued — description  of  poles. 

138.  Same  continued— notice — appointment  of  commissioners. 

139.  Same  continued — sworn  to  by  oliicers. 

140.  Same    continued— failure   to   acquire   land   by   agreement   with    land- 

owner. 

141.  The  interest  acquired. 

142.  Measure  of  damages. 

143.  Same — electric  companies. 

144.  Same — wireless  telegraph  companies. 


Vlll  TABLE  OF  CONTENTS 

CHAPTER  VII 

ON  RAILROAD  RIGHT  OF  WAY 
Section 

145.  Right  acquired  by  act  of  congress. 

14G.  Additional  servitude. 

147.  Subsequent  purchaser  may  recover. 

148.  When  for  benefit  to  railroad. 

149.  Same  continued — no  additional  burden. 

150.  Same  continued — must  be  in  good  faith. 

151.  Same  continued — not  taxable. 

152.  Railroad  companies  to  be  compensated. 

153.  Right  to — must  first  be  acquired. 

154.  Interest  acquired  by  telegraph  companies. 

155.  By  condemnation. 

156.  Exception  to  rule. 

157.  Same  continued — cannot  be  defeated  by  claiming  it  should  be  on  other 

lands. 

158.  Foreign  telegraph,  telephone  or  electric  companies — right  to  condemn. 

159.  Same  continued — consolidation  or  lease — agency. 
ISO.  Must  be  in  good  faith. 

161.  What  portion  of  right  of  way  may  be  taken. 

162.  Contract  arrangements  between  companies — when  revokable. 

163.  Effect  of  foreclosure  of  railroad — expiration  of  contract. 

164.  Exclusive  right,  cannot  give. 

165.  Contract  with  railroad  company  to  that  effect. 

166.  State  legislation — no  exclusive  grant. 

167.  Same  continued — contra  view — lines  on  same  poles. 

168.  Nature  of  petition. 

1G9.  Same  continued — necessity  for  taking. 

170.  May  condemn  land  in  several  counties  in  one  proceeding. 

171.  Same  continued — constitutional. 

172.  By  whom  assessments  are  made — qualifications  of. 

173.  Duty  of  commissioners. 

174.  Jurisdiction  of  federal  court. 

175.  The  award  of  commissioners. 

176.  May  have  new  award. 

177.  The  measure  of  damages — extent  of  injury. 

178.  Same  continued — expense  incurred — no  reason. 

179.  Same  continued — measurement— true  rule. 

180.  On  public  roads  or  highways. 

181.  Crossing  railroad  tracks. 

182.  Line  on  turnpike. 

183.  Same  rule  applied  to  telephone  companies. 

184.  Electric  light  companies  may  condemn — compensation. 


TABLE    OF    CONTENTS  IX 

CHAPTER  VIII 

ACROSS   AND   UNDER  NAVIGABLE  WATERS 

Section 

184a.  Across  brid-Jies — condemnation. 

185.  Foreign  oceanic  cables — not  included  in  act. 

186.  Cable  business,  commerce— under  control  of  congress. 

187.  Not  paramount  right  to  use  of  navigable  waters— prima  facie  negli- 

gence. 

188.  Local  conditions  where  cable  is  laid. 

189.  Obstruction  and  interference,  no  distinction  between. 

190.  Degree  of  care  required. 

191.  Protection  of  cable  under  treaty. 

192.  Landing  cable — state  and  federal  authority. 
192a.  Canals,  dams,  etc.,  rights  for, 

CHAPTER  IX 

LIABILITY  FOR  INJURIES  CAUSED   BY  IMPROPER  LOCATION,  CON- 
STRUCTION  AND    MAINTENANCE 

193.  Injuries  to  persons  on  highways — in  general. 

194.  Same  continued — injury  on  highways. 

195.  Same  continued — abandonment,  no  defense. 
19G.  Poles  improperly  constructed. 

196a.  Destruction  of  property  by  lightning. 

197.  Same  continued — strength  and  stability  of  poles. 

198.  Duty  to  provide  safeguards  on  premises  for  patrons— res  ipsa  loquitur 

applicable. 
198a.  Brush  discharge. 
198b.  Not  insurers — degree  of  care. 
190.     Fallen  lines — duty  to  restore. 

200.  Insulation  of  wires — inspection  of  line. 
200a.  Duty  to  guard  against  danger  to  children. 

201.  Parallel  and  intersecting  wires. 

202.  Duty  to  place  guards  over  wires. 

203.  I'uty  and  liability  of  railway  companies. 

204.  Same  continued — crossing  highways  and  railroads. 

205.  Negligence,  basis  of  action. 

206.  Negligence,  what  constitutes — duty  to  perform. 

207.  Same  continued — failure  to  perform  duty — presumption  of  negligence. 

208.  Same  continued — an  injury  sustained — proximate  cause. 

209.  lOvidence  of  negligence. 

210.  Contributory  and  imputed  negligence. 

211.  Injuries  to  servants — under  common  law. 

212.  Must  furnish  suitable  appliances  and  safe  place  to  work. 

213.  Fellow  servant  doctrine — where  vice  principal  not  involved. 


X. 


TABLE   OF    CONTENTS 


Section 

214.  Same — where  vice  principal  is  involved. 

215.  Same — employe's  in  control  of  current. 

216.  Under  employers'  liability  act. 

217.  Joint  liability  of  companies— settlement. 

218.  Duty  and  liability  to  trespassers  and  licensees. 

219.  Wbat  companies  liable  for  negligence— vendor,  vendee. 

220.  Injuries  to  or  interference  with  companies. 

221.  Same — induction — conduction. 

221a.  "Inductive"  electricity— meaning  of — effect. 

221b.  Same  continued— actions— causes  thereof. 

221c.  Same  continued — reasons  for  injunction. 

221d.  Same  continued— distinction  between  induction  and  conduction. 

221e.  Same  continued— priority  of  time— induction. 

221f.  Same  continued— priority  of  time — conduction. 

221g.  Same  continued— causes  of  interference— electrolysis— effect  of. 


CHAPTER  X 
REGULATION  AND  CONTROL 

222.  Federal  control. 

223.  Same  continued — concurrent  state  rights. 

224.  Telegraph  lines  over  subsidized  railroads. 

225.  State  control. 

226.  State  may  control  the  construction. 

227.  Same  continued — taxing  power. 

228.  Same  continued— penalty  for  delay  in  delivering  messages. 

229.  Same  continued— the  Pendleton  Case— what  embraced. 

230.  Same  continued— must  fall  within  meaning  of  statute, 

231.  Same  continued— offices  established— must  keep  open. 

232.  Same  continued — other  regulations. 

233.  Same  continued— limitation— impairment  of  contract. 

234.  Regulate  charges. 

235.  Same  continued — constitutionality  of  statutes. 

236.  Same  continued— right  to  fix  charges— reason— enforcement. 

237.  Same  continued— cannot  evade  statutes— charged  in  two  items— pat- 

ents. 

238.  Statute  rates  must  be  reasonable. 

239.  As  to  interstate  messages — cannot  fix  maximum  charges. 

240.  Must  furnish  services  notwithstanding  charges. 

241.  Municipal  control. 

242.  Powers  limited— generally  specified. 

243.  Power  to  revoke  franchise — alter  rates. 

244.  Cannot  impose  tax  or  license — not  police  power. 

245.  Cannot  regulate  rate — without  express  authority. 

246.  State  may  delegate  power  to  commission. 

247.  Control  of  wireless  telegraph. 


TABLE  OF   CONTENTS  XI 

CHAPTER  XI 

DUTIES  TO  FURNISH  EQUAL  FACILITIES  TO  ALL 

Section 

248.  Must  serve  all  impartially. 

249.  Must  have  sufficient  facilities. 

250.  Must  transmit  in  order  in  wbich  received. 

251.  Cannot  discriminate. 

252.  Same  continued — discrimination — must  be  just. 

253.  Same  continued — reasonable  discrimination. 

254.  Reasonableness  of  rates — how  determined. 

255.  Statutes — declaratory  of  common  law. 

256.  Duties  peculiarly  applicable  to  the  telephone. 

257.  Charges  for  use  of  telephone. 

258.  Whom  to  serve — persons  conducting  legal  business. 

259.  When  may  refuse  to  furnish  services — abusive  language. 

260.  Same   continued — on   refusal   to   pay   charges   or   rent   in   arrears — 

charges  for  removing  instrument — other  reasons. 

261.  Connections  with  extension  systems  privately  owned. 

262.  Same  continued — other  corporations — telegraph  companies. 

263.  Same  continued — rival  companies. 

264.  Being  lessees  of  patents — no  excuse. 

265.  Lessee's  ground  for  refusal. 

266.  Private  unincorporated  companies. 

267.  Electric  companies — discrimination. 

268.  Remedies. 

269.  Measure  of  damages. 
269a.  May  recover  overcharge. 

269b.  Penalty  for  failure  to  furnish  current, 
269c.  Excuses  for  not  rendering  services. 


CHAPTER  XII 

TRANSMISSION  AND  DELIVERY  OF  MESSAGES— GENERAL  NATURE 

OF  LIABILITY 

270.  Transmission  of  messages — duties  in  general. 

271.  Duty  of  telegraph  companies  to  transmit — arises  not  on  contract  alone. 

272.  Same  continued — further  duties — to   accept  and  deliver — in   general. 

273.  Same  continued — must  accept  proper  messages — not  improper  or  such 

as  would  subject  the  company  to  indictment. 

274.  Same  continued — such  as  would  subject  to  action  of  tort. 

275.  Same  continued — lines  down — other  reasons. 

276.  Must  be  properly  tendered — in  writing. 

277.  Same  continued — must  be  on  company's  blank. 

278.  Delivery  to  messenger  boy — not  delivery  to  company. 

279.  Same  continued — prepayment  of  charges  before  accepting. 

280.  Same  continued — failure  to  receive — damages — functions. 

281.  Transmit  without  delay. 


Xll  TABLE  OF   CONTENTS 

Section 

252.  Burden  of  evidence — delay — presumption. 

253.  Dutj'  to  inform  sender  when  delay  unavoidable. 
284.  Must  transmit  without  error. 

2S5.  Same — degree  of  care  in  transmission. 

286.  Liability  under  statutes — all  mistakes.  * 

287.  Same  continued — damages — actual — errors  in  transmission. 

288.  Duty  to  deliver — addressee — in  general. 

289.  Excuse  for  nondelivery. 

290.  Same  continued — not  excused  for. 

291.  Duty  to  inform  sender  of  nondelivery, 

292.  To  whom  made — delivery. 
29".  Delivery  to  wife. 

294.  Delivery  to  hotel  clerk — not  sufficient. 

295.  "VNTiere  two  parties  have  same  name — delivery  to  one. 

296.  In  care  of  another. 

297.  To  authorized  agent. 

298.  Manner  of  delivery — written  copy. 

299.  No  duty  to  forward  messages. 

300.  Time  to  deliver. 

501.  Same  continued — two  messages  of  same  nature  received  within  office 
hours. 

302.  Free  delivery  limit. 

303.  When  sendee  lives  several  miles  from  office. 

304.  Same  continued — may  waive  right. 

305.  No  delivery  limit  fixed. 

30G.  Must  use  due  diligence  to  deliver. 

307.  Same  continued — illustrations. 

308.  Diligence  exercised — evidence — burden  of  proof. 

309.  Failure  to  designate  with  accuracy  the  address. 

310.  Penalty  imposed  for  failure  to  deliver. 

311.  Duty  to  preserve  secrecy  of  message. 

312.  Same  continued — imposed  by  statute. 

313.  Same  continued — applicable  to  telephone  companies. 

314.  Messages  "in  care  of"  common  carriers. 

315.  Same  continued — telephone. 

316.  Message  for  person — make  reasonable  search. 

317.  Same  continued — when  compensated. 

318.  Long-distance  telephone — disconnected  at  intermediate  points. 


CHAPTER  XIII 

NEGLIGENCE 

319.  Negligence  in  transmission — in  generaL 

320.  Prima  facie  negligence. 

321.  Same — illustrations. 

322.  Presumption  may  be  rebutted. 

323.  Nonpayment  of  charges — no  defense — regulation. 

324.  Contributory  negligence. 
o25.  Messages  must  be  legible. 


TABLE    OF    CONTENTS  Xm 


Section 

326.  Same  continued — address  must  be  definite. 

327.  Operator  writing  message  for  sender— liis  agent. 

328.  Messages  not  stamped — contributory  negligence, 

329.  Delay  in  sending— no  contributory  negligence. 

330.  Injured  party — should  minimize  loss. 

331.  Presumed  to  perform  contract. 

332.  Should  resort  to  other  means  when  necessary. 

333.  Misinterpreting  message— addressee. 

334.  Should  read  carefully — sendee. 


CHAPTER  XIV 
LIABILITIES  AS  AFFECTED  BY  RULES  AND  REGULATIONS 

335.  Right  to  make  reasonable  regulations — in  general. 

336.  Must  be  reasonable. 

337.  Must  be  reasonably  applied. 

338.  Same  continued — reasonableness — who  should  decide. 

339.  Distinction  between  by-laws  and  rules  and  regulations  or  resolutions. 

340.  Same  continued— particular  regulations. 

.341.  Information  as  to  meaning  of  message — cannot  demand. 

342.  Delivery  at  company's  office — reasonable. 

343.  Prepayment  of  charge — reasonable  regulation. 

344.  Extra  charges  for  delivering  beyond  free  delivery  limit— not  always 

reasonable. 

345.  Deposit  for  answer— not  always  reasonable. 

346.  May  waive  prepayment. 

347.  Regulation  of  office  hours. 

348.  Same  continued— statutory  penalty  for  delay— hours  not  the  same. 

349.  Reasonableness  of  the  rule. 

350.  Same  continued — waiver  of  regulations. 

351.  Employes  need  not  be  informed  of  other  office  h<)ur.«!. 

352.  Office  hours  as  affects  company's  duty— niglit  message. 

353.  Knowledge  of  sender  as  to  office  hours. 

354.  Telephone  companies — enforcement  of  tolls. 

355.  May  waive  regulations. 


CHAPTER  XV 
DUTIES  UNDER  THE  COMMON  LAW. 

356.  In  general. 

357.  Act  of  God— not  liable  for— contract. 

358.  Same  continued — express  contract. 

359.  Same  continued — burden  of  proof. 

360.  Public  enemy. 

361.  Same  continued — reason  for  rule. 
3G2.  Same  continued — mobs,  strikes,  etc. 

363.     Same  continued— strikes,  not  liable— must  supply  places. 


XiV  TABLE  OF   CONTENTS 

Section 

364.  Same  continued — in  cases  of  express  contracts. 

365.  Connecting  lines. 

366.  Negligence  of  the  sender  or  sendee. 


CHAPTER  XVI 
COMMON-LAW  LIABILITIES 

367.  Stipulation  in  contract  of  sending — in  general. 

368.  Negligence — cannot  contract  against — in  most  states. 

369.  Applicable  to  statutory  penalty. 

370.  May  contract  against  negligence  in  some  states. 

371.  Prohibited  by  statutes  in  some  states. 

372.  Gross  negligence. 

373.  Gross  negligence — what  constitutes. 

374.  Ignorance  of  operator  of  the  locality  of  the  place. 

375.  Conflict  of  laws. 

376.  Stipulation  for  repeating  messages. 

377.  Same  continued — validity  of  such  a  stipulation. 

378.  Same  continued — further  reasons  for  their  own  protection. 

379.  Same  continued — extra  charge — no  increase  of  duty. 

380.  Same  continued — delay  in  delivery — nondelivery. 

381.  Same  continued — not  a  contract — compared  to  a  bill  of  lading. 

382.  Same  continued — contract — no  consideration. 

383.  Same  continued — duress. 

384.  When  requested  to  be  repeated — question  of  fact. 

385.  Same  continued — binding  on  sender  only. 

386.  Times  within  which  claims  are  to  be  presented. 

387.  Same  continued — reasons  for  rule. 

388.  Same  continued — statutory  penalty — applicable. 

389.  Same  continued — not  to  be  prosecuted  by  the  public. 

390.  Stipulation  held  void  as  against  public  policy. 

391.  When  limitation  begins  to  run. 

392.  Same  continued — delay  in  receiving  messages — does  not  modify  stipu- 

lation. 

393.  Same  continued — unaware  of  wrong — not  binding. 

394.  Compliance  with  stipulation — what  constitutes. 

395.  Same  continued — waiver  of  written  claims. 

396.  Same  continued — nature  of  the  claim. 

397.  Must  be  presented  to  proper  officer. 

398.  Commencement  of  suit — whether  sufficient  notice. 

399.  Contrary  holding — better  view. 

400.  Limiting  liability  to  specific  amount. 

401.  Same  continued — nature  of — liquidated  damages. 

402.  Same  continued — insured — same  rule. 

403.  Night  messages — time  to  be  delivered. 

404.  Unavoidable  interruption — special  contract. 

405.  Over  connecting  lines — stipulation — exemptions. 

406.  Stipulation  against  cipher  messages — valid. 

407.  Same  continued — contrary  view. 


TABLE   OP   CONTENTS  XV 

Section 

408.  \Miere  and  when  messages  accepted. 

409.  Delivery  to  messenger — valid. 

410.  Waiver  of  stipulation  limiting  company's  liability, 

411.  Burden  of  proof. 

412.  Proof  of  assent  to  stipulation. 

413.  Contrary  holding. 

414.  Special  contracts — not  applicable. 
41.5.  Small  type — not  fraud. 

416.  Assent  of  addressee. 

417.  Same  continued — illustrations. 

418.  Same  continued — actions  in  tort. 

419.  The  correct  vievv^  as  considered. 

420.  Assent — proof  of — what  amounts  to. 

421.  Stipulation  posted  in  company's  office — not  binding. 

422.  Messages  written  on  blanks  of  another  company — binding. 

423.  Same  continued — knowledge  of  company's  stipulations. 

424.  Messages  delivered  to  company  by  telephone  or  verbally. 

425.  Principal  bound  by  the  knowledge  of  the  agent. 


CHAPTER  XVII 

LIABILITY   OF  COMPANIES   IN   PARTICULAR   CLASSES    OF    CASES- 
CONTRACT  TO  FURNISH  MARKET   REPORTS  AND  OTHER  NEWS 

426.  No  duty  to  collect  news — in  general. 

427.  Market  reports,  etc. 

428.  Same  continued — organized  for  collecting  news. 

429.  Gambling  transactions — messages  in  regard  to, 

430.  Indecent  language  not  bound  to  accept. 

431.  Liable  civilly  or  criminally — indecent  language. 

432.  Libel— liable  for. 

433.  Interstate  messages. 

434.  Same — recovery  of  statutory  penalty — not  applicable. 

435.  Sunday  messages — no  duty  to  send. 

436.  Sunday  contracts — void. 

437.  Same  continued — matters  of  necessity  or  charity. 

438.  Same  continued — illustrations. 

439.  Statutory  penalty — applicable. 

440.  Messages  which  may  not  be  genuine. 

441.  Forged  and  fraudulent  messages. 

442.  Same  continued — negligence  must  be  proximate  cause. 

443.  Same  continued — operator  author  of  forged  message. 

444.  Same  continued — subagent,  forgery  of. 

445.  Same  continued — no  bar  to  action  ex  delicto — injured  party. 

446.  Amount  of  damages. 

447.  Connecting  lines — passage  over — initial   line — general  rule. 

448.  Same  continued — English  rule. 

449.  Accept  all  the  charges — rule  not  changed. 

450.  Initial  company — diligence  to  deliver  to  other  line. 


XVI  TABLE  OF   CONTENTS 

Section 

451.  Same  continued — telephone — same  rule  applied. 

452.  Special  contract — may  become  liable  by. 

453.  Same  contiuued — who  may  contract. 

454.  Connecting  lines. 

455.  Same  continued — duty  to  accept  messages  tendered. 

456.  Same  continued — duty  of. 

457.  Liability  of  connecting  lines. 

458.  Burden  of  proof. 

459.  Partnership  arrangements  between  the  several  lines. 
4G0.  EfCect  of  contract  of  sending  on  connecting  lines. 

461.  Liability  for  defaults  of  common  agent. 

462.  Sender's  right  to  select  route. 

463.  Same  continued — result  of  bad  selection — initial  company — not  liable. 

464.  Same  continued — exact  extra  fee  or  charges. 

465.  Liability  of  companies  between  themselves — actions. 


CHAPTER  XVIII 

ACTIONS  FOR  DAMAGES  RESULTING  FROM  NEGLIGENT  DELAYS  OF 

TRANSMISSIONS 

466.  Parties — sender — in  general. 

467.  Same  continued — sender — action  in  tort  or  contract. 

468.  Same  continued — message — sent  by  agent. 
460.  Addressee — right  of  action — in  general. 

470.  Same  continued — grounds  on  which  rules  are  based. 

471.  English  rule — in  general. 

472.  Rule  applicable  to  telegraph  companies. 

473.  American  rule — in  general. 

474.  Same  contiuued — with  respect  to  telegraph  companies. 

475.  Addressee  beneficial  party. 

476.  Same  continued — sender  agent  of  addressee. 

477.  Action  for  breach  of  public  duty. 

478.  Same  continued — action  in  contract  or  tort. 

479.  Same  continued — damages  under  either. 

480.  Agent  for  addressee. 

481.  Riglit  under  statute. 

482.  Right  of  action — altered  message. 

483.  Sender  ijaying  charges — effect  upon  the  addressee's  right. 
4M4.  Third  party — right  of  action. 

485.  Under  .special  statutes — penalty. 

486.  Addressee's  right  not  affected  by  failure  to  have  message  repeated. 
4S7.  Actions  between  sender  and  addressee. 

488.  What  law  governs. 

489.  Contract  made  where  last  act  of  assent  was  done. 

490.  Same  continued — actions   between   sender   and   addressee — contract — 

where  made. 

491.  Same  contiuued — action  where  brought. 


TABLE   OF   CONTENTS  XVll 

CHAPTER  XIX 
MATTERS    OF    PLEADING,    PRACTICE    AND    EVIDENCE— GENERALLY 

Section 

492.  Scope  of  chapter. 

493.  Character  of  action. 

494.  Same  continued— distinction  between  an  altered  message  and  one  not 

sent  or  delivered. 

495.  Action — by  mandamus. 

496.  Action — injunction — specific  performance. 

497.  Service  of  process. 

498.  Pleadings  in  general. 

499.  Same  continued — nature  of. 

500.  Allegations  as  to  damages. 

501.  Same  continued— copy  of  telegram— part  of  pleading. 

502.  Same  continued— amendments  liberally  allowed. 

503.  Action — whether  in  contract  or  in  tort. 

504.  Actions  for  statutory  penalty— variance,  etc. 

505.  Plea  to  the  declaration. 

506.  The  issue  and  proof. 

507.  Cause — proximate — remote. 

508.  Contributory  negligence— same  rule. 

509.  Presumption  of  negligence— burden  of  proof. 

510.  Same  continued— effect  of  stipulation. 

511.  Evidence. 

512.  Same  continued — illustrations. 

513.  Evidence  of  negligence — wealth  or  poverty  of  either  party— company. 

514.  Same  continued — party  injured. 

515.  Declaration  of  agents. 

516.  Subsequent  acts  of  company — of  plaintiff. 

517.  Evidence  of  plaintiff's  good  faith— erroneous  messages. 

518.  Same  continued — other  cases. 

519.  Questions  for  the  court. 

520.  Questions  for  the  jury. 

521.  Instructions. 

522.  Weight  and  sufficiency. 

522a.  Expert  evidence — cause  of  death. 

523.  Appeal  and  error. 

CHAPTER  XX 

MEASURE  OF  DAMAGES 

524.  Scope  of  chapter. 

.525.     Damages  defined — nominal  damages. 
520.     General  rule— Hadley  v.  Baxendale. 

527.     Same  continued— not  only  actual  but  contemplative  damages. 
,^28.     Actions  in  contract  and  in  tort— applicable  to  both. 
Jones  Tel.(2d  Ed.)— b 


Xviii  TABLE   OF   CONTENTS 

Section 

529.  Same  continued — character  of  damages  arising  from  eacli— kind  of 

actions — amount  of  information. 

530.  Remote  damages. 

531.  Same  continued — speculative  damages. 

532.  Intervening  causes. 

533.  Effect  of  special  circumstances — notice. 

534.  How  communicated  to  tlie  company — information. 

535.  Same  continued — damages— remote  and  speculative. 

536.  Ciptier  or  otherwise  unintelligible  messages. 

537.  Same  continued — reason  of  rule. 

538.  Contrary  view. 

539.  When  message  discloses  its  importance. 

540.  Same  continued — need  not  be  informed  of  all  fact3. 

541.  Question  for  jury. 

542.  Same  continued — extrinsic  facts  of  importance. 

543.  Messages  relating  to  business  transactions. 

544.  Rule  in  "mental  anguish  cases." 

545.  Same  continued — relationship  of  person  affected. 

546.  Same  continued — reason  of  rule — nearness  of  relationship. 

547.  Same  continued — interest  of  the  party  in  the  transaction. 

548.  Same  continued — deprived  of  the  addressee's  consolation. 

549.  Damages  which  might  have  been  prevented. 

550.  Same — damages  which  could  not  have  been  prevented — contributory 

negligence. 


CHAPTER  XXI 

MEASURE  OF  DAMAGES— CONTINUED— LOSS  OF  EXPECTED  PROFITS 
ON  SALES  BY  ERROR  OR  NEGLIGENCE  IN  TRANSMISSION 

551.  Loss  of  profits — in  general. 

552.  Sales  prevented — plaintiff  vendor — in  general — legal  sales. 

553.  Same  continued — measure  of  damages. 
5.54.  Loss  must  be  actual  and  substantial. 

555.  Orders  for  goods  not  delivered — in  general. 

556.  Same  continued — measure  of  damages. 

557.  Orders  for  goods  erroneously  transmitted — purchaser's  duty. 

558.  Same  continued — goods  shipped  to  wrong  place. 

559.  Same  continued — stock,  bonds,  etc. 

560.  Messages  directing  agent  to  sell  or  purchase. 

561.  Same  continued — order  to  close  option  to  purchase. 

562.  Loss  of  an  exchange. 

563.  Negligence  of  company  inducing  shipment. 

564.  Deterioration. 

565.  Announcement  of  prices  or  state  of  market. 

566.  Contemplating  shipping — delay  in  message — loss. 


TABLE   OF   CONTENTS  XIX 

CHAPTER  XXII 

MEASURE  OF  DAMAGES— CONTINUED— LOSS  OF  EMPLOYMENT,  ETC. 

Section 

5G7.  In  general. 

568.  Loss  of  situation  or  employment. 

569.  Same  continued — actual  damages. 

570.  Same  continued — circumstances  tending  to  reduce  loss. 

571.  Loss  of  professional  fees. 

572.  Same  continued — losses  of  otherwise  professional  nature. 

573.  Same  continued — such  as  not  recoverable. 

574.  Losses  which  might  have  been  prevented. 

575.  Same  continued — must  show  same  would  have  been  prevented. 

576.  Failing  debtors — messages  from  creditors  regarding  same. 

577.  Failure  to  transmit  money. 

578.  Messages  summoning  physicians  or  veterinaries. 

579.  Messages  requesting  addressee  to  meet  sender. 

CHAPTER  XXIII 
DAMAGES   CONTINUED— FOR  MENTAL  ANGUISH 

580.  In  general. 

581.  Same  continued — subject  divided. 

582.  Damages  for  mental  anguish  and  suffering. 

583.  Action  in  contract  or  tort — rule  the  same. 

584.  Rule  departed  from. 

585.  Same  continued — So  Relle  Case  overruled  and  reinstated. 

586.  Federal  court  view — how  held. 

587.  Ground  upon  which  these  cases  are  maintained — notice. 

588.  View  of  subject  in  Louisiana. 

589.  Instances  in  which  damages  are  allowed. 

590.  Limitation  of  rule — prolongation  of  mental  anguish. 

591.  Same  continued — suffering  must  be  real. 

592.  Same  continued — must  be  the  result  of  the  cause  of  complaint. 

593.  Same  continued — suffering  must  be  of  the  plaintiff. 

594.  Same  continued — anguish  from  independent  causes. 

595.  Unwarranted  apprehension. 

596.  Failure  to  meet  plaintiff. 

597.  Summoning  a  physician. 

598.  Same  continued — must  have  prevented  the  injury. 

599.  Same  continued — postponement  of  funeral  services. 

600.  Same  continued — failure  to  transmit  money — no  cause. 

601.  Evidence  of  mental  suffering. 

602.  Same  continued — aggravation  of  suffering. 

603.  Same  continued — sickness  as  a  result — admissible. 

604.  Same  continued — matters  of  defense — want  of  affection. 

605.  Relationship  material. 


XX  TABLE    OF    CONTENTS 

Section 

606.  Nature  of  damages. 

607.  Actions  do  not  survive — limitation. 

608.  Burden  of  proof — presumption. 

609.  Damages  for  mental  suffering — doctrine  denied. 

610.  When  may  be  basis  of  action — malicious  or  willful  wrong. 

611.  Reasons  for  not  allowing  such  damages. 

612.  Same  continued — other  reasons — nominal  damages — incidental  to  oth- 

er injury. 

613.  Same  continued — mental  suffering  following  physical  pain. 

614.  Conflict  of  law — with  respect  to  mental  damages. 

615.  Under  statutes — constitutionality   of. 


CHAPTER  XXIV 

DAMAGES  CONTINUED— EXE:\IPLARY  OR  PUNITIVE— EXCESSIVE 

AND    NOMINAL 

616.  In  general — meaning  of  term. 

617.  Same  as  applied  to  telegraph,  etc.,  companies. 

618.  Exemplary  damages  done  by  agents  and  employes — malice. 

619.  Whether  a  question  of  fact  or  law. 

620.  The  purpose  of  such  damages. 

621.  Assault  and  battery. 

622.  Libel. 

623.  Malicious  prosecution. 

624.  Trespass — accompanied  with  malice. 

625.  Negligence — question  for  jury. 

626.  Same  continued— actual  damages, 

627.  Excessive  damages. 

628.  Nominal  damages. 


CHAPTER  XXV 
STATUTORY  PENALTY 

629.  Penal  statutes — object  and  purpose. 

630.  Construction  of  statutes — in  general — penal. 

631.  Same  continued — intention  of  statute — must  not  be  defeated  by  con- 

struction. 

632.  A  penalty — not  damages — for  person  injured. 

633.  Who  maintain  suit. 

634.  Extraterritorial  effect — not  any. 
6.35.     Constitutionality  of  statutes. 

636.  Discrimination,   statutes  relating  to. 

G37.  Character  and  form  of  message — "futures." 

638.  Same  continued — form — cipher  telegrams. 

639.  Same  continued — written  on  message  blank — waiver  of  right. 

640.  Breach  of  duty — proof  of. 


TABLE    OF    CONTENTS  XXI 

Section 

641.  Same  continued — amount  of  proof. 

642.  Complaint  and  proof  must  fall  under  statute. 

643.  Complaint — allegations  therein. 

644.  Actual  damages— need  not  prove. 

645.  Same  continued— does  not  bar  action  for  damages. 

646.  Actions  survive. 

647.  Connecting  line— liable. 

648.  Defenses— office  hours. 

649.  Same  continued — free  delivery  limits. 

650.  Same  continued — not  under  operation  of  statute — contributory  negli- 

gence. 

€51.  Same  continued — harmless  errors. 

652.  Same  continued— Sunday  dispatches, 

653.  Stipulations— time  for  presenting  claim— effect  of. 

654.  Accord  and  satisfaction. 

655.  Prepayment  of  charges. 

656.  Kepeal  of  statute— effect  of. 


CHAPTER  XXVI 

TAXATION 

657.  Introduction. 

658.  Power  of  state  to  tax. 

659.  How  assessments  may  be  made. 

660.  Methods  of  taxation. 

661.  Classification — discretion  of  legislature. 

662.  Discrimination. 

663.  Lien  of  assessment. 

664.  Interstate  commerce — obstruction  of. 

665.  Property   of  telegraph   and   telephone   companies  used  in   interstate 

commerce — subject  to  state  taxes. 

666.  Taxation  on  capital  stock  in  proportion  to  length  of  line  in  statt-. 

667.  Mileage  basis  of  valuation. 

668.  Assessment  of  telegraph  lines  for  taxation — New  York  state. 

669.  License  tax — cannot  be  imposed. 

670.  Distinction  between  property  tax  and  privilege  tax, 

671.  Excise  tax. 

672.  Taxation  on  gross  receipts — interstate  business. 

673.  Same  on  message. 

674.  Foreign  companies. 

675.  Power  of  a  municipality  to  impose  tax, 

676.  Special  franchise  taxes. 

677.  Where  rights  of  being  a   corporation  are  derived   from  the   United 

States. 
67S.     Lines  on  railroads. 

679.  Same — suits  to  collect. 

680.  Interest  when  payment  of  taxes  is  delayed. 
6S0a.  Special  assessment  for  improvements. 


XXll  TABLE    OF    CONTENTS 

CHAPTER  XXVII 

TELEGRAPH  AND  TELEPHONE  COMMUNICATIONS  AS  EVIDENCE 

Section 

651.  In  general. 

652.  What  is  a  telegram. 

683.  Letters  and  telegrams — compared. 

684.  Same  continued — admission  of. 

685.  Same  continued — presumption — exceptions. 

686.  Authorship  must  be  proved. 
6S7.  Proof  of  signature. 

688.  Telegrams  as  declarations  of  sender. 

689.  Telegrams  as  evidence  of  communication. 

690.  Rule  applicable  to  documentary  evidence. 

691.  Primary  evidence — in  general. 

692.  Rule  applicable  to  documentary  evidence  only. 

693.  Rule  applicable  to  telegrams. 

694.  Depends  upon  which  document  is  at  issue. 

695.  Same  continued — contents  of  message  delivered  to  addressee. 

696.  Messages  given  orally  for  transmission. 

697.  Actions  to  recover  statutory  penalties  and  damages. 

698.  Secondary  evidence. 

699.  Proof  of  absence  of  the  original. 

700.  Notice   to  produce. 

701.  What  evidence  admissible  as  secondary. 

702.  Late  improvements  in  telegraphy. 

703.  Same  continued — secondary  evidence. 

704.  Testimony  of  witnesses. 

705.  Secondary  evidence  of  unstamped  contracts. 

706.  When  telegram  need  not  be  produced. 

707.  Declaration  of  employes  subsequently  employed. 

708.  Notice  by  telegram. 

709.  Telephone  communication  as  evidence. 

710.  Identity  of  person — when  essential. 

711.  Same — effect  of,  with  unknown  persons — agency. 

712.  Same — what  constitutes  sufficient  proof  of  identity — 'burden  of  proof. 

713.  Testimony  of  bystanders. 

714.  When  operator  or  third  person  converses. 

715.  Oi)erator  as  interpreter. 

716.  Bills  and  notes — presentment  by  telephone. 

717.  Oaths  admissible  by  means  of  telephone. 

718.  Telephonic  communication  as  basis  for  affidavit — discharge  of  jury, 

719.  Serving  subpoena  by  telephone. 

CHAPTER  XXVIII 
TELEGRAPH  MESSAGES  IN  RELATION  TO  THE  STATUTE  OF  FRAUDS 

720.  [Evidence. 


i^v.      niiviueiiv-t;. 

721.  Subject-matter  to  which  statute  applies. 

722.  How  statute  may  be  satisfied. 


TABLE   OF   CONTENTS  XXlll 

Section 

723.  Company — agent  of  sender. 

724.  Message  delivered  to  company — effect  of  under  statute  of  frauds. 

725.  Telegram  delivered  to  addressee — effect  under  statute. 

726.  What  telegram  should  contain. 

727.  Time  of  delivery  with  respect  to  making  of  contracts. 

728.  Written  contracts  adopted. 


CHAPTER  XXIX 
TELEGRAPH   MESSAGES  AS  PRIVILEGED  COMMUNICATIONS 

729.  Introduction. 

730.  Same  continued— in  hands  of  telegraph  companies. 

731.  Postal  law  not  applicable  to  telegraph  messages. 

732.  Same  continued — would  assist  in  illegal  purposes. 

733.  Statutes  forbidding  disclosure  of  telegrams. 

734.  Same  continued— not  protected  by  postal  laws. 

735.  When  may  be  privileged  communications. 

736.  Steps  to  obtain  telegrams— in  general. 

737.  Same  continued— how  further  obtained— court  inspection. 

738.  Rule  for  describing  message  in  writ. 

739.  Same  continued— illustrations— valid  services. 

740.  Same  continued — when  invalid. 


CHAPTER  XXX 

CONTRACTS    BY    TELEGRAM 

741.  In  general. 

742.  Alteration  of  telegram  does  not  affect  rule. 

743.  Same  continued — private  institution — does  not  effect. 

744.  What  must  contain. 

745.  When  offer  is  complete. 

746.  Order  made  by  telegram. 

747.  Communication  both  by  post  and  telegraph. 

748.  When  contracts  take  effect. 

749.  Offer  and  acceptance — must  be  definite  and  unconditional. 

750.  Offer  requiring  actual  receipt  of  acceptance. 

751.  Same  continued — how  request  implied. 

752.  Acceptance  must  be  made  within  time. 

753.  Revocation  of  offer. 

754.  Designation  of  parties. 

755.  Indorsement  and  acceptance  by  telegram— forged  acceptance. 

756.  Contract — what  law  governs. 

757.  Telegraph  company  ordinarily  the  agent  of  sender. 

758.  Sender  bound  on  message  as  received. 

759.  Within  the  meaning  of  the  statute  of  frauds. 

760.  Exception  to  the  rule. 

761.  English    rule. 

702.    Telegraph  company  an  independent  contractor. 


XXIV  TABLE   OP  CONTENTS 

Section 

TG.'j.  Same  continued — may  be  sued. 

764.  Same — where  message  a  mere  step  to  negotiation. 

765.  Same — where  message  is  a  definite  offer. 
7GG.  Same — acceptance  of  an  offer. 


CHAPTER  XXXI 

DISTRICT  TELEGRAPH    CO^IPANIES   AND    SUCH   AS   FURNISH 

"TICKERS" 

767.  Introduction. 

768.  Same  continued — duties  and  liabilities  of. 

769.  Company  furnishing  "ticlvcrs." 

770.  Same  continued — duties  and  liabilities. 

771.  Cannot  discriminate. 

772.  Unreasonable  stipulations — unenforceable. 

773.  Protection  against  unfair  competition. 


TABLE  OF  CASES  CITED 
(Page  959.) 

INDEX 
(Page  1001.) 

t 


THE  LAW  OF  TELEGRAPH  AND 
TELEPHONE  COMPANIES 

SECOND  EDITION 


CHAPTER  I 
GENEEAL  NATURE   OF  TELEGRAPH  AND   TELEPHONE  COMPANIES 

§  1.  Definition  of  telegraph. 

2.  Wireless  telegraph  defined. 

3.  Submarine  telegraph  or  cable  defined. 

4.  Telegraphy. 

5.  Telegram. 

6.  Telegraph  stations. 

7.  Telephone  defined. 

8.  Telephone  exchange. 

9.  Line. 

10.  Wireless  telephony. 

11.  Distinction  between  telegraph   and  telephone  companies — similarities. 

12.  Same  continued— dissimilarities. 

13.  Same  continued — liabilities  of  one  greater  than  the  other. 
13a.  Telegraph  in  statutes — embrace  telephone. 

14.  Same  continued — reason. 

15.  Same  continued — reasons  as  compared  to  improvements  on  other  cor- 

porations. 

16.  Same  continued — under  statutes. 

17.  Same  continued — construction  of  statutes. 

18.  Same  continued — illustrated. 

19.  Same  continued. 

20.  Same  continued. 

21.  Same  continued — when  applied. 

22.  When  different  rule  obtains — intent  of  lawmakers. 

§  1.  Definition  of  telegraph. — There  have  been  many  definitions 
given  for  the  word,  "telegraph,"  and  the  reader  must  consult  his 
own  judgment  as  to  the  correctness  of  each.  Some  of  the  writers 
define  it  as,  "an  instrument  or  apparatus,  which  by  means  of  iron 
wires,  conducting  the  electric  fluid,  conveys  intelligence  to  any 
given  distance  with  the  velocity  of  lightning,"  ^  or,  "a  machine  for 
communicating  intelligence  from  a  distance  by  various  signals  or 

1  Webster's  Int.  Die. 

Jones  Tel.(2d  Ed.) — 1 


2  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  1 

movements  previously  agreed  on,  which  signals  represent  letters, 
words,  and  ideas,  which  can  be  transmitted  from  one  station  to  an- 
other as  far  as  the  signals  can  be  seen,"  ^  or,  "public  vehicles  of  in- 
telligence." ^  These,  and  other  definitions,*  seem  to  contain  too 
much  irrelevant  matter.  For  instance,  it  is  not  necessary  to  enu- 
merate the  different  parts  which  make  up  and  constitute  the  ma- 
chines and  apparatus  by  means  of  which  messages  are  sent;  be- 
cause there  are  so  many  improvements  being  made  daily  on  these 
machines  that,  in  the  course  of  time  so  many  additional  improve- 
ments may  be  made  as  not  to  permit  them  to  fall  within  the  defini- 
tion now  given.  A  definition  of  anything  should  be  sufficiently  com- 
prehensive to  cover  the  subject  for  all  times  to  come.  We  think 
that  the  following  will  meet  all  of  these  requirements ;  not  only 
will  it  comprehend  and  cover  every  part  of  the  different  machines 
which  does  or  shall  constitute  the  entire  apparatus,  but  it  will  be 
full  enough  to  take  in  all  the  different  means  by  which  intelligence 
is  communicated : 

It  is  an  apparatus  or  process  by  means  of  which  intelligence  is 
transmitted,  either  by  signals  or  sounds  to  points  beyond  the  limit 
of  ordinary  audibility.  There  are  different  machines  which,  put  to- 
gether, constitute  this  apparatus  or  means  through  which  communi- 
cations are  made.  For  instance  there  is  a  battery,  or  other  sources 
of  electric  power ;  a  line  wire  or  conductor  for  conveying  the  elec- 
tric current  from  one  station  to  another;  the  apparatus  for  trans- 
mitting, interrupting,  and  if  necessary,  reversing  the  electric  cur- 

2  Webster's  Int.  Die. 

3  Fire  Insurance  Association  of  England  v.  Merchants'  &  Miners'  Trans. 
Co.,  66  Md.  339,  7  Atl.  905,  59  Am.  Rep.  162.  "The  word  'telegraph'  is  now 
generally  understood  as  referring  to  the  entire  system  of  appliances  used  in 
the  transmission  of  telegraphic  messages  by  electricity,  consisting  of:  (1)  a 
battery  or  other  source  of  electric  power;  (2)  a  line  wire  or  conductor  for 
conveying  the  electric  current  from  one  to  another;  (3)  the  apparatus  for 
transmitting,  interrupting,  and,  if  necessary,  reversing,  the  electric  current  at 
pleasure ;  and  (4)  the  indicator,  or  signaling  instrument."  See  Imperial  Die. ; 
Hockett  V.  State,  105  Ind.  2.50,  5  N.  E.  178,  55  Am.  Rep.  210;  Chesapeake, 
etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  59  Am.  Rep.  167,  7  Atl. 
S09.  See,  also,  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  248.  Telegraph  line 
or  system,  as  used  in  ordinary  statutes,  will  not  embrace  a  distinct  telegraph 
system.  See  Toledo  v.  West.  U.  Tel.  Co.,  107  Fed.  10,  46  C.  C.  A.  Ill,  52  L. 
R.  A.  730. 

4  Central  Union  Tel.  Co.  v.  Falley,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St. 
Rep.  114 ;  volume  6,  Century  Diet.  p.  6213 ;  Standard  Diet.  p.  1850 ;  Webster's 
Unabridged  Diet.  p.  1359 ;  23  Ency.  Brittan.  (9th  Ed.) ;  Davis  v.  Pac.  Tel.  & 
Tel.  Co.,  127  Cal.  312,  57  Pac.  764,  59  Pac.  698 ;  Chesapeake,  etc.,  Tel.,  Co.  v. 
Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  7  Atl.  S09,  59  Am.  Rep.  167 ;  Tel.  Co,  v. 
Hill,  163  Ala.  18,  50  South.  24S,  23  L.  R.  A.  648,  19  Ann.  Cas.  1058. 


§    2)  GENERAL  NATURE  3 

rent  at  pleasure;  and  the  indicator,  or  signal  instrument.^  There 
are  different  means  by  which  intelligence  is  transmitted ;  as  by 
telephone;  by  the  telegraph,  which  may  be  either  by  a  line  wire  or 
without  any  wire  at  all  "^ — or  wireless  telegraph ;  and  by  means  of 
the  speaking  tube.  The  several  apparatus  may  be  quite  dift'erent  in 
their  construction  but  by  means  of  each  the  same  object  is  accom- 
plished. They  all  convey  intelligence  either  by  signals,  by  letters 
or  by  sounds,  or  by  the  voice  transmitted  beyond  the  limit  of  ordi- 
nary natural  sight  or  audibility ;  the  last  part  of  this  definition  may 
have  the  tendency  to  exclude  therefrom  the  speaking  tube.  While 
the  last-named  device  is,  strictly  speaking,  a  telephone  under  its 
generic  term,  yet  it  will  hardly  be  so  considered  in  a  special  way 
and  will  not  be  thus  understood  under  the  present  discussion ;  since 
in  the  recent  improvements  in  telephonic  instruments,  the  telephone 
is  technically  and  primarily  restricted  to  an  instrument  or  device 
which  transmits  sound  by  means  of  electricity  and  by  wires  similar 
to  telegraphic  wires.'' 

§  2.  Wireless  telegraph  defined. — Progress  in  the  branch  of  elec- 
tric telegraphy  usually  called  "wireless"  has  been  so  very  rapid  that 
many  of  the  technical  terms  used  have  not  yet  had  definite  mean- 
ings attached  to  them.  To  begin  with,  the  term  "wireless"  itself  is 
used  vaguely  to  cover  many  systems  of  totally  different  kinds  which 
have  in  common  only  the  fact  that  no  insulated  conductor  joins  the 
sending  and  receiving  stations.  The  use  of  the  word  is  no  doubt 
correct,  but  it  leaves  undefined  the  type  of  apparatus  and  method  of 
transmission.  Generally  speaking,  the  definition  of  a  telegraph 
given  in  the  last  section  will  embrace  a  wireless  telegraph ;    but, 

5  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  210. 

6  "The  result  of  the  definition  seems  to  be  that  any  apparatus  for  transmit- 
ting messages  by  electric  signals  is  a  telegraph,  whether  a  wire  is  used  or 
not,  and  that  any  apparatus  of  which  a  wire  used  for  telegraphic  communi- 
cation is  an  essential  part  is  a  telegraph,  whether  the  communication  is 
made  by  electricity  or  not.  It  would  include  on  the  one  hand  electric  sig- 
nals made,  if  such  a  thing  were  possible,  from  place  to  place  through  the 
earth  or  air,  and,  on  the  other,  a  set  of  common  bells  worked  by  wires  pulled 
by  the  hand  if  they  were  so  arranged  as  to  constitute  a  code  of  signals." 
Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  244,  50  L.  J.  Q.  B.  145,  43  L.  T. 
Rep.  (N.  S.)  697,  29  Wkly.  Rep.  428. 

7  See  Davis  v.  Pac.  Tel.,  etc.,  Co.,  127  Cal.  312,  57  Pac.-764,  59  Pac.  698; 
Chesapeake,  etc.,  Tel.  Co.,  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  7  Atl. 
809,  59  Am.  Rep.  167;  McLeod  v.  Pac.  Tel.  Co.,  52  Or.  22,  94  Pac.  56S,  95 
Pac.  1009,  15  L.  R.  A.  (N.  S.)  810,  18  L,  R.  A.  (N.  S.)  954,  10  Ann.  Cas.  1239 ; 
Com.  V.  Pennsylvania  Tel.  Co.,  18  Phila.  (Pa.)  588 ;  Hockett  v.  State,  105  Ind. 
250,  5  N.  E.  178,  55  Am.  Rep.  210 ;  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D. 
244,  50  L.  J.  Q.  B.  145,  43  L.  T.  Rep.  (N.  S.)  697,  29  Wkly.  Rep.  428. 


4  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  3 

considering  the  subject  more  specifically,  it  means  the  transmission  of 
signals  through  space  by  means  of  electro-magnetic  zvaves.^  Much 
has  been  written  about  the  scientific  methods  or  means  through 
which  such  communications  are  carried  on,  which  is  of  little  im- 
portance so  far  as  the  law  applicable  thereto  is  concerned,  but  there 
has  been  little,  if  any,  reported  judicial  decisions  on  the  subject. 
Therefore  that  which  may  be  hereinafter  said  regarding  such  means 
of  communications  shall  be  based  upon  almost  an  entirely  new  field 
of  legal  jurisprudence. 

§  3.  Submarine  telegraph  or  cable  defined. — A  submarine  tele- 
graph or  cable  is  a  telegraph  line  or  wire  inclosed  in  an  insulating 
or  protecting  material  impervious  to  water,  and  laid  under  any 
body  of  water  for  the  purpose  of  connecting  stations  separated 
thereby  and  of  establishing  telegraphic  connections  between  them.** 

§  4.  Telegraphy. — Telegraphy  has  been  defined  as  the  transac- 
tion of  business  over  or  through  wires. ^^  Clearly  it  seems  that  this 
term  would  embrace  such  business  as  may  be  carried  on  by  the 
wireless  system. 

§  5.  Telegram. — A  telegram  is  any  writing,  communication,  in- 
telligence, or  message  transmitted  or  intended  to  be  transmitted  by 
telegraph, ^^  or  by  telephone, ^^  or  by  wireless  telegraph.  Telegram, 
telegraphic  dispatch  or  communication  are  synonymous  terms,^^ 
and,  when  either  is  used  in  statutes,  the  others  are  usually  included. 

§  6.  Telegraph  stations. — "Telegraph  stations"  are  the  ordinary 
offices  for  the  business  of  telegraphy  along  the  lines  of  telegraph.^* 

§  7.  Telephone  defined. — In  a  general  sense  the  definition  of 
"telephone"  is  embraced  in  that  given  for  "telegraph";  '^•'  but  since 
the  recent  discoveries  in  telephony  the  name  is  technically  and 

8  "The  transmission  of  signals  between  points  not  connected  by  electrical 
conductors ;  specifically,  the  transmission  of  signals  through  space  by  means 
of  electric  waves."  Century  Diet.  For  the  different  systems  described,  see 
Nat.  Elect.  Signaling  Co.  v.  De  Forest  (C.  C.)  140  Fed.  449 ;  Marconi  Wireless 
Tel.  Co.  V.  De  Forest  Wireless  Tel.  Co.  (C.  C.)  138  Fed.  675. 

9  Webster's  Unab.  Diet.  p.  1359 ;  1  Century  Diet.  p.  748 ;  Standard  Diet.  p. 
261. 

10  York  Tel.  Co.  v.  Keesey,  5  Pa.  Dist.  366. 

11  Volume  6,  Century  Diet.  p.  6213;  Standard  Diet.  p.  1850;  Web.  Unab.  p. 
1359;  Anderson  L.  Diet.;  Black  L.  Diet;  Tel.  Co.  v.  Hill,  163  Ala.  18,  50 
South.  248,  23  L..  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058. 

12  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  244,  50  L.  J.  Q.  B.  145,  43  L.  T. 
Rep.  (N.  S.)  697,  29  Wkly.  Rep.  428,  construing  the  English  Telegraph  Act  of 
1869,  32  &  33  Vict.  c.  73. 

13  Volume  6,  Century  Diet.  p.  6213;    Standard  Diet.  p.  1850. 

1*  West.  Union  Tel.  Co.  v.  Marietta,  etc.,  R.  Co.,  38  Ohio  St.  24, 
15  See  §  1. 


§  10) 


GENERAL   NATURE 


primarily  restricted  to  an  instrument  or  device  which  transmits  or 
reproduces  sound  by  means  of  electricity  and  wires  similar  to  tele- 
graphic wires. ^^  Its  exact  meaning  may  vary  according  to  the 
sense  in  which  it  is  used/^  that  is  it  may  refer  generally  to  the  art 
of  telephony  as  an  institution/^  or  more  particularly  to  the  appara- 
tus used  in  communicating  the  messages/^  and  in  the  latter  case 
refer  either  to  a  particular  instrument,-*^  or  to  the  entire  system  of 
appliances  used  in  the  transmission  of  telephonic  messages. ^^ 

§  8.  Telephone  exchange. — A  telephone  exchange  is  some  cen- 
tral office  to  which  wires  of  a  certain  area  converge,  and  there  con- 
nected to  switchboards,  thereby  enabling  the  operators  to  connect 
individual  hirers  of  telephones  within  that  area  with  others  so  that 
they  may  converse  with  each  other.^-  Under  some  late  devices  the 
connection  of  wires  in  that  area  is  done  by  some  automatic  arrange- 
ment operated  by  the  hirer  himself  at  his  receiver,  but,  nevertheless, 
there  must  be  an  exchange  office  for  the  connection  or  switching  of 
the  wires. 

§  9.  Line. — The  term  "line"  has  been  defined  as  a  wire  connect- 
ing one  telegraphic  station  with  another,  or  the  whole  system  of 
telegraph  wires  under  one  management  and  name.^^  As  applied 
to  telegraph  and  telephone  lines,  the  term  has,  however,  both  a 
popular  and  a  technical  meaning,  and  in  a  statute  will  be  construed 
according  to  what  appears  to  have  been  the  intention  of  the  legisla- 
ture.-'* 

§  10.  Wireless  telephony. — The  term  "Wireless  telephony" 
means  the  transmission  of  human  speech  to  great  distances  without 

16  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201 ;  Doty  v. 
American  Tel.,  etc.,  Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann.  Cas.  1912C,  167. 

17  Charles  Simons'  Sons  Co.  v.  Maryland  Tel.,  etc.,  Co.,  99  Md.  141,  57  Atl. 
193,  63  L.  R.  A.  727. 

18  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201. 
i»  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201. 

20  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  .Rep.  201 ;  Tel.,  etc., 
Co.  V.  Amarillo  (Tex.  Civ.  App.)  142  S.  W.  638. 

21  Central  Union  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  721;  Hockett 
V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201. 

22  West.  Union  Tel.  Co.  v.  American  Bell  Tel.  Co.  (C.  C.)  105  Fed.  684. 

2  3  Southern  Bell  Tel.,  etc.,  Co.  v.  D'Alemberte,  39  Fla.  25,  21  South.  570, 
quotini:;  Webster  Intern.  Diet. 

24  Southern  Bell  Tel.,  etc.,  Co.  v.  D'Alemberte,  39  Fla.  25,  21  South.  570, 
holding  that  in  determining  the  length  of  a  telephone  "line"  for  the  purpose 
of  ascertaining  the  amount  of  a  license  tax,  the  "line"  should  be  construed 
as  made  up  of  the  different  wires  leading  to  the  instruments  of  the  different 
individual  subscribers,  and  not  in  the  sense  of  a  line  of  poles  and  the  wires 
suspended  thereon,  without  regard  to  the  number  of  such  wires. 


6  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  11 

the  use  of  a  connecting  wire  between  the  sending  and  receiving 
stations.  In  the  simplest  case  the  air  serves  as  carrier  of  the  sound 
waves,  while  the  voice  of  the  speaker  is  the  transmitter,  and  the  ear 
of  the  hearer  the  receiver.  This  is  the  more  specific  meaning  of 
the  term,  but,  generally,  the  definition  given  for  telegraph  will  em- 
brace the  wireless  telephone. ^^ 

§  11.  Distinction  between  telegraph  and  telephone  companies — 
similarities. — In  preparing  a  work  in  which  two  different  subjects 
are  to  be  treated  as  nearly  as  possible  as  being  one  and  the  same, 
it  may  be  proper  at  the  outset  to  draw  and  set  forth  the  distin- 
guishing features  between  the  two  in  order  to  determine  the  appli- 
cation of  the  law  to  each.  Therefore  in  applying  the  rule  generally 
it  will  be  our  purpose  to  apply  it  specifically  by  attempting  to  briefly 
state  the  similarities  and  dissimilarities  between  telephone  and  tele- 
graph companies  as  they  are  being  discussed  under  one  title.  In 
almost  every  respect  these  companies  are  very  similar,  if  not  identi- 
cal, with  respect  to  their  construction.^^  Each  of  them  must  erect 
its  posts  or  poles  and  upon  the  tops  of  these  attach  its  lines  of  wires 
from  point  to  point,  when  it  is  not  otherwise  provided  that  they  are 
to  be  placed  under  the  surface.  Each  must  have  offices  or  connect- 
ing exchanges  with  operators  or  employes  thereat.  Each  must 
almost  necessarily  enter  upon,  along,  or  across  public  roads,  high- 
ways, streams,  bodies  of  water  and  upon  lands  of  individuals  for 
the  purposes  mentioned."^  In  this  respect  they  are  identical,  and 
the  same  law — common  and  statutory — applies  to  both. 

§  12.  Same  continued — dissimilarities. — While  the  object  of 
these  two  companies  is  to  accomplish  the  same  purpose — the  trans- 
mission of  intelligence  from  place  to  place  by  means  of  electricity  -^ 
— the  manner  in  which  this  object  is  accomplished  is  not  the  same, 
and  this  is  wherein  they  are  materially  different,^^  and  this,  too,  to 

25  §    1. 

26  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn.  334,  79 
N.  W.  315 ;  Wisconsin  Tel.  Co.  v.  Oshkosh,  62  Wis.  32,  21  N.  W.  S2S ;  State 
V.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460,  11  L.  R.  A. 
664. 

27  Wisconsin  Tel.  Co.  v.  Oshkosh,  62  Wis.  32,  21  N.  W.  828. 

2  8  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn,  334,  79 
N.  W.  315 ;  State  v.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl. 
460,  11  L.  R.  A.  664 ;  Wisconsin  Tel.  Co.  v.  Oshkosh,  62  Wis.  32,  21  N.  W. 
828 ;  Com.  v.  Pennsylvania  Tel.  Co.,  18  Phila.  (Fa.)  588. 

2  9  Central  Union  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  B.  604,  10  Am.  St. 
Rep.  114;  Home  Tel.  Co.  v.  Nashville,  118  Tenn.  1,  101  S.  W.  770,  11  Ami. 
Cas.  824 ;  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn.  334, 
79  N.  W.  315. 


§13)  GENERAL   NATURE  7 

a  certain  extent  with  respect  to  the  application  of  the  law  to  the 
two.  In  order  to  be  able  to  transmit  news  intelligently  over  tele- 
graph lines,  there  must  be  some  one  skilled  in  telegraphy  to  operate 
the  telegraphic  instruments  and  machines.^"  It  requires  much  time 
and  experience  for  a  person  to  become  familiar  with  the  science  and 
art  of  telegraphy  so  as  to  be  able  to  control  successfully  and 
promptly,  the  amount  of  news  necessarily  and  naturally  carried  on 
by  these  companies;  while,  on  the  other  hand,  any  one  without 
experience  can  converse  with  easy  understanding  over  a  telephone 
line  where  the  connections  are  properly  made.^^  There  may  be 
instances  where  the  telephone  could  not  take  the  place  of  the  tele- 
graph, but  as  a  general  thing  they  will  be  more  convenient  and  of 
less  expense  than  the  latter.  Almost  all  the  commercial  business, 
especially  in  large  cities,  is  carried  on  over  telephone  lines.  Men  of 
all  professions  and  vocations  of  life  may  and  do  have  their  offices 
and  business  houses  supplied  with  telephone  facilities.  When  they 
have  good  connections  at  the  exchanges  it  is  no  trouble  to  transact 
any  kind  of  business  over  the  telephone  lines  ;  but  to  have  the  same 
connections  with  telegraph  lines  would  necessitate  all  the  patrons 
having  skilled  telegraph  operators  both  to  receive  and  transmit 
their  business  messages. 

§  13.  Same  continued — liabilities  of  one  greater  than  the  other. 
It  is  further  true  that  on  account  of  the  different  methods  by 
which  the  communication  of  intelligence  is  made,  liabilities  for  the 
negligent  transmission  of  a  message  is  not  so  liable  to  arise  in  one 
as  in  the  other.  Messages  sent  by  a  telegraph  company  are  com- 
municated, not  directly  by  the  parties  themselves,  but  by  third  par- 
ties ;  or,  more  strictly  and  correctly  speaking,  by  operators  who  are 
presumed  to  be  skilled  in  their  business  as  employes  of  the  com- 
pany. On  the  other  hand,  all  that  is  required  of  the  operators  or 
employes  of  a  telephone  company,  is  to  give  proper  connection  and 
similar  accommodations  to  all  who  apply  to  them.  Then,  with  re- 
spect to  the  accuracy  of  the  message,  the  parties  themselves  can 
hold  none  save  themselves  liable.  They  come  in  direct  contact  and 
can  converse  with  each  other  with  the  same  distinct  and  clear  un- 
derstanding as  if  they  were  not  only  together  in  voice  but  in  per- 

3  0  Central  Union  Tel.  Co.  v.  State,  118  Ind.  1U4,  19  N.  B.  604,  10  Am.  St. 
Rep.  114 ;  Northwestern  Tel.  Excb.  Co.  v.  Chicago,  etc.,  R.  Co.,  70  Minn.  334, 
79  N.  W.  315. 

31  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co.,  76  ilinn.  334,  79 
N.  W.  315 ;  Central  Union  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  E.  004,  10  Am. 
St.  Rep.  114;  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  244,  50  U  J.  Q.  B. 
145,  43  L.  T.  Rep.  (N.  S.)  097,  29  Wkly.  Rep.  428. 


8  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  13a 

son ;  and  errors  out  of  which  actions  might  otherwise  arise,  should 
it  have  been  made  in  a  telegram,  may  be  easily  corrected  by  the 
parties  themselves.  To  this  extent  telephone  companies  are  not 
subjected  to  the  same  liabilities  with  which  telegraph  companies 
are  most  often  confronted.  It  is  true  that  the  telephone  companies 
stand  in  the  same  relation  to  those  who  are  carrying  on  communica- 
tions over  their  lines  as  that  of  telegraph  companies,  and  the  same 
law  is  applicable  to  both,  but  the  distinction  desired  to  be  drawn 
and  the  apparent  difference  and  misunderstanding  of  the  law  appli- 
cable thereto  arises  from  the  two  methods  by  which  the  communi- 
cations are  made.  While  in  one  the  liability  of  the  company  which 
would  be  caused  by  the  negligence  of  the  employe  in  the  transmis- 
sion of  the  message  might  be  avoided  by  the  other  on  the  ground 
that  the  negligence  was  not  that  of  the  company  but  the  patrons 
themselves. 

§  13a.  Telegraph  in  statutes — embrace  telephone. — The  science 
of  telegraphy  was  very  generally  used  long  prior  to  the  invention 
of  the  telephone.  Statutes  had  been  enacted  in  which  certain  rights 
and  privileges  had  been  granted  and  duties  and  obligations  imposed 
on  these  companies  without  any  reference  to  any  other  mode  of 
communication  of  intelligence  by  means  of  electricity,  save  that  by 
telegraph.  To  be  sure,  it  would  have  been  impossible  to  have  made 
references  to  something  which  was  not  in  existence.  This  being 
the  case,  the  question  v/hich  puzzled  the  courts  at  the  time  when 
telephones  first  began  to  be  used  to  any  extent  was.  How  such  stat- 
utes should  be  construed?  Could  such  statutes  which  mentioned 
only  the  name  "telegraph"  embrace  and  have  reference  to  "tele- 
phones"? By  determining  this  question,  by  reason  of  which  the 
proper  construction  may  have  been  placed  on  these  statutes,  the 
definition  of  telephone  would  and  should  have  taken  a  conspicuous 
part.  Under  our  definition,  it  would  most  assuredly  have  been  com- 
prehended and  embraced  under  the  name  of  telegraph ;  which,  as 
Mr.  Anderson  very  wisely  says,  includes  any  apparatus  for  trans- 
mitting messages  or  other  communications  by  means  of  electrical 
signals,^^  although  such  companies  are  not  specifically  mentioned 
therein,^^  or  known  at  the  time  the  act  was  passed.^* 

3  2  Anderson's  Law  Dictionary. 

3  3  Roberts  v.  Wisconsin  Tel.   Co.,  77  Wis.  589,  46  N.  W.  800,  20  Am.   St. 

3  4  New  Orleans,  etc.,  R.  Co.  v.  Southern,  etc.,  Tel.  Co.,  53  Ala.  211;  St. 
Louis  V.  Bell  Tel.  Co.,  96  Mo.  623,  10  S.  W.  197,  9  Am.  St.  Rep.  370,  2  L.  R. 
A.  27Sn ;  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  244,  20  Moak,  602.  Com- 
pare Riclimond  v.  Southern  Bell  Tel.,  etc.,  Co.,  174  U.  S.  761,  19  Sup.  Ct.  778, 
43  L.  Ed.  1162. 


§    14)  GENERAL   NATURE  9 

§  14.  Same  continued — reason. — It  has  been  held  by  most  of  the 
courts,  if  not  all,  that  where  a  statute  imposes  certain  rights,  duties, 
and  obligations  on  telegraph  companies — expressly  mentioning 
these  companies  without  reference  to  any  other  mode  of  communi- 
cation— the  same  embraces  telephone  companies  as  well,^^  unless 
there  are  other  special  controlling  conditions  which  would  produce 
a  different  result.^*'  It  is  true  that  the  methods  by  which  the  intelli- 
gence is  transmitted  by  the  telegraph  and  telephone  companies  are 
somewhat  different,  yet  there  is  quite  a  similarity  between  the  two. 
For  instance  it  is  necessary  for  them  both  to  have  wires  over  which 
the  transmission  is  to  be  made,  and  which  are  similarly  supported; 
they  both  use  batteries  for  the  production  of  electric  currents  neces- 
sary for  conveying  the  signals  and  sounds;  and  they  both  exercise 
the  right  of  eminent  domain  for  the  purpose  of  constructing  their 
line  of  wires,  along  which  the  similarities  of  the  two  are  identical, 
and  if  it  were  not  for  the  fact  that  we  could  examine  the  terminals 
of  the  two  lines,  we  could  not  distinguish  one  from  the  other.  They 
are  performing  the  same  duties  toward  the  public ;  and,  while  the 
one  was  not  mentioned  nor  even  contemplated  at  the  time  these 
statutes  were  enacted,  yet  this  is  no  reason  why  the  lawmakers  did 
not  then  intend  to  incorporate  and  comprehend  therein  all  the  im- 
proved methods  which  might  thereafter  be  made  for  transmitting 

Rep.  144 ;  Wis.  Tel.  Co.  v.  City  of  Oshkosli,  62  Wis.  32,  21  N.  VV.  828 ;  Cum- 
berland Tel.,  etc.,  Co.,  v.  United  Electric  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A. 
544 :  Davis  v.  Pacific  Tel.,  etc.,  Co.,  127  Cal,  312,  57  Tac.  764,  59  Tac.  6US ; 
Clie.sapeake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  7  Atl.  809. 
59  Am.  Rep.  167 ;  St.  Louis  v.  Bell  Tel.  Co.,  96  Mo.  623,  10  S.  W.  197,  9  Am. 
St.  Rep.  370,  2  L.  R.  A.  27Sn ;  Roake  v.  American  Tel.,  etc.,  Co.,  41  N.  J.  Eq. 
35,  2  Atl.  619;  Duke  v.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21 
Atl.  460,  11  L.  R.  A.  664;  New  York,  etc.,  Tel.  Co.  v.  Bound  Brook,  66  N.  J. 
Law,  16S,  48  Atl.  1022;  Bell  Tel.  Co.  v.  Com.  (Pa.)  3  Atl.  825;  Taggart  v. 
Interstate  Tel.  Co.,  10  Montg.  Co.  Law  Repr.  (Pa.)  155. 

3  5  Davis  V.  Pacific  Tel.,  etc.,  Co.,  127  Cal.  312,  57  Pac.  764,  59  Pac.  698; 
Cincinnati  Inclined  Plane  R.  Co.  v.  Telegraph  Ass'n,  48  Ohio  St.  390,  27  N. 
E.  890,  29  Am.  St.  Rep.  559,  12  L.  R.  A.  5.34;  San  Antonio,  etc.,  R.  Co.  v. 
Southwestern  Tel.,  etc.,  Co.,  93  Tex.  313,  55  S.  W.  117,  77  Am.  St.  Rep.  884, 
49  L.  R.  A.  459 ;  Texarkaua  v.  Southwestern  Tel.,  etc.,  Co.,  48  Tex.  Civ. 
App.  16,  100  S.  W.  915 ;  Wray  v.  ]Mott,  S3  N.  J.  Law,  110,  83  Atl.  866 ;  South- 
western Tel.,  etc.,  Co.  v.  Gulf,  etc.,  R.  Co.  (Tex.  Civ.  App.)  52  S.  W.  106; 
Gulf,  etc.,  R.  Co.  V.  Southwestern  Tel.,  etc.,  Co.,  18  Tex.  Civ.  App.  500,  45  S. 
W.  151 ;  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  244,  50  L.  J.  Q.  B.  145,  43 
L.  T.  Rep.  (N.  S.)  697,  29  Wkly.  Rep.  428 ;  Wisconsin  Tel.  Co.  v.  Oshkosh,  62 
Wis.  32,  21  N.  W.  828. 

3  6  Northwestern  Tel.  Exch,  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn.  334,  79 
N.  W.  315. 


10  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§15 

messages  over  telegraph  lines.^'^  The  telephone  is  but  a  novel 
method  to  accomplish  the  object  for  which  the  telegraph  was  used. 
It  is  the  introduction  of  a  new  device,  recently  discovered,  by  means 
of  which  an  improvement  has  been  made  in  the  transmission  of 
sound — an  improvement  in  the  apparatus  so  as  to  change  the  trans- 
mission of  the  signals  or  sounds  to  that  of  the  voice,  by  causing 
electrical  undulations  similar  in  form  to  the  vibration  of  air  accom- 
panying the  vocal  sounds.  It  is  not  presumed  that  it  was  the  pur- 
pose of  the  body  of  lawmakers  to  enact  laws  which  should  apply 
altogether  to  the  operation  of  any  business  institution  as  it  was  car- 
ried on  at  the  time  of  the  adoption  of  the  act.  If  any  presumption 
is  to  be  indulged  in,  it  is  that  general  legislative  enactments  are 
mindful  of  the  growth  and  increasing  needs  of  society,  and  they 
should  be  so  construed  as  to  encourage  rather  than  to  embarrass 
the  inventive  and  progressive  tendency  of  the  people.^^  We  live  in 
a  land  of  progress  and  advancement  and  as  the  world  grows  older 
the  wiser  man  becomes.  Inventions  and  improvements  of  a  few 
years  back  and  which  at  the  time  seemed  to  be  complete  in  con- 
struction in  every  respect  have  become  innovated  and  developed 
beyond  the  greatest  expectation  of  the  inventor.  This  is  not  a  new 
fact,  not  a  new  idea;  for  such  has  been  the  case  since  the  dawn  of 
creation  and  will  continue  until  man  shall  have  discovered  and 
mastered  the  hidden  and  unseen  mysteries  of  the  universe,  and 
when  there  will  be  nothing  left  to  which  he  may  devote  his  mind 
for  the  upbuilding  of  his  fellowman. 

§  15.  Same  continued — reasons  as  compared  to  improvements 
on  other  corporations. — The  improvements,  indeed  the  revolution, 
in  the  method  of  transacting  the  business  of  each  of  the  great  cor- 
porations, have  never  given  rise  to  a  suspicion  that  these  additional 
methods  for  accomplishing  the  same  purpose  were  inconsistent 
with  the  original  powers  granted  to  them  in  their  constituting  in- 
struments. Railroad  corporations  which  were  created  even  before 
the  invention  of  the  telegraph  have  since  constructed  these  lines 
along  their  rights  of  way  for  purposes  of  convenience  in  carrying  out 
the  business  enterprises  for  which  they  were  created ;  and  it  is  a 
settled  fact  that  they  are  not  an  additional  servitude  to  the  roadway 
and  one  different  from  that  for  which  it  was  acquired  and  for  which 
further  consideration  would  be  necessary.     Street  car  corporations 

37  "In  these  days  there  ought  to  be  no  one  to  question  the  statement  that 
a  telephone  is  simply  an  improved  telegraph."  Northwestern  Tel.  Exch.  Co. 
V.  Chicago,  etc.,  R.  Co.,  76  Minn.  'SM,  79  N.  W.  315. 

3  8  Hudson  River  Tel.  Co.  v.  Railway  Co.,  135  N.  Y.  393,  32  N.  E.  148,  31 
Am.  St.  Rep.  838,  17  L.  R.  A.  679. 


§    16)  GENERAL   NATURE  11 

which  were  created  at  a  time  when  the  method  of  propelling-  their 
vehicles  was  by  the  means  of  the  horse  power  have,  since  the  dis- 
covery and  development  of  the  electric  or  motor  system,  adopted  this 
ingenious  means  for  the  purpose  of  running  their  cars,  without  any 
change  of  the  old  charter.^''  The  purpose  for  which  these  corpora- 
tions were  originally  created  was  for  the  convenience  of  public 
travel  along  and  upon  the  streets  and  highways.  By  the  adoption 
of  this  new  improved  method  of  motor  power,  their  purposes  have 
been  changed  only  for  the  betterment  of  their  enterprises  and  for 
convenience  to  the  public.  The  same  rule  should  and  does  apply  to 
the  improvements  of  the  telegraph  with  respect  to  the  newly-dis- 
covered method  of  transmitting  intelligence  by  means  of  the  tele- 
phone. 

§  16.  Same  continued — under  statutes. — Mr.  Freeman  has  made 
a  very  thorough  discussion  of  this  subject  on  the  law  of  the  tele- 
phone and  it  will  be  our  pleasure  to  here  quote  what  he  says  in 
regard  to  this  particular  subject:  "In  considering  such  questions  as 
have  been  presented  to  them  the  courts  have  almost  uniformly  re- 
garded the  telephone  and  the  public  and  private  rights  and  duties 
growing  out  of  it  as  similar  in  character  and  extent  to  the  telegraph, 
and  the  public  and  private  rights  growing  out  of  the  invention  and 
general  use.  Thus,  in  England  the  term  'telegram'  has  been  ad- 
judged to  include  a  conversation  by  means  of  telephone,  and  the 
telephone  business  to  be  within  the  statute  giving  to  the  postmaster 
general  the  exclusive  control  of  the  transmission  of  messages  by  tele- 
graph.*°  In  Iowa  telephone  companies  are  classed  with  telegraph 
companies,  for  the  purpose  of  determining  the  jurisdiction  of  the 
justice  of  the  peace  over  them,*^  and  deciding  where  and  how  they 
and  their  property  shall  be  assessed.*^  So,  in  discussing  whether 
telephone  corporations  were  entitled  to  use  the  public  streets,  or  to 
exercise  the  right  of  eminent  domain,  and  whether  they  were  sub- 
ject to  legislative  control  for  the  purpose  of  preventing  unreason- 
able discriminations  and  the  imposition  of  exorbitant  charges,  the 
courts  have  generally  proceeded  upon  the  assumption  that  the 
rights,  duties,  and  obligations  of  such  corporations  are  analogous 
to  those  formed  for  the  purpose  of  carrying  on  the  business  of  trans- 

3  9  Hudson  River  Tel.  Co.  v.  Railway,  135  N.  Y.  39:5,  32  N.  E.  148,  17  L.  R. 
A.  679,  31  Am.  St.  Rep.  838;  Cincinnati  Inclined  Plane  Ry.  Co.  v.  City  and 
Suburban  Tel.  Ass'n,  29  Am.  St.  Rep.  559,  4S  Ohio  St.  390,  27  iN.  K  890,  12 
L.  R.  A.  534. 

4  0  Atty.  Gen.  v.  Edison  Tel.  Co.,  L.  R.  6,  Q.  B.  D.  244. 
41  Franklin  v.  N.  W.  Tel.,  69  Iowa,  97,  28  N.  W.  461. 

4  2  Iowa  Union  Tel.  Co.  v.  Board  of  Equalization,  67  Iowa,  250,  25  N.  W.  155. 


12  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  17 

mitting  messages  and  news  by  the  use  of  the  telegraph.  In  Wiscon- 
sin the  statute  regarding  the  corporations  provided,  among  other 
things,  that  corporations  might  be  formed  'to  build  and  operate  tele- 
graph lines  and  conduct  the  business  of  telegraphing,  and  to  con- 
duct and  maintain  their  lines  with  all  necessary  appurtenances/ 
It  was  held  that  this  statute  authorized  the  incorporation  of  a  tele- 
phone company.'*^  The  statute  of  Pennsylvania  controlling  tele- 
graphic corporations  enacted  that  'the  said  telegraphic  corporation 
shall  receive  dispatches  from  and  for  other  telegraph  lines  and  cor- 
porations, and  from  and  for  individuals,  and  on  payment  of  their 
usual  charges  to  individuals  for  transmitting  dispatches  as  estab- 
lished by  the  rates  and  regulations  of  such  telegraph  lines,  transmit 
the  same  with  impartiality  and  good  faith,  under  penalty  of  one 
hundred  dollars  for  every  neglect  or  refusal  so  to  do.'  On  an  appli- 
cation being  made  to  the  court  of  common  pleas  of  the  city  of  Phila- 
delphia by  the  commonwealth  on  the  relation  of  the  Baltimore  & 
Ohio  Telegraph  Company  for  a  writ  of  mandate  to  compel  the  Bell 
Telephone  Company  to  give  the  relator  a  telephone  and  the  neces- 
sary wires,  the  court  determined  that  telephone  companies  were 
controlled  by  the  provisions  of  its  statute,  and  therefore  could  not 
withhold  from  one  person  or  corporation  the  privileges  which  it 
conceded  to  another."  ** 

§  17.  Same  continued — construction  of  statutes. — In  the  discus- 
sion of  this  subject,  it  will  be  our  purpose  to  mention  the  nature 
of  some  of  the  different  statutes  of  the  various  states  which  have 

■43  The  court  in  considering  the  question  said:  "It  is  urged  that  the  power 
thus  expressly  given  to  form  and  organize  corporations  for  the  purpose  of 
building  and  operating  telegraph  lines,  or  conducting  the  business  of  tele- 
graphing in  any  way,  includes  the  power  of  forming  and  organizing  corpora- 
tions for  the  purpose  of  building  and  operating  telephone  lines,  or  conducting 
the  business  of  telephoning  in  any  way.  *  *  *  In  that  case  (Atty.  Gen. 
V.  Edison  Telephone  Company)  the  court  concluded  that  Edison's  telephone 
was  a  telegraph  within  the  meaning  of  the  telegraph  acts,  although  the  tele- 
phone was  not  invented  nor  contemplated  when  those  acts  were  passed.  It  is 
thus  said,  in  effect,  that  the  mere  fact  that  sound  itself  is  transmitted  by  the 
telephone  established  no  material  distinction  between  telephonic  and '  tele- 
graphic communications,  as  the  transmission  if  it  takes  place,  is  performed 
by  a  wire  acted  on  by  electricity.  It  is  there  further  said  that,  of  course,  no 
one  supposes  that  the  legislature  intended  to  refer  specifically  to  telephones 
many  years  before  they  were  invented,  but  it  is  highly  probable  that  they 
would,  and  it  seems  to  us  also  that  they  actually  did,  use  language  embrac- 
ing further  discoveries  as  to  the  use  of  electricity  for  the  purpose  of  convey- 
ing intelligence."  Wisconsin  Tel.  Co.  v.  City  of  Oshkosh,  62  Wis.  36,  21  N.  W. 
828. 

4*  Bell  Tel.  Co.  v.  Com.  ex  rel.  Baltimore  and  O.  Tel.  Co.  (Pa.)  3  Atl.  825, 
59  Am.  Rep.  172. 


§    18)  GENERAL  NATURE  13 

bearing  on  this  point  at  issue  and  how  the  same  have  been  inter- 
preted by  the  courts  therein.  It  is  true  that  this  is  no  longer  much 
of  a  controverted  question  as  most  of  the  states  have,  since  the 
invention  and  development  of  the  telephone,  become  so  well  versed 
in  the  nature,  use,  and  convenience  of  it  that  a  greater  portion  of 
the  statutes  therein  now  mention  the  "telephone"  in  connection 
with  the  "telegraph."  But  there  is  a  rule  of  law  in  the  interpreta- 
tion of  a  statute  which  has  been  amended  by  a  material  change  of 
its  language,  that  this  fact  indicates  an  intent  to  change  the  mean- 
ing of  the  statute. *°  So  the  result  of  the  rule  is  that,  where  a  stat- 
ute originally  contained  the  name  "telegraph"  and  was  afterwards 
amended  so  as  to  mention  also  the  name  "telephone,"  the  law  flow- 
ing therefrom  was  materially  changed  and  the  rights  and  privileges 
exercised  by  the  telegraph  company  under  the  unamended  statutes 
could  not  be  enjoyed  by  the  telephone  companies,  if  such  was  the 
intent  of  the  legislature.*® 

§  18.  Same  continued — illustrated. — This  question  was  settled 
in  a  case  in  Texas  which  arose  in  a  suit  instituted  by  a  telephone 
company  to  condemn  certain  property  for  its  right  of  way.  There 
were  in  the  general  incorporation  laws  of  this  state  a  statute  *^ 
which  granted  to  telegraph  companies  the  right  to  condemn  prop- 
erty for  rights  of  way.  In  another  division  of  the  original  act,  cor- 
porations might  be  formed  for  "the  constructing  and  maintenance 
of  a  telegraph  line,"  no  mention  being  made  of  the  telephone.  The 
first-mentioned  statutes  have  remained  in  force  since  their  enact- 
ment as  part  of  the  general  incorporation  law,  but  the  provision  for 
incorporating  a  telephone  company  was  afterwards  amended  so  as 
to  read,  "the  construction  and  maintenance  of  a  telegraph  or  a  tele- 
phone line,"  which  was  later  changed  so  as  now  to  be  "the  construc- 
tion and  maintenance  of  a  telegraph  and  telephone  line."  It  will 
be  seen  that  in  the  different  changes  of  these  statutes  whereby  the 
telephone  became  an  important  factor,  to  enjoy  some  of  the  rights 
and  privileges  which  were  and  are  enjoyed  by  the  telegraph,  there 
is  nothing  said  in  any  of  these  amended  or  unamended  statutes 
which  gives  the  telephone  the  right  to  exercise  the  power  of  emi- 
nent domain.  The  foremost  and  most  important  question  in  this 
case  was  whether  or  not  the  statutes  that  relate  to  the  exercise  of 
the  right  of  eminent  domain  in  condemnation  proceedings  by  tele- 
graph companies  apply  to  telephone  companies  and  authorize  a  like 

4B  James  v.  Patten,  6  N.  Y.  (2  Selden)  9,  55  Am.  Dec.  376. 
4  6  San  Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  93  Tex.  313,  77 
Am.  St.  Rep.  884,  55  S.  W.  117,  49  L.  R.  A.  459. 

47  Rev.  St.  1895,  arts.  698,  699;    Laws  12th  Leg.,  2d  Sess.,  c.  80,  §§  53,  54. 


14  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  19 

procedure  by  the  latter.  The  court  held  in  this  case  that  the 
phrases  "magnetic  telegraph  lines,"  and  "any  telegraph  lines"  found 
in  a  statute  are  broad  enough  to  include  the  "telephone,"  which  is 
merely  another  method  of  communication  by  means  of  electricity, 
and  where  another  statute  confers  upon  the  former  the  right  of 
eminent  domain  in  condemnation  proceedings,  the  same  will  apply 
to  telephone  companies.*^ 

§  19.  Same  continued. — In  New  Jersey  the  question  arose  as  to 
the  validity  of  the  incorporation  of  a  telephone  company  to  be  in- 
corporated under  the  general  law  which  authorized  the  organiza- 
tion of  telegraph  companies  without  mentioning  the  term  "tele- 
phone" and  the  right  to  condemn  property.  The  original  act  to  in- 
corporate telegraph  companies  had  been  amended  similarly  to  the 
Texas  statutes  mentioned  above,  whereby  and  wherein  the  tele- 
phone was  mentioned  in  connection  with  the  telegraph,  but  no 
changes  had  been  made  in  the  original  statute  with  respect  to  the 
right  to  exercise  the  power  of  eminent  domain.  The  court  held  in 
that  case  that  the  term  "telegraph"  as  used  in  the  statute  included 
"telephone,"  and  that  the  charter  granted  to  a  telephone  company, 
under  the  general  law  authorizing  the  incorporation  of  telegraph 
companies,  was  valid.*''  The  court  said  in  its  able  opinion :  "Its 
application  to  the  purposes  of  speedy  transmission  of  intelligence 
was  but  a  change  in  detail,  but  not  in  substance,  of  the  business  for 
which  these  companies  were  clothed  with  corporate  privileges. 
They  are  both  services  of  a  public  nature  which  would  permit  the 
legislature  to  confer  the  power  to  condemn  for  each  use.  They  are 
both  designed  to  convey  intelligence  between  distant  places.  So 
far  as  the  owner  over  whose  land  their  tracks  or  routes  lie,  they  each 
are  operated  with  the  same  appliances.  Poles  and  wires  placed 
alike  impose  exactly  the  same  servitude  upon  the  land.  With  the 
change  in  the  apparatus  at  the  termini  telegraphy  becomes  tele- 
phony. The  former  makes  the  distant  message  intelligible  by 
words,  marks,  or  sounds ;  the  latter  by  sounds  alone.  The  same 
electric  fluid  is  the  medium  of  transmission,  and  all  the  internal 
structure  is  the  same  in  both.  The  corporation  employing  eitlier 
means  of  communication  is  executing  substantially  the  same  public 
function  in  substantially  the  same  way.  The  business  conducted  in 
either  way  is  within  the  purpose  for  which  the  statute  was  en- 
acted." 

4  8  San  Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.  Co.,  93  Tex.,  313,  77  Am. 
St.  Rep.  SS4,  55  S.  W.  117,  49  L.  R.  A.  459. 

4  9  State  V.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460,  11 
L,  R.  A.  664. 


§    21)  GENERAL   NATURE  15 

§  20.  Same  continued. — The  charter  of  the  City  of  St.  Louis 
gave  the  mayor  and  the  board  of  aldermen  the  power  to  license,  tax, 
and  regulate  telegraph  companies  or  corporations,  and  all  other 
businesses,  trades,  avocations,  or  professions  whatsoever.  The 
question  was  settled  there  in  a  case  in  which  a  telephone  company 
was  being  prosecuted  for  violating  a  certain  city  ordinance  which 
attempted  to  regulate  the  charges  of  the  company.  The  court  held  in 
this  case  that  telephone  companies  were  ejusdem  generis  with  tele- 
graph companies,  though  the  former  were  not  in  existence  at  the 
date  the  charter  was  granted.^"  There  are  many  other  statutes  and 
cases  both  state  and  federaP^  to  which  we  could  refer  the  reader  in 
verifying  the  fact  that  the  term  "telegraph"  in  statutes  means  and 
includes  any  apparatus  or  adjustment  of  instruments  for  transmit- 
ting messages  or  other  communications  by  means  of  electric  cur- 
rents and  signals  and  that  it  is  comprehensive  enough  to  embrace 
the  telephone,^-  but  we  deem  that  enough  has  already  been  said  on 
the  subject. 

§  21.  Same  continued — when  applied. — There  have  been  differ- 
ent cases  in  which  the  above  question  has  been  tested  in  order  to 
ascertain  the  different  ways  in  which  the  rule  might  be  applied. '^ 
For  instance,  as  we  said  above,  statutes  authorizing  telegraph  com- 
panies to  exercise  the  right  of  eminent  domain  or  to  occupy  high- 
ways apply  to  telephone  companies.^*     It  has  been  held  that  the 

5  0  City  of  St.  Louis  v.  Bell  Tel.  Co.,  96  Mo.  623,  10  S.  W.  197,  2  L.  K.  A. 
278,  9  Am.  St.  Rep.  370. 

51  Cximberland  Tel.  Co.  v.  United  Electric  Co.  (C.  C.)  42  Fed.  273,  12  L.  R. 
A.  544. 

5  2  See  section  following. 

53  St.  Louis  V.  Bell  Tel.  Co.,  9G  Mo.  G23,  10  S.  W.  197,  9  Am.  St.  Kep.  370, 
2  L.  R.  A.  278,  power  to  fix  rates;  statutes  authorizing  construction  along 
public  roads,  streets,  etc.,  Cincinnati  Inclined  Plane  R.  Co.  v.  City,  etc.,  Tel. 
Ass'n,  48  Ohio  St.  390,  27  N.  E.  890,  29  Am.  St.  Rep.  559,  12  L.  R.  A.  534; 
People's  Tel.,  etc.,  Co.  v.  Berks,  etc.,  Turnpike  Road,  199  Pa.  411,  49  Atl. 
284 ;  Texarkana  v.  Southwestern  Tel.,  etc.,  Co.,  48  Tex.  Civ.  App.  16,  106  S. 
W.  915 ;  Roberts  v.  Wisconsin  Tel.  Co.,  77  Wis.  589,  46  JN.  W.  800,  20  Am. 
St.  Rep.  143;  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  244,  50  L.  J.  Q.  B. 
145,  43  L.  T.  Rep.  (N.  S.)  G97,  29  Wkly.  Rep.  428;  English  statute  of  1863 
relating  to  exclusive  privilege  of  postmaster  general  as  to  transmission  of 
telegrams,  National  Tel.  Co.  v.  Baker  (1893)  2  Ch.  186,  57  J.  P.  373,  62  L.  J. 
Ch.  699,  68  L.  T.  Rep.  (N.  S.)  283,  3  Reports,  318,  4  Am.  Elec.  Cas.  320. 

5  4  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  B.  Co.,  76  Minn.  834,  79 
N.  W.  315 ;  State  v.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl. 
460,  11  L.  R.  A.  664 ;  Pennsylvania  Tel.  Co.  v.  Hoover,  11  Pa.  Dist.  R.  708 ; 
San  Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  93  Tex.  313,  55  S.  W. 


16  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  21 

same  rule  applied  to  statutes  forbidding  discrimination ;  as  where  a 
statute  provided  that  telegraph  companies  shall  receive  dispatches 
from  and  for  other  telegraph  lines,  and  from  and  for  individuals, 
and  transmit  them  impartially  and  in  good  faith.  Under  these 
statutes  a  contract  made  between  a  telephone  company  and  the 
owner  of  the  telephone  instruments  providing  that  the  company  in 
the  use  of  the  instrument  shall  discriminate  as  between  telegraph 
companies  is  void  as  against  public  policy.^^  The  same  rule  applies 
to  statutes  relating  to  taxation,^®  and  to  constitutional  or  statutory 
provisions  relating  to  the  incorporation  of  such  companies,  and  to 
the  construction,  maintenance,  and  regulation  thereof,^ '^  and  to 
statutes  fixing  the  locality  of  suits  against  telegraph  companies.^^ 
An  act  "relative  to  the  incorporation  and  powers  of  telegraph  com- 
panies for  the  use  of  individuals,  firms,  and  corporations,  and  for 
fire-alarm,  police,  and  messenger  business,"  includes  telephone  com- 
panies. Especially  so  where  the  first  section  of  said  act  provides 
"for  the  transaction  of  any  business  in  which  electricity  over  or 
through  wires  may  be  applied  to  any  useful  purpose."  ^®  A  statute 
regulating  "magnetic  telegraph  companies,"  and  providing  for  the 
construction  of  telegraph  lines,  also  includes  telephone  com- 
panies ;  ®°  and  a  right  given  "magnetic  telegraph"  companies  to  ap- 
propriate lands  for  the  erection  of  poles  includes  telephone  com- 

117.  77  Am.  St.  Rep.  884,  49  L.  R.  A.  459 ;  Southwestern  Tel.,  etc.,  Co.  v.  Gulf, 
etc.,  R.  Co.  (Tex.  Civ.  App.  1899)  52  S.  W.  106. 

In  Mississippi  telegraph  and  telephone  companies  are  recognized  by  stat- 
ute as  separate  and  distinct,  and  a  telephone  company  cannot  exercise  the 
right  of  eminent  domain  under  the  statute  relating  to  telegraph  companies. 
Alabama,  etc.,  R.  Co.  v.  Cumberland  Tel.,  etc.,  Co.,  88  Miss.  438,  41  South. 
258. 

55  State  V.  Bell  Tel.  Co.,  36  Ohio  St.  296,  38  Am.  Rep.  583 ;  Bell  Tel.  Co. 
V,  Com.,  3  Atl.  825,  17  Wkly.  Notes  Cas.  505,  2  Am.  Elec.  Cas.  407. 

5  6  Iowa  Union  Tel.  Co.  v.  Board  of  Equalization,  67  Iowa,  250,  25  N.  W. 
155 ;  Com.  v.  Pennsylvania  Tel.  Co.,  18  Phila.  (Pa.)  588. 

5T  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  7  Atl. 
809,  59  Am.  Rep.  167 ;  State  v.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law, 
341,  21  Atl.  460,  11  L.  R.  A.  664 ;  Hudson  River  Tel.  Co.  v.  Watervliet  Turn- 
pike, etc.,  Co.,  135  N.  Y.  393,  32  N.  E.  148,  31  Am.  St.  Rep.  838,  17  L.  R.  A. 
674;  York  Tel.  Co.  v.  Keesey,  5  Pa.  Dist.  366;  Central  Pennsylvania  Tel., 
etc.,  Co.  V.  Wilkes  Barre,  etc.,  R.  Co.,  11  Pa.  Co.  Ct.  417 ;  Wisconsin  Tel.  Co. 
V.  Oshkosh,  62  Wis.  32,  21  N.  W.  828;  Cumberland  Tel.,  etc.,  Co.  v.  United 
Electric  R.  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544. 

5  8  Franklin  v.  Northwestern  Tel.  Co.,  69  Iowa,  97,  28  N.  W.  461. 

5  9  York  Tel.  Co.  v.  Keesey,  5  Pa.  Dist.  R.  366. 

6  0  Cincinnati  Inclined  Plane  R.  Co.  v.  City,  etc.,  Tel.  Ass'n,  48  Ohio  St. 
390,  27  N,  E.  890,  29  Am.  St.  Rep.  559,  12  L.  R.  A.  534. 


§    22)  GENERAL  NATURE  17 

panics.®^  Again,  a  telegraph  company,  acting  under  a  statutory 
right  to  construct  and  operate  telegraphs  is  empowered  to  establish 
a  telephone  service.*^-  It  has  been  decided  that  the  telephone  is  in- 
cluded in  the  operation  of  a  statute  providing  that  a  criminal  prose- 
cution will  lie  for  the  illegal  obstruction  or  destruction  of  any  line 
of  telegraph  or  any  part  thereof.^^  So  far,  there  has  been  no  adjudi- 
cation on  the  subject  whether  these  various  statutes  include  wire- 
less telegraph  and  telephones,  but  it  seems  the  same  reasons  for  in- 
cluding telephone  companies  in  these  statutes  should  be  applicable 
for  holding  that  wireless  telegraphic  companies  should  also  be  in- 
cluded. 

§  22.  When  diflFerent  rule  obtains — intent  of  lawmakers. — The 
rule  that  the  term  "telegraph"  in  statutes  includes  and  embraces 
"telephone"  is  not  general,  but  in  order  to  determine  this  fact  the 
minds  of  the  lawmakers  must  be  consulted.  The  term  "telegraph" 
in  statutes  does  not  always  or  necessarily  include  the  telephone, 
particularly  where  there  is  separate  legislation  relating  specifical- 
ly to  telephone.*'*  And  while,  as  it  has  been  said,  the  state  courts 
hold  that  the  word  telegraph  as  used  in  a  state  statute  embraces 
the  telephone  also,  and  though  it  might  seem  that  a  similar  con- 
si  San  Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  93  Tex,  313,  55 
S.  W.  117,  77  Am.  St.  Rep.  884,  49  L.  R.  A.  459 ;  Southwestern  Tel.,  etc.,  Co. 
V.  Gulf,  etc.,  R.  Co.  (Tex.  Civ.  App.)  52  S.  W.  106. 

62  Cumberland  Tel.,  etc.,  Co.  v.  United  Electric  R.  Co.  (C.  C.)  42  Fed.  273, 
12  L.  R.  A.  544 ;  State  v.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21 
Atl.  460,  11  L.  R.  A.  664 ;  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co., 
66  Md.  399,  7  Atl.  809,  59  Am.  Rep.  167. 

6  3  Davis  V.  Pacific  Tel.,  etc.,  Co.,  127  Cal.  312,  57  Fac.  764,  59  Fac.  698. 
It  was  said  in  this  case:  "The  term  telegraph  means  any  apijaratus  for 
transmitting  messages  by  means  of  electric  currents  and  signals,  and  em- 
braces within  its  meaning  the  narrower  word  'telephone.'  But  is  this  con- 
struction justifiable  in  the  case  of  the  penal  statute?  Section  4  of  our  Penal 
Code  provides  that  the  rule  of  the  common  law  that  penal  statutes  are  to 
be  strictly  construed  has  no  application  to  this  Code.  All  its  provisions  are 
to  be  construed  according  to  the  fair  import  of  their  terms  with  a  view  to 
effect  its  object  and  to  promote  justice.'  In  contemplation  of  this  section, 
in  recognition  of  the  fact  that  a  substantial  identity  exists  between  the  two 
words,  we  think  no  hesitation  need  be  expressed  in  declaring  that  under  sec- 
tion 591  of  the  Penal  Code  a  criminal  prosecution  will  lie  for  the  illegal  de- 
struction of  a  telephone  wire." 

6  4  Alabama,  etc.,  R.  Co.  v.  Cumberland  Tel.,  etc.,  Co.,  88  Miss.  438,  41 
South.  2.jS  ;  Home  Tel.  Co.  v.  Nashville.  118  Tenn.  1,  101  S.  W.  770,  11  Ann. 
Cas.  824 ;  Southern  Tel.  Co.  v.  King,  103  Ark.  160,  146  S.  W.  489,  39  L.  R.  A. 
(N.  S.)  402,  Ann.  Cas.  1914B,  780;  Tel.,  etc.,  Co.  v.  Pasadena,  161  Cal.  265, 
118  Fac.  796. 

Jones  Tel.(2u  Ed.)— 2 


18  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  22 

struction  would  apply  to  the  Post  Roads  Act,  as  has  been  held  in 
]\Iinnesota/^  yet  the  United  States  Supreme  Court  has  held  that 
the  provisions  of  this  act  do  not  extend  to  telephone  companies.®^ 

66  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn.  834,  79 
N.  W.  315. 

6«  Richmond  v.  Southern  Bell  Tel.,  etc.,  Co.,  174  U.  S.  761,  19  Sup.  Ct.  778, 
43  L.  Ed.  1162,  reversing  in  part  85  Fed.  19,  28  C.  C.  A.  659 ;  Sunset  TeL, 
etc.,  Co.  V.  Pomona  (C.  C.)  164  Fed.  561;  Pomona  v.  Tel.  Co.,  224  U.  S.  330, 
32  Sup.  Ct.  477,  56  L.  Ed.  788. 


23)  LEGAL  STATUS  19 


CHAPTER  II 

LEGAL  STATUS  OF  TELEGRAPH,  TELEPHONE,  AND  ELECTRIC  COM- 
PANIES 

§  23.  As  to  public  use — in  general. 

24.  As  to  character  of  property. 

25.  As  to  common  carriers — in  general. 

26.  Common-law  theories. 

27.  Same  continued — decision  criticized. 

28.  Common-law  theory  continued — distinction  between  these  and  common 

carriers — reasons. 

29.  Common-law  theory  continued— analogy  to  common  carriers  of  goods 

and  passengers. 

30.  Common-law  theory  continued — degree  of  care. 

31.  Common-law  theory  continued — bailees  for  hire — analogy. 

32.  Common-law  theory  continued — quasi-common  carrier   of  news. 

33.  Common   carriers   continued— law    applicable    to    both    telegraph    and 

telephone  companies. 

34.  Statutory  theory. 

35.  Common  carriers  in  absence  of  statute  are  not — reason. 

36.  Reasonableness  of  statutes — making  them  common  carriers. 

37.  Statutes  superior  to  any  agreement. 

38.  Binding  in  foreign  states — relation  to  commerce. 

39.  Alarm  system — messenger  service. 

40.  Telephone  for  private  business. 

§  23.  As  to  public  use — in  general. — Transportation  companies 
with  all  the  uses  to  which  they  may  be  applied  in  transporting 
goods,  wares,  merchandise  and  other  kinds  of  property,  and  for 
furnishing  suitable  and  proper  accommodations,  not  to  be  sur- 
passed, to  any  who  desire  to  travel  are  no  more  convenient  and  in- 
dispensable to  the  commercial  business  of  the  world  than  those 
which  furnish  means  for  transmitting  intelligence  by  electricity. 
At  first  these  instruments  for  communication  could  only  be  used  for 
short  distances,  but  improvements  were  made  from  time  to  time  on 
them  until  the  signal  or  voice  could  be  sounded  as  far  as  wires  could 
be  strung.  Up  until  the  laying  of  the  great  Atlantic  Cable,  these 
means  of  communication  were  confined  to  each  of  the  continental 
countries,  but  after  this  very  eventful  epoch  of  scientific  develop- 
ment of  these  institutions,  and  other  similar  ones,  the  world  has 
been  joined  together  as  if  by  one  great  speaking  tube,  and  news  of 
all  kind  can  be  transmitted  over  them  as  rapidly,  as  quickly,  and  as 
accurately  as  that  sent  through  the  first  speaking  tubes  used  by  the 
individual  business  houses.  Not  only  does  this  apply  to  news 
arising  on  land,  but  since  the  great  ingenious  inventors  of  the  wire- 
less telegraph  and  telephone  the  heretofore  unknown  and  secret 


20  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  23 

occurrences  upon  the  seas  and  oceans  may  be  as  easily  revealed. 
Therefore  telegraph  and  telephone  companies  are  not  only  an  in- 
dispensable necessity,  both  commercially  and  socially,  to  any  one 
nation,  but  they  have  assumed  a  business  of  an  international  char- 
acter, and  must  be  treated  as  such  in  the  laws  of  nations.  It  may 
therefore  easily  be  said  that  these  companies  are  quasi-public  cor- 
porations,^ or  servants,-  conducting  a  quasi-public  business,^  simi- 
lar in  many  respects  to  that  of  a  common  carrier.*  So  the  instru- 
ments and  apparatus  of  these  companies  are  therefore  devoted  to  a 
public  use."  They  receive  various  valuable  rights  and  franchises 
from  the  public,*'  such  as  the  right  of  exercising  the  power  of  emi- 
nent domain,^  and  as  a  result  of  which  they  are  subject  to  certain 
duties  and  obligations  to  the  public,^  such  as  to  serve  the  public 
generally,^  without  discrimination,^*^  and  to  conduct  their  business 

1  York  Tel.  Co.  v.  Keesey,  5  Pa.  Dist.  R.  366 ;  Jones  v.  Western  Union  Tel. 
Co.,  101  Tenn.  442,  47  S.  W.  699 ;  Marr  v.  Western  Union  Tel.  Co.,  85  Tenn. 
529,  3  S.  W.  496;  Cumberland  Tel.,  etc.,  Co.  v.  Evansville  (C.  C.)  127  Fed. 
187,  affirmed  in  143  Fed.  238,  74  C.  O.  A.  368 ;  Tel.,  etc.,  Co.  v.  Beach,  8  Ga. 
App.  720,  70  S.  E.  137. 

^  Ayor  V.  Western  Union  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep. 
353 ;  State  v.  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404 ; 
Tel.  Co.  V.  Frith,  105  Tenn.  167,  58  S.  W.  118 ;  Dvmn  v.  Western  Union  Tel. 
Co.,  2  Ga.  App.  845,  59  S.  B.  189. 

3  Central  Union  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  JK.  721 ;  Ayer  v. 
Western  Union  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353 ;  State  v. 
Kinloch  Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  684 ;  Cumberland  Tel.,  etc.,  Co. 
V.  Evansville  (C.  C.)  127  Fed.  187.  See  Chesapeake,  etc.,  Tel.  Co.  v.  Manning, 
186  U.  S.  238,  22  Sup.  Ct.  881,  46  L.  Ed.  1144 ;  Weld  v.  Cable  Co.,  199  JN.  X. 
88,  92  N.  E.  415;  West.  U.  Tel.  Co.  v.  Flannagan,  113  Ark.  9,  167  S.  W.  701; 
Gainesboro  Tel.  Co.  v.  Buckner,  160  Ky.  604,  169  S.  W.  1000,  common  carrier. 

4  See  following  sections. 

5  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201. 

^  Ayer  v.  Western  Union  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep. 
353. 

7  See  chapter  IV. 

8  Hockett  v.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201 ;  Ayer  v. 
Western  Union  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353 ;  State 
V.  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404. 

»  Central  Union  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  721 ;  State  v.  Kin- 
loch Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  684 ;  Tel.,  etc.,  Co.  v.  Beach,  8  Ga. 
App.  720,  70  S.  E.  137. 

10  Central  Union  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St. 
Rep.  114;  Central  Union  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  721; 
State  v.  Kinloch  Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  684 ;  State  v.  Nebraska 
Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404;  State  v.  Delaware, 
etc.,  Tel.  Co.  (C.  C.)  47  Fed.  633 ;  Tel.,  etc.,  Co.  v.  Beach,  8  Ga.  App.  720,  70 
S.  E.  137. 


8    24)  LEGAL  STATUS  21 

in  a  manner  conducive  to  the  benefit  of  the  public.^^  They  are  en- 
gaged in  an  enterprise  affected  with  a  public  interest  within  the 
principle  which  authorizes  the  state  to  control  and  regulate  the 
charges  of  companies  carrying  on  such  a  business.^-  While  the 
franchise  for  conducting  a  telegraph  or  telephone  business  may  be 
exercised  by  an  individual/^  yet  the  fact  that  it  is  so  exercised  does 
not  affect  the  public  character  of  the  business/*  or  its  obligation 
to  the  public/^  or  its  liability  to  be  regulated  and  controlled  by  the 
state.^^  These  same  principles  apply  to  electric  lighting,  heating, 
and  power  companies  which  are  doing  a  quasi-public  business." 

§  24.  As  to  character  of  property. — Not  a  little  difficulty  has  been 
experienced  by  the  courts  in  determining  whether  telegraph,  tele- 
phone, and  electric  lines  and  appliances  are  real  or  personal  prop- 
erty. The  numerous  decisions  on  the  subject  cannot  be  entirely 
reconciled.  The  different  conclusions  thus  reached  may  be  partially 
explained  by  the  permanency  with  which  the  appliances  were  an- 
nexed to  the  freehold  in  the  particular  case.  Different  statutes  on 
the  subject  and  the  different  constructions  placed  thereon  may  also 
account  for  apparent  contradictory  conclusions.  So  no  general  rule 
can  be  promulgated  which  will  be  of  material  assistance  and  yet 
be  said  to  be  supported  by  the  weight  of  authority.  A  telegraph  or 
telephone  line  on  a  railroad  right  of  way  is  not  necessarily  real 
estate  in  the  sense  that  upon  the  termination  of  the  contract  under 
which  it  was  constructed  the  line  shall  belong  to  the  railroad  com- 
pany as  a  fixture  on  the  real  estate,  and  the  evident  intent  that  such 
should  not  be  the  result  will  govern.  So  after  the  termination  of 
the  contract  the  owner  of  the  line  has  the  right  to  remove  it.^^     A 

11  Central  Union  Tel.  Co.  v.  State,  118  Ind.  191,  19  N.  E.  604,  10  Am.  St. 
Re]).  114. 

12  Central  Union  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  B.  721 ;  Hockett  v. 
State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201 ;  State  v.  Kinloch  Tel.  Co., 
93  Mo.  App.  349,  67  S.  W.  684. 

1 3  See  §§  85,  266. 

14  state  V.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319 ;  Lowther 
V.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410. 

ir  State  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319. 

ic  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410. 

17  Gainesville  v.  Gainesville  Gas,  etc.,  Co.,  65  Fla.  404,  62  South.  919,  46  L. 
R.  A.  (N.  S.)  1119;  State  v.  Cons.  Power  Co.,  119  Minn.  225,  137  N.  W.  1104, 
41  L.  R.  A.  (N.  S.)  1181,  Ann.  Cas.  1914B,  19;  People  v.  Willox,  207  N.  Y.  86, 
100  N.  E.  705,  45  L.  R.  A.  (N.  S.)  629. 

i«  St.  Paul,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  118  Fed.  497,  55  C.  C.  A.  263, 
reaffirmed  in  Great  Northern  Ry.  v.  West.  U.  Tel.  Co.,  174  Fed.  321,  98  C.  C. 
A.  193.  Upon  the  foreclosure  of  a  mortgage  on  a  railroad  the  right  of  a 
telegraph  company  to  continue  its  telegraph  line  upon  the  railroad  right  of 


22  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  24. 

question  somewhat  similar  is  involved  v/here  a  contract  betw^een  a 
railroad  and  a  telegraph  company  is  declared  void  on  account  of  its 
containing  an  illegal  exclusive  provision,  wherein  arises  a  difficulty 
in  determining  whether  the  railroad  or  the  telegraph  company  owns 
the  poles  and  wires  that  have  been  erected  under  the  contract. 
The  question  depends  very  largely  upon  the  nature  of  the  contract, 
and  the  interest  each  company  has  in  the  telegraph  line."  Wires 
strung  across  other  private  property  do  not  change  their  character 
by  being  attached  to  poles  so  as  to  become  part  of  the  realty  and 

way  ceases.  West.  U.  Tel.  Co.  v.  Ami  Arbor  R.  R.,  90  Fed.  a79,  33  (J.  0.  A. 
113.  In  this  case,  under  a  contract  by  which  the  railroad  company  had  fur- 
nished the  material  and  the  telegraph  company  the  instruments,  the  court  in 
the  foreclosure  proceedings  allowed  the  telegraph  company  to  remove  such 
instruments.  "Where  by  contract  a  telegraph  company  constructed  its  line  on 
a  railroad  right  of  way,  and  agreed  that  its  rights  therein  should  not  be  as- 
signable, and  that  if  it  was  dissolved  or  suspended  operations  the  railroad 
might  take  charge,  it  was  held  that  the  railroad  took  title  upon  a  new  com- 
pany succeeding  to  the  rights  and  property  of  the  old  company.  Latrobe  v. 
West.  II.  Tel.  Co.,  74  Md.  232,  21  Atl.  788.  In  New  York,  etc.,  R.  Co.  v. 
West.  U.  Tel.  Co.,  36  Hun  (N.  Y.)  205,  it  was  held  that  a  railroad  mortgage 
covered  a  telegraph  line  built  by  the  railroad  and  also  a  wire  placed  thereon 
by  a  telegraph  company  under  a  contract  by  which  the  railroad  had  a  right 
to  buy  such  wire.  A  telegraph  company  is  liable  for  cutting  and  carrying 
away  without  notice  electric  power  wires  strung  on  the  telephone  fixtures 
on  house  tops.  Electric  Power  Co.  v.  Jletropolitan  Tel.,  etc.,  Co.,  75  Hun, 
G8,  27  N.  Y.  Supp.  93,  affirmed  148  N.  Y.  746,  43  N.  E.  986.  Even  a  railroad 
acquires  its  right  of  way  from  the  mortgagor,  and  the  mortgage  is  after- 
wards foreclosed,  yet  the  purchaser  at  such  foreclosure  sale  does  not  ac- 
quire title  to  the  rails,  ties,  fish  plates,  etc.,  constituting  a  railroad.  Skin- 
ner V.  rt.  Wayne,  etc.,  R.  Co.  (C.  C.)  90  Fed.  405.  A  mortgage  of  an  electric 
company  covering  after- acquired  property  covers  poles  and  wires  erected  on 
railroad  property,  as  against  a  claim  of  the  railroad  company  based  on  an 
agreement  of  the  mortgagor.  Monmouth,  etc.,  Co.  v.  Central  R.  R.,  etc.  (N. 
J.  Ch.)  54  Atl.  140. 

19  Where  a  telegraph  company  furnishes  the  materials  and  a  railroad 
company  the  labor  to  build  a  telegraph  line,  they  thereby  become  joint  own- 
ers of  the  line  unless  the  contract  provides  otherwise;  but  where  the  tele- 
graph company  furnishes  both  labor  and  material,  and  the  railroad  company 
merely  transports  the  material  and  labor  free  of  charge,  the  telegraph  line 
belongs  to  the  telegraph  company,  subject  to  a  reasonable  payment  to  the 
railroad  for  such  transportation.  St.  Paul,  etc.,  R.  Co.  v.  West.  U.  Tel. 
Co.,  118  Fed.  497,  55  C.  C.  A.  263,  reaffirmed  in  Great  Northern  Ry.  v.  West. 
U.  Tel.  Co.,  174  Fed.  321,  98  C.  C.  A.  193.  In  West.  U.  Tel.  Co.  v.  BurUng- 
ton,  etc.,  Ry.  (C  C.)  11  Fed.  1,  the  court  said:  "The  railroad  company  fur- 
nished the  poles  and  all  the  labor,  except  a  foreman,  to  construct  the  line; 
the  telegraph  company  furnislied  a  foreman  to  superintend  the  work,  and 
also  furnished  the  wire  and  insulators.  This  certainly  constituted  the  two 
companies  joint  owners  of  the  property."  In  this  case,  however,  the  court 
held  that  only  the  exclusive  feature  of  the  contract  was  invalid.     In  West. 


8    24)  LEGAL  STATUS  23 

become  covered  by  a  pre-existing  mortgage  when  it  was  the  inten- 
tion of  the  parties  that  they  might  be  removed  after  a  certain  time.-" 
As  between  a  debtor  company  and  its  creditor,  poles,  wires,  insula- 
tors, and  such  appliances  will  be  considered  personal  property  so  as 
to  permit  the  latter  who  has  obtained  a  judgment  to  seize  and  sell 
the  same  under  execution.-^  And,  reaching  the  same  beneficial,  but 
somewhat  inconsistent,  conclusion,  it  will  be  held  that  these  appli- 
ances partake  of  the  nature  of  realty  to  the  extent  that  they  may  be 
subject  to  a  mechanic's  lien.^^  But  a  statute  creating  such  a  lien 
does  not  necessarily  classify  the  property  as  being  real  or  personal 
property.     It  has  been  held  that  chandeliers,  annunciators,  switch- 

U.  Tel.  Co.  V.  Union  Pacific  Ry.  Co.  (C.  C.)  3  Fed.  1,  the  court  held  that  an 
invalid  free-pass  provision  invalidated  the  whole  contract.  The  court  refused 
to  enjoin  the  railroad  company  from  cutting  the  wires,  etc.,  and  said  it 
would  leave  the  parties  where  it  found  them,  the  whole  contract  being  void. 
See,  also,  Central,  etc.,  R.  R.  v.  West.  U.  Tel.  Co.  (C.  C.)  3  Fed.  417.  In 
the  case  quoted  an  injunction  was,  however,  granted.  Where  the  railroad 
attempts  to  seize  the  telegraph  line  on  the  ground  that  the  contract  is  void, 
the  court  will  enjoin  such  seizure  and  will  decree  a  full  and  fair  accounting 
as  to  the  property  and  rights.  West.  U.  Tel.  Co.  v.  St.  Joseph,  etc.,  R.  Co. 
(C.  C.)  3  Fed.  430 ;  West.  U.  Tel.  Co.  v.  Union  Pacific  Ry.  (C.  C.)  3  Fed.  423 ; 
Atlantic,  etc.,  Tel.  Co.  v.  Union  Pacific  Ry.  (C.  C.)  1  Fed.  745 ;  West.  U.  Tel. 
Co.  V.  Kansas  Pacific  R.  R.  (D.  C.)  4  Fed.  284. 

2  0  Boston  Safe  Deposit  Co.  v.  Bankers',  etc.,  Tel.  Co.  (C.  C.)  36  Fed.  288. 
But  see  Keating  Imp.  Co.  v.  Marshall  Elec.  L.,  etc.,  Co.,  74  Tex.  G05,  12  S. 
W.  489. 

2iReadfield,  etc.,  Tel.  Co.  v.  Cyr,  95  Me.  287,  49  Atl.  1047;  Campbell  v. 
Western  Electric  Co.,  113  Mich.  333,  71  N.  W.  644. 

2  2  Badger  Lumber  Co.  v.  Marion  Water  Supply,  etc.,  Co.,  48  Kan.  182,  29 
Pac.  476,  30  Am.  St.  Rep.  301,  15  L.  R.  A.  652,  appurtenance  to  power  house 
as  to  entitle  the  vendor  thereof  for  vendor's  lien ;  Hughes  v.  Lambertville 
Elec,  etc.,  Co.,  53  N.  J.  Eq.  435,  32  Atl.  69,  approved  in  Bates  Mach.  Co.  v. 
Trenton  &  N.  B.  R.  Co.,  70  N.  J.  Law,  684,  58  Atl.  935,  103  Am.  St.  Rep.  811, 
lines  of  electric  company;  Southern  Elec.  S.  Co.  v.  Rolla  Elec.  L.,  etc.,  Co., 
75  Mo.  App.  622 ;  Fechet  v.  Drake,  2  Ariz.  239,  12  Pac.  694.  See,  also,  Farns- 
worth  V.  West.  U.  Tel.  Co.,  53  Hun,  636,  25  N.  Y.  St.  Rep.  393,  6  N.  Y.  Supp, 
735;  West.  U.  Tel.  Co.  v.  Burlington  (C.  C.)  3  McCrary,  130,  11  Fed.  1;  Bell 
Tel.  Co.  V.  Ascot  Twp.  Rap.  Jud.  Quebec,  16  C.  S.  436,  taxable  as  real  prop- 
erty;  Elec.  Tel.  Co.  v.  Salford  Tp.,  11  Exch.  181,  24  L.  J.  Mag.  Cas.  (N.  S.) 
146,  1  Jur.  N.  S.  733,  3  Week.  Rep.  518;  Lancashire,  etc.,  Tel.  Ex.  Co.  v. 
Manchester  (C.  A.)  54  L.  J.  Mag.  Cas.  N.  S.  63,  L.  R.  14  Q.  B.  Div.  267,  52 
L.  T.  N.  S.  793,  33  Week.  Rep.  203,  49  J.  P.  724 ;  West.  U.  Tel.  Co.  v.  Ten- 
nessee, 9  Baxt.  (Tenn.)  509,  40  Am.  Rep.  99 ;  Herkimer  County  L.,  etc.,  Co.  v. 
Johnson,  37  App.  Div.  257,  55  N.  Y.  Supp.  924,  taxable  as  other  real  property ; 
to  same  effect,  Shelbyville  Water  Co.  v.  People,  140  111.  545,  30  N.  E.  678,  16 
L.  R.  A.  505.  See,  Newport  111.  Co.  v.  Tax  Ass'r,  19  R.  I.  632,  36  Atl.  426,  36 
L.  R.  A.  266.  See,  also,  §  658,  and  cases  in  note  thereunder,  where  lines  are 
considered  realty   for   purpose  of  taxation.     See  Grants   Pass,  etc.,   Co.    v. 


24  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  25 

boards,  electric  signs  and  like  devices  which  can  be  removed  with- 
out injury  to  the  building  are  to  be  regarded  as  chattels  and  not 
fixtures.^^ 

§  25.  As  to  common  carriers — in  general. — Many  theories  have 
been  advanced  as  to  the  legal  status  of  telegraph  and  telephone  com- 
panies, and  as  to  their  analogy  to  common  carriers  in  order  to  de- 
termine whether  or  not  they  were  insurers  of  correct  transmission 
of  intelligence,  and  whether  they  must  accommodate  all,  impar- 
tially, who  apply  to  them  to  perform  such  duties  as  fall  within  the 
scope  of  their  work  after  making  or  offering  to  make  compensation 
for  said  services.  In  considering  this  subject,  we  shall  discuss: 
First,  whether  or  not  they  are  insurers  of  an  accurate  and  correct 
transmission  of  messages;  and,  second,  whether  or  not  they  must 
serve  all  alike  who  apply  to  them  after  offering  to  comply  with  their 
reasonable  regulations.  And  under  the  first  of  the  above  divisions 
of  the  subject — whether  or  not  they  are  insurers  of  correct  trans- 
mission of  intelligence — we  shall  first  discuss  the  common-law 
theory  and  then  the  statutory. 

§  25.  Common-law  theories. — The  weight  of  authority  is  almost 
unanimous  that  telegraph  and  telephone  companies,  under  the  com- 
mon law,  are  not  common  carriers,  and  therefore  insurers  of  a  cor- 

Mining  Co.,  5S  Or.  174,  113  Pac.  859,  34  L.  R.  A.  (N.  S.)  395,  burden  on  de- 
fendant to  show  electricity  was  not  supplied. 

Electricity  as  property. — Although  invisible,  electricity  is  considered  in  law 
as  personal  property  (Terrace  Water  Co.  v.  San  Antonio,  etc.,  Co.,  1  Cal. 
App.  511,  82  Pac.  562;  Fickeisen  v.  Wheeling  Elec.  Co.,  67  VV,  Va.  335,  67  S. 
E.  788,  27  I..  R.  A.  [N.  S.]  893),  subject  to  ownership,  sale,  and  disposal  as 
inanimate  objects  (Hill  v.  Pacific,  etc.,  Elec.  Co.,  22  Cal.  App.  788,  136  Pac. 
492 ;  Fickeisen  v.  Wheeling  Elec.  Co.,  supra).  It  has  a  substance  which  may 
be  measured  (Fickeisen  v.  Wheeling  Elec.  Co.,  supra)  and,  having  the  owner- 
ship and  possession  of  an  electric  wire,  may  properly  be  said  to  have  posses- 
sion of  the  electricty  with  which  the  wire  is  charged  (Fickeisen  v.  Wheeling 
Elec.  Co.,  supra).  It  may  be  the  subject  of  larceny.  Gas,  which  is  but 
slightly,  if  any,  more  tangible,  has  been  held  to  be  subject  of  larceny.  Woods 
V.  People,  222  111.  293,  78  N.  E.  607,  7  L.  R.  A.  (N.  S.)  520,  113  Am.  St.  Rep. 
415,  6  Ann.  Cas.  736. 

Warranty  deed  of  a  farm  and  its  appurtenances  does  not  carry  the  right 
of  the  grantor  as  a  member  of  a  telephone  company  to  the  use  of  telephone 
service.  Cantril  Tel.  Co.  v.  Fisher,  157  Iowa,  203,  138  N.  W.  436,  42  L.  R.  A. 
(N.  S.)  1021. 

2  3  New  York,  etc.,  Ins.  Co.  v.  Allison,  107  Fed.  179,  46  C.  C.  A.  229.  See 
Gen.  Electric  Co.  v.  Transit,  etc.,  Co.,  57  N.  J.  Eq.  460,  42  Atl.  101 ;  Raymond 
V.  Strickland,  124  Ga.  504,  52  S.  E.  619,  3  L.  R.  A.  (N.  S.)  69.  Compare  Gun- 
derson  v.  Swarthout,  104  Wis.  186,  80  N.  W.  465,  76  Am.  St.  Rep.  860.  But 
see  Lindsay  Rro.  v.  Curtis  Pub.  Co.,  236  Pa.  229,  84  Atl.  783,  42  L.  R.  A. 
(X.  S.)  546 ;  Hickman  v.  Booth,  131  Tenn.  32,  173  S.  W.  438. 


.§    26)  LEGAL  STATUS  25 

rect  transmission  of  messages.^*    There  are  a  few  opinions  holding 
differently  to  the  general  rule,-^  but  they  were  decided  at  a  time 

24  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744; 
Coit  V.  West.  U.  Tel.  Co..  130  Cal.  657.  63  Pac.  S3.  80  Am.  St.  Rep.  153,  53 
Iv.  R.  A.  678 ;  Hart  v.  West.  U.  Tel.  Co.,  66  Cal.  579,'  6  Pac.  G37,  56  Am.  Rep. 
119,  1  Am.  Elect.  Cas.  734 ;  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  18  S.  E. 
1008,  44  Am.  St.  Rep.  95 ;  West.  U.  Tel.  Co.  v.  Fontaine,  58  Ga.  433 ;  West.  U. 
Tel.  Co.  V.  Tyler,  74  111.  168,  24  Am.  Rep.  279 ;  West.  U.  Tel.  Co.  v.  Meredith, 
95  Ind.  93 ;  Central  U.  Tel.  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E.  1035 ; 
Sweatland  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285;  Smith  v. 
West.  U.  Tel.  Co.,  S3  Ky.  104,  4  Am.  St.  Rep.  126;  Camp  v.  West.  U.  Tel.  Co., 
1  Mete.  (Ky.)  164,  71  Am.  Dec.  461 ;  Fowler  v.  West.  U.  Tel.  Co.,  SO  Me.  381, 
15  Atl.  29,  6  Am.  St.  Rep.  211 ;  Bartlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16 
Am.  Rep.  437;  Birney  v.  New  York,  etc.,  Tel.  Co.,  18  Md.  341,  81  Am.  Dec. 
G07;  Grinnell  v.  W^est.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep.  485;  Ellis 
V.  American  Tel.  Co.,  18  Allen  (Mass.)  226;  Jacob  v.  West.  U.  Tel.  Co., 
135  Mich.  600,  98  N.  W.  402;  Birkett  v.  West.  U.  Tel.  Co.,  103  Mich.  361. 
61  N.  W.  645,  50  Am.  St.  Rep.  374,  .33  L.  R.  A.  404;  West.  U.  Tel.  Co.  v. 
Carew,  15  Mich.  525 ;  State  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R. 
A.  118 ;  Reed  v.  West.  U.  Tel.  Co.,  56  Mo.  App.  168 ;  Becker  v.  West.  U.  Tel. 
Co.,  11  Neb.  87,  7  N.  W.  868,  88  Am.  Rep.  356;  Kiley  v.  West.  U.  Tel.  Co., 
109  N.  Y.  231,  16  N.  E.  75 ;  Elwood  v.  West.  U.  Tel.  Co.,  45  N.  Y.  549,  6  Am. 
Rep.  140 ;  Leonard  v.  New  York,  etc.,  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446 ; 
Hirsch  v.  American  Dist.  Tel.  Co.,  112  App.  Div.  265,  98  N.  Y.  Supp.  371,  re- 
versing 48  Misc.  Rep.  370,  95  N.  Y.  Supp.  562 ;   Wolfskehl  v.  West.  U.  Tel. 


2n  The  leading  case  in  support  of  this  view  is  that  of  Parks  v.  Alta  Cali- 
fornia Tel.  Co.,  18  Cal.  422,  73  Am.  Dec.  589,  decided  in  1859.  See,  also. 
Central  U.  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep.  114 ; 
We-st.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53 ;  Manville  v.  West.  U.  Tel.  Co.,  87  Iowa, 
214,  18  Am.  Rep.  8 ;  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  106S, 
18  Ky.  Law  Rep.  995,  66  Am.  St.  Rep.  361,  36  L.  R.  A.  711 ;  True  v.  Inter- 
national Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156 ;  West.  U.  Tel.  Co.  v.  Call  Pub. 
Co.,  44  Neb.  326,  62  N.  W.  506,  48  Am.  St.  Rep.  729,  27  L.  R.  A.  622 ;  Pacitic 
Tel.  Co.  V.  Underwood,  87  Neb.  815,  55  N.  W.  1057,  40  Am.  St.  Rep.  490 ; 
Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am."  St.  Rep.  363 ; 
Daily  v.  State,  51  Ohio  St,  348,  37  N.  B.  710,  46  Am.  St.  Rep.  578,  24  L.  R.  A. 
724 ;  Muskogee  Nat.  Tel.  Co.  v.  Hall,  118  Fed.  882,  55  C.  C.  A.  208 ;  State  v. 
Delaware,  etc.,  Tel.  Co.  (C.  C.)  47  Fed.  638,  affirmed  in  50  Fed.  677,  2  C.  C.  A. 
1 ;  State  v.  Bell  Tel.  Co.  (C.  C.)  23  Fed.  539 ;  MacAndrew  v.  Electric  Tel.  Co., 
17  C.  B.  3,  1  Jur.  N.  S.  1073,  25  L.  J.  C.  P.  26,  4  Wkly.  Rep.  7,  84  E.  C.  I-. 
3,  3  Allen  Tel.  Cas.  38;  Bell  Tel.  Co.  v.  Montreal  St.  R.  Co.,  10  Quebec  Ct. 
162 ;  Bryant  v.  American  Tel.  Co.,  1  Daly  (N.  Y.)  575 ;  West.  U.  Tel.  Co.  v. 
Buchanan,  35  Ind.  440,  9  Am.  Rep.  744;  West.  U.  Tel.  Co.  v.  Fontaine,  58 
Ga.  4.33. 

The  rule  established  in  California  by  the  Parks  Ca.se,  supra,  has  been 
changed  by  special  statutory  provisions,  and  the  authority  of  the  other  cases 
is  weakened  by  the  fact  that  in  most  of  them  what  was  said  about  such 
companies  being  insurers  was  unnecessary  to  the  decision  of  the  case.  See 
Gainesboro  Tel.  Co.  v.  Buckner,  160  Ky.  604,  169  S.  W.  1000. 


26  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  26 

when  there  were  few  decisions  on  the  subject,  and  when  the  same 
attention  and  thought  was  not  devoted  to  the  matter  as  was  after- 
wards given  to  it.  In  one  of  the  earliest  courts  of  our  country,  of 
which  we  have  any  knowledge,  holding  them  to  be  common  car- 
riers, the  presiding  judge  said:  "The  rules  of  law  which  govern  the 
liabilities  of  telegraph  companies  are  not  new.  They  are  old  rules 
applied  to  new  circumstances.  Such  companies  hold  themselves 
out  to  the  public  as  engaged  in  a  particular  branch  of  business  in 
whichthe  interests  of  the  public  are  deeply  concerned.  They  pro- 
pose to  do  a  certain  service  for  a  given  price.  There  is  no  difference 
in  the  general  nature  of  the  legal  obligations  of  the  contract  be- 
tween carrying  a  message  along  a  wire  and  carrying  goods  or  a 
package  along  a  route.  The  physical  agency  may  be  different,  but 
the  essential  nature  of  the  contract  is  the  same.  The  breach  of  con- 
tract in  one  case  or  the  other  is  or  may  be  attended  with  the  same 
consequences ;  and  the  obligations  to  perform  the  stipulated  duty 
is  the  same  in  both  cases,  the  importance  of  discharge  of  it  in  both 
respects  is  the  same.  In  both  cases  the  contract  is  binding,  and  the 
responsibility  of  the  parties  for  the  breach  of  duty  is  governed  by 

Co.,  46  Hun  (N.  Y.)  542 ;  Schwartz  v.  Atlantic  Tel.  Co.,  18  Hun  (N.  Y.)  157 ; 
Breese  v.  U.  S.  Tel.  Co.,  45  Barb.  (N.  Y.)  274 ;  31  How.  Prac.  (N.  Y.)  86,  af- 
firmed in  48  N.  Y.  1.32,  8  Am.  Eep.  526 ;  MacPherson  v.  West.  U.  Tel.  Co.,  52 
N.  Y.  Super.  Ct.  232;  De  Rutte  v.  New  York,  etc.,  Tel.  Co.,  1  Daly  (N.  Y.) 
547 ;  30  How.  Prac.  (N.  Y.)  403 ;  Lassiter  v.  West.  U.  Tel.  Co.,  89  N.  C.  334 ; 
West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500;  Passmore 
V.  West.  U.  Tel.  Co.,  78  Pa.  238 ;  New  York,  etc.,  Tel.  Co.  v.  Dryburg,  35  Pa. 
298,  78  Am.  Dec.  338 ;  Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  71,  45  Am.  Rep. 
765 ;  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  858 ;  West.  U.  Tel.  Co.  v.  Mellon,  96 
Tenn.  66,  33  S.  W.  725 ;  West.  U.  Tel.  Co.  v.  Munford,  87  Tenn.  190,  10  S.  W. 
318,  10  Am.  St.  Rep.  630,  2  L.  R.  A.  601 ;  Marr  v.  West.  U.  Tel.  Co.,  85  Tenn. 
529,  3  S.  W.  496 ;  West.  U.  Tel.  Co.  v.  Hearne,  77  Tex.  83,  13  S.  W.  970 ;  West. 
U.  Tel.  Co.  v.-  Neill,  57  Tex.  283,  44  Am.  Rep.  589 ;  Wertz  v.  West.  U.  Tel. 
Co.,  7  Utah,  446,  27  Pac.  172,  13  L.  R.  A.  510;  Gillis  v.  West.  U,  Tel.  Co., 
61  Yt.  401,  17  Atl.  736,  15  Am.  St.  Rep.  917,  4  L.  R.  A.  611 ;  West.  U.  Tel. 
Co.  V.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715;  Thompson  v.  West.  U.  Tel.  Co., 
64  Wis.  531,  25  N.  W.  789,  54  Am.  Rep.  644 ;  Hibbard  v.  West.  U.  Tel.  Co.,  33 
Wis.  558,  14  Am.  Rep.  775;  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14 
Sup.  Ct.  1098,  38  L.  Ed.  883 ;  West.  U.  Tel.  Co.  v.  Coggin,  68  Fed.  137,  15  C. 
C.  A.  231 ;  West.  U.  Tel.  Co.  v.  Cook,  61  Fed.  624,  9  C.  C.  A.  680 ;  Abraham 
V.  West.  U.  Tel.  Co.  (C.  C.)  23  Fed.  315 ;  Playford  v.  United  Kingdom  Electric 
Tel.  Co.,  L.  R.  4  Q.  B.  706,  10  B.  &  S.  759,  38  L.  J.  Q.  B.  249,  21  L.  T.  Rep. 
N.  S.  21,  17  Wkly.  Rep.  968 ;  Dickson  v.  Renter's  Tel.  Co.,  3  C.  P.  D.  1,  47  L. 
J.  C.  P.  1,  37  L.  T.  Rep.  N.  S.  370,  20  Wkly.  Rep.  23 ;  Baxter  v.  Dominion 
Tel.  Co.,  37  U.  C.  Q.  B.  470. 

An  ordinance  declaring  a  telegraph  company  to  be  a  common  carrier  does 
not  make  it  so.  State  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A, 
113. 


28)  LEGAL   STATUS 


27 


the  same  general  rules."  -''  There  was  only  one  English  case  de- 
cided before  the  above,  which,  only  by  implication,  can  be  said  to 
be  authority  for  holding  them  to  the  liability  of  insurers.-'' 

§  27.  Same  continued — decision  criticised. — Some  weight  might 
have  been  attached  to  the  case  above  quoted,  had  it  been  decided  at 
a  time  when  the  facilities  for  transmitting  intelligence  by  means  of 
electricity  had  been  developed  to  its  present  state,  when  messages 
can  be  sent  without  so  much  risk  of  incorrect  transmission.  This 
state  of  perfection  is  now  almost  complete.  As  was  very  ably  said 
by  Judge  Bruse,  while  discussing  the  perfection  to  which  the  science 
of  telegraphy  had  attained:  "In  the  ordinary  course  of  business, 
the  newspapers  inform  us,  and  we  have  no  reason  to  doubt  the  truth 
of  the  statement,  telegrams  are  sent  from  New  York  to  London,  and 
answers  received,  in  about  thirty-three  minutes,  they  having  passed 
through  thirty-six  different  hands,  and  traveled  over  seven  thousand 
miles.  This  is  done  every  day,  such  is  the  perfection  to  which  the 
art  is  brought.  Does  an  instrumentality  which  can  perform  such 
feats  require  the  fostering  care  of  courts?  Is  it  an  infant  yet  in  its 
swaddling  clothes?  No,  but  a  giant  power,  under  the  control  of 
man,  whose  daily  exploits,  guided  by  care  and  skill,  throw  those  of 
the  fabled  Mercury  deep  into  the  shade  and  far  in  the  rear."  ^s 
With  the  skilled  operator  and  the  improved  machinery  which  we 
now  have,  it  is  almost  impossible,  without  the  company's  negli- 
gence, to  fail  in  transmitting  messages  correctly.  But  during  the 
time  of  this  decision  the  science  of  telegraphy  was  not  perfect  by 
any  means.  The  scientist  had  not  learned  how  to  guard  against  the 
atmospheric  disturbances,  the  apparatus  necessary  to  transmit 
intelligence  were  crude  and  imperfect,  and  the  operators  were  very 
unskilled  in  the  management  of  the  machines. 

§  28.  Common-law  theory  continued — distinction  between  these 
and  common  carriers — reasons. — The  telegraph  and  telephone  com- 
panies are  not  common  carriers  and  so  insurers  of  a  correct  trans- 
mission of  messages,29  yet  they  are  liable  for  failure  to  exercise  due 
care  in  making  such  transmissions.^*'  The  public  is  interested  in 
them  and  must  control  the  way  in  which  they  carry  on  their  busi- 
ness to  the  extent  of  seeing  that  the  confidence  reposed  in  them  by 
the  public  is  exercised  impartially  with  the  same  care  and  diligence 

20  Parks  v.  Atla  California  Tel.  Co.,  13  Cal.  422,  73  Am.  Dec.  589. 
2  7  MacAndrews  v.  Electric  Tel.  Co.,  17  C.  B.  3,  1  Jur.  N.  S.  1073,  25  L.  J. 
0.  P.  26,  4  Wkly.  Rep.  7,  84  E.  C.  L.  3,  3  Allen  Tel.  Cas.  38. 
2s  West.  TJ.  Tel.  Co.  v.  Tyler,  74  111.  1G8,  24  Am.  Rep.  279. 
2  9  See  cases  in  note  24,  supra. 
30  §   30. 


28  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  29 

which  any  one  would  use  under  like  circumstances.  While  they  are 
not  common  carriers,  in  the  strict  sense  of  the  term,  they  are  en- 
gaged in  a  business,  almost  if  not  quite,  as  important  to  the  public 
as  that  of  carriers.^^  Messages  which  are  transmitted  by  means  of 
electricity  are  sometimes  as  valuable  to  the  sender  as  the  goods 
which  he  transports  by  the  common  carrier,  but  the  chances  which 
the  latter  has  over  the  former  in  caring  for  the  goods  during  transit 
are  far  superior  to  that  of  the  former  in  controlling  the  messages. 
The  common  carrier  has  an  opportunity  of  seeing  what  happens  to 
the  goods  in  his  charge  at  the  moment  it  happens.  But  a  telegraph 
company,  owing  to  innumerable  causes,  which  may  disturb  the 
security  of  the  lines,  would  be  as  often  open  to  liability  because  of 
the  acts  of  providence,  unknown  to  it,  as  for  any  other  reason.  The 
common  carrier  has  the  tangible  propert}^  and  is  more  capable  of 
insuring  its  protection  while  in  its  care  than  the  telegraph  and  tele- 
phone companies  have  of  insuring  the  safety  and  correctness  of  the 
intangible  property  of  a  message  which  is  being  transmitted  over 
their  wires  and  almost  constantly  coming  in  contact  v.-ith  atmos- 
pheric hindrances.^^  For  this  reason,  the  common  law  does  not 
hold  the  telegraph  companies  to  the  same  strictness  of  insurers 
over  the  correct  transmission  of  messages  which  it  places  on  com- 
mon carriers  over  the  goods  intrusted  to  the  latter's  care.  The  one 
is  liable  onh-  when  it  fails  to  exercise  due  care,  or  when  it  becomes 
negligent;  while  the  other  is  always  liable  for  the  loss  of  all  or 
any  part  of  the  goods,  unless  the  same  has  been  caused  by  act  of  the 
parties,  of  the  public  enemy,  or  by  the  act  of  God.^^ 

§  29.  Common-lav/  theory  continued — analogy  to  common  car- 
riers of  goods  and  passengers. — The  true  rule  is  that  the  status  of 
telegraph  and  telephone  companies  is  analogous  to  common  car- 
riers in  regard  to  their  quasi-public  character,^*  in  their  duty  to 

31  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201 ;  West.  U. 
Tel.  Co.  V.  Pendleton,  95  Ind.  12,  48  Am.  Rep.  692. 

3  2  Gillis  V.  West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  736,  15  Am.  St.  Rep.  917, 
4  L.  R.  A.  611,  note;  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep. 
715 ;  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.)  226. 

A  constitutional  provision  that  telegraph  companies  shall  be  common  car- 
riers does  not  affect  the  rule  that  they  are  not  liable  in  the  same  manner 
and  to  the  same  extent  as  common  carriers.  Poteet  v.  West.  U.  Tel.  Co.,  74 
S.  C.  491,  55  S.  E.  113. 

3  3  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  18  S.  E.  1008,  44  Am.  St.  Rep. 
95 ;  West.  U.  Tel.  Co.  v.  Fontaine,  58  Ga.  433 ;  W^est.  U.  Tel.  Co.  v.  Carew,  15 
Mich.  525;  Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  71,  45  Am.  Rep.  765; 
Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496. 

3  4  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201;  Central  U. 
Tel.  Co.  V.  Swovelaud,  14  Ind.  App.  341,  42  N.  E.  1035 ;  True  v.  International 


§    29)  LEGAL   STATUS  29 

serve  the  public  generally  in  good  faith  and  impartially  and  without 
discrimination,^^  and  in  being  subject  to  legislative  regulation  and 
control.^**  But  they  are  not  insurers  of  a  correct  transmission  of 
messages  turned  over  to  them,  as  carriers  are  for  property  intrusted 
to  them  for  carriage.^^  This,  then,  is  the  analogy  between  common 
carriers  of  goods  and  telegraph  companies.  The  one  is  an  insurer 
of  goods  intrusted  to  it  under  all  circumstances,  except  such  losses 
as  may  be  caused  by  the  act  of  God  or  the  public  enemy ;  while  the 
telegraph  companies,  in  the  absence  of  a  contract  or  regulations 
modifying  their  liability,  do  not  insure  absolutely  the  safe  and  ac- 
curate transmission  of  messages,  but  are  only  required  to  exercise 
due  care  and  diligence  in  all  their  work,  and  will,  be  liable  only  for 
the  negligence  of  their  agents.^^  It  seems  to  us  that  the  analogy 
between  common  carriers  of  passengers  for  hire  and  telegraph  com- 

Tel.  Co.,  60  Me.  9,  11  Am.  Eep.  156 ;  State  v.  Nebraska  Tel.  Co.,  17  Neb.  126, 

22  N.  W.  237,  52  Am.  Eep.  404 ;  Ins.  Co.  v.  Tel.  Co.,  247  111.  84,  93  N.  E.  134, 
30  L.  E.  A.  (N.  S.)  1170.  139  Am.  St.  Eep.  314;  Vermilye  v.  Cable  Co.,  205 
Mass.  598,  91  N.  E.  904,  30  L.  E.  A.  (N.  S.)  472 ;  Vaught  v.  East  Tenn.  Tel.  Co., 
123  Tenn.  318,  130  S.  W.  1050,  31  L,  E.  A.  (N.  S.)  315,  Ann.  Cas.  1912C,  132 ; 
Providence-Washington  Ins.  Co.  v.  West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E. 
134,  30  L.  E.  A.  (N.  S.)  1170,  139  Am.  St.  Eep.  314. 

3  5  Central  U.  Tel  Co.  v.  State,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Eep. 
114;  Central  U.  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  721;  State  v.  Kin- 
loch  Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  684 ;  State  v.  Nebraska  Tel.  Co.,  17 
Neb.  126,  22  N.  W.  237,  52  Am.  Eep.  404;  State  v.  Delaware,  etc.,  Tel.  Co. 
(C.  C.)  47  Fed.  633,  affirmed  in  50  Fed.  677,  2  C.  C.  A.  1;  Tel.,  etc.,  Co.  v. 
Beach,  8  Ga.  App.  720,  70  S.  E.  137;    Vaught  v.  East  Tenn.  Tel.  Co.,  supra. 

3  0  Central  U.  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N,  E.  721;  Hockett  v. 
State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Eep.  201 ;  State  v.  Kinloch  Tel.  Co., 
93  Mo.  App.  349,  67  S.  W.  684.  See  Tel.,  etc.,  Co.  v.  State,  99  Miss.  1,  54 
South.  446. 

3  7  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  E.  A.  744; 
Little  Eock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79 ;  Fowler  v.  West.  U.  Tel.  Co., 
80  Me.  381,  15  Atl.  29,  6  Am.  St.  Eep.  211 ;  West.  U.  Tel.  Co.  v.  i^ontaiue,  58 
Ga.  433;  Birney  v.  New  York,  etc.,  Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  607; 
Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Eep.  38;  West.  U.  Tel.  Co.  v. 
Carew,  15  Mich.  525 ;  Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.  132,  8  Am.  Eep.  526 ; 
De  Eutte  v.  New  York,  etc..  Electro,  etc.,  Tel.  Co.,  1  Daly  (N.  Y.)  547,  30 
How.  Prac.  (N.  Y.)  403;  Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  71,  45  Am. 
Eep.  765 :  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  668 ;  West.  U.  Tel.  Co.  v.  Neill, 
57  Tex.  283,  44  Am.  Eep.  589 ;  West.  U.  Tel.  Co.  v.  Munford,  87  Tenn.  190, 
10  S.  W.  318,  10  Am.  St.  Eep.  630,  2  D.  E.  A.  601 ;  Marr  v.  West.  U.  Tel.  Co., 
85  Tenn.  529,  3  S.  W.  496 ;  Gillis  v.  West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  736, 
15  Am.  St.  Eep.  917,  4  L.  E.  A.  611 ;  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S. 
1,  14  Sup.  Ct.  1098,  38  L.  Ed.  883 ;  West.  U.  Tel.  Co.  v.  Schriver,  141  Fed.  538, 
72  C.  C.  A.  590,  4  L.  E.  A.  (N.  S.)  678 ;  Abraham  v.  West.  U.  Tel.  Co.  (C.  C.) 

23  Fed.  315 ;  White  v.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710,  5  McCrary,  103. 
3s  See  cases  in  note  37,  supra. 


30  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  30 

panics  is  stronger  than  that  between  the  latter  and  common  carriers 
of  goods. ^''  Carriers  of  passengers  are  not  insurers  of  the  safety 
of  their  passengers;  nor  are  they  liable  for  injuries  to  their  pas- 
sengers resulting  from  such  defects  in  their  buildings  or  means  of 
transportation  as  could  not  have  been  guarded  against  by  the  exer- 
cise of  care  on  their  part;  nor  for  injuries  caused  by  an  act  of  God, 
without  negligence  on  the  carrier's  part.  But  when  the  carrier  has 
been  in  any  respect  negligent,  the  concurrence  of  an  act  of  God  in 
causing  the  injury  will  not  relieve  the  carrier  from  responsibility. 
Nor  are  carriers  to  be  held  liable  for  injuries  caused  without  fault 
on  their  part  by  an  act  of  the  public  enemy;  nor  to  injuries  caused 
by  inevitable  accident,  not  due  in  any  way  to  negligence  on  the  part 
of  the  carrier  and  such  as  no  human  foresight  on  his  part  could 
avert.  The  same  rule  applies  to  telegraph  companies.  They  are 
both  engaged  in  a  business  of  a  public  nature,  both  must  serve  all 
who  come — neither  are  insurers  nor  liable  as  such,  but  both  are  lia- 
ble for  negligence.*" 

§  30.  Common-law  theory  continued — degree  of  care. — As  tele- 
graph companies  are  liable  only  for  failure  to  exercise  due  care  in 
transmitting  intelligence,  it  might  be  proper  to  examine  the  true 
meaning  of  the  phrase  "due  care" ;  and  in  doing  so  it  gives  us  very 
much  pleasure  to  refer  the  reader  to  the  very  learned  and  able  opin- 
ion of  Judge  Danforth  on  this  question,  when  he  said  that:  "To 
require  a  degree  of  care  and  skill  commensurate  with  the  importance 
of  the  trust  reposed  is  in  accordance  with  the  principles  of  law  ap- 
plicable to  all  undertakings  of  whatever  kind,  whether  professional, 
mechanical,  or  that  of  common  labor.  There  is  no  reason  why  the 
business  of  sending  messages  by  telegraph  should  be  made  an  ex- 
ception to  the  general  rule.  This  requires  skill  as  well  as  care.  If 
the  work  is  difficult,  greater  skill  is  required.  It  is  often  necessary 
to  intrust  to  this  mode  of  communication,  matters  of  great  moment, 
and  therefore  the  law  requires  great  care.  It  is  necessary  to  use  in- 
struments of  a  somewhat  delicate  nature  and  accurate  adjustment, 
and  therefore  they  must  be  so  made  as  to  be  reasonably  sufficient 
for  the  purpose.  The  company  holding  itself  out  to  the  public  as 
ready  and  willing  to  transmit  messages  by  this  means  pledges  to 
that  public  the  use  of  instruments  proper  for  the  purpose  and  that 
degree  of  skill  and  care  adequate  to  accomplish  the  object  proposed. 

3  0  Gillis  V.  West.  U.  Tel.  Co.,  Gl  Vt.  461,  17  Atl.  736,  4  L.  R.  A.  611,  15 
Am.  St.  Rep.  917;  Fowler  v.  West.  U.  Tel.  Co.,  SO  Me.  381,  15  Atl.  29,  6 
Am.  St.  Rep.  211;  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep. 
722. 

40  See  cases  in  note  39,  supra. 


§    31)  LEGAL  STATUS  31 

In  case  of  failure  in  any  of  these  respects  the  company  would  un- 
doubtedly be  liable  for  the  damage  resulting.  This  would  not  im- 
pose any  liability  for  the  want  of  skill  or  knowledge  not  reasonably 
attainable  in  the  present  state  of  the  art,  nor  for  errors  resulting 
from  the  peculiar  and  unknown  condition  of  the  atmosphere  or  any 
agency  from  whatever  source,  which  the  degree  of  skill  and  care 
spoken  of  is  insufficient  to  guard  against  or  avoid."  *^ 

§  31.  Common-law  theory  continued — bailees  for  hire — analogy. 
■ — There  are  some  few  cases  which  have  assigned  telegraph  com- 
panies to  the  category  of  bailees  for  hire.*^  The  argument  is  that, 
as  the  ground  of  their  liability  is  the  same  as  that  of  bailees,  the 
legal  status  of  the  two  must  be  the  same.  But  this  doctrine  is  justly 
criticized,  because  telegraph  companies  are  engaged  in  a  business 
of  a  public  nature  and  are  precluded  by  rights  and  duties  incident 
thereto  from  occupying  the  legal  status  of  an  ordinary  bailee  for 
hire,  whose  rights  and  duties  arise  wholly  from  the  contract  of  em- 
ployment.*^ A  bailee  for  hire  is  any  one  who  has  the  absolute  right 
to  contract  with  any  one  with  whom  he  may  see  fit  and  to  be  con- 
trolled by  the  contract  made  with  such  party.**  The  compensation 
under  the  contract  of  bailment  for  hire  may  not  be  the  same  at  all 
times,  nor  the  same  made  with  all  persons.  The  bailor  is  not  a  pub- 
lic servant  nor  controlled  by  the  public.  While,  on  the  other  hand, 
telegraph  companies  are  engaged  in  a  business  of  a  public  nature 
and  must  serve  all  who  apply  to  them  after  the  former  have  com- 
plied with  their  reasonable  rules  and  regulations.  They  are  con- 
trolled by  the  public  and  are  liable  to  the  sender  of  the  message  on 
account  of  any  special  contract  which  may  have  been  made  with 
him,  but  are  only  liable  for  negligence  or  undue  care  in  transmitting 
the  message. 

*i  Bartwell  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  447. 

42  Birney  v.  New  York,  etc.,  Tel.  Co.,  18  Md.  341,  SI  Am.  Dec.  607 ;  Smith- 
son  V.  U.  S.  Tel.  Co.,  29  Md.  162 ;  Piuckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  71, 
45  Am.  Rep.  765 ;  West.  U.  Tel.  Co.  v.  Fontaine,  58  Ga.  433. 

4  3  Gillis  V.  West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  736,  4  L.  R.  A.  611,  15  Am. 
St.  Rep.  917 ;  West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480. 

44  White  V.  Phelps,  14  Minn.  27  (Gil.  21),  100  Am.  Dec.  190;  Butler  v. 
Greene,  49  Neb.  2S0,  OS  N.  W.  496 ;  Harris  v.  Howard,  56  Vt.  695 ;  Walker  v. 
York,  etc.,  R.  Co.,  2  C.  L.  R.  237,  2  E.  &  B.  750,  18  Jur.  143,  23  L.  J.  Q.  B. 
73,  2  Wkly.  Rep.  11,  75  E.  C.  L.  750;  Van  Toll  v.  Southeastern  R.  Co.,  12 
C.  B.  N.  S.  75,  8  Jur.  N,  S.  1213,  31  L.  J.  C.  P.  241,  6  L.  T.  Rep.  N.  S.  244, 
10  Wkly.  Rep.  578,  104  E.  C.  L.  75.  A  special  contract  prevails  against  gen- 
eral principles  of  law  applicable  in  the  absence  of  express  agreements.  But- 
ler V.  Greene,  above  cited. 


32  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  32 

§  32,  Common-law  theory  continued — quasi-conimon  carrier  of 
news. — There  are  decisions  holding  that  telegraph  and  telephone 
companies  are  quasi-common  carriers  of  news  and,  as  such,  bound 
to  supply  all,  who  are  in  like  circumstances,  alike  with  similar  facili- 
ties, under  reasonable  limitations  and  without  any  discrimination.*^ 
In  our  opinion  this  is  the  closest  relation  they  have  to  common  car- 
riers, and  in  this  they  are  not,  strictly  speaking,  common  carriers  in 
that  they  are  not  insurers ;  but  the  care  required  of  them  in  the 
transmission  of  news  becomes  more  closely  guarded.  As  time  ad- 
vances, improvements  on  electrical  transmission  of  news  are  being 
rapidly  made.  We  are  approaching  perfection  in  the  art  of  teleg- 
raphy as  the  days  pass,  and  it  will  only  be  a  short  time  until  the 
facilities  for  transmitting  news  will  be  even  better  and  safer  than 
for  the  transportation  of  goods  by  common  carrier.*''  When  this 
time  comes — if  it  should  ever — there  is  no  reason  why  the  same 
stringent  laws  which  are  applicable  to  common  carriers  should  not 
be  applied  with  equal  force  and  in  every  particular  to  these  com- 
panies; and  when  they  are,  of  course  they  will  then  fall  under  the 
head  of  common  carriers.  The  constitution  and  statutes  of  some  of 
the  states  are  now  declaring  them  common  carriers,  but  if  such  im- 
provements are  made  on  them  as  mentioned  above,  it  will  not  be 
necessary  for  such  laws  to  be  enacted  by  the  states,  for  they  will  be 
considered  common  carriers  without  such  laws.  We  do  not  desire 
the  readers  to  understand  us  as  saying  that  they  are  common  car- 
riers, or  ever  will  be,  in  the  absence  of  a  statute  declaring  them  to 
be  such ;  but  we  do  say  that  if  the  improvements  in  the  methods  of 
transmitting  intelligence  continue  to  develop  for  the  next  thirty 
years  as  they  have  during  the  last  ten,  they  will  be  at  such  a  state 
of  perfection  as  will  induce  the  courts  to  throw  around  them  the 
same  stringent  and  rigid  rules  in  the  enforcement  of  that  degree  of 

45  state  V.  Citizens'  Tel.  Co.,  61  S.  C.  S3,  39  S.  E.  257,  85  Am.  St.  Rep. 
870,  55  L.  R.  A.  139;  Marr  v.  West.  U.  Tel.  Co.,  85  Term.  529,  3  S.  W.  496; 
West.  U.  Tel.  Co.  v.  Allen,  66  Miss.  549,  6  South.  461;  Nebraska  Tel.  Co.  v. 
State,  55  Neb.  627,  76  N.  W.  171,  45  L.  R.  A.  113. 

4  6  Judge  Bruce  very  ably  said:  "The  undertaking  of  the  company  is  prima 
facie,  to  send  it  correctly,  and  if  their  wires  and  instruments  are  in  proper 
order  and  their  operators  skillful  and  careful,  it  will  traverse  the  wires  pre- 
cisely in  the  words  and  figures  which  composed  it  when  placed  upon  the 
wire  and  is  sure  in  that  shape  and  form  to  reach  its  destination,  no  atmos- 
pheric causes  intervening  to  prevent.  The  very  fact  that  but  for  cases  of 
negligence  have  been  brought  against  these  companies  is  strong  proof  they 
do,  in  almost  all  cases,  transmit  messages  correctly,  and  they  can  always  do 
it,  if  they  take  proper  care  to  have  requisite  skill  and  use  proper  instru- 
ments."   West.  U.  Tel.  Co.  v.  Tyler,  74  IlL  168,  24  Am.  Rep.  280. 


§    34)  LEGAL   STATUS  33 

care  in  the  transmission  of  intelligence  as  are  now  applicable  to 
common  carriers,  thereby  causing  them  to  be  insurers  to  a  certain 
degree,  and  therefore  making  them  nothing  less  than  common  car- 
riers. 

§  33.  Common  carriers  continued — law  applicable  to  both  tele- 
graph and  telephone  companies. — The  same  law  which  has  been 
discussed  in  regard  to  common  carriers  is  equally  applicable  to 
both  telegraph  and  telephone  companies.  The  fact  that  diflferent 
means  are  used  in  the  transmission  of  intelligence  over  telegraph 
and  telephone  companies  does  not  make  them  different  in  nature. 
In  both  instances,  the  intelligence  or  message  is  actually  trans- 
mitted by  the  use  of  agencies  and  instrumentalities  furnished  either 
by  the  telegraph  or  the  telephone  company,  for  which  they  are  en- 
titled to  receive  proper  compensation;  and  one  is  just  as  much  en- 
gaged in  the  business  of  transmitting  intelligence  for  hire  as  the 
other.  Both  are  devices  by  which  one  person  is  enabled  to  com- 
municate with  another  beyond  the  reach  of  the  human  voice,  un- 
aided by  some  artificial  appliance ;  and,  although  there  are  some 
differences  in  the  mode  of  transmitting  intelligence,  yet  the  end 
sought  and  attained  by  each  is  substantially  the  same.*''  The  rule 
is  not  changed  by  reason  of  the  fact  that  the  agent  of  one  company 
occupies  a  position  in  which  he  may  more  often  be  apprised  of  the 
contents  of  the  message  than  the  agent  for  the  other ;  for  in  either 
case  the  agents  may  be,  and  are  very  often,  deprived  of  a  means  of 
ascertaining  the  contents  of  a  message.*^ 

§  34.  Statutory  theory. — Having  discussed  at  some  length  the 
analogy  of  telegraph  and  telephone  companies  to  common  carriers, 
as  considered  under  the  common  law,  it  shall  now  be  our  purpose  to 
say  something  of  the  changes  which  the  statutes  of  some  of  the 
states  have  made  with  respect  to  this  subject;  and  in  doing  so  we 
shall  endeavor  to  make  the  discussion  more  brief  than  under  the 
former  head,  or  the  common-law  theory.  In  fact  the  most  that  is 
said  under  this  title  is  the  result  of  such  thoughts  as  may  be  ad- 
vanced by  the  writer,  on  account  of  the  statutory  changes  of  the 
common-law  theory  being  mostly  of  recent  enactment,  and,  for 
which  reason  few  cases  in  which  the  question  is  considered  are 
found  in  the  reports.  It  is  held  by  almost  a  unanimity  of  decisions 
that  telegraph  and  telephone  companies  are  common  carriers  and 

4  7  state  V.  Citizens'  Tel.  Co.,  61  S.  C.  S3,  39  S.  E.  257,  85  Am.  St.  Kep.  870, 
55  L.  R.  A.  139. 
48  Id. 

Jones  Tel.(2d  Ed.)— 3 


34  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  34 

liable  as  such  only  under  statutes  in  which  they  are  so  declared/^ 
And  it  is  a  pleasure  to  note  the  fact  that  some  of  the  states  have  or 
are  enacting  statutes  which  declare  them  common  carriers;^"  and 
yet  we  could  not  have  made  this  statement  several  years  ago  when 
the  science  of  telegraphy  was  in  its  infancy,  but  after  these  many 
years  of  improvement  and  development  of  the  art  we  feel  prone  to 
change  with  the  times  and  conditions  respecting  same.^^  While  the 
general  rule,  practiced  by  the  courts  of  our  country  in  passing  on 
issues  of  law  presented  to  them  for  their  consideration,  is,  that  they 
are  to  be  controlled  to  a  great  extent  by  former  decisions,  customs 
and  usages,  yet  we  do  not  feel  constrained  to  follow  this  rule  in 
every  particular.  However,  it  is  very  unsafe  and  improper  to  de- 
part from  these  old  usages  whenever  the  time  to  do  so  will  not 
permit,  but  in  an  era  of  progress,  as  we  now  live  in,  there  must  be 
changes  in  these  laws  to  meet  the  needs  and  conditions  of  the  times, 
and  yet  this  is  seldom  done,  except  by  legislation.  A  law,  either 
common  or  statutory,  which  was  sufficient  to  meet  all  the  demands 
of  a  good  government  twenty,  or  maybe  not  so  many  years  since, 
may  be  wholly  inadequate  for  the  general  welfare  of  society  now 
and  should  therefore  be  changed  accordingly.  There  has  been  such 
an  improvement  in  the  method  of  transmitting  messages  by  elec- 
tricity that  the  common-law  theory  with  respect  to  the  legal  status 
of  telegraph  companies  should  be  amended  by  statutory  laws. 
They  have  become  as  equally  important  to  the  commercial  interest 
of  the  world  as  that  of  any  common  carrier  of  goods.  They  are 
agents  of  the  government  and  have  the  power  of  exercising  the 
right  of  eminent  domain,  without  which  they  could  not  invade  the 
private  property  of  an  individual  without  his  consent.  With  all 
these  privileges  granted  by  the  government,  and  the  almost  perfect 
control  over  the  art  of  telegraphy  by  the  late  and  modern  improve- 
ments, it  is  but  fair  and  just  that  they  be  placed  under  almost  if  not 
the  same  restrictions  as  that  which  the  common  law  imposes  on 
common  carriers. 

4  9  See  cases  cited  in  notes  24  and  52. 

5  0  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  1068,  18  Ky.  Law 
Rep.  995,  66  Am.  St.  Rep.  361,  36  L.  R.  A.  711 ;  Alabama  &  V.  R.  Co.  v.  Cum- 
berland Tel.,  etc.,  Co.,  88  Miss.  438,  41  South.  258;  Postal  Tel.,  etc.,  Co.  v. 
Wells.  82  Miss.  733,  35  South.  190;  Blackwell  Milling,  etc.,  Co.  v.  West.  U. 
Tel.  Co.,  17  Okl.  376,  89  Pac.  235,  10  Ann.  Cas.  855;  Lothian  v.  Tel.  Co.,  25 
S.  D.  319,  126  N.  W.  621 ;  State  v.  Super.  Ct.,  67  Wash.  37,  120  Pac.  861,  L. 
R.  A.  1915C.  287,  Ann.  Cas.  1913D,  78. 

51  West.  U.  Tel.  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  279. 


§    36)  LEGAL   STATUS  35 

§  35.  Common  carriers  in  absence  of  statute  are  not — reason. — 
Telegraph  and  telephone  companies  are  not  common  carriers  in  the 
absence  of  statutes  making  them  such.^^  And  yet,  there  seems  to 
be  a  misunderstanding  among  a  few  of  the  courts  on  this  subject, 
and  this,  too,  in  the  absence  of  statutes.  These  courts  fail  to  see 
that  in  order  to  be  liable  as  common  carriers,  they  must  be  insurers 
of  a  correct  transmission  of  messages  as  well  as  to  serve  all  impar- 
tially who  apply  to  them.  If  it  were  not  necessary  under  the  com- 
mon law  for  them  to  be  insurers  of  a  correct  transmission  in  order 
to  be  liable  as  common  carriers,  then,  as  a  matter  of  fact,  it  would 
not  be  necessary  for  statutes  to  be  enacted  declaring  them  common 
carriers ;  for  it  is  held  by  the  common  law  that  they  are  so  much 
like  common  carriers  as  that  they  must  serve  the  public  in  good 
faith  and  impartially.  They  are  insurers  of  a  correct  transmission 
of  messages  only  when  they  fail  to  exercise  due  care  in  the  trans- 
mission, and  in  order  to  make  them  absolutely  and  unconditionally 
liable  for  any  incorrectness  in  the  sending  of  the  messages,  except 
when  prevented  by  the  act  of  God  or  the  public  enemy,  it  must  be 
done  by  statutory  enactments. 

§  36.  Reasonableness  of  statutes — making  them  common  car- 
riers.— Many  of  the  most  important  business  transactions  of  the 
world  depend  for  their  successful  consummation  upon  the  accuracy 
with  which  telegraph  companies  transmit  the  messages  received  by 
them.  Often  the  messages  are  of  the  utmost  importance  to  either 
the  sender  or  addressee,  and  a  failure  to  make  an  accurate  and  cor- 
rect transmission  of  these  would  cause  them  very  great  damage. 
Public  policy,  the  protection  of  the  property  rights  of  the  public, 
the  safety  of  the  people  with  whom  they  carry  on  business,  all  re- 
quire a  degree  of  care  commensurate  with  the  magnitude  of  the 
public  interest  involved.  Therefore  a  clear  and  definite  understand- 
ing of  these  companies'  liabilities  should  be  known  by  the  public 
and  not  subject  those  with  whom  they  deal  to  be  forever  and  eter- 
nally troubled,  harassed,  and  annoyed  by  conditions,  stipulations, 
and  limitations  of  liability  made  by  such  companies  and-  forced 
upon  the  public.  There  is  no  more  reason  why  an  individual  should 
be  bound  by  the  laws  of  the  state  than  telegraph  companies.     If 

5  2  Birkett  v.  West.  U.  Tel.  Co.,  103  Mich.  361,  61  N.  W.  645,  50  Am.  St. 
Rep.  .374,  .33  L.  R.  A.  404 ;  Kiley  v.  West.  U.  Tel.  Co.,  109  N.  Y.  231,  16  N.  E. 
75 ;  Redpath  v.  West.  U.  Tel.  Co.,  112  Mass.  71,  17  Am.  Rep.  69 ;  Clement  v. 
West.  U.  Tel.  Co.,  1.37  Mass.  463;  Becker  v.  West.  U.  Tel.  Co.,  11  Neb.  87,  7 
N.  W.  S6S,  38  Am.  Rep.  356;  Lassiter  v.  West.  U.  Tel.  Co.,  89  N.  C.  334; 
United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519 ;  Hart  v. 
West.  U.  Tel.  Co.,  66  Cal.  579,  6  Pac.  637,  56  Am.  Rep.  119 ;  West.  U.  Tel.  Co. 
V.  Hearue,  77  Tex.  83,  13  S.  W.  970. 


36  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  37 

the  passage  of  such  laws  have  the  effect  to  make  the  individual  a 
better  citizen  and  prevent  him  from  committing  w^rongs ;  or,  in 
other  words,  if  they  induce  him  to  be  more  careful  and  particular  in 
his  business  transactions  with  his  fellow  man,  the  same  reason 
should  apply  to  laws  pertaining  to  telegraph  and  telephone  com- 
panies. If  a  telegraph  company  knows  that  it  will  be  liable  abso- 
lutely and  unconditionally  to  its  patrons  for  a  failure  to  make  a 
correct  transmission  of  all  the  messages  delivered  to  it  for  transmis- 
sion, the  company  will  be  much  more  careful  and  particular  in  look- 
ing after  its  business  than  it  would  if  it  could  limit  by  stipulation  its 
own  liability.  Such  statutes  bring  about  better  service  to  the  pub- 
lic and  for  this  reason  the  public  receives  a  more  valuable  considera- 
tion in  return  for  the  many  rights  and  privileges  granted  the  com- 
pany, and  which  are  not  enjoyed  by  the  individuals,  thereby  making 
them  more  equitable  both  to  the  public  and  to  the  company.^^ 

§  37.  Statutes  superior  to  any  agreement. — These  statutes  are 
superior  to  any  agreement  made  by  a  telegraph  or  telephone  com- 
pany. They  enter  into  and  become  a  part  of  the  agreement  made 
between  the  company  and  its  patrons,  and  none  of  these  agreements 
can  be  made  so  as  to  be  in  conflict  with  them ;  otherwise  they  will  be 
void.  The  telegraph  and  telephone  companies  are  bound  by  the  laws 
of  the  state  as  much  as  any  inhabitant  thereof,  and  these  statutes, 
therefore,  always  become  a  part  of  the  contract  made  with  the  patron 
for  the  transmission  of  messages.  That  is,  the  telegraph  or  tele- 
phone company  cannot  ignore  the  law  and  set  itself  up  as  having 
superior  power  to  the  states  to  make  laws,  but  must  obey  the  latter 
and  transmit  messages  in  accordance  with  such  law  or  be  liable  for 
its  failure  in  that  respect.^* 

§  38.  Binding  in  foreign  states — relation  to  commerce. — A  statu- 
tory provision  that  "any  telegraph  company  is  hereby  declared  to 
be  liable  for  the  nondelivery  of  dispatches  intrusted  to  its  care,  and 
for  all  mistakes  in  transmitting  messages  made  by  any  person  in 
its  employ,  *  *  *  and  any  such  telegraph  company  shall  not 
be  exempted  from  such  liability  by  reason  of  any  clause,  conditions, 
or  agreement  contained  in  its  printed  blanks,"  is  equitable,  fair,  and 
obligatory  on  all  telegraph  companies  doing  business  in  the  state, 
and  applies  to  such  companies  when  contracting  to  correctly  send 
a  message  to  another  state.""    They  are  not  penal  statutes  so  as  to 

5  3  West.  U.  Tel.  Co.  v.  Kemp,  44  Neb,  194,  62  N.  W.  451,  4S  Am.  St.  Rep. 
723. 

5  4  Id. 

5  5  Id.  The  court  in  this  case  said:  "The  contract  was  made  at  Papillion 
within  this  state  and  the  defendant  undertook  to  transmit  correctly  the  mes- 


I    40)  LEGAL   STATUS  37 

be  unenforceable  in  other  states.  They  are  a  part  of  the  contract 
of  sending,  and  a  failure  to  transmit  correctly  to  its  destination, 
which  may  be  within  another  state  is  a  breach  thereof,  and  the 
party  injured  thereby  becomes  entitled  to  all  damages  actually 
flowing  therefrom,  or  such  as  was  presumed  to  have  been  contem- 
plated at  the  time  the  contract  was  made,  as  a  result  of  such  breach. 
Both  the  telegraph  and  telephone  are  instruments  of  commerce,  so 
it  is  also  declared  that  no  reasonable  distinction  exists  between  the 
office  of  common  carrier  "by  telephone  and  the  office  of  common 
carrier  of  goods  by  railway  or  steamboat.  In  both  cases  it  is  com- 
merce between  the  states,"  so  far  as  the  principle  concerns  the 
power  of  a  state  to  tax  goods  started  for  transportation  to  another 
state  or  delivered  to  a  common  carrier  for  that  purpose.^"  It  is 
also  said  that :  "The  electric  telegraph  line  is  at  this  day  and  time 
as  much  a  common  carrier  and  national  highway  in  the  transmis- 
sion of  telegraphic  business  and  intelligence  as  the  railroads  and 
steam  vessels."  ^^  Again,  it  is  declared  that  a  telegraph  company 
"occupies  the  same  relation  to  commerce  as  a  carrier  of  messages 
that  a  railroad  company  does  as  a  carrier  of  goods."  ^® 

§  39.  Alarm  system — messenger  service. — It  has  been  held  that 
where  a  telegraph  company,  in  addition  to  its  general  business,  con- 
nects offices,  dwelling  houses,  and  other  buildings  with  the  police 
station,  thereby  establishing  an  alarm  system,  and  which  also  main- 
tains a  staff  of  messenger  boys  for  the  use  of  patrons  in  receiving 
and  delivering  packages  and  other  property,  they  paying  for  such 
services,  is  not  a  common  carrier  in  respect  to  said  services,  unless 
it  was  incorporated  to  carry  on  such  business.^" 

§  40.  Telephone  for  private  business. — The  installation  of  a 
local  telephone  plant,  by  a  company  doing  a  public  business,  in  a 

sage  to  Kansas  City.  It  did  not  do  so.  The  contract  of  tbe  defendant,  there- 
fore, was  broken,  and  the  plaintiff  thereby  sustained  damages.  The  place 
where  part  of  the  service  was  to  be  performed  can  make  no  difference ;  the 
contract  was  made  here,  and  was  to  be  in  part  performed  in  this  state,  and 
the  defendant  is  liable  for  the  breach  thereof." 

5  6  Matter  of  Taxation  of  the  Penn.  Tel.  Co.,  4S  N.  J.  Eq.  91,  20  Atl.  846, 
27  Am.  St.  Rep.  4G2. 

5  7  Union  Trust  Co.  of  N.  Y.  v.  Atcliison,  Topeka  &  S.  F.  Co.,  8  N.  M.  327, 
43  Pac.  701. 

5  8Dailey  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  24  L.  R.  A.  724,  4G  Am. 
St.  Rep.  578 ;  West.  U.  Tel.  Co.  v.  State  Board  of  Assnit.,  132  U.  S.  472,  10 
Sup.  Ct.  161,  33  L.  Ed.  409 ;  West.  U.  Tel.  Co.  v.  Mayor  of  New  York  (C.  C.) 
38  Fed.  552,  3  L.  R.  A.  449. 

5  9  Hirsch  v.  American  Dist.  Tel.  Co.,  112  App.  Div.  265,  98  N.  Y.  Supp.  371, 
reversing  48  Misc.  Rep.  370,  95  N.  Y.  Supp.  562. 


38  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  40 

large  building  so  that  only  persons,  while  in  the  different  rooms 
thereof,  can  communicate  with  each  other,  and  not  with  the  outside 
public,  is  not  a  part  of  the  public  business  of  the  latter  as  for  the 
purpose  of  rate  regulation.*'*'  However,  the  rule  would  be  other- 
wise if  the  local  plant  was  connected  with  the  general  telephone 
exchange,  or  with  the  outside  public. 

60  Chesapeake,  etc.,  Tel.  Co.  v.  Manning,  186  U.  S.  238,  22  Sup.  Ct.  881,  46 
D.  Ed.  1144. 


I 


§   41)  CORPORATE   RIGHTS  AND  FRANCHISES  39 

CHAPTER  III 
CORPORATE  RIGHTS  AKD  FRANCHISES 

§  41.  Incorporation, 

42.  Franchise— distinguished  from  charter. 

43.  Same— kinds  of  franchises— primary  and  secondary. 

44.  License  not  a  franchise — acceptance  of — a  contract. 

45.  Alienability  of  franchise— primary. 

46.  Same  continued — secondary. 

47.  Same  continued — leases. 

48.  Legislature  may  authorize  sale  or  lease. 

49.  Contracts  and  combinations. 

§  41.  Incorporation. — Nearly  every  state  in  the  Union  now  pro- 
vides for  the  formation  of  corporations  under  general  laws,  and  in  a 
few  states  certain  provisions  are  made  by  the  constitution  as  to  the 
formation  of  certain  kinds  or  classes  of  corporations.  Except  in  so 
far  as  regulated  by  special  constitutional  -or  statutory  provisions  the 
formation  and  incorporation  of  telegraph,  telephone,  and  electric 
companies  is  governed  by  the  principles  relating  to  corporations  in 
general.^  Some  of  the  states  have  special  statutory  laws  for  the 
creation  of  telegraph  and  telephone  companies,  but,  if  such  statutes 
relate  to  telegraph  companies,  telephone  companies  may  also  be 
formed  thereunder,  unless  it  is  expressed  therein  to  the  contrary.^ 
A  statute  providing  for  the  incorporation  of  a  company  to  manufac- 
ture electricity  for  telephoning  purposes,  etc.,  authorizes  the  organi- 
zation of  companies  to  construct  and  operate  telephone  lines,  and 
does  not  limit  the  purposes  merely  to  the  manufacturing  of  electric- 
ity for  telephoning  purposes.^    The  constitutional  or  statutory  au- 

1  The  Georgia  constitution  confers  upon  the  legislature  the  exclusive  power 
to  charter  telegraph  companies,  and  a  charter  granted  by  a  superior  court  is 
therefore  null  and  void.  Doboy,  etc.,  Tel.  Co.  v.  De  Magathias  (C.  O.)  25 
Fed.  697;  Crawford  Electric  Co.  v.  Knox  County  Power  Co.,  110  Me.  285,  86 
Atl.  119,  Ann.  Cas.  1914C,  933,  electrical  companies. 

2  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  899,  7  Atl. 
809,  59  Am.  Rep.  167;  State  v.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law, 
341,  21  Atl.  460,  11  L.  R.  A.  664 ;  Hudson  River  Tel.  Co.  v.  Watervliet  Turn- 
pike, etc.,  Co.,  135  N.  Y.  393,  32  N.  E.  148,  31  Am.  St.  Rep.  838,  17  L.  R.  A. 
674 ;  York  Tel.  Co.  v.  Keesey,  5  Pa.  Dist.  R.  366 ;  Central  Pennsylvania  Tel., 
etc.,  Co.  V.  Wilkes-Barre,  etc.,  R.  Co.,  11  I'a.  Co.  Ct.  Rep.  417;  Wisconsin 
Tel.  Co.  V.  Oshkosh,  62  Wis.  32,  21  N.  W.  828 ;  Cumberland  Tel.,  etc.,  Co.  v. 
United  Electric  R.  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544. 

3  Doty  V.  American  Tel.,  etc.,  Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann.  Cas. 
1912C,  167,  construing  Home  Tel.  Co.  v.  Nashville,  118  Tenn.  1,  101  S.   W. 


40  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  42 

thority  for  the  incorporation  of  these  kinds  of  companies  would 
also  give  authority  for  the  formation  and  incorporation  of  wireless 
telegraph  and  telephone  companies  without  expressly  naming  the 
latter  companies.* 

§  42.  Franchise — distinguished  from  charter. — The  legal  idea  of 
a  franchise  is  the  power  or  privilege  conferred  by  the  state  upon  a 
collection  of  individuals  or  incorporated  body,  not  possessed  by  the 
inhabitants  of  the  state  as  of  common  right.  There  is  a  distinction 
between  a  franchise  and  a  charter.  A  charter  contains  the  grant  of 
a  franchise,  but  it  is  not  the  franchise  itself.  There  is  generally  no 
evidence  that  a  franchise  has  been  granted  except  the  charter  which 
contains  the  grant.  The  constitutional  inhibition  against  impairing 
the  obligation  of  contracts  is  not  operative  upon  the  charter  but 
upon  the  contract  which  the  charter  contains,  and  protects  fran- 
chises because  they  are  valuable  property  or  contract  rights."  The 
right  to  carry  on  a  public  telegraph,  telephone  and  electric  business 
with  the  rights  and  privileges  usually  incident  thereto  is  ordinarily 
termed  a  franchise,®  which  is  exercised  by  and  pursuant  to  au- 
thority acquired  from  the  sovereign  power. '^  This  may  be  inquired 
into  by  quo  warranto,®  and  if  it  is  ascertained  in  such  a  proceeding 
that  the  right  has  been  illegally  or  improperly  granted,  or  if  there 
has  been  a  nonuser  or  misuser  of  same,  it  may  be  forfeited  of  this 
right. ^  But,  in  order  that  such  right  be  forfeited  as  a  result  of  its 
having  been  illegally  or  improperl}^   granted,   it  must  be   accom- 

770,  11  Ann.  Cas.  824,  as  being  arbiter  on  the  subject;  Crawford  Electric  Co. 
V.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119,  Ann.  Cas.  1914C,  933, 
extent  of  franchise  of  electric  company. 

4  See  §§  1,  2,  and  10. 

5  Oakland  R.  R.  Co.  v.  Oakland,  etc.,  Co.,  45  Cal.  365,  13  Am.  Rep.  181 ; 
Crawford  Electric  Co.  v.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119, 
Ann.  Cas.  1914C,  933,  distinction  between  "franchise"  and  "power." 

6  California  State  Tel.  Co.  v.  Alta  Tel.  Co.,  22  Cal.  398,  overruled  on  other 
grounds  in  San  Francisco  v.  Spring  Valley  Waterworks,  48  Cal.  493 ;  West. 
U.  Tel.  Co.  V.  Omaha,  73  Neb.  527,  103  N.  W.  84;  Lcwi;her  v.  Bridgeman,  57 
W,  Ya.  306,  50  S.  E.  410;  West.  U.  Tel.  Co.  v.  Norman  (C.  C.)  77  Fed.  13; 
Rural  Home  Tel.  Co.  v.  Kentucky,  etc.,  Tel.  Co.,  128  Ky.  209,  107  S.  W.  787, 
32  Ky.  Law  Rep.  1068,  holding  that  the  mode  of  acquiring  franchise  must 
be  complied  with  or  the  company  will  be  a  trespasser  and  without  standing 
in  court;  Atty.  Gen.  v.  Haverhill  Gas  Co.,  215  Mass.  394,  101  N.  E.  1061, 
Ann.  Cas.  1914C,  1266. 

7  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410 ;  Tel.,  etc.,  Co.  v.  Sec- 
retary, 1.59  Mich.  195,  123  N.  W.  568. 

8  People  V.  Chicago  Tel.  Co.,  220  111.  238,  77  N.  E.  245 ;  Clark  v.  Interstate 
Independent  Tel.  Co.,  72  Neb.  SS3,  101  N.  W.  977. 

9  People  V.  Chicago  Tel.  Co.,  220  111.  238,  77  N.  E.  245 ;  State  v.  Cumber- 
land Tel.,  etc.,  Co.,  114  Tenn.  194,  86  S.  W.  390.     See  State  v.  Sunset  Tel. 


g    43)  CORPORATE   RIGHTS   AND   FRANCHISES  41 

plished  through  a  writ  of  quo  warranto  instituted  by  the  state,  and 
not  by  a  suit  for  injunction  brought  by  a  taxpayer  to  restrain  the 
exercise  of  the  franchise;  ^°  nor  can  a  municipality  adjudge  that  a 
franchise  has  been  lost  by  nonuser  where  no  such  authority  is 
vested  in  the  municipality  by  its  charter. ^^ 

§  43.  Same— kinds  of  franchises— primary  and  secondary.— 
There  are  two  kinds  of  franchises,  the  primary  franchise,  and  the 
secondary  franchise.  The  primary  franchise  is  the  right  of  being  or 
existing  as  a  corporation.  It  is  a  right  granted  by  the  legislature  to 
a  body  of  individuals  to  be  and  to  act  as  an  artificial  person,  with- 
out incurring  individual  liability.  It  is  the  right  to  be,  to  exist,  to 
be  known,  and  to  be  recognized  as  a  corporation  and  clothed  with 
such  rights  and  immunities  as  are  not  enjoyed  by  the  people  in  com- 
mon. The  secondary  franchise  is  the  right  to  construct,  operate, 
and  maintain  a  corporation.  The  one  is  the  right  to  be  a  corpora- 
tion, and  the  other  is  the  right  to  carry  on  and  operate  the  same 
after  the  primary  franchise  has  been  vested  in  the  corporation.  So 
applying  the  general  corporation  laws  to  the  subject  of  telegraph, 
telephone,  and  electric  companies,  the  primary  franchise  is  that 
power,  right,  or  privilege  vested  in  an  incorporated  body  of  people 
by  the  legislature  of  the  state  to  carry  on  a  general  telegraph,  tele- 
phone, or  electric  business.^^  When  this  specific  right  or  powder  or 
franchise  has  been  conferred  upon  these  companies,  the  power  was 
also  given  to  such  companies  by  implication,  if  not  otherwise,  to 
employ  the  necessary  and  usual  means  to  effectuate  that  purpose ; 
the  usual  and  necessary  means  being  the  erecting  of  poles,  the 
stringing  of  wires,  the  operating  of  offices  and  exchanges,  etc.^* 
This  power  is  regarded  as  incident  of  corporate  existence,  and  is 
known  as  the  secondary  franchise.  This  is  a  power,  however,  which 
•  need  not  necessarily  be  granted  to  a  corporation,  but  may  be  grant- 
ed to  an  individual,^*  and  this  notwithstanding  the  statute  creating 

etc.,  Co.,  86  Wash.  309,  150  Pac.  427,  adopting  manual  telephones  instead  of 
automatic  phones  for  which  franchise  granted  not  nonuser. 

10  Clark  v.  Interstate  Independent  Tel.  Co.,  72  Neb.  883,  101  N.  W.  977. 

11  Matter  of  Seaboard  Tel.,  etc.,  Co.,  68  App.  Div.  283,  74  X.  Y.  Supp.  15. 

12  Doty  V.  American,  etc.,  Tel.  Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann. 
Cas.  1912C,  167;  Crawford  Electric  Co.  v.  Knox  County  Power  Co.,  110 
Me.  285,  86  Atl.  119,  Ann.  Cas.  1914C,  933. 

13  Doty  V.  American,  etc.,  Tel.  Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann.  Cas. 
1912C,  167;  West.  U.  Tel.  Co.  v.  Omaha,  73  Neb.  527,  103  N.  W.  84 ;  Craw- 
ford Electric  Co.  v.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119,  Ann. 
Cas.  1914C,  933. 

14  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410.  See  State  v.  Cad- 
wallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  B.  319. 


42  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  44 

the  grant  refers  in  terms  to  "companies."  ^^  It  has  also  been  held 
that  an  individual  may  own  and  operate  a  telephone  system  with- 
out legislative  authority,  unless  there  is  some  restriction  imposed 
by  the  legislature  upon  such  right. ^^  Thus,  where  a  telephone  com- 
pany has  acquired  from  a  city  and  county  a  franchise  to  operate  its 
system,  agreeing  to  furnish  any  person  for  whom  it  might  not  con- 
struct a  line  telephone  service,  a  line  constructed  by  such  person, 
parties  constructing  such  lines  for  private  use,  and  to  be  connected 
to  the  company's  lines,  and  not  to  be  used  in  competition  with  the 
business  of  the  company,  are  not  required  to  obtain  a  franchise 
therefor.^'^  While  this  may  be  true  it  would  be  necessary  to  have 
legislative  authority  to  exercise  the  right  of  eminent  domain ;  and 
the  right  to  occupy  public  streets  or  highways  must  be  derived  ei- 
ther directly  or  indirectly  from  the  state. ^^ 

§  44.  License  not  a  franchise — acceptance  of — a  contract. — It 
has  been  held  by  some  courts  that  there  is  a  distinction  between 
a  franchise  granted  by  the  legislature  to  a  telegraph  or  telephone 
company  and  a  license  granted  to  either  of  the  companies  by  a 
municipal  corporation,  in  that  the  latter  can  not  grant  a  franchise, 
but  can  only  grant  a  mere  license, ^^  although  the  constitution  or 
statute  of  the  state  requires  that  the  consent  of  the  municipality  is 
necessary  for  the  exercise  of  the  franchise.^*'    However,  it  has  been 

15  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410. 

le  INIagee  v.  Overshiner,  150  lud.  127,  49  N.  E.  951,  65  Am.  St.  Rep.  358, 
40  L.  R.  A.  370. 

17  Cumberland  Tel.,  etc.,  Co.  v.  Cartwriglit  Creek  Tel.  Co.,  12S  Ky.  396. 
108  S.  W.  875,  32  Ky.  Law  Rep.  1357. 

18  People  V.  Chicago  Tel.  Co.,  220  111.  238,  77  N.  E.  245. 

19  A  license  or  privilege  to  occupy  city  streets  is  not  a  franchise  and  can 
only  be  granted  in  pursuance  of  legislative  authority.  People  v.  Chicago 
Tel.  Co.,  220  111.  238,  77  N.  E.  245.  A  grant  to  a  telephone  company  of  the 
right  to  construct  and  maintain  a  telephone  system  is  a  mere  license  and 
not  exclusive,  and  the  municipality  may  subsequently-  grant  to  another  com- 
pany a  like  privilege.  Rock  Island  v.  Central  U.  Tel.  Co.,  132  111.  App.  248. 
See,  also,  Chicago  v.  Chicago  Tel.  Co.,  230  111.  .157,  82  N.  E.  607,  13  L.  R.  A. 
(N.  S.)  1084,  12  Ann.  Cas.  109 ;  People  v.  Central  U.  Tel.  Co.,  192  111.  307,  61 
N.  E.  428,  85  Am.  St.  Rep.  338;  Dakota  Cent.  Tel.  Co.  v.  Huron  (C.  C.)  165 
Fed.  226 ;  Chicago  Tel.  Co.  v.  Northwestern  Tel.  Co.,  199  111.  324,  65  N.  EL 
329;  Twin  Village  Water  Co.  v.  Damariscotta  Gaslight  Co.,  98  Me.  325,  56 
AU.  1112 ;  Tel.  Co.  v.  Board  of  Councilmen,  141  Ky.  588,  133  S.  W.  564 ;  Tel. 
Co.  V.  Frankfort,  143  Ky.  86,  136  S.  W.  138. 

2  0  Dakota  Cent.  Tel.  Co.  v.  Huron  (C.  C.)  165  Fed.  226.  See  Barhite  v. 
Home  Tel.  Co.,  50  App.  Div.  25,  63  N.  Y.  Supp.  659,  holding  that,  where  the 
franchise  is  obtained  from  the  legislature  to  occupy  city  streets,  the  con- 
sent of  the  city  is  not  necessary,  although  the  latter  may  regulate  and  con- 
trol the  manner  in  which  it  is  exercised. 


§  44)  CORPORATE  RIGHTS  AND  FRANCHISES  43 

held  that,  where  the  right  to  occupy  public  streets  is  termed  a  li- 
cense, and  not  a  franchise,  it  may  be  inquired  into  by  information 
in  the  nature  of  a  writ  of  quo  warranto,  since  this  right  can  only  be 
granted  pursuant  to  legislative  authority. ^^  So  the  distinction  be- 
tween license  and  franchise  as  applied  in  cases  of  this  kind  has  been 
questioned,  since,  in  either  case,  the  right  is  acquired  from  the 
legislature,  either  directly  or  indirectly.-^  Especially  would  this  be 
the  case  if  the  power  to  grant  a  franchise  has  been  delegated  to  the 
municipal  corporation. ^^^  Regardless  of  what  it  may  be  termed, 
whether  a  franchise  or  license,  when  a  municipal  corporation  grants 
to  a  telegraph  or  telephone  company  rights,  franchises,  licenses,  or 
privileges,  and  the  grants  are  accepted  in  pursuance  of  the  terms 
and  conditions  of  a  legal  ordinance  authorizing  the  same,  a  contract 
is  then  created  between  the  municipality  and  the  company,^*  which 
is  binding  upon  the  former  so  that  it  cannot  be  revoked  or  rescinded 

21  People  V.  Cliicago  Tel.  Co.,  220  111.  238,  77  N.  E.  245 ;  State  v.  Milwaukee 
Independent  Tel.  Co.,  133  Wis.  588,  114  N.  W.  108,  315. 

22  State  V.  East  Cleveland  R.  Co.,  6  Ohio  Cir.  Ct.  R.  318;  Tel.  Co.  v.  Frank- 
fort, Ky.  (C.  C.)  190  Fed.  346.  See  Mt.  Pleasant  Tel.  Co.  v.  Ohio,  etc.,  Tel. 
Co.,  140  111.  App.  27 ;  Cumberland  Tel.,  etc.,  Co.  v.  Cartwright  Creek  Tel.  Co., 
128  Ky.  395,  108  S.  W.  875,  32  Ky.  Law  Rep.  1357;  Old  Colony  Trust  Co.  v. 
Wichita  (C.  C.)  123  Fed.  762,  affirmed  in  132  Fed.  641,  66  C.  C.  A.  19. 

2  3  State  V.  Milwaukee  Independent  Tel.  Co.,  133  AVis.  588,  114  N.  W.  108, 
315.     See  §  243. 

2  4  City  of  Louisville  v.  Louisville  Home  Tel.  Co.,  149  Ky.  234,  148  S.  W. 
13,  Ann.  Cas.  1914A,  1240;  Northwestern  Tel.  Exch.  Co.  v.  Anderson,  12  N. 
D.  585,  98  N.  W.  706,  102  Am.  St.  Rep.  580,  1  Ann.  Cas.  110,  65  L.  R.  A. 
771;  West.  U.  Tel.  Co.  v.  Syracuse,  24  Misc.  Rep.  338,  53  N.  Y.  Supp.  690, 
modified  in  35  App.  Div.  631,  55  N.  Y.  Supp.  1151 ;  Chicago  v.  Chicago  Tel. 
Co.,  230  111.  157,  82  N.  E.  607,  13  L.  R.  A.  (N.  S.)  1084,  12  Ann.  Cas. 
109,  cannot  be  enforced  by  mandamus;  Village  of  London  Mills  v.  White, 
208  111.  289,  70  N.  E.  313;  People  v.  Central  U.  Tel.  Co.,  192  111.  307, 
61  N.  E.  428,  85  Am.  St.  Rep,  338;  Rock  Island  v.  Central  U.  Tel.  Co.,  132 
111.  App.  248;  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  90  Md.  638,  45 
Atl.  446 ;  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  89  Md.  689,  43  Atl.  784, 
44  Atl.  1033;  Cumberland  Tel.,  etc.,  Co.  v.  Cartwright  Creek  Co.,  128  Ky. 
395,  108  S.  W.  875,  32  Ky.  Law  Rep.  1357;  People  v.  Tel.  Co.,  245  111. 
121,  91  N.  E.  1065.  In  Cliicago  Tel.  Co.  v.  Northwestern  Tel.  Co.,  199  111.  324, 
65  N.  B.  329,  it  was  held  a  privilege  granted  by  a  city  to  construct  a  public 
improvement  in  the  streets  constitutes  merely  a  license  to  the  company  un- 
til it  accepts  the  grant  and  constructs  the  improvements  thereunder  iu  ac- 
cordance with  the  terms  and  conditions  of  the  grant,  then  a  contract  is  cre- 
ated between  the  city  and  the  company.  See  City  v.  Baxter  Springs  Light, 
etc.,  Co.,  64  Kan.  591,  68  Pac.  63 ;  Clarksburg,  etc..  Light  Co.  v.  City,  47  W. 
Va.  739,  35  S.  E.  994,  50  L.  R.  A.  142.  See,  also,  Southern  Bell  Tel.,  etc.,  Co. 
v.  Mobile  (C.  C.)  162  Fed.  523;  Cumberland  Tel.,  etc.,  Co.  v.  Evansville,  143 
Fed.  238,  74  C.  C.  A.  368,  affirming  (C.  C.)  127  Fed.  187;  Morristown  v.  East 


44  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  44 

without  cause ;  ^^  neither  can  it  be  nullified  or  materially  impair- 
ed;^® nor  can  new  and  burdensome  conditions  be  imposed  when 
the  same  are  not  justifiable  under  the  police  powers  of  the  munici- 
pality.^^ Not  only  is  the  contract  binding  upon  the  municipality, 
but  upon  the  company  as  well  as  to  the  conditions  imposed,-^  and 
estops  the  latter  to  repudiate  any  of  the  provisions  of  such  con- 
Tennessee  Tel.  Co.,  115  Fed.  304,  53  C.  C.  A.  132 ;  Russell  v.  Sebastian,  233 
U.  S.  195,  34  Sup.  Ct.  517,  58  L.  Ed.  912,  Ann.  Cas.  1914C,  1282.     See  §  84. 

Construction  of. — Doubtful  contracts  must  be  construed  in  favor  of  tlie 
municipality.  Colorado  Tel.  Co.  v.  Fields,  15  N.  M.  431,  110  Pae.  571,  30  L. 
R.  A.  (N.  S.)  loss. 

2  5  London  Mills  v.  White,  208  111.  2S9,  70  N.  E.  313;  People  v.  Central  U. 
Tel.  Co.,  192  111.  307,  61  N.  E.  428,  85  Am.  St.  Rep.  338 ;  Rock  Island  v.  Central 
U.  Tel.  Co.,  132  111.  App.  248 ;  Hudson  Tel.  Co.  v.  Jersey  City,  49  N.  J.  Law,  303, 
8  Atl.  123,  60  Am.  Rep.  619;  Morristown  v.  East  Tennessee  Tel.  Co.,  115  Fed. 
304,  53  C.  C.  A.  132.  See  Tel.  Co.  v.  Board  of  Councilmen,  141  Ky.  588,  133 
S.  W.  564.  See,  also,  Russell  v.  Sebastian,  233  U.  S.  195,  34  Sup.  Ct.  517,  58 
L.  Ed.  912,  Ann.  Cas.  1914C,  1282,  and  note.  See  §  84.  But  see  Nebraska 
Tel.  Co.  V.  Lincoln,  84  Neb.  325,  121  N.  W.  442 ;  Id.,  82  Neb.  59,  117  N.  W.  284, 
28  L.  R.  A.  (N.  S.)  221,  where  clause  in  grant  was  legislative  and  subject  to 
repeal.  Incorporation  of  a  territory  into  a  city  as  affecting  prior  rights  as  to 
use  of  the  highway  by  electric  company,  see  Public  Service  Corp.  v.  Westtield, 
80  N.  J.  Eq.  295,  84  Atl.  718 ;  People  v.  Chicago  Tel.  Co.,  245  111.  121,  91  N.  E. 
1065;    Id.,  245  111.  154,  91  N.  E.  1070. 

2  6  Southern  Bell  Tel.,  etc.,  Co.  v.  Mobile  (C.  C.)  102  Fed.  523;  Northwestern 
Tel.  Exch.  Co.  v.  Anderson,  12  N.  D.  585,  98  N.  W.  706,  102  Am.  St.  Rep. 
580,  1  Ann.  Cas.  110,  65  L.  R.  A.  771 ;  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore, 
89  Md.  689,  43  Atl.  784,  44  Atl.  1033 ;  West.  U.  Tel.  Co.  v.  Syracuse,  24  Misc. 
Rep.  338,  53  N.  Y.  Supp.  690,  modified  in  35  App.  Div.  631,  55  N.  Y.  Supp. 
1151.  In  Rock  Island  v.  Central  U.  Tel.  Co.,  132  111.  App.  248,  and  Southern 
Bell  Tel.,  etc.,  Co.  v.  Mobile  (C.  C.)  162  Fed.  523,  municipality  was  enjoined 
from  interfering  with  the  grants  made  by  the  city  and  accepted  by  telephone 
companies.  See  Nebraska  Tel.  Co.  v.  Lincoln,  84  Neb.  325,  121  N,  W.  442; 
Id.,  82  Neb.  59,  117  N.  W.  284,  28  L.  R.  A.  (N.  S.)  221. 

2  7  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  89  Md.  689,  43  Atl.  784,  44  Atl. 
1033.     See  §  243. 

2  8  Cumberland  Tel.,  etc.,  Co.  v.  Evansville,  143  Fed.  238,  74  C.  C.  A.  368, 
affirming  (C.  C.)  127  Fed.  187;  Jamestown  v.  Home  Tel.  Co.,  125  App.  Div. 
1,  109  N.  Y.  Supp.  297;  Superior  v.  Tel.  Co.,  141  Wis.  363,  122  N.  W.  1023. 
See,  also,  J^Ioberly  v.  Richmond  Tel.  Co.,  126  Ky.  369,  103  S.  W.  714,  31  Ky. 
Law  Rep.  783 ;  Chicago  v.  Chicago  Tel.  Co.,  230  111.  157,  82  N.  E.  607,  13  L.  R. 
A.  (N.  S.)  10S4,  12  Ann.  Cas.  109,  holding  that  an  obligation  imposed  upon  a 
telephone  company,  by  acceptance  of  a  condition  in  an  ordinance  granting 
the  right  to  use  the  streets  that  the  latter  shall  file  statements  of  its  gross 
receipts  and  pay  a  certain  percentage  thereof  into  the  city  is  contractual, 
and  not  enforceable  by  mandamus,  but  concedes  that  ordinarily  this  is  the 
proper  remedy  to  compel  a  public  service  corporation  to  perform  a  duty  ly- 
ing within  the  scope  of  its  general  corporate  nature,  the  performance  of 
which  is  a  condition  of  its  creation.     Louisville  v.  Louisville  Home  Tel.  Co., 


§  45)  CORPORATE  RIGHTS  AND  FRANCHISES  45 

tract.^^  But,  where  the  designation  of  streets  or  the  manner  of  con- 
structing the  line  is  made  by  a  court  in  pursuance  to  statute,  the 
court  cannot  insert  requirements  not  authorized  by  the  statute,  al- 
though the  requirements  are  assented  to  by  the  company.^**  The 
same  rule  is  applicable  to  grants  made  to  electric  light  companies ; 
and  it  has  been  held  that  the  acceptance  of  the  grant  may  arise 
from  the  fact  that  the  company  has  constructed  its  plant  and  ex- 
pended large  sums  of  money  thereon. ^^  And  where  a  telegraph, 
telephone,  or  electric  company  has  erected  its  poles  and  strung  its 
wires,  or  has  gone  to  much  expense  in  placing  its  wires  under 
ground  in  pursuance  to  a  grant  from  the  municipality,  an  acceptance 
arises ;  and  the  fact  that  the  incorporation  of  the  company  is  in- 
complete at  the  time  the  grant  is  made  by  a  municipal  corporation 
does  not  affect  its  right  thereto. ^^  Furthermore,  where  a  telegraph, 
telephone,  or  electric  company  has  been  organized  under  the  laws  of 
the  state,  a  municipal  corporation  cannot  question  the  validity  of  the 
company's  incorporation  in  a  suit  to  restrain  the  municipality  from 
interfering  with  the  exercise  of  the  rights  which  it  has  granted.^^ 
This  is  based  on  the  ground  that  the  company  is  a  de  jure  corpora- 
tion, and  none  save  the  state  itself  can  question  the  validity  of  the 
corporation. 

§  45.  Alienability  of  franchise — primary. — The  primary  fran- 
chise, or  the  right  or  privilege  to  be  a  telegraph,  telephone  or  elec- 

149  Ky.  234,  148  S.  W.  13,  Ann.  Cas.  1914A,  1240,  laolding  that  a  condition 
that  a  telephone  company  shall  install  no  party  lines  is  vdlid  and  is  a  part  of 
the  contract  which  may  be  enforced  by  the  city,  regardless  of  what  effect 
such  line  might  have  upon  the  public.     See  §  84. 

2  9  Cumberland  Tel.,  etc.,  Co.  v.  Cartwright  Creek  Tel.  Co.,  128  Ky.  395, 
108  S.  W.  875,  32  Ky.  Law  Rep.  1357 ;  Postal  Tel.  Cable  Co.  v.  Newport,  76 
S.  W.  159,  25  Ky.  Law  Rep.  635 ;  Louisville  v.  Louisville  Home  Tel.  Co.,  149 
Ky.  234,  148  S.  W.  13,  Ann.  Cas.  1914A,  1240. 

Construction  of  contract  must  be  made  in  favor  of  public  rights.  Colorado 
Tel.  Co.  V.  Fields,  15  N.  M.  431,  110  Pac.  571,  30  L.  R.  A.  (N.  S.)  lOSS. 

3  0  City  of  Bayonne  v.  Lord,  61  N.  J.  Law,  136,  38  Atl.  752. 

31  Duluth  V.  Duluth  Tel.  Co.,  84  Ulinn.  486,  87  N.  W.  1128 ;  City  v.  Baxter 
Springs  Light,  etc.,  Co.,  64  Kan.  591,  68  Pac.  63;  Clarksburg,  etc.,  Light  Co. 
V.  City  of  Clarksburg,  47  W.  Va.  739,  35  S.  E.  994,  50  L.  R.  A.  142,  holding 
that  a  municipal  grant  of  jtrivilege,  not  exclusive,  of  occupying  the  city 
streets  for  the  conveyance  of  electricity  for  public  use  therein  confers  a 
valid  franchise  constituting  a  contract  under  the  constitutional  provisions 
prohiMting  the  passage  of  any  law  impairing  contracl  obligations.  Platts- 
mouth  V.  Nebraska  Tel.  Co.,  80  Neb.  460,  114  N.  W.  588,  14  L.  R,  A.  (N.  S.) 
654,  127  Am.  St.  Rep.  779. 

3  2  State  V.  Citizens'  Tel.  Co.,  9  N.  J.  Law  J.  210,  5  Atl.  274. 

3  3  Old  Colony  Trust  Co.  v.  Wichita  (C.  C.)  123  Fed.  762,  affirmed  in  132 
Fed.  641,  66  C.  C.  A.  19. 


46  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  45 

trie  company,  cannot  be  alienated,  either  absolutely  or  condition- 
ally, without  the  consent  of  the  creating  power.^*  There  is  by  no 
means  the  same  harmony  of  opinion  as  to  the  fundamental  princi- 
ples upon  which  the  doctrine  is  based.  The  following  reasons  have 
been  assigned  by  the  courts  for  its  existence :  A  franchise  is  a  per- 
sonal trust,  and  the  state  has  therefore  a  right  to  declare  who  shall 
be  the  transferee  of  such  trust;  ^^  a  corporation  enjoying  public 
franchises  is  an  agent  of  the  state  and  on  the  ordinary  principles  of 
agency  is  incapable  of  delegating  its  powers  without  the  permission 
of  the  principal ;  ^^    a  grant  of  a  public  franchise  is  a  contract  be- 

34  Philadelphia  v.  West.  U.  Tel.  Co.,  11  Phila.  (Pa.)  327,  2  Wkly.  Notes 
Cas.  455;  Cumberland  Tel.,  etc.,  Co.  v.  Evansville,  127  Fed.  187,  affirmed  in 
143  Fed.  238,  74  C.  C.  A.  368;  Atlantic,  etc.,  Tel.  Co.  v.  Union  Pac.  R.  Co. 
(C.  C.)  1  Fed.  745,  1  McCrary,  188,  541.  Compare  Tel.  Co.  v.  Board  of  Coun- 
cilmen,  141  Ky.  588,  133  S.  W.  564.  See,  also,  Commonwealth  v.  Smith,  10 
Allen  (Mass.)  448,  87  Am.  Dec.  672;  Richardson  v.  Sibley,  11  Allen  (Mass.) 
65,  87  Am.  Dec.  700 ;  Pemi.  R.  R.  Co.  v.  St.  Louis,  etc.,  R.  Co.,  118  U.  S.  290, 
6  Sup.  Ct.  1094,  30  L.  Ed.  83 ;  Lauman  v.  Lebanon  Valley  R.  Co.,  30  Pa.  42, 
72  Am.  Dec.  685;  Roper  v.  McWhorter,  77  Va.  214;  Hall  v.  Sullivan  R.  R. 
Co.,  2  Red.  Am.  R.  R.  Cas.  621;  Gue  v.  Tidewater  Canal  Co.,  24  How.  257, 
16  L.  Ed.  635 ;  Morgan  v,  Louisiana,  93  U.  S.  217,  23  L.  Ed.  860 ;  Coe  v.  Co- 
lumbus, etc.,  R.  Co.,  10  Ohio  St.  372,  75  Am.  Dec.  518 ;  Clarke  v.  Omaha,  etc., 
R.  Co.,  4  Neb.  458 ;  Black  v.  Delaware,  etc..  Canal  Co.,  24  N.  J.  Eq.  465 ;  Am- 
mant  v.  New  Alexandria  Turnpike  Co.,  13  Serg.  &  R.  (Pa.)  210,  15  Am.  Dec. 
593 ;  Gulf,  etc.,  R.  Co.  v.  Morris,  67  Tex.  692,  4  S.  W.  156 ;  Bruffett  v.  Great 
W.  R.  R.  Co.,  25  111.  353 ;  Arthur  v.  Commercial  Bank,  9  Smedes  &  M.  (Miss.) 
394,  48  Am.  Dec.  719 ;  Ragan  v.  Aiken,  9  Lea  (Tenn.)  609,  42  Am.  Rep.  684 ; 
Troy,  etc.,  R.  Co.  v.  Kerr,  17  Barb.  (N.  Y.)  581 ;  Troy  &  Boston  R.  Co.  v.  Bos- 
ton Hoosac  Tunnel,  etc.,  R.  Co.,  86  N.  Y.  107 ;  Abbott  v.  Johnstown,  etc.,  R. 
Co.,  80  N.  Y.  27,  36  Am.  Dec.  572;  People  v.  Albany,  etc.,  R.  Co.,  77  N.  Y. 
232 ;  East  Boston  Freight  Co.  v.  Hubbard,  10  Allen  (Mass.)  459,  note ;  Stock- 
ton V.  Central  R.  Co.,  50  N.  J.  Eq.  52,  24  Atl.  964,  17  L.  R.  A.  97 ;  Fietsam  v. 
Hay,  122  111.  293,  13  N.  E.  501,  3  Am.  St.  Rep.  492 ;  Bardstown,  etc.,  R.  Co.  v. 
Metcalf,  4  Mete.  (Ky.)  199,  81  Am.  Dec.  541 ;  Kennebec,  etc.,  R.  Co.  v.  Port- 
land, etc.,  R.  Co.,  59  Me.  9 ;  State  v.  Consolidation  Coal  Co.,  46  Md.  1 ;  Rich- 
ards V.  Merrimack,  etc.,  R.  Co.,  44  N.  H.  127;  Pittsburg,  etc.,  R.  Co.  v.  Al- 
legheny County,  63  Pa.  126.  See,  also,  Attorney  General  v.  Haverhill  Gas- 
light Co.,  215  Mass.  394,  101  N.  E.  1061,  Ann.  Cas.  1914C,  1266,  and  note  col- 
lating authorities. 

3  5  Shepley  v.  Atlantic,  etc.,  R.  Co.,  55  Me.  395;  Kemiebec,  etc.,  R.  Co.  v. 
Portland,  etc.,  R.  Co.,  59  Me.  9 ;  Bank  of  Middlesbury  v.  Edgerton,  30  Vt.  182 ; 
Miller  v.  Rutland,  etc.,  R.  Co.,  36  Vt.  4.52 ;  U.  S.  v.  West.  U.  Tel.  Co.  (C.  C.) 
50  Fed.  28;  U.  S.  v.  Union  Pac.  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L. 
Ed.  319;  U.  S.  v.  Northern  Pac.  R.  Co.  (C.  C.)  120  Fed.  546;  ReifE  v.  West. 
U.  Tel.  Co.,  49  N.  Y.  Super.  Ct.  441 ;  Benedict  v.  West.  U.  Tel.  Co.,  9  Abb.  N. 
C.  (N.  Y.)  214. 

3  0  Beman  v.  Rufford,  1  Sim.  N.  S.  569;  Great  Northern  R.  Co.  v.  Eastern 
Counties  R.  Co.,  9  Hare,  306 ;  Winch  v.  Birkenhead,  etc.,  R.  Co.,  5  De  Gex.  & 


§  45)  CORPORATE  RIGHTS  AND  FRANCHISES  47 

tween  the  state  and  the  grantee,  by  which  the  latter  undertakes  to 
perform  certain  public  duties,  from  the  performance  of  which  he 
cannot  release  himself  without  the  consent  of  the  other  contracting 
party  ;^^  the  powers  of  the  grantee  of  a  franchise  like  other  gran- 
tees of  the  sovereignty  are  strictly  limited  by  the  instrument  of 
grant,  and  the  existence  of  a  power  to  alienate  such  a  franchise 
cannot  be  inferred  in  the  absence  of  express  statutory  provisions;  ^^ 
transfer  of  franchise  may  sometimes  be  illegal,  as  tending  to  the 
establishment  of  monopolies.^^  It  has  been  held  that  a  mortgage 
deed  which  professes  and  manifests  an  intent  to  convey  the  fran- 
chise of  being  a  corporation  will  not  be  for  that  reason  entirely  void, 
but  will  be  operative  to  convey  the  property,  and  perhaps  also  the 
secondary  franchises,  being  void  only  so  far  as  it  undertakes  to  con- 

S,  562,  13  Eng.  L.  &  Eg.  506;  Richmond  Waterworks  Co.  v.  Richmond,  L.  R., 
3  Ch.  Div.  82. 

37  Thomas  v.  Railroad  Co.,  101  U.  S.  S3,  25  L.  Ed.  950.  In  this  case  the 
court  by  Justice  Miller  very  ably  said:  "The  principle  is  that,  where  a  cor- 
poration like  a  railroad  company  has  granted  to  it  by  charter  a  franchise  in 
a  large  measure  intended  to  be  exercised  for  the  public  good,  the  due  per- 
formance of  those  functions  being  the  consideration  of  the  public  grant,  any 
contract  which  disables  the  corporation  from  performing  those  functions  or 
by  which  it  undertakes  without  the  consent  of  the  state,  to  transfer  to  oth- 
ers the  rights  and  powers  conferred  by  the  charter,  and  to  relieve  the  grantee 
of  the  burden  which  it  imposes,  is  a  violation  of  the  contract  with  the  state, 
and  is  void  as  against  public  policy."  See,  also.  Com.  v.  Smith,  10  Allen 
(Mass.)  448,  87  Am.  Dec.  672;  Roper  v.  McWhorter,  77  Va.  214;  Munroe  v, 
Thomas,  5  Cal.  470 ;  Lauman  v.  Lebanon,  etc.,  R.  Co.,  30  Pa.  42,  72  Am.  Dec. 
685 ;  Central  Transportation  Co.  v.  Pullman  Palace  Co.,  139  U.  S.  24,  11  Sup. 
Ct.  478,  35  L.  Ed.  55 ;  Freeman  v.  Minneapolis,  etc.,  R.  Co.,  28  Minn.  443,  10 
N,  W.  594;  Kenton  County  Court  v.  Turnpike  Co.,  10  Bush  (Ky.)  529; 
Lakin  v.  Railroad  Co.,  13  Or.  436,  11  Pac.  68,  57  Am.  Rep.  25 ;  Pierce  v.  Em- 
ery, 32  N.  H.  484 ;  Railroad  Co.  v.  Brown,  17  Wall.  445,  21  L.  Ed.  675 ;  Chi- 
cago Gaslight  Co.  v.  People's  Gaslight  Co.,  121  111.  530,  13  N.  E.  169,  2  Am. 
St.  Rep.  124 ;  Black  v.  Delaware,  etc..  Canal  Co.,  22  N.  J,  Eq.  130 ;  York,  etc., 
R.  Co.  V.  Winans,  17  How.  30,  15  L.  Ed.  27. 

3  8  Thomas  v.  Railroad  Co.,  101  U.  S.  82,  25  L.  Ed.  950;  Board  of  Corns,  of 
Tippecanoe  County  v.  Lafayette,  etc.,  R.  Co.,  50  Ind.  85 ;  People  v.  Chicago 
Trust  Co.,  1.30'  111.  268,  22  N.  E.  798,  17  Am.  St.  Rep.  319,  8  L.  R.  A.  497n ; 
Lauman  v.  Lebanon,  etc.,  R.  Co.,  30  Pa.  42,  72  Am.  Dec.  085 ;  Penn.  R.  Co.  v. 
St.  Louis,  etc.,  R.  Co.,  118  U.  S.  290,  0  Sup.  Ct.  1094,  30  L.  Ed.  83 ;  Richard- 
son V.  Sibley,  11  Allen  (Mass.)  65,  87  Am.  Dec.  700 ;  Abbott  v.  Johnstown, 
etc.,  R.  Co.,  80  N.  Y.  27,  36  Am.  Rep.  572;  Black  v.  Delaware,  etc.,  Canal 
Co.,  24  N.  J.  Eq.  464;  Central  Trans.  Co.  v.  Pullman  Car  Co.,  139  U.  S.  24, 
11  Sup.  Ct.  478,  35  L.  Ed.  55. 

3  8  State  V.  Standard  Oil  Co.,  49  Ohio  St.  137,  30  N.  E.  279,  34  Am,  St.  Rep. 
541,  15  L.  R.  A.  145. 


48  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  46 

vey  the  corporate  capacity  of  the  mortgagor.*"  Neither  can  they  be 
alienated  or  seized  under  judicial  process  by  creditors,  without  the 
consent  of  the  legislature,  because  this  would  disable  them  from 
discharging  the  public  duties  which  they  have  assumed  and  in  con- 
sideration of  w'hich  their  franchises  have  been  granted.*^  The  fact 
that  the  alienation  would  be  beneficial  to  the  pecuniary  interest  of 
both  the  telegraph,  telephone,  or  electric  companies,  and  also  the 
public,  is  not  a  matter  to  be  considered  by  the  court  in  a  question 
of  this  nature.*^  And  it  makes  no  difference  who  are  the  incorpora- 
tors of  the  company  and  for  what  general  purpose  it  was  created. 
For  instance,  where  a  railroad  company  is  authorized  to  construct, 
in  connection  with  its  railroad,  a  telegraph  line,  to  manage  and  con- 
trol the  same,  and  to  fix  the  rate  of  charges  thereon,  a  contract  made 
In  the  absence  of  the  legislative  consent  by  which  it  undertakes  to 
divest  itself  of  this  public  duty,  by  transferring  the  privilege  to 
another  company,  is  ultra  vires  and  void.*^  Some  courts  hold  that 
an  agreement  entered  into  by  a  telegraph  company  with  a  similar 
company  to  divide  earnings  and  expenses  is  neither  ultra  vires  nor 
against  public  policy.'** 

§  46.  Same  continued — secondary. — While  there  may  be  some 
doubt  entertained  as  to  the  right  of  a  telegraph,  telephone,  or  elec- 
tric company  to  alienate  its  secondary  franchise  without  the  legis- 

40  Butler  v.  Rahm,  46  Md.  541 ;  Pullman  v.  Cincinnati,  etc.,  R.  Co.,  20  Fed. 
Cas.  No.  11461,  4  Biss.  35;  Fietsam  v.  Hay,  122  111.  293,  13  N.  E.  501,  3  Am. 
St.  Rep.  492. 

41  Hays  V.  Ottawa,  etc.,  R.  Co.,  61  111.  422 ;  Tippecanoe  County  v.  Lafayette, 
etc.,  R.  Co.,  50  Ind.  85 ;  Anderson  v.  Cin.  Sou.  R.  Co.,  86  Ky.  44,  5  S.  W.  49, 
9  Ky.  Law  Rep.  303,  9  Am.  St.  Rep.  263 :  Treadwell  v.  Salisbury  Mfg.  Co.,  7 
Gray  (Mass.)  393,  66  Am.  Dec.  490 ;  Chollette  v.  Omaha,  etc.,  R.  Co.,  26  Neb. 
159.  4  L.  R.  A.  135,  41  N.  W.  1106 ;  Richards  v.  Merrimack,  etc.,  R.  Co.,  44 
N.  H.  127 ;  Susquehanna  Canal  Co.  v.  Bonham,  9  Watts  &  S.  (Pa.)  27,  42  Am. 
Dec.  315;  International,  etc.,  R.  Co.  v.  Eckford,  71  Tex.  274,  8  S.  W.  679; 
Naglee  v.  Alexandria,  etc.,  R.  Co.,  83  Va.  707,  3  S.  E.  369,  5  Am.  St.  Rep. 
308 ;  Gibbs  v.  Consolidated  Gas  Co.,  130  U.  S.  396,  9  Sup.  Ct.  553,  32  L.  Ed. 
979. 

4  2  U.  S.  V.  West.  U.  Tel.  Co.  (C.  C.)  50  Fed.  28. 

4  3  Central  Branch  Union  Pac.  R.  Co.  v.  West.  U.  Tel.  Co.  (C.  C.)  3  Fed.  417, 
1  McCrary,  557 ;  West.  U.  Tel.  Co.  v.  U.  Pac.  Co.  (C.  C.)  3  Fed.  1,  1  McCrary, 
418;  Atlantic,  etc.,  Tel.  Co.  v.  Union  Pac.  R.  Co.  (C.  C.)  1  Fed.  745,  1  Mc- 
Crary, 188,  541.  Compare  West.  U.  Tel.  Co.  v.  Kansas  Pacific  R.  Co.  (D.  C.) 
4  Fed.  284:  West.  U.  Tel.  Co.  v.  St.  Joseph,  etc.,  R.  Co.,  3  Fed.  430,  1  Mc- 
Crary, 565 ;  West.  U.  Tel.  Co.  v.  Union  Pac.  R.  Co.  (C.  C.)  3  Fed.  423.  1  Mc- 
Crary, 558 ;  U.  S.  V.  Union  Pac.  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed. 
319. 

44  Benedict  v.  West.  U.  Tel.  Co.,  9  Abb.  N.  C.  (N.  Y.)  314. 


§  47)  CORPORATE  RIGHTS  AND  FRANCHISES         '      49 

lative  consent,  the  prevailing  doctrine  is,  however,  that  it  has  no 
right  to  make  such  a  conveyance  in  any  form  whether  by  sale,*^ 
lease  or  mortgage.  There  may  be  an  exception  to  the  rule  in  that 
it  may  sell  all  the  personal  property,  or  at  least  so  much  thereof  as 
is  not  necessary  for  the  purpose  of  discharging  its  public  duties.*" 
But  it  cannot  alienate  the  franchise  to  manage  or  control  its  lines, 
as  this  would  result  in  the  company  becoming  powerless  to  perform 
its  public  duties.  And  if  it  has  public  duties  to  discharge  it  cannot 
be  alienated  or  seized  under  judicial  process  by  creditors  without 
the  consent  of  the  legislature,*'^  nor  be  levied  on  by  execution,*^ 
and  should  a  telegraph  company  alienate  its  franchise  to  another 
company  without  statutory  authority,  it  will  be  liable  to  third  par- 
ties for  all  torts  committed  on  them  by  their  successors.*^  Nor  can 
it  release  itself  from  its  contract  obligations  on  the  claim  that  the 
agreement  was  ultra  vires  and  against  public  policy.^" 

§  47.  Same  continued — leases. — For  the  same  reason  that  a  tele- 
graph, telephone,  or  electric  company  cannot  alienate  absolutely 
or  conditionally  its  franchise  of  being  a  corporation,  it  cannot,  by 
lease  or  any  other  contract,  in  the  absence  of  legislative  authority, 
turn  over  to  another  corporation  its  line  and  the  use  of  its  franchise, 

4  5  Richardson  v.  Sibley,  11  Allen  (Mass.)  65,  87  Am.  Dec.  700;  Com.  v. 
Smith,  10  Allen  (Mass.)  448,  87  Am.  Dec.  672 ;  Worcester  v.  Western  R.  Corp., 
4  Mete.  (Mass.l  564 ;  Arthur  v.  Com.,  etc.,  Bank,  9  Smedes  &  M.  (Miss.)  394,  48 
Am.  Dec.  719 ;  Pierce  v.  Emery,  32  N.  H.  484 ;  Central  Trans.  Co.  v.  Pullman 
Palace  Car  Co.,  139  U.  S.  24,  11  Sup.  Ct.  478,  35  L.  Ed.  55 ;  Oregon  R.,  etc., 
Co.  V.  Oregonian  R.  Co.,  130  U.  S.  1,  9  Sup.  Ct.  409,  32  L.  Ed.  837,  reversing 
Oregonian  R.  Co.  v.  Oregon  R.  &  Nav.  Co.,  22  Fed.  245,  10  Sawy.  464;  Id., 
23  Fed.  232,  10  Sawy.  472;  Thomas  v.  Western  Jersey  R.  Co.,  101  U.  S.  71, 
25  L.  Ed.  950 ;  York,  etc.,  R.  Co.  v.  Wimans,  17  How.  31,  15  L.  Ed.  27. 

46  Cumberland  Tel.,  etc.,  Co.  v.  Evansville  (C.  C.)  127  Fed.  187,  affirmed  in 
143  Fed.  238,  74  C.  C.  A.  368;  Michigan  Tel.  Co.  v.  St.  Joseph,  121  Mich. 
502,  80  N.  W.  383,  80  Am.  St.  Rep.  520,  47  L.  R.  A.  87n;  Coe  v.  Columbus, 
etc.,  R.  Co.,  10  Ohio  St.  372,  75  Am.  Dec.  518 ;  Arthur  v.  Commercial  Bank,  9- 
Smedes  &  M.  (Miss.)  394,  48  Am.  Dec.  719 ;  Atty.  Gen.  v.  Haverhill  Gaslight 
Co.,  215  Mass.  394,  101  N.  E.  1061,  Ann.  Cas.  1914C,  1260. 

47Treadwell  v.  Salisbury  Mfg.  Co.,  7  Gray  (Mass.)  393,  66  Am.  Dec.  490; 
National  Foundry  Works  v.  Oconto  Water  Co.  (C.  C.)  52  Fed.  43 ;  Gulf,  etc., 
R.  Co.  v.  Newell,  73  Tex.  334,  11  S.  W.  342,  15  Am.  St.  Rep.  788. 

4  8Ammant  v.  New  Alexandria  &  Pitt.  Turnpike  Road,  13  Serg.  &  R.  (Pa.) 
210,  15  Am.  Dec.  593. 

4  9  Naglee  v.  Alexandria,  etc.,  R.  Co.,  S3  Va.  707,  3  S.  E.  369,  5  Am.  St.  Rep. 
808. 

5'i  Canal  &  C.  R.  Co.  v.  St.  Charles  St.  R.  Co.,  44  La.  Ann.  1069,  11  South. 
702. 

Jones  Tel.(2d  Ed.) — 4 


50      '       TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  48 

since  a  lease  might  have  the  same  effect  as  a  sale  of  the  property ;  ^^ 
however,  it  has  been  held  that  a  telegraph  company  could  lease  its 
lines  and  equipments  for  a  reasonable  length  of  time.^^  For  in- 
stance, where  a  contract  is  entered  into  between  two  companies, 
whereby  one  leases  to  the  other  its  franchises  for  a  period  of  nine 
hundred  and  ninety-nine  or  any  great  number  of  years,  the  lease 
would  virtually,  under  such  circumstances,  amount  to  a  sale. 
Where  a  telegraph,  telephone,  or  electric  company  has  a  public 
duty  to  perform  and  the  same  has  been  acquired  by  a  legislative 
grant,  it  cannot  dispose  of  the  obligations  so  acquired,  in  any  man- 
ner, without  the  consent  of  the  granting  power.^^  Where  the  legis- 
lature gives  the  right  to  one  company  to  lease  its  line  to  another 
company,  the  grant  does  not  necessarily  carry  with  it  the  franchise 
of  being  a  corporation,  and  thereby  exempt  the  lessor  from  the  re- 
sponsibilities for  which  it  has  obligated  itself.^*  It  is  the  duty  of 
the  parties  to  the  contract  of  lease  to  abandon  the  contract,  after 
they  learn  the  true  status  of  their  condition. 

§  48.  Legislature  may  authorize  sale  or  lease. — The  legislature 
may  authorize  a  telegraph,  telephone,  or  electric  company  to  alien- 
ate its  franchise,  but  it  must  be  by  an  express  grant  or  by  reason- 
able implication.^^  The  statutes  and  general  policy  of  some  juris- 
dictions are,  however,  very  liberal  in  regard  to  such  transfers  in 

51  Atlantic,  etc.,  Tel.  Co.  v.  Union  Pac.  R.  Co.  (C.  C.)  1  Fed.  745,  1  Mc- 
Crary,  541;  Philadelphia  v.  West.  U.  Tel.  Co.,  11  Phila.  (Pa.)  327,  2  Wkly. 
Notes  Cas.  455.  A  railroad  cannot  lease  its  telegraph  line  to  another  tele- 
graph company.  U.  S.  v.  Union  Pac.  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40 
L.  Ed.  319;  Atlantic,  etc.,  Tel.  Co.  v.  Union  Pac.  R.  Co.  (C.  C.)  1  Fed.  745,  1 
McCrary,  541.     See  O'Brien  v.  Tel.  Co.,  62  Wash.  598,  114  Pac.  441. 

5  2  Philadelphia  v.  West.  U.  Tel.  Co.,  11  Phila.  (Pa.)  327,  2  Wkly.  Notes 
Cas.  455 ;  West.  Tel.  Co.  v.  Baltimore,  etc.,  R.  Co.,  69  Md.  211,  14  Atl.  531. 

5  3  Ricketts  V.  Chesapeake,  etc.,  R.  Co.,  33  W.  Va.  433,  10  S.  E.  801,  25  Am. 
St.  Rep.  901,  7  L.  R.  A.  534 ;  Gulf,  etc.,  R.  Co.  v.  Newell,  73  Tex.  334,  11  S.  W. 
342,  15  Am.  St.  Rep.  788. 

5  4  Harmon  v.  Columbia,  etc.,  R.  Co.,  28  S.  C.  401,  5  S.  E.  835,  13  Am.  St. 
Rep.  686. 

55  Williams  v.  West.  U.  Tel.  Co.,  93  N.  Y.  162;  Michigan  Tel.  Co.  v,  St. 
Joseph,  121  Mich.  502,  80  N.  W.  383,  80  Am.  St.  Rep.  520,  47  L.  R.  A.  87; 
Hatch  V.  American  U.  Tel.  Co.,  9  Abb.  N.  C.  (N.  Y.)  223 ;  State  v.  Cumberland 
Tel.,  etc.,  Co.,  114  Tenn.  194,  86  S.  W.  390;  Badger  Tel.  Co.  v.  Wolf  River  Tel. 
Co.,  120  Wis.  169,  97  N.  W.  907 ;  Brunswick  Gaslight  Co.  v.  United  Gas,  etc.. 
Light  Co.,  85  Me.  532,  27  Atl.  525,  35  Am.  St.  Rep.  385,  note,  holding  that  a 
gas  company  possessing  and  exercising  the  right  to  lay  its  pipes  in  the  pub- 
lic streets  cannot  sell,  lease,  or  assign  its  corporate  rights  and  privileges  to 
another  gas  company  without  legislative  consent.  See  Louisville  v.  Tel.  Co., 
224  U.  S.  649,  32  Sup.  Ct.  572,  56  L.  Ed.  934. 


§    48)  CORPORATE   RIGHTS  AND   FRANCHISES  51 

the  case  of  these  companies. °^  An  unauthorized  transfer  of  a  fran- 
chise may  be  afterwards  ratified  by  the  legislature,  but  there  must 
be  an  expressed  intent  on  the  part  of  this  body  to  ratify  the  trans- 
fer.^^  Where  the  right  to  alienate  a  franchise  has  been  given  by  the 
state,  a  lease  of  such  franchise  may  be  implied  from  such  grant ; 
but  an  authority  to  lease  does  not  give  the  right  to  alienate,^^  nor 
does  authority  to  hold  and  convey  such  real  and  personal  property 
as  may  be  proper  for  the  construction  and  maintenance  of  its  lines 
authorize  such  company  to  alienate  its  franchise  or  such  of  its  prop- 
erty as  may  be  necessary  for  the  exercise  thereof.^''  Where  author- 
ity has  been  given  by  statute  to  alienate  the  franchise  of  telegraph 
and  telephone  companies,  and  a  sale  has  been  made  in  pursuance 
thereto,  it  is  not  illegal  because  it  is  the  result  of  a  ruinous  rate  war 
and  for  the  purpose  of  ending  further  competition/'*'  A  mortgage 
may  also  be  given  on  such  property  from  the  authority  to  sell,  and, 
where  a  sale  has  been  made  of  such  property,  the  purchaser  with 
notice  takes  the  same  subject  to  a  mortgage  and  all  other  duties  to 
which  the  vendor  was  obligated/^  A  lease  may  be  made  of  the 
franchise  of  a  telegraph  and  telephone  company  where  the  au- 
thority has  been  authorized  by  statute,®^  provided  the  requirements 

56  See  Hatch  v.  American  Union  Tel.  Co.,  9  Abb.  N.  C.  (N.  Y.)  223;  Michi- 
gan Tel.  Co.  V.  St.  Joseph,  121  Mich.  502,  SO  N.  W.  383,  SO  Am.  St.  Rep.  520, 
47  L,  R.  A.  87 ;  Tel.  Co.  v.  Board  of  Councilmen,  141  Ky.  5S8,  133  S.  W.  564 ; 
Tel.  Co.  V.  Frankfort,  143  Ky.  S6,  136  S.  W.  138. 

5  7  Thomas  v.  Railroad  Co.,  101  U.  S.  71,  25  L.  Ed.  950. 

5  8  Cumberland  Tel.  Co.  v.  Evansville  (C.  C.)  127  Fed.  187,  affirmed  in  143 
Fed.  238,  74  C.  C.  A.  368. 

5  9  Cumberland  Tel.,  etc.,  Co.  v.  Evansville,  supra.  See  Wichita  v.  Old 
Colony  Trust  Co.,  132  Fed.  641,  66  C.  C.  A.  19,  holding  that  a  transfer  of  all 
the  company  carries  the  franchise  to  operate  the  system,  although  the  fran- 
chise is  not  expressly  mentioned  in  the  deed. 

6  0  State  V.  Cumberland  Tel.,  etc.,  Co.,  114  Tenn.  194,  86  S.  W.  390. 

61  An  ordinance  granting  to  a  telegraph  company  the  right  to  occupy  the 
city  streets  stipulated  that  in  the  event  of  a  sale  by  the  company  of  its  prop- 
erties, its  vendee  should  be  bound  by  all  the  obligations  imposed  on  the  orig- 
inal company.  Such  a  sale  took  place  afterward,  and  for  some  time  after 
the  sale  the  purchasing  company  gave  the  subscribers  of  the  purchased  com- 
pany connections  with  its  own  subscribers.  It  was  held  that  the  purchasing 
company,  having  bought  with  notice,  was  bound  to  assume  and  carry  out  all 
the  obligations  of  the  old  company,  and  that  its  action  in  purchasing  the  old 
company's  subscribers  with  connections  to  its  own  lines  operated  as  an  ac- 
knowledgment by  it  of  the  character  of  its  assumed  obligations,  and  that  it 
could  not  thereafter  discontinue  such  connections.  Mahan  v,  Mich.  Tel.  Co., 
132  Mich.  242,  93  N.  W.  629. 

62  Reiff  V.  West.  U.  Tel.  Co.,  49  N.  Y.  Super.  Ct.  441.  holding  further  that, 
under  statutory  authority  to  lease  telegraph  lines  and  property,  such  lease 
cannot  be  enjoined  on  the  ground  that  it  tends  to  create  a  monopoly  or  is 


52  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  49 

of  the  statute  have  been  compHed  with ;  ^^  but  a  provision  in  the 
charter  authorizing  such  company  to  lease  its  Hnes,  fixtures,  and 
apparatus  does  not  authorize  a  lease  of  its  franchise/*  or  authorize 
its  lessee  to  build  new  lines  on  new  routes. ®°  And,  where  the  au- 
thority has  been  given  by  the  legislature  to  a  telegraph  or  telephone 
company  to  sell  or  lease  its  franchise,  the  consent  of  the  municipal 
corporation  is  unnecessary.''® 

§  49.  Contracts  and  combinations. — Whether  contracts  and 
combinations  between  different  telegraph  and  telephone  companies 
are  valid  depends  exclusively  upon  statutory  provisions,  where  there 
are  such  statutes,  or,  in  the  absence  of  a  statute  in  this  respect,  upon 
the  question  of  public  policy.®'^  While  telegraph  and  telephone 
companies,  being  public  service  corporations,  affected  by  a  public 
interest,  cannot  make  contracts  which  are  in  general  restraint  of 
trade, ®^  or  which  tend  to  restrict  the  free  and  general  use  of  their 
lines,®^  yet  the  law  permits  them  to  make  contracts  in  partial  re- 
straint of  trade,  under  some  circumstances,  where  they  are  not  un- 
reasonable and  are  supported  by  sufficient  consideration.'^'^  But, 
where  the  business  to  which  the  contract  relates  is  of  such  a  char- 
contrary  to  public  policy.  Bradford  City  v.  Pennsylvania,  etc.,  Tel.  Co.,  26 
Pa.  Co.  Ct.  R.  321,  leases  authorized  except  in  case  of  parallel  or  competing 
lines. 

6  3  Reiff  V.  West.  U.  Tel.  Co.,  49  N.  Y.  Super.  Ct.  441. 

6  4  Philadelphia  v.  West.  U.  Tel.  Co.,  11  Phila.  (Pa.)  327,  2  Wkly.  Notes  Cas. 
455. 
65  Id. 

6  6  Michigan  Tel.  Co.  v.  St.  Joseph,  121  Mich.  502,  SO  N.  W.  3S3,  80  Am.  St. 
Rep.  520,  47  L.  R.  A.  87. 

6  7  Benedict  v.  West.  U.  Tel.  Co.,  9  Abb.  N.  C.  (N.  Y.)  214.  See,  also,  Wayne- 
Monroe  Tel.  Co.  V.  Ontario  Tel.  Co.,  60  Misc.  Rep.  435,  112  N.  Y.  Supp.  424 ; 
Tel.  Co.  V.  Tel.  Co.,  47  Ind.  App.  411,  92  N.  E.  558,  93  N.  E.  234 ;  Tel.  Co.  v. 
Tel.  Co.  (Iowa)  123  N.  W.  951 ;  Matter  of  Jackson,  57  Misc.  Rep.  1,  107  N.  Y. 
Supp.  799 ;  Home  Tel.  Co.  v.  Sarcosie,  236  Mo.  114,  139  S.  W.  108,  36  L.  R.  A. 
(N.  S.)  124,  if  valid  when  made  cannot  be  invalidated  by  subsequent  legisla- 
tion. 

6  8  Central  New  York,  etc.,  Tel.  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206, 
32  L,  R.  A.  (N.  S.)  494,  139  Am.  St.  Rep.  S7S ;  Gwynn  v.  Citizens'  Tel.  Co.,  69 
S.  C.  434,  48  S.  E.  460,  67  L.  R.  A.  Ill,  104  Am.  St.  Rep.  819;  Id.,  61  S.  C. 
83,  39  S.  E.  257,  55  L.  R.  A.  139,  85  Am.  St.  Rep.  870 ;  Bank  v.  Kinloch,  etc., 
Tel.  Co.,  258  111.  202,  101  N.  E.  535,  45  L.  R.  A.  (N.  S.)  465,  Ann.  Cas.  1914B, 
258.  See,  also,  §  253. 
6»  Id.    See  §  253. 

70  Wayne-Monroe  Tel.  Co.  v.  Ontario  Tel.  Co.,  60  Misc.  Rep.  435,  112  N.  Y. 
Supp.  424 ;  Tel.  Co.  v.  Tel.  Co.,  47  Ind.  App.  411,  92  N.  E.  558,  93  N.  E.  234 ; 
Cumberland  Tel.,  etc.,  Co.  v.  State,  100  Miss.  102,  .54  South.  670,  .39  L.  R.  A.  (N. 
S.)  277 ;  Bank  v.  Kinloch,  etc.,  Tel.  Co.,  258  111.  202,  101  N.  E.  535,  Ann.  Cas. 
1914B,  258,  45  L.  R.  A.  (N.  S.)  465. 


§    49)  CORPORATE   RIGHTS  AND   FRANCHISES  53 

acter  that  it  cannot  be  subjected  even  to  the  partial  restraint  which 
is  contemplated  without  injury  to  the  interest  which  the  company 
owes  to  the  public,  then  such  partial  restraint  cannot  be  tolerated.''^ 
However,  a  contract  is  not  altogether  void  because  of  a  void  provi- 
sion contained  therein,  if  that  provision  can  be  separated  from  the 
rest  of  the  contract.'^"  A  lawful  promise  made  for  a  lawful  consid- 
eration is  not  invalid  by  reason  only  of  an  unlawful  promise  being 
made  at  the  same  time  and  for  the  same  consideration/^  It  has 
been  held  that  an  arrangement  between  telegraph  or  telephone  com- 
panies to  prevent  a  competition  which  would  be  ruinous  to  each  is 
not  contrary  to  public  policy ;  '^*  nor  would  an  arrangement  between 
two  such  companies  to  divide  their  receipts  and  expenses  in  certain 
proportions  be  invalid. ^^  It  has  also  been  held  that  it  was  not  con- 
trary to  public  policy  for  two  telephone  companies  to  make  a  con- 
tract providing  for  a  physical  connection  between  the  two  systems, 
and  stipulating  that  it  may  be  terminated  by  either  company  on 
notice,  and  the  patrons  of  each  are  bound  to  know  that  such  con- 
nection is  liable  to  be  discontinued;  '^^  but  where  the  contract  for 
such  a  connection  is  silent  as  to  its  continuance  or  discontinuance, 
it  fixes  a  status  affected  by  a  public  interest  which  cannot  be  volun- 
tarily terminated  by  either  or  both  of  the  companies,^''  but  only  by 
a  retirement  of  one  of  the  companies  from  the  business.'®  But  any 
agreement  or  combination  between  competing  telegraph  or  tele- 
phone companies,  the  necessary  consequence  of  which  is  the  con- 

71  Central  New  York,  etc.,  Tel.  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206, 
139  Am.  St.  Rep.  878.  32  L.  R.  A.  (N.  S.)  494;  West.  U.  Tel.  Co.  v.  Chicago, 
etc.,  R.  R.  Co.,  86  111.  246,  29  Am.  Rep.  28;  St.  Louis,  etc.,  R.  Co.  v.  Postal 
Tel.  Co.,  173  111.  508,  51  K  E.  382 ;  West.  U.  Tel.  Co.  v.  American  U.  Tel.  Co., 
65  Ga.  160,  38  Am.  Rep.  781. 

7  2  Central  New  York,  etc.,  Tel.  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206, 
139  Am.  St.  Rep.  878,  32  L.  R.  A.  (N.  S.)  494 ;  Chicago  GasUght  Co.  v.  Peo- 
ple's Gaslight  Co.,  121  111.  530,  13  N.  E.  169,  2  Am.  St.  Rep.  124. 

7  3  Central  New  York,  etc.,  Tel.  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206, 
139  Am.  St.  Rep.  878,  32  L.  R.  A.  (N.  S.)  494. 

7  4  Benedict  v.  West.  U.  Tel.  Co.,  9  Abb.  N.  C.  (N.  Y.)  214. 

75  Id. 

7c  State  V.  Cadwallader,  172  lud.  619,  87  N.  E.  644,  89  N.  E.  319.  See 
Cumberland,  etc.,  Tel.  Co.  v.  State,  100  Miss.  102,  54  South.  670,  39  L.  R.  A. 
(N.  S.)  277. 

''  7  State  V.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319 ;  Camp- 
bellsville  Tel.  Co.  v.  Lebanon,  etc.,  Tel,  Co.,  118  Ky.  277,  80  S.  W.  1114,  26 
Ky.  Law  Rep.  127,  84  S.  W.  518,  27  Ky.  Law  Rep.  90;  Tel.  Co.  v.  Tel.,  etc., 
Co.,  159  N.  C.  9,  74  S.  E.  636,  638. 

7  8  State  V.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319. 


54  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  49 

trolling  of  rates,  or  the  suppression  of  competition  in  such  a  way  as 
to  create  a  monopoly,  is  an  agreement  in  restraint  of  trade,  against 
public  policy,  and  void/^ 

7  9  Central  New  York,  etc.,  Tel.  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206, 
32  L.  R.  A.  (N.  S.)  494,  139  Am.  St.  Rep.  878 ;  Dunbar  v.  American  Tel.,  etc., 
Co.,  224  111.  9,  79  N.  E.  423,  8  Ann.  Cas.  57,  115  Am.  St.  Rep.  132;  Charles- 
town  Gas  Co.  V.  Kanawha  Gas  Co.,  58  W.  Va.  22,  50  S.  E.  876,  112  Am.  St.  Rep. 
936,  6  Ann.  Cas.  654;  Southern  Electric,  etc.,  Co.  v.  State,  91  Miss.  195,  44 
South.  785,  124  Am.  St.  Rep.  638.  See  Bank  v.  Kinloch,  etc.,  Tel.  Co.,  258 
111.  202,  101  N.  E.  535,  45  L.  R.  A.  (N.  S.)  465,  Ann.  Cas.  1914B,  258. 

As  to  remedy,  see  State  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N. 
E.  319 ;  Bland  v.  Cumberland  Tel.,  etc.,  Co.  (Ky.)  109  S.  W.  1180,  33  Ky.  Law 
Rep.  399. 

As  to  construction  of  contracts,  see  West.  U.  Tel.  Co.  v.  American  Bell 
Tel.  Co.,  125  Fed.  342,  60  C  C.  A.  220 ;  Id.  (C.  C)  187  Fed.  425. 


§   50)  CONSTRUCTION,  MAINTENANCE  AND   REGULATION  55 

CHAPTER  IV 
CONSTRUCTION,    MAINTENANCE   AND   REGULATION 

§  50.  Right  of  way — definition. 

51.  Interest  in  land  acquired. 

52.  Same  continued — compensation. 

53.  Same  continued — owner  not  estopped. 

54.  Further  considered — how  and  from  wliom  acquired. 

55.  Same  continued — federal  grant. 

56.  Same  continued — what  is  granted. 

57.  Statutes  defining  what  are  post  roads,  etc. 

58.  Must  comply  with  conditions — character  of. 

59.  Scope  and  effect  of  act — statute  pennissive  only. 

60.  State  cannot  prohibit  company  from  doing  business  therein  on  com- 

pliance with  said  act. 

61.  Same  continued — exception  to  power — police  regulations. 

62.  Does  not  interfere  with  right  to  comi)ensation. 

63.  Same  continued — reason  of  rule. 

64.  Same    continued — along    railroads — compensation,    when    allowed    to 

owner  of  fee. 

65.  Same  continued — compensation  to  road — reason  for  allowing. 

66.  Same  continued — must  obtain  consent  or  condemn. 

67.  Same  continued — right  acquired  by  agreement. 

68.  Same  continued — exclusive  use — cannot  be  acquired. 

69.  Condemnation  proceedings  must  be  under  state  statutes. 

70.  Companies  not  subject  to  act. 

71.  Subsidized  acts. 

72.  State  grants — distinguished  from  federal  grants. 

73.  On  railroad. 

74.  Same  continued — conditions  not  to  interfere  with  running  trains. 

75.  Same  continued — award. 

76.  Canal — under  same  statutes. 

77.  The  term  "highway"  embraces  city  streets. 

78.  Condition  of  grantee. 

79.  Municipal  grants — right  to — how  acquired. 

80.  Duties  and  rights  of  municipality  under. 

81.  Same  continued — unconditional  statutes. 

82.  Must  obtain  consent  of  municipality. 

83.  Compensation  to  municipality  charge  must  be  reasonable. 

84.  Termination  of  franchise  to  occupy  streets. 

85.  Grants  to  electric  companies — municipal  ownership — liability  of. 
85a.  Use  of  force  to  set  or  remove  poles  on  land. 

§  50.  Right  of  way — definition. — It  would  be  proper,  in  consid- 
ering the  term  "right  of  way"  and  the  accompanying  incidents 
thereunder,  to  first  learn  what  is  meant  by  such  a  term.  A  "right 
of  way,"  as  applied  to  telegraph,  telephone,  and  electric  companies, 


56  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  51 

is  the  right  held  by  these  companies  in  the  land  on  which  their  poles, 
towers,  guys,  and  other  similar  appliances  are  erected,  and  that,  to 
a  certain  extent,  over  which  their  wires  are  strung.  The  exact  prop- 
erty a  telegraph,  telephone  or  electric  company  has  to  the  land 
upon  and  over  which  its  lines  are  constructed  is  not  the  same  at  all 
points.  That  which  is  possessed  by  them  depends  upon  the  manner 
in  which  the  right  was  acquired ;  whether  by  purchase,  by  grant,  or 
by  the  exercise  of  the  right  of  eminent  domain.  If  the  right  is  ac- 
quired by  either  of  the  first  two  ways,  it  will  be  determined  by  the 
terms  of  the  conveyance  or  patent ;  as,  when  a  deed  is  made  to  one 
of  these  companies  in  which  the  right  of  way  is  described  by  metes 
and  bounds,  the  exact  property  conveyed  to  the  company  will  de- 
pend upon  the  construction  of  the  deed.  In  the  latter  case  the  com- 
pany would  only  possess  an  easement,  the  fee  remaining  in  the 
original  owner,  except  where  it  is  otherwise  provided  by  statute. 

§  51.  Interest  in  land  acquired. — It  seems  very  clearly  that  the 
company,  unless  it  is  so  expressed  in  the  deed  or  patent,  should  not 
have  the  same  interest  in  the  land  lying  between  the  poles  or  towers 
and  in  the  land  over  which  the  wires  are  stretched,  as  it  has  in  that 
on  which  the  poles  or  towers  are  erected.  It  is  very  true,  unless  the 
wires  are  strung  near  the  surface  of  the  ground,  that  the  company 
has  little  use  for  this  land  between  the  poles  and  its  use  for  former 
or  other  purposes  is  in  no  wise  prevented,  whether  it  lies  along  the 
public  highway  or  over  private  property.^  We  presume  that  there 
is  no  question  that  it  could  be  described  in  the  deed  so  as  to  make  a 
conveyance  of  it ;  but  the  question  is,  Is  the  right  of  way  over  this 
land  conveyed,  or  at  least  is  the  same  interest  therein  conveyed  as 
that  on  which  the  poles  are  erected,  when  its  metes  and  bounds  are 
not  expressly  stated?  We  answer  the  question  in  the  negative.  It 
is  not  like  the  right  of  way  of  a  railroad,  since  it  is  absolutely  neces- 
sary for  the  latter  to  have  the  same  interest  in  all  the  land  on  which 
its  bed  or  embankment  is  built.     In  the  case  of  a  telegraph,  tele- 

1  A  telegraph  company  by  a  judgment  condemning  land  for  its  use  under 
the  eiuiuent  domain  act  does  not  acquire  the  fee  to  the  laud  or  the  right  to 
use  it  for  any  other  purpose  than  to  erect  telegraph  poles  and  suspend  wires 
upon  them  and  maintain  and  repair  the  same,  and  use  the  structure  for  tele- 
graph purposes.  This,  of  course,  gives  the  company  the  right  at  all  times 
when  necessary  to  construct  or  repair  the  line  to  enter  upon  the  strip  con- 
demned, doing  as  little  damage  as  possible.  The  company  cannot  cultivate 
such  stri]),  or  take  exclusive  possession  of  it,  or  enjoy  it  for  any  other  pur- 
pose. The  only  exclusive  right  of  occupancy  the  company  acquires  is  the 
ground  occupied  by  the  poles  erected  for  telegraphic  purposes.  Lockie  v. 
Mutual  U.  Tel.  Co.,  103  111.  401.  See  East  Tennessee  Tel.  Co.  v.  Paris  Elec. 
Co.,  156  Ky.  762,  162  S.  W.  530,  Ann.  Cas.  1915C,  543. 


§    53)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  57 

phone,  or  electric  company,  the  land  is  of  no  use  whatever  to  the 
company  except  to  go  upon  for  the  purpose  of  constructing  and 
keeping  its  lines  in  repair;  and  when  it  is  used  for  this  purpose,  the 
adjoining  land,  as  well  as  this,  is  almost  as  often  used.^ 

§  52,  Same  continued — compensation. — Both  state  and  federal 
constitutions  provide  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation  first  being  made  to  the  owner 
thereof,  or  secured  to  be  made.  This  is  a  right  given  to  every  in- 
dividual by  the  supreme  law  of  the  land  for  the  protection  of  his 
property,  and  without  which  he  would  be  living  in  a  state  of  nature, 
harassed  and  annoyed  by  his  pilfering  neighbors.  It  follows,  there- 
fore, that  before  a  telegraph,  telephone,  or  an  electric  company  can 
acquire  a  legal  right  of  way,  it  must  obtain  the  right  either  by  deed, 
by  patent,  by  prescription,  or  by  payment  of  damages  after  proper 
condemnation  proceedings ;  and  if  one  of  these  companies  acquires 
the  right  of  way  not  according  to  one  of  these  methods,  it  will  be 
prima  facie  guilty  of  trespass,  and  the  owner  of  the  land  may  there- 
fore maintain  an  action  of  damages  or  ejectment  at  his  election. 

§  53.  Same  continued — owner  not  estopped. — In  many  cases 
telegraph,  telephone,  and  electric  companies  enter  upon  the  land  of 
another  without  the  latter's  knowledge  or  consent ;  but  the  fact 
that  they  do,  or  that  he  permitted  them  to  do  so,  does  not  give  the 
company  a  title  to  a  right  of  way  or  estop  him  from  maintaining  an 
action  for  damages,^  and  yet  it  may  preclude  him  from  maintaining 
an  action  of  ejectment.*  The  mere  failure  of  the  landowner  to 
order  the  company  off  of  his  land,  or  to  bring  an  action  against  it 
as  a  trespasser  until  near  the  end  of  the  statute  of  limitation,  will 
not  operate  as  a  consent  to  its  use  and  occupation ;  but  an  unrea- 
sonable delay  in  such  a  case,  in  insisting  upon  damages,  will  be  con- 
sidered a  waiver  of  damages  by  the  owner.  And  should  he  stand 
by  until  the  line  is  completed  and  in  operation  and  public  interest 
has  become  involved,  he  will  be  denied  the  right  to  maintain  an 
action  of  ejectment,  or  the  right  to  enjoin  them.  His  only  remedy 
under  such  circumstances  is  a  proceeding  brought  to  recover  dam- 
ages. 

2  Lockie  v.  Mutual  U.  Tel.  Co.,  103  111.  401. 

3  Blashfield  v.  Empire  St.  Tel.  Co.  (Sup.)  IS  N.  Y.  Supp.  250 ;  Abenrlroth  v. 
Manhattan  R.  Co.,  122  N.  Y.  1,  25  N.  E.  496,  19  Am.  St.  Rep.  461,  11  L.  R. 
A.  634n ;  Bronson  v.  Albion  Tel.  Co.,  67  Neb.  Ill,  93  N.  W.  201,  60  L.  R.  A. 
429,  2  Ann.  Cas.  639 ;  Maxwell  v.  Central  Dist.,  etc.,  Tel.  Co.,  51  W.  Va.  121, 
41  S.  E.  125 ;  Omaha  v.  Flood,  57  Neb.  124,  77  N.  W.  379. 

4  Daflinger  v.  Pittsburgh,  etc.,  Tel.  Co.,  31  Pittsb.  Leg.  J.  N.  S.  (Pa.)  37,  14 
York  Leg.  Rec.  (Pa.)  46. 


58  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  54 

§  54.     Further    considered — how    and   from   whom   acquired. — 

Having  briefly  considered  the  nature  and  meaning  of  the  term 
"right  of  way,"  we  shall  now  apply  ourselves  to  a  somewhat  lengthy 
discourse  on  the  subject  of  the  sources  from  which  the  right  of  way 
may  be  acquired,  and  the  manner  in  which  it  is  acquired  under  each. 
But  in  treating  these  two — that  is,  the  sources  from  which  the  right 
of  way  may  be  acquired,  and  the  manner  in  which  it  is  acquired 
under  each — we  shall  consider  them  together  as  nearly  as  possible. 
There  are  several  different  sources  from  which  a  right  of  way  may 
be  acquired.  As,  for  instance,  it  may  be  acquired  by  a  grant  from 
the  government  or  a  federal  grant;  or  by  a  state  grant;  or  by  a 
municipal  grant;  or  by  an  agreement  with  the  owner  of  the  land, 
when  it  is  over  private  land;  or  by  a  contract  with  a  railroad  com- 
pany, when  it  is  to  be  constructed  along  its  roadbed.  And  first 
among  these  different  sources  to  be  discussed,  we  shall  take  up  the 
subject  of  a  federal  grant. 

§  55.  Same  continued — federal  grant. — We  now  come  to  the 
subject  of  a  right  of  way,  acquired  by  a  telegraph  company  by  a 
grant  from  the  government;  but  before  entering  into  the  subject 
we  shall  say  a  few  things  in  regard  to  the  nature  of  a  federal  grant. 
A  federal  grant,  broadly  stated,  is  a  conferring,  by  the  federal  gov- 
ernment, of  a  franchise  by  charter  in  which  certain  rights  are  given 
to  a  corporation  not  enjoyed  as  of  common  right,  or  a  mode,  or  act 
of  creating  a  title  or  interest  in  any  person  or  corporation  to  land 
which  had  previously  belonged  to  the  granting  power.  In  the  pres- 
ent instance,  it  will  be  our  purpose  to  consider  the  first  part  of  this 
definition — a  franchise  conferred  upon  a  corporation.  There  is  a 
difference  between  a  grant  from  our  government  and  one  from  the 
crown  with  respect  to  the  power  of  revocation.  With  us,  the  grant 
is  an  executed  contract  made  by  the  government  as  one  party  to 
the  contract  and  the  corporation  as  the  other;  neither  can  rescind 
or  revoke  the  contract  without  the  other's  consent,  unless  the  right 
has  been  reserved  in  some  manner,  or  except  for  special  causes  and 
by  the  process  of  law.^  No  law  can  be  passed  by  the  supreme  law- 
making  power  which  would  in  effect  annul  or  revoke  the  grant,  as 
each  individual  has  a  constitutional  guaranty  that  no  law  shall  be 
passed  which  would  impair  the  obligation  of  any  of  his  contracts. 
While  grants  from  the  crown  may  be  avoided,  upon  three  grounds : 
First,  where  the  crown  professes  to  give  a  greater  estate  than  it 
possesses  in  the  subject-matter  of  the  grant;    second,  where  the 

5  Duncan  v.  Beard,  2  Nott  &  McC.  (S.  C.)  400 ;  Nichols  v.  Hubbard,  5  Rich. 
(S.  C.)  267. 


§    66)  CONSTRUCTION,  MAINTENANCE  AND   REGULATION  59 

same  estate  or  part  of  same  estate  has  already  been  granted  to  an- 
other; and,  third,  where  the  crown  has  been  deceived  in  the  consid- 
eration expressed  in  the  grant.® 

§  56.  Same  continued — what  is  granted. — A  federal  grant  of  a 
right  of  way  to  a  telegraph  company  is  an  easement^  or  privilege 
conferred  thereon  for  a  valuable  consideration,  after  certain  condi- 
tions are  complied  with,  to  construct  and  operate  a  line  of  wires 
over  lands  in  which  it  has  a  fee-simple  title.  By  an  early  act  of 
Congress,  and  supplemental  legislation  thereto,  a  right  of  way  was 
granted  to  telegraph  companies,  over  public  lands  and  all  military 
and  post  roads  of  the  United  States,  and  under  or  across  any  of  its 
navigable  streams  or  waters,  after  complying  with  certain  conditions 
therein  prescribed.®    There  is  no  question  as  to  the  constitutionality 

6  Gladstone  v.  Earl  of  Sandwich,  5  M.  &  G.  995,  12  L.  J.  C.  P.  41.  See 
Com'th  V.  Boley,  1  Wkly.  Notes  Cas.  (Pa.)  303. 

7  See  Yeager  v.  Tuning,  79  Ohio  St.  121,  86  N.  E.  mi,  19  L.  R.  A.  (N.  S.) 
700,  128  Am.  St.  Rep.  679. 

8  United  States  statute  authorizing  occupation  of  post  roads  by  telegraph 
lines.  U.  S.  Rev.  St.,  §§  5263-5268  (U.  S.  Comp.  St.  1913,  §§  10072-10077)  14 
Stat.  221 ;  Act  of  July  24,  1866,  c.  230.  "Any  telegraph  company  organized 
under  the  laws  of  any  state,  shall  have  the  right  to  construct,  maintain  and 
operate  telegraph  lines  over  any  part  of  the  public  domain,  over  and  along 
any  of  the  military  or  post  roads  of  the  United  States,  and  \inder  or  across 
any  of  its  navigable  streams  or  waters ;  provided  such  lines  are  not  so  placed 
as  to  obstruct  navigation,  or  interfere  with  the  proper  use  of  the  military  or 
post  roads."  U.  S.  Rev.  St.  §  5263.  "Any  such  company  may  take  from  the 
public  lands  through  which  its  line  passes  the  necessary  stone,  timber  and 
other  materials  for  its  poles,  stations  or  other  needful  uses  in  constructing 
its  line,  and  pre-empt  such  portion  of  the  unoccupied  public  land  as  may  be 
necessary  for  its  stations,  not  exceeding  forty  acres  for  each  station;  such 
stations  to  be  not  within  fifteen  miles  of  each  other."  U.  S.  Rev.  St.  §  5204. 
The  Act  of  March  3,  1901,  c.  832,  31  Stat.  1058,  providing  for  grants  to  tele- 
graph companies  of  franchises  in  the  Indian  Territory,  necessarily  annulled 
all  previous  conflicting  grants  made  by  any  of  the  Indian  nations.  Muskogee 
Nat.  Tel.  Co.  v.  Hall,  55  C.  C.  A.  208,  118  Fed.  382,  disapproving  Muskogee 
Nat.  Tel.  Co.  v.  Hall  (1901)  4  Ind.  T.  18,  64  S.  W.  600.  By  Act  of  Congress 
of  March  3,  1901  (31  U.  S.  Stat.  1084),  the  secretary  of  the  interior  is  given 
full  authority  to  grant  of  rights  of  way  to  telegraph  lines  in  the  territory, 
and  no  line  may  be  constructed  there  without  authority  from  him.  Mus- 
kogee Nat.  Tel.  Co.  v.  Hall  (1901)  4  Ind.  T.  IS,  64  S.  W.  600.  See  West.  U. 
Tel.  Co.  V.  Visalia,  149  Cal.  744,  87  Pac.  1023;  West.  U.  Tel.  Co.  v.  Pennsyl- 
vania R.  Co.,  195  U.  S.  540,  95  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann.  Cas.  517 ; 
Richmond  v.  Southern  Bell  Tel.,  etc.,  Co.,  174  U.  S.  761,  19  Sup.  Ct.  778,  43 
L.  Ed.  1162;  Tel.  Co.  v.  Hopkins,  160  Cal.  106,  116  Pac.  557;  West.  U.  Tel. 
Co.  V.  luman,  etc.,  Steamship  Co.,  59  Fed.  365,  8  C.  C.  A.  152.  Congress  did 
not  exceed  its  powers  in  enacting  this  act.  Essex  v.  New  England  Tel.  Co., 
239  U.  S.  313,  36  Sup.  Ct.  102,  60  L.  Ed.  . 


60  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  57 

of  these  laws  as  they  were  enacted  under  the  power  given  Congress 
to  control  interstate  commerce. 

§  57.  Statutes  defining  what  are  post  roads,  etc. — Similar  stat- 
utes have  been  passed  defining  what  shall  be  post  roads,  and  within 
the  term  are  included  all  letter  carriers  or  free  delivery  routes,^  and 
all  railroads  or  parts  of  railroads  over  which  mails  are  carried.^" 
Thus  the  streets  of  the  District  of  Columbia  are  "post  roads"  with- 
in the  meaning  of  the  statute. ^^  It  supersedes  all  conflicting  state 
legislation  on  the  same  subject. ^- 

§  58.  Must  comply  with  conditions — character  of. — No  telegraph 
company  acquires  any  rights  under  these  statutes  until  it  has  filed 
with  the  postmaster  general  its  written  acceptance  of  all  the  condi- 
tions therein  imposed. ^^  This  question  was  settled  in  a  case  in 
which  a  telegraph  company,  in  the  exercise  of  the  right  of  eminent 
domain,  instituted  a  proceeding  to  condemn  and  appropriate  so 
much  of  a  bridge,  which  was  built  across  a  navigable  river  in  pur- 
suance of  state  and  national  legislation,  as  was  necessary  to  support 
a  line  of  wires  proposed  to  be  built  thereon,  and  for  the  construction, 
maintenance,  and  operation  of  same.  The  company  owning  the 
bridge,  claiming  that  the  condemnation  proceeding  was  without 
authority  of  law,  brought  an  action  to  enjoin  the  construction  of 
such  lines.  The  court  held  in  this  case  that,  before  the  company 
could  exercise  the  right  of  eminent  domain  with  respect  to  the  cross- 
ing of  the  bridge,  it  would  be  necessary  to  file  a  written  acceptance 

oAct  of  Congress,  June  8,  1872,  c.  335,  §§  200-205,  17  Stat.  308,  309;  U.  S. 
Kev.  St.  §  3964  (U.  S.  Comp.  St.  1913,  §  7456).  See  Toledo  v.  West.  U.  Tel. 
Co.,  107  Fed.  10,  46  C.  C.  A.  Ill,  52  L.  R.  A.  730.  See  West.  U.  Tel.  Co.  v. 
Visalia,  149  Cal.  744,  87  Pac.  1023 ;  Eichraond  v.  Southern  Bell  Tel.,  etc.,  Co., 
174  U.  S.  761,  19  Sup.  Ct.  778,  43  U  Ed.  1162. 

10  Act  of  Congress  June  8,  1872,  c.  335,  §§  200-205,  17  Stat.  308,  309 ;  U.  S. 
Rev.  St.  §  3964  (U.  S.  Comp.  St.  1913,  §  7456).  See  case  cited  in  note  9.  See 
Richmond  v.  Southern  Bell  Tel.,  etc.,  Co.,  174  U.  S.  761,  19  Sup.  Ct.  778,  43 
L.  Ed.  1162 ;  West.  U.  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.  (C.  C.)  19  Fed.  660 ; 
West.  U.  Tel.  Co.  v.  Burlington,  etc.,  R.  Co.  (C.  C.)  11  Fed.  1,  3  McCrary,  130. 

11  Hewett  V.  W^est.  U.  Tel.  Co.,  4  Mackey  (D.  C.)  424;  West.  U.  Tel.  Co.  v. 
Visalia,  149  Cal.  744,  87  Pac.  1023;  St.  Louis  v.  West.  U.  Tel.  Co.,  148  U.  S. 
92,  13  Sup.  Ct.  485,  37  L.  Ed.  380. 

12  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  2  Woods,  643,  Fed.  Cas.  No.  10,- 
960,  affirmed  96  U.  S.  1,  24  L.  Ed.  708;  West.  U.  Tel.  Co.  v.  Atlantic,  etc., 
Tel.  Co.,  5  Nev.  102.  Compare  West.  U.  Tel.  Co.  v.  New  York  (C.  C.)  38  Fed. 
552,  3  L.  R.  A.  449. 

13  "Before  any  telegraph  company  exercising  any  of  the  powers  and  privi- 
leges conferred,  it  shall  file  its  written  acceptance  with  the  postmaster  gener- 
al" of  the  restrictions  and  obligations  required.    U.  S.  Rev.  St.  §  5263. 


§    59)  CONSTRUCTION,  MAINTENANCE  AND   REGULATION  61 

of  all  the  conditions  of  these  statutes.^*  The  obligations  and. re- 
strictions to  be  accepted  are  important  in  their  character ;  one  of 
which  is  that  the  telegraph  line  should  be  so  constructed  and  oper- 
ated as  not  to  obstruct  the  navigable  streams  and  waters,  or  in- 
terfere with  travel  on  military  roads.^^  Congress  has  intervened 
and  has  seen  fit  to  make  the  filing  of  a  written  acceptance  an  essen- 
tial prerequisite  to  the  building  of  a  telegraph  line  over  a  navigable 
stream,  and  to  the  enjoyment  of  the  privileges  conferred  by  that 
act;  and  its  authority  is  paramount.^^  Before  it  can  construct  a 
line  of  wires  across  a  navigable  stream,  it  must  first  have  obtained 
the  grant  from  Congress  under  these  acts,  with  all  of  which  condi- 
tions it  must  comply.  And  should  a  line  of  wires  be  constructed 
along  the  bed  of  a  navigable  stream,  without  filing  a  written  ac- 
ceptance of  the  conditions  stated  in  these  statutes,  and  a  steamer 
should  be  damaged  by  its  anchor  having  been  caught  in  the  wires, 
the  company  will  be  liable  for  damages.^^ 

§  59.  Scope  and  effect  of  act— statute  permissive  only.— It  is 
held  that  this  statute  is  permissive  only,^^  and  that  there  is  nothing 

14  Pacific,  etc.,  Tel.  Co.  v.  Chicago,  etc..  Bridge  Co.,  36  Kan.  113,  12  Pac. 

560. 

15  U.  S.  Rev.  St.  §  5263.  In  constructing  a  line  on  a  drawbridge,  the  Ime 
should  be  constructed  so  as  not  to  interfere  with  the  opening  of  the  draw 
span  of  the  bridge,  or  otherwise  obstruct  navigation.  Pacific  Mut.  Tel.  Co.  v. 
Chicago,  etc..  Bridge  Co.,  36  Kan.  113,  12  Pac.  560.  See  West,  U.  Tel.  Co.  v. 
Inmau,  etc.,  Steamship  Co.,  59  Fed.  365,  8  C.  C.  A.  152 ;  Pacific  Mut.  Tel.  Co. 
V.  Chicago,  etc..  Bridge  Co.,  36  Kan.  118,  12  Pac.  560,  cannot  interfere  with 
the  opening  of  the  draw-span  of  the  bridge  and  thus  obstruct  navigation; 
West.  U.  Tel.  Co.  v.  Inman,  etc.,  Steamship  Co.,  59  Fed.  365,  8  C.  C.  A.  152, 
holding  that  the  burden  is  upon  the  owner  of  the  cable  to  show  that  it  was 
not  so  maintained  as  to  obstruct  navigation. 

leHewett  V.  West.  U.  Tel.  Co.,  4  Mackey  (D.  C.)  424;  City  of  Richmond 
(D.  C.)  43  Fed.  85,  any  unnecessary  interference  with  free  movement  of  ves- 
sels falls  within  act ;  AVest.  U.  Tel.  Co.  v.  Inman,  etc..  Steamship  Co.,  59  Fed. 
365,  8  C.  C.  A.  152,  although  vessel  is  plowing  through  soft  mud. 

17  City  of  Richmond  (D.  C.)  43  Fed.  85;  West.  U.  Tel.  Co.  v.  Inman,  etc., 
Steamship  Co.,  59  Fed.  365,  8  C.  C.  A.  152,  how  cable  should  be  laid  depends 
on  nature  of  locality  and  character  and  extent  of  navigation;  City  of  Rich- 
mond, supra,  may  be  necessary  to  sink  cable  under  surface  of  bottom  of 
stream. 

IS  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  102,  13  Sup.  Ct.  485,  37  L.  Ed. 
380 ;  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  L.  Ed.  708 ;  West. 
U.  Tel.  Co.  V.  Atty.  Gen.,  125  U.  S.  548,  8  Sup.  Ct.  961,  31  L.  Ed.  790 :  Rich- 
mond V.  Southern  Bell,  etc.,  Co.,  174  U.  S.  761,  19  Sup.  Ct.  778,  43  L.  Ed. 
1162 ;  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L. 
Ed.  790;  Toledo  v.  West.  U.  Tel.  Co.,  107  Fed.  10,  46  C.  C.  A,  111,  52  L.  R.  A. 
730. 


62  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  60 

in  it  which  would  imply  that  the  permission  to  extend  its  lines  along 
roads,  not  built  or  owned  by  the  United  States,  or  over  and  under 
navigable  streams,  or  over  bridges  not  built  or  owned  by  the  federal 
government,  carries  with  it  any  exemption  from  ordinary  burdens 
of  taxation.^"  It  may  also  be  affirmed  that  it  carries  with  it  no  ex- 
emption from  the  ordinary  burdens  which  may  be  cast  upon  those 
who  would  appropriate  to  their  exclusive  use  any  portion  of  the 
public  highway.- ° 

§  60.  State  cannot  prohibit  company  from  doing  business  there- 
in on  compliance  with  said  act. — The  state  cannot  therefore  by  any 
specific  statute  prevent  a  telegraph  company  from  placing  its  lines 
along  military  and  post  roads,  or  stop  the  use  of  it  after  it  has  been 
placed  there,^^  after  the  company  has  complied  with  all  the  condi- 
tions of  the  statute.-^  The  power  of  Congress  to  grant  to  these 
companies  the  right  of  way  over  these  roads  and  across  public 
lands  is  absolute,  and  this  power  is  acquired  by  the  authority  con- 
ferred in  Congress  to  regulate  interstate  commerce ;  any  law  of  a 
state  which  obstructs  or  burdens  interstate  commerce,  or  hinders 
the  regular  and  legal  administration  of  the  government,  must  be 

19  See  §  61  et  seq. 

2  0  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380.     See  §  62  et  seq. 

21  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L. 
Ed.  790. 

22  Pierce  v.  Drew,  136  Mass.  75,  49  Am.  Rep.  7;  Hodges  v.  West.  U.  Tel.  Co., 
72  Miss.  910,  18  South.  84,  29  L.  R.  A.  770 ;  Moore  v.  Euf aula,  97  Ala.  670,  11 
South.  921;  West.  U.  Tel.  Co.  v.  Fremont,  39  Neb.  692,  58  N.  W.  415,  26  L. 
R.  A.  G9S;  West.  U.  Tel.  Co.  v.  Atlantic,  etc..  States  Tel.  Co.,  5  Nev.  102; 
West.  U.  Tel.  Co.  v.  Visalia,  149  Cal.  744,  87  Pac.  1023 ;  Hewett  v.  West.  U. 
Tel.  Co.,  4  Mackey  (D.  C.)  424 ;  Matter  of  Pennsylvania  Tel.  Co.,  48  N.  J.  Eq. 
91,  20  Atl.  848,  27  Am.  St.  Rep.  462 ;  Postal  Tel.  Cable  Co.  v.  Morgan's  Louisi- 
ana, etc.,  R.  Co.,  49  La.  Ann.  58,  21  South.  183 ;  Daily  v.  State,  51  Ohio  St. 
348,  37  N.  E.  710,  46  Am.  St.  Rep.  578,  24  L.  R.  A.  724 ;  Tel.  Co.  v.  Super.  Ct., 
15  Cal.  App.  679,  115  Pac.  1091,  1100 ;  Charleston  v.  Postal,  3  Am.  Elec.  Cas. 
56,  62 ;  Postal  Tel.  Cable  Co.  v.  Adams,  155  U.  S.  688,  15  Sup.  Ct.  268,  360,  39 
L.  Ed.  311 ;  Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S.  692,  14  Sup.  Ct. 
1094,  38  L.  Ed.  871;  Leloup  v.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L. 
Ed.  311 ;  Ratterman  v.  West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32 
L.  Ed.  229 ;  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961, 
SI  L.  Ed.  790;  West.  U,  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067; 
Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  L.  Ed.  708;  Southern 
Bell  Tel.,  etc.,  Co.,  v.  Richmond  (C.  C.)  78  Fed.  858;  St.  Louis  v.  West.  U. 
Tel.  Co.  (C.  C.)  63  Fed.  68;  West.  U.  Tel.  Co.  v.  New  York  (C.  C.)  38  Fed. 
552,  3  L.  R.  A.  449 ;  West.  U.  Tel.  Co.  v.  American  U.  Tel.  Co.,  Fed.  Cas.  No. 
17,444,  9  Biss.  72. 


§61)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  63 

held  to  be  unconstitutional  and  void.^^    This  act  of  Congress  super- 
sedes all  conflicting  state  legislation  on  the  same  subject.^* 

§  61.  Same  continued — exception  to  power — police  regulations. 
—These  statutes  do  not  deprive  the  state  of  its  police  power.'^^ 
While  they  may  operate  to  prevent  the  state  or  any  of  its  munici- 
palities from  an  arbitrary  or  absolute  exclusion  of  a  telegraph  com- 
pany, which  has  complied  with  this  provision,  from  any  post  road,=* 
yet  they  do  not  afifect  the  rights  of  the  state  or  its  agency  to  regu- 
late the  use  of  streets  and  highways  by  such  companies."  For  in- 
stance, the  streets  in  a  town  are  included  in  the  term  "post  roads,"  ^* 
and  the  authority  therein  could  not  exclude  a  telegraph  company 
from  entering  upon  its  streets ;  ^^   yet  it  could  regulate  the  size  and 

2  3  Moore  v.  Eufaula,  97  Ala.  670,  11  South.  921;  Matter  of  Pennsylvania 
Tel.  Co.,  48  N.  .T.  Eq.  91,  20  Atl.  846,  27  Am.  St.  Rep.  462 ;  West.  U.  Tel.  Co. 
V.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L.  Ed.  790;  Tel.  Co.  v. 
Hopkins,  160  Cal.  106,  116  Pae.  557.  Purely  domestic  business  within  the 
state  cannot  even  be  entirely  prohibited  by  the  stata  West.  U.  Tel.  Co.  v. 
Andrews,  216  U.  S.  165,  30  Sup.  Ct.  286,  54  L.  Ed.  430,  reversing  (C.  C.)  154 
Fed.  95 ;  Ludwig  v.  West.  U.  Tel.  Co.,  216  U.  S.  146,  30  Sup.  Ct.  280,  54  L. 
Ed.  423,  affirming  (C.  C.)  156  Fed.  152,  and  disapproving  West.  U.  Tel.  Co.  v. 
State,  82  Ark.  302,  101  S.  W.  745 ;  West.  U.  Tel.  Co.  v.  Kansas,  216  U.  S.  1, 
30  Sup.  Ct.  190,  54  L.  Ed.  355,  reversing  75  Kan.  609,  90  Pac.  299.  See,  how- 
ever. Harvard  L.  Rev.  549-551. 

24  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  L.  Ed.  70S;  West. 
U.  Tel.  Co.  V.  Atlantic,  etc..  States  Tel.  Co.,  5  Nev.  102. 

2  5  American,  etc.,  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454,  and  note  for  other  cases. 

2  6  See  cases  cited  in  note  22. 

2  7  People  V.  Squire,  145  U.  S.  175,  12  Sup.  Ct.  880,  36  D.  Ed.  666,  affirming 
107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  894 ;  Michigan  Tel.  Co.  v.  Charlotte 
(C.  C.)  93  Fed.  11 ;  City  of  Toledo  v.  West.  U.  Tel.  Co.,  107  Fed.  10,  46  C.  C. 
A.  Ill,  52  L.  R.  A.  730.  See  American  Tel.,  etc.,  Co.  v.  Harborcreek  Tp.,  23 
Pa.  Super.  Ct.  R.  437 ;  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup. 
Ct.  961,  31  L.  Ed.  790 ;  Ganz  v.  Ohio  Postal  Tel.  Cable  Co.,  140  Fed.  092,  72 
C.  C.  A.  186 ;  State  v.  West.  U.  Tel.  Co.,  75  Kan.  609,  90  Pac.  299,  holding 
that  a  telegraph  company  is  not  relieved  from  compliance  with  a  statute  re- 
quiring foreign  corporations  to  comply  with  certain  conditions  for  the  privi- 
lege of  exercising  their  franchise  within  a  state  because  of  its  acceptance  of 
the  act  of  1866.     See,  also,  §  80  et  seq.     See,  also,  §  242  et  seq. 

2  8  See  §  77. 

29  Hodges  v.  West.  U.  Tel.  Co.,  72  Miss.  910,  18  South.  84,  29  L.  R.  A.  770; 
Michigan  Tel.  Co.  v.  Benton  Harbor,  121  Mich.  512,  80  N.  W.  386,  47  L.  R.  A. 
104;  Chamberlain  v.  Iowa  Tel.  Co.,  119  Iowa,  619,  93  N.  W.  596;  New  Or- 
leans V.  Great  Southern  Tel.,  etc.,  Co.,  40  La.  Ann.  41,  3  South.  533,  8  Am. 
St.  Rep.  502;  State  v.  Red  Ix)dge.  30  Mont.  338,  76  Pac.  758;  Texarkana  v. 
Southwestern  Tel.,  etc.,  Co.,  48  Tex.  Civ.  App.  16,  106  S.  W.  915;  Summit 
Tp.  V.  New  York,  etc.,  Tel.  Co.,  57  N.  J.  Eq.  123,  41  Atl.  146;  American  U. 
Tel.  Co.  V.  Harrison,  31  N.  J.  Eq.  627 ;  Carthage  v.  Central  New  York  Tel.^ 


64  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  62 

location  of  the  poles,  the  height  of  the  wires  and  their  location; 
and,  where  they  become  an  obstruction  and  a  nuisance,  it  could 
remove  them  or  require  them  to  be  placed  under  the  ground,^**  or  it 
might  impose  a  reasonable  charge  for  the  privilege  of  erecting  and 
maintaining  telegraph  lines  along  its  streets  where  the  city  owns 
the  streets.^^  And  a  city  ordinance  requiring  telegraph  companies 
engaged  in  business  within  its  corporate  limits  to  pay  a  license  tax 
is  valid  and  can  be  enforced  notwithstanding  the  fact  that  the  com- 
pany has  complied  with  all  the  conditions  of  such  statutes.^^  So 
also  the  acceptance  by  a  telegraph  company  of  the  provisions  of 
these  statutes,  does  not  confer  any  exemption  from  taxation  for 
state  purposes  upon  lines  and  other  property  constructed  within  the 
state. ^^ 

§  62.  Does  not  interfere  with  right  to  compensation. — When  a 
telegraph  company  has  acquired  a  right  of  way  over  the  public 
highway  by  federal  grant,  the  abutting  landowners  are  not  deprived 
of  the  right  to  be  compensated  for  said  right  of  way  because  the 
land  upon  which  the  grant  is  given  is  burdened  with  an  additional 
servitude,  or  because  the  easement  of  access  to  their  property  has 
been  obstructed,  or  because  the  enjoyment  of  the  highway  has  been 

etc.,  Co.,  185  N.  Y,  448,  78  N.  E.  165,  113  Am.  St.  Rep.  932,  reversing  110 
App.  Div.  625,  96  N.  Y,  Supp.  919,  and  affirming  48  Misc.  Kep.  423,  96  N.  Y. 
Supp.  917;  Barhite  v.  Home  Tel.  Co.,  50  App.  Div.  25,  63  N.  Y.  Supp.  659; 
Wisconsin  Tel.  Co.  v.  Milwaukee,  126  Wis.  1,  104  N.  W.  1009,  110  Am.  St.  Rep. 
886,  1  L.  R.  A.  (N.  S.)  581 ;  Wisconsin  Tel.  Co.  v.  Oshkosli,  62  Wis.  32,  21  N. 
W.  828;  Kenosha  v.  Tel.  Co.,  149  Wis.  338,  135  N.  W.  848;  W^ichita  v.  Old 
Colony  Trust  Co.,  132  Fed.  641,  66  C.  C.  A.  19;  Toronto  v.  Bell  Tel.  Co.,  6 
Ont.  L.  Rep.  335,  2  Ont.  Wkly.  Rep.  750.  See,  also,  cases  cited  in  note  22, 
supra. 

3  0  American,  etc.,  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454n.  See,  also,  §  81  et  seq.  Barhite  v.  Home  Tel.  Co., 
50  App.  Div.  25,  63  N.  Y.  Supp,  659 ;  West.  U.  Tel.  Co.  v.  Richmond,  224  U. 
S.  160,  32  Sup.  Ct  449,  56  L.  Ed.  710,  affirming  (C.  C.)  178  Fed.  310. 

31  See  §  85  et  seq. 

3  2  See  §  85  et  seq. 

3  3  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L. 
Ed.  790 ;  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067 ;  West.  U. 
Tel.  Co.  V.  Missouri,  190  U.  S.  412,  23  Sup.  Ct.  730,  47  L.  Ed.  1116 ;  Atlantic, 
etc.,  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160,  23  Sup.  Ct.  817,  47  L.  Ed.  995; 
West.  U.  Tel.  Co.  v.  Taggart,  163  U.  S.  1,  16  Sup.  Ct.  1054,  41  L.  Ed.  49; 
Postal  Tel.  Cable  Co.  v.  Adams,  155  U.  S.  688,  15  Sup.  Ct.  268,  360,  39  L.  Ed. 
311 ;  Massachusetts  v.  West.  U.  Tel.  Co.,  141  U.  S.  40,  11  Sup.  Ct.  889,  35  L. 
Ed.  628 ;  Leloup  v.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311 ;  West. 
U.  Tel.  Co.  V.  Visalia,  149  Cal.  744,  87  Pac.  1023,  holding  that  the  franchise 
granted  by  the  act  of  1866  is  not  subject  to  state  taxation  either  directly  or 
indirectly. 


§    63)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  65 

interfered  with.^*  Neither  does  the  act  authorize  the  taking  without 
compensation  of  state  or  municipal  property,^'  which  includes  pub- 
lic streets  and  highways. ^*^  In  the  absence  of  condemnation  pro- 
ceedings, the  consent  of  the  owner  of  the  property  must  be  obtained, 
although  compensation  therefor  has  been  tendered. ^^ 

§  63.  Same  continued — reason  of  rule. — "It  is  a  misconception, 
however,  to  suppose  that  the  franchise  or  privilege  granted  by  the 
act  of  1866  carries  with  it  the  unrestricted  right  to  appropriate  the 
public  property  of  a  state.  It  is  like  any  other  franchise,  to  be  exer- 
cised in  subordination  to  public  as  to  private  rights.  While  a  grant 
from  one  government  may  supersede  and  abridge  franchises  and 
rights  held  at  the  will  of  its  grantor,  it  cannot  abridge  any  property 
rights  of  a  public  character  created  by  the  authority  of  another 
sovereignty.  No  one  would  suppose  that  a  franchise  from  the  fed- 
eral government  to  a  corporation,  state  or  national,  to  construct  in- 
terstate roads  or  lines  of  travel,  transportation,  or  communication, 
would  authorize  it  to  enter  upon  the  private  property  of  an  indi- 
vidual, and  appropriate  it  without  compensation.  No  matter  how 
broad  and  comprehensive  might  be  the  terms  in  which  the  franchise 
was  granted,  it  would  be  confessedly  subordinate  to  the  right  of  the 
individual  not  to  be  deprived  of  his  property  without  just  compen- 
sation. And  the  principle  is  the  same  when,  under  the  grant  of  a 
franchise  from  the  national  government,  a  corporation  assumes  to 
enter  upon  property  of  a  public  nature  belonging  to  a  state.     It 

3  4Kester  v.  West.  U.  Tel.  Co.  (C.  C.)  108  Fed.  926;  Phillips  v.  Postal  Tel. 
Cable  Co.,  130  N.  C.  513,  41  S.  E.  1022,  89  Am.  St.  Rep.  868 ;  West.  U.  Tel. 
Co.  V.  Pennsylvania  R.  Co.,  195  U.  S.  540,  25  Sup.  Ct.  133,  150,  49  L.  Ed. 
312,  322,  1  Ann.  Cas.  517 ;  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  ITS  U.  S. 
239,  20  Sup.  Ct.  867,  44  L.  Ed.  1052 ;  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co., 
96  IT.  S.  1,  24  L.  Ed.  70S;  Sunset  Tel.,  etc.,  Co.  v.  Pomona  (C.  C.)  164  Fed. 
561,  affirmed  in  172  Fed.  829,  97  C.  C.  A.  251. 

3  5  Cumberland  Tel.,  etc.,  Co.  v.  Evansville  (C.  C.)  127  Fed.  1S7,  affirmed 
in  143  Fed.  238,  74  O.  C.  A.  368 ;  St.  Louis  v.  West.  U.  Tel.  Co.,  148  U.  S.  92, 
13  Sup.  Ct.  485,  37  L.  Ed.  380;  Postal  Tel.  Cable  Co.  v.  Newport,  76  S.  W. 
159,  25  Ky.  Law  Rep.  635;  American  Tel.,  etc.,  Co.  v.  Harborcreek,  23  Pa. 
Super.  Ct.  R.  437 ;  Postal  Tel.  Cable  Co.  v.  Baltimore,  156  U.  S.  210,  15  Sup. 
Ct.  356,  39  L.  Ed.  399. 

3c.  Sunset  Tel.,  etc.,  Co.  v.  Pomona  (C.  C.)  164  Fed.  561,  affirmed  in  172  Fed. 
829,  97  C.  C.  A.  251 ;  St.  Louis  v.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct. 
485,  37  L.  Ed.  380;  Tel.,  etc.,  Co.  v.  Pasadena,  161  Cal.  265,  118  Pac.  796; 
Springfield  v.  Postal  Tel.  Cable  Co.,  253  111.  346,  97  N.  E.  672. 

3  7  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195  U.  S.  540,  25  Sup.  Ct.  133, 
49  L.  Ed.  312,  1  Ann.  Cas.  517;  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  178 
U.  S.  239,  20  Sup.  Ct.  867,  44  L.  Ed.  1052. 

Jones  Tel.(2d  Ed.) — 5 


66  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  64 

would  not  be  claimed,  for  instance,  that  under  a  franchise  from 
Congress  to  construct  and  operate  an  interstate  railroad  the  grantee 
thereof  could  enter  upon  the  statehouse  grounds  of  the  state,  and 
construct  its  depot  there,  without  paying  the  value  of  the  property 
thus  appropriated.  Although  the  statehouse  grounds  be  property 
devoted  to  public  uses,  it  is  property  devoted  to  the  public  uses  of 
the  state,  and  property  whose  ownership  and  control  is  in  the  state, 
and  it  is  not  within  the  competency  of  the  national  government  to 
dispossess  the  state  of  such  control  and  use  or  appropriate  the  same 
to  its  own  benefit,  or  the  benefit  of  any  of  its  corporations  or  gran- 
tees, without  suitable  compensation  to  the  state.  This  rule  extends 
to  streets  and  highways ;  they  are  the  public  property  of  the  state. 
While  for  purposes  of  travel  and  common  use  they  are  open  to  the 
citizens  of  every  state  alike,  and  no  state  can  by  its  legislation  de- 
prive the  citizens  of  another  state  of  such  common  use,  yet  when  an 
appropriation  of  any  part  of  this  public  property  to  an  exclusive  use 
is  sought,  whether  by  citizen  or  a  corporation  of  the  same  or  another 
state,  or  a  corporation  of  a  national  government,  it  is  within  the 
competency  of  the  state,  representing  the  sovereignty  of  that  local 
public,  to  exact  for  its  benefit  compensation  for  this  exclusive  appro- 
priation. It  matters  not  for  what  that  exclusive  appropriation  is 
taken,  whether  for  steam  railroads  or  street  railroads,  telegraph  or 
telephones,  the  state  may,  if  it  choose,  exact  from  the  party  or  cor- 
porations given  such  exclusive  use  pecuniary  compensation  to  the 
general  public  for  being  deprived  of  the  common  use  of  the  portion 
thus  appropriated."  ^^ 

§  64.  Same  continued — along  railroads — compensation,  when  al- 
lowed to  owner  of  fee. — For  the  same  reason  given  above,  a  tele- 
graph company  cannot  acquire  a  right  of  way  along  and  upon  the 
right  of  way  of  a  railroad  company  without  first  compensating  the 
landowner  or  the  railroad  company.  This  act  of  Congress  is  per- 
missive only,  and  the  manner  in  which  the  right  of  way  is  acquired 
by  the  condemnation  proceedings  is  left  with  the  laws  of  the  state 
in  which  the  road  is  located.  In  some  instances,  a  railroad  company 
constructs  a  line  of  wires  along  its  roads  for  its  own  conveniences 
in  carrying  out  the  business  of  the  company,  such  as  the  giving  of 
orders  and  doing  all  other  business  necessary  for  the  discharge  and 
performance  of  its  duties.  When  such  is  the  case,  the  owner  of  the 
fee,  if  such  may  still  be  in  him,  will  not  be  entitled  to  an  additional 
compensation  for  the  right  of  way ;   but  if  the  line  is  built  by  any 

3  8  St.  Louis  V.  West.  U.  Tel.  Co.,  14S  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380. 


§    65)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  67 

other  corporation,  by  any  kind  of  an  agreement  entered  into  by  the 
railroad  and  such  corporation,  the  owner  of  the  fee  will  be  entitled 
to  additional  compensation,  notwithstanding  that  the  telegraph 
company  will,  in  connection  with  its  other  corporate  business,  ren- 
der to  the  road  the  same  services  it  would  have  obtained  had  the 
line  belonged  to  the  road,  and  had  been  built  by  it  for  its  own  con- 
venience, provided  it  is  not  used  exclusively  for  the  benefit  and  con- 
venience of  the  road.^" 

§  65.  Same  continued — compensation  to  road — reason  for  allow- 
ing.— The  interest  which  a  railroad  company  has  to  its  right  of  way, 
regardless  of  the  manner  in  which  it  is  acquired,  entitles  it  to  be 
compensated  by  any  telegraph  company  which  condemns  so  much 
of  said  road  as  may  be  necessary  for  a  construction  of  a  line  of  its 
wires  thereon,  unless  it  is  otherwise  agreed  to  by  the  two  com- 
panies; and  this  right  is  not  affected  in  any  wise  by  this  act  of  Con- 
gress.*" Every  citizen  has  a  right  guaranteed  by  the  fundamental 
law  of  our  land,  that  he  shall  not  be  deprived  of  any  of  his  property 
rights  without  a  due  compensation  therefor,  determined  by  proper 
legal  proceedings ;  and  it  is  upon  this  guarantee  to  every  American 
citizen  in  the  security  and  protection  of  his  property  rights,  which 
has  formed  and  concentrated  our  government  into  one  invulnerable 
unit  and  made  it  the  grandest,  the  proudest,  and  most  powerful  na- 
tion of  the  world.  For  the  same  reason  that  the  property  of  a  pri- 
vate person  could  not  be  taken  against  his  consent  by  any  corpora- 
tion or  body  of  persons  without  first  paying  him  a  due  consideration 
for  same,  the  property  rights  of  any  corporation  cannot  be  legally 
acquired  by  any  other  corporation  or  body  of  persons  without  pay- 
ing or  tendering  to  said  corporation  a  due  compensation  for  said 
rights.  Under  our  laws,  a  corporation  is  a  citizen  and  is  protected 
in  the  security  of  its  property  the  same  as  a  private  individual. 
While  a  railroad  may  not  have  the  same  interest  to  the  land  on 
which  its  road  is  located  as  that  possessed  by  an  individual  to  his 
land,  it  nevertheless  has  an  interest  in  this  land  or  right  of  way  for 
the  purpose  of  carrying  out  its  corporate  business,  paramount  to 
any  other  person  or  corporation,  and  therefore  has  the  same  right  to 
be  protected  and  secured  in  this  right  that  an  individual  has  to  his 
private  property.    No  one  would  presume  to  say  that  a  telegraph  or 

3  0  American  Tel.,  etc.,  Co.  v.  Smith,  71  Md.  535,  IS  Atl.  918,  7  L.  R.  A.  200. 
See,  also,  cases  cited  in  note  34. 

40  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195  U.  S.  540,  25  Sup.  Ct.  133, 
49  L.  Ed.  312,  1  Ann.  Cas.  517 ;  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  178 
U.  S.  239,  20  Sup.  Ct.  867,  44  L.  Ed.  1052 ;  Postal  Tel.  Cable  Co.  v.  Southern 
R.  Co.  (C.  C.)  89  Fed.  190. 


68  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  66 

telephone  company  could  construct  a  line  of  its  wires  over  and 
across  the  property  of  an  individual  against  his  consent  without 
first  compensating-  him  for  said  right ;  for  he  is  as  secure  from  the 
depredation  of  his  property  in  this  respect  as  by  any  other  known 
way.  This  is  his  guaranteed  right.  There  may  be  other  ways  in 
which  the  right  of  way  of  a  railroad  company  may  be  used  by  other 
corporations  or  private  citizens,  but  there  is  no  way  in  which  it  is 
So  often  used  and  subjected  as  for  telegraph  companies  whose  wires 
are  strung  from  one  end  of  the  road  to  the  other,  and  on  every  road 
of  any  consequence ;  and  to  say  that  these  telegraph  companies 
should  not  compensate  the  railroad  company  for  the  use  of  its  ease- 
ment would  be  unreasonable,  unjust,  and  would  not  protect  the  rail- 
road in  this  guaranteed  right. 

§  66.  Same  continued — must  obtain  consent  or  condemn. — Most 
all  of  our  lands  were  originally  acquired  either  directly  or  indirectly 
by  grant  from  the  United  States  and,  by  a  technical  meaning  seldom 
considered,  the  paramount  title  to  which  was  never  granted,  but  for 
certain  purposes  and  reasons  it  might  under  certain  circumstances 
revert  back  to  the  original  owner  or  grantor.  It  matters  not  what 
technical  constructions  may  be  placed  on  these  grants  from  the  gov- 
ernment, there  is  not  the  least  possible  or  the  remotest  doubt  that 
the  grantees  of  these  lands  have  acquired  all  the  right,  title,  and  in- 
terest in  said  grants  to  make  them  absolutely  perfect  and  sound  in 
every  possible  respect  and  superior  to  all  other  claims  or  demands, 
except  such  as  may  fall  under  the  police  power,  or  such  as  may  be 
necessary  to  carry  on  the  affairs  of  the  public.  While  there  may  be 
a  distinction  between  a  grant  of  these  lands  and  a  grant  of  a  right 
of  way  to  a  railroad  company,  in  that  the  fee  may  not  always  be 
granted  to  the  latter,  yet  it  is  not  to  be  presumed  that  Congress 
made  such  grants  without  also  giving  them  the  right  to  demand 
compensation  for  their  rights  of  way  when  condemned  by  telegraph 
companies.  And  so  it  is  held  that  telegraph  companies  must  obtain 
the  consent  of  the  owners  of  the  right  of  way,  or  condemn  the  same 
for  telegraph  purposes  and  make  compensation  therefor.*^  As  was 
said  by  an  eminent  judge :  "We  cannot  suppose  it  was  the  intention 
of  Congress  by  these  enactments,  even  if  it  had  the  power  to  do  so, 

41  West.  U.  Tel.  Co.  v.  Am.  V.  Tel.  Co.,  0  Biss.  72,  Fed.  Cas.  No.  17,444; 
Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  G  Biss.  159,  Fed.  Cas.  No.  632 ; 
West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  90  Fed.  379,  33  C.  C.  A.  113 ;  Id.,  17S 
U.  S.  243,  2  Sup.  Ct.  867,  44  L.  Ed.  1052;  Southwestern  R.  Co.  v.  Southern, 
etc.,  Tel.  Co.,  46  Ga.  43,  12  Am.  Rep.  585;  Northwestern  Tel.  Exch.  Co.  v. 
Chicago,  etc.,  R.  Co.,  76  Minn.  334,  79  N.  W.  315.  See  Western,  etc.,  R.  Co. 
V.  AVest.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42  L.  R.  A.  (N,  S.)  225. 


§    67)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  69 

to  put  the  right  of  way  of  every  railroad  company  in  the  country  at 
the  mercy  of  the  telegraph  companies,  and  allow  the  latter  to  use 
them  for  the  construction  of  their  lines,  without  making  compensa- 
tion to  any  one  therefor."  *^ 

§  67.  Same  continued — right  acquired  by  agreement. — It  is  not 
always  necessary  that  a  condemnation  proceeding  be  instituted  in 
order  for  a  telegraph  company  to  acquire  a  right  of  way  over  the 
private  property  of  an  individual,  since  it  may  be  acquired  by  the 
owner's  consent,  or  by  an  agreement  entered  into  with  him.  The 
statute  or  act  of  Congress  does  not  confer  the  right  of  eminent  do- 
main,*^ or  authorize  any  compulsory  proceedings  for  the  taking  of 
the  property  without  the  owner's  consent,**  so  that,  if  the  company 
is  not  entitled  under  the  state  statutes  to  exercise  the  right  of  emi- 
nent domain,  it  cannot  take  private  property  without  the  owner's 
consent,  although  the  company  is  willing  to  make  just  compensa- 
tion therefor."  The  same  rule  of  law  applies  to  the  right  of  way  of 
a  railroad.  The  company,  however,  may  obtain  a  privilege  from 
the  railroad  to  construct  its  lines  of  wires  upon  and  along  the  right 
of  way  of  the  road.  If  a  right  of  way  has  been  granted  to  a  tele- 
graph company  to  construct  its  line  over  private  property  of  an 
individual,  or  that  of  a  railroad,  or  over  that  belonging  to  the  state 
or  its  municipalities  for  a  certain  period  of  time,  and  this  has  ex- 
pired, another  agreement  must  be  obtained  from  the  owner,  or  con- 
demnation proceedings  instituted  for  the  privilege  of  remaining 
thereon.  The  right  of  eminent  domain  cannot  be  delegated,  and  so 
the  lessee  of  a  telegraph  line  cannot  exercise  the  right  of  eminent 

42  Am.  Tel.  Co.  v.  Pearce,  71  Md.  535,  18  Atl.  910,  7  L.  R.  A.  200.  note. 
See,  also,  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  L,  Ed.  708, 
affirming  2  Woods,  643,  Fed.  Cas.  No.  10,900. 

4-"  See  §  09. 

4-1  West.  U.  Tel.  Co.  v.  Penns.vlvania  R.  Co.,  195  U.  S.  540,  25  Sup.  Ct.  133, 
49  L.  Ed.  312,  1  Ann.  Cas.  517;  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  178  U. 
S.  239,  20  Sup.  Ct.  867,  44  L.  Ed.  1052;  Pensacola  Tel.  Co.  v.  West.  U.  Tel. 
Co.,  90  U.  S.  1,  24  L.  Ed.  708 ;  West.  U.  Tel.  Co.  v.  Polliemus  (C.  C.)  167  Fed. 
231.  The  statute  does  not  authorize  the  taking  of  private  property  without 
the  owner's  consent,  but  provides  that  if  such  consent  is  obtained  no  state 
legislation  shall  prevent  the  occupation  of  the  places  named  in  the  act  for 
telegraph  purposes  by  companies  accepting  the  provisions  of  the  act.  West. 
U.  Tel.  Co.  V.  Pennsylvania  R.  Co.,  supra ;  Pensacola  Tel.  Co.  v.  West.  U.  Tel. 
Co.,  supra. 

4  5  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195  U.  s.  540,  25  Sup.  Ct.  133, 
49  L.  Ed.  312,  1  Ann.  Cas.  517.  See,  also.  West.  U.  Tel.  Co.  v.  Polhemus  (C. 
C.)  167  Fed.  231. 


70  TELEGRArn  AND  TELEPHONE  COMPANIES  (§  68 

domain  conferred  by  statute  upon  his  lessor;  *°  therefore,  before 
the  lessee  could  obtain  a  right  of  way  for  its  lines,  an  agreement 
should  be  obtained  from  the  owner,  or  the  lessee  should  have  the 
state  to  confer  upon  it  the  power  to  exercise  the  right  of  eminent 
domain. 

§  68.  Same  continued — exclusive  use — cannot  be  acquired. — 
This  act  of  Congress  does,  however,  prevent  a  railroad  company's 
right  of  way  from  being  exclusively  used  by  one  telegraph  com- 
pany.*" The  legislature  of  Florida  granted  an  exclusive  right  to  a 
certain  company  to  construct  its  lines  along  the  right  of  way  of  a 
railroad.  It  was  held,  however,  that  such  a  grant  was  in  conflict 
with  the  act  of  Congress  which  was  specially  intended  to  secure  to 
all  companies  equal  privileges  and  to  prevent  monopolies,  and  that 
it  could  not  stand.*® 

§  69.  Condemnation  proceedings  must  be  under  state  statutes. — 
This  act  of  Congress  does  not  undertake  to  provide  compulsory 
proceedings  to  condemn  part  of  the  right  of  way  of  a  railroad,  or  to 

46  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195  U.  S.  594,  25  Sup.  Ct.  150, 
49  L.  Ed.  332,  1  Ann.  Cas.  533. 

47  Under  U.  S.  Rev.  St.  §  5263  (U.  S.  Comp.  St.  1913,  §  10072),  a  railroad 
company  caimot  grant  to  a  telegraph  company  tlie  sole  right  to  construct  a 
line  over  the  right  of  way,  so  as  to  exclude  other  companies  whose  lines 
would  not  interfere  with  those  of  the  first  company.  West.  U.  Tel.  Co.  v.  Am. 
U.  Tel.  Co.,  9  Biss.  72,  Fed.  Cas.  No.  17,444. 

48  A  telegraph  company  in  Texas  cannot  acquire  by  agreement  with  a  rail- 
road company  the  exclusive  right  to  use  its  right  of  way  for  a  line  of  tele- 
graph. West.  U.  Tel.  Co.  v.  Baltimore  &  O.  Tel.  Co.  (C.  C.)  19  Fed.  660,  22 
Fed.  133 ;  West.  U.  Tel.  Co.  v.  Am.  U.  Tel.  Co.,  65  Ga.  160,  38  Am.  Rep.  781 ; 
Baltimore,  etc.,  Tel.  Co.  v.  Morgan's  rx)uisiana,  etc.,  R.  Co.,  37  La.  Ann.  883 ; 
Pacific  Postal  Tel.  Cable  Co.  v.  West.  U.  Tel.  Co.  (C.  C.)  50  Fed.  493 ;  Keasley 
on  Electric  Wires,  p.  135.  See,  also.  Southwestern  R.  Co.  v.  Southern,  etc., 
Tel.  Co.,  46  Ga.  43,  12  Am.  Rep.  585 ;  New  Orleans,  etc.,  R.  Co.  v.  Southern, 
etc.,  Tel.  Co.,  53  Ala.  211 ;  West.  U.  Tel.  Co.  v.  Burlington,  etc.,  R.  Co.  (C.  C.) 
11  Fed.  1,  3  McCrary,  130.  A  railroad  company  maintaining  telegraph  wires 
granted  to  a  telegraph  company  the  right  to  place  a  wire  on  the  poles  of  the 
railroad  company  and  to  establish  stations  and  to  do  business  with  points 
off  the  road,  the  railroad  company  reserving  to  itself  the  right  to  the  local 
business.  It  was  held  that  the  right  granted  was  not  exclusive,  and  that  the 
railroad  could  put  up  and  maintain  another  wire  for  its  own  use  or  for  the 
use  of  a  third  party.  West.  U.  Tel.  Co.  v.  Marietta,  etc.,  R.  Co.,  38  Ohio  St. 
24.  There  are  some  authorities  holding  a  contrary  view  on  this  subject. 
Canadian  Pacific  R.  Co.  v.  West.  U.  Tel.  Co.,  17  Canada  Sup.  Ct.  151 ;  West. 
U.  Tel.  Co.  V.  Chicago,  etc.,  R.  Co.,  86  111.  246,  29  Am.  Rep.  28 ;  West.  U.  Tel. 
Co.  V.  Atlantic,  etc.,  Tel.  Co.,  7  Biss.  367,  Fed.  Cas.  No.  17,445.  In  view  of 
the  act  of  Congress,  a  state  cannot  grant  to  a  telegraph  company  exclusive 
rights  in  the  right  of  way  of  any  railroad  within  the  state.     "The  statute 


§    70)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  71 

condemn  public  or  private  property  of  the  state  or  individuals  for 
an  easement  for  a  telegraph  company,  but  this  right  is  left  exclu- 
sively to  the  law^s  of  the  state  in  which  is  located  the  right  of  way 
attempted  to  be  sought.*^  Nor  can  a  federal  court,  under  this  act, 
with  its  equity  powers,  use  its  injunction  process  so  as  to  effect  an 
equitable  condemnation  of  an  easement  of  a  right  of  way  over  a 
railroad  along  which  it  has  constructed  its  line  under  a  contract 
with  a  prior  owner  of  the  railroad  whose  ownership  had  been  termi- 
nated by  the  foreclosure  of  a  mortgage  existing  prior  to  the  con- 
tract.^" 

§  70.  Companies  not  subject  to  act. — This  act  of  Congress  does 
not  apply  to  telephone  companies, ^^  nor  does  it  extend  to  the  in- 
stallation by  a  regularly  organized  telegraph  company,  of  a  district 
telegraph  system  for  the  collection  and  distribution  of  telegraph 
messages  and  for  the  operation  of  call  boxes,  watchmen,  and  police 
signals,  and  the  like ;  ^^  nor  does  it  embrace  telegraph  companies 
not  organized  under  the  laws  of  a  state,  but  under  the  laws  of  a  for- 

amounts  to  a  prohibition  of  all  state  monopolies  in  this  particular."  Pensa- 
cola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  9G  U.  S.  1,  24  L.  E<1.  708,  affirming,'  2  Woods, 
043,  Fed.  Cas.  No.  10,960. 

4a  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195  U.  S.  540,  25  Sup.  Ct.  133, 
49  L.  Ed.  312,  1  Ann.  Cas.  517 ;  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195 
U.  S.  594,  25  Sup.  Ct.  150,  49  L.  Ed.  332,  1  Ann.  Cas.  533;  Sunset  Tel.  etc., 
Co.  V.  Pomona  (C.  C.)  1G4  Fed.  561,  affirmed  in  172  Fed.  829,  97  C.  C.  A.  251 ; 
Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  D.  Ed.  70S ;  Postal  Tel. 
Cable  Co.  v.  Cleveland,  etc.,  R.  Co.  (C.  C.)  94  Fed.  234 ;  Postal  Tel.  Cable  Co. 
V.  Southern  R.  Co.  (C.  C.)  89  Fed.  190;  West.  U.  Tel.  Co.  v.  Pennsylvania  R. 
Co.,  123  Fed.  33,  59  C.  C.  A.  113,  reversing  (C.  C.)  120  Fed.  981,  and  affirming 
(C.  C.)  120  Fed.  362;  Postal  Tel.  Cable  Co.  v.  Morgan's  Louisiana,  etc.,  R. 
Co.,  49  La.  Ann.  58,  21  South.  183 ;  Nicoll  v.  New  YorlJ,  etc.,  Tel.  Co.,  62  N.  J. 
Law,  733,  42  Atl.  583,  72  Am.  St.  Rep.  666,  affirming  62  N.  J.  Law,  156,  40  Atl. 
027 ;  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  178  U.  S.  243,  20  Sup.  Ct.  807, 
44  L.  Ed.  1052,  reversing  90  Fed.  379,  33  C.  C.  A.  113.  See,  also,  §  67. 
Northwestern,  etc.,  Co.  v.  Chicago,  etc.,  Ry.,  76  Minn.  334,  79  N.  W.  315; 
Postal  Tel.  Cable  Co.  v.  Southern  Ry.  (C.  C.)  89  Fed.  190.  See  West.  U.  Tel. 
Co.  v.  Superior  Court,  15  Cal.  App.  679,  115  Pac.  1091,  1100,  obligatoi-y  on 
state  to  allow  telegraph  companies  the  right  to  condemn. 

s'l  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  90  Fed.  379,  33  C.  C.  A.  113. 

51  Richmond  v.  Southern  Bell  Tel.,  etc.,  Co.,  174  U.  S.  761,  19  Sup.  Ct.  778, 
43  L.  Ed.  1162;  Sunset  Tel.,  etc.,  Co.  v.  Pomona  (C.  C.)  164  Fed.  561,  af- 
firmed in  172  Fed.  829,  97  C.  C.  A.  251 ;  Cumberland  Tel.,  etc.,  Co.  v.  E\'ans- 
ville  (C.  C.)  127  Fed.  187,  affirmed  in  143  Fed.  238,  74  C.  C.  A.  368. 

5  2Toleda  v.  West.  U.  Tel.  Co.,  107  Fed.  10,  46  C.  C.  A.  Ill,  52  L.  R.  A, 
730.  See  Hirsch  v.  American  Dist.  Tel.  Co.,  112  App.  Div.  265,  98  N.  Y.  Supp. 
371. 


72  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  71 

eign  country,^^  nor  to  domestic  telegraph  companies  which  have  not 
accepted  the  provisions  of  the  act.^* 

§  71.  Subsidized  acts. — By  an  early  act  of  Congress  ^^  and 
supplemental  acts  thereto  ^^  subsidized  railroad  companies,  known 
generally  as  the  Pacific  railroads,  were  granted  rights  of  way  over 
the  public  domain  and  were  required  to  construct  and  operate  tele- 
graph lines  along  their  various  routes  under  special  provisions  with 
regard  to  telegraphic  service  to  be  furnished  to  the  government  and 
the  public. ^^  When,  therefore,  a  railroad  company's  right  of  way  is 
one  acquired  by  congressional  grant  under  these  acts,  the  grants 
must  have  been  considered  as  having  been  accepted  subject  to  the 
provisions  of  the  act  giving  the  telegraph  companies  the  right  to 
occupy  and  use  such  right  of  way  without  compensation  to  the  rail- 
road.^^ 

§  72.  State  grants — distinguished  from  federal  grants. — For 
the  reason  that  telegraph  companies  may  acquire  from  the  federal 
government  a  right  of  way  over  and  across  public  and  private  prop- 
erty does  not  prevent  the  state  from  making  such  grants ;  for  we 
find  that  most,  if  not  all,  of  the  states  have  passed  laws  giving  the 
right  to  telegraph  and  telephone  companies,  under  certain  condi- 
tions and  restrictions,  to  construct  and  operate  lines  upon  the  public 
highways. ^'^     It  will  be  seen  that  there  is  a  distinction  between  a 

5  3  De  Castro  v.  Compagnie  Francaise,  85  Hun,  231,  32  N.  Y.  Supp.  9G0,  af- 
firmed in  155  N.  Y.  6SS,  50  N.  E.  1116. 

54  Chicago,  etc..  Bridge  Co.  v.  Pacific  Mut.  Tel.  Co.,  36  Kan.  113,  12  Pac. 
535. 

5  5  Act  July  1,  1862,  c.  120,  12  Stat.  489. 

5  6  Act  July  2,  1864,  c.  220,  13  Stat.  373;  Act  Aug.  7,  1888,  c.  772,  25  Stat. 
382. 

5  7  U.  S.  V.  Union  Pac.  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed.  319. 

5  8  Mercantile  Trust  Co.  v.  Atlantic,  etc.,  R.  Co.  (C.  C.)  63  Fed.  513. 

5  9  Code  of  Ala.  1896,  §§  1244,  2490;  Code  of  Tenn.  1896,  §  1830;  Code  of 
Va.  1887,  §§  1287-1290,  construed  in  Southern  Bell  Tel.,  etc.,  Co.  v.  Richmond, 
103  Fed.  31,  44  C.  C.  A,  147;  Richmond  v.  Southern  Bell  Tel.  Co.,  174  U.  S. 
761,  19  Sup.  Ct.  778,  43  L.  Ed.  1162 ;  Miss.  D.  1886,  p.  93,  construed  in  Merid- 
ian V.  West.  U.  Tel.  Co.,  72  Miss.  916,  18  South.  81 ;  Hodges  v.  West.  U.  Tel. 
Co.,  72  Miss.  910,  18  South.  84,  29  L.  R.  A.  770 ;  Postal  Cable  Tel.  Co.  v.  Nor- 
folk, etc.,  R.  Co.,  88  Va.  920,  14  S.  E.  803 ;  Hudson  Tel.  Co.  v.  Jersey  City,  49 
N.  J.  Law,  303,  8  Atl.  123,  60  Am.  Rep.  619;  Marshfield  v.  Wisconsin  Tel. 
Co.,  102  Wis.  604,  78  N.  W.  735,  44  L.  R.  A.  565,  construing  Wis.  Rev.  St. 
189S,  §  1778 ;  State  v.  Cumberland  Tel.,  etc.,  Co.,  52  La.  Ann.  1411,  27  South. 
795 ;  State  v.  Flad,  23  Mo.  App.  185 ;  State  v.  Spokane,  24  Wash.  53,  63  Pac. 
1116 ;  West.  U.  Tel.  Co.  v.  Williams,  86  Va.  696,  11  S.  E.  106,  8  L.  R.  A.  429, 
note,  19  Am.  St.  Rep.  90S.  See,  also,  State  v.  Central  New  Jersey  Tel.  Co., 
53  N.  J.  Law,  341,  21  Atl.  460,  11  L.  R.  A.  664 ;  Barhite  v.  Home  Tel.  Co.,  50 
App.  Div.  25,  63  N.  Y.  Supp.  659;  Cincinnati  Inclined  Plane  R.  Co.  v.  City, 


L.. 


§    73)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  73 

federal  and  a  state  grant  with  respect  to  the  kind  of  companies  to 
which  the  grant  may  be  made.  In  the  former,  as  stated  elsewhere, 
the  grant  can  only  be  made  to  a  telegraph  company,"**  but  in  the 
latter  it  may  be  made  to  either  or  both  a  telegraph  or  telephone 
company.^^  It  would  require  much  time  and  space  to  set  forth  all 
the  statutes  of  the  several  states  on  this  subject;  so  we  will  leave 
the  reader  to  consult  the  laws  of  his  own  state  in  regard  to  this 
question.*'^ 

§  73.  On  railroad. — In  some  states  these  statutes  confer  upon 
telegraph  and  telephone  companies  the  right  of  using  the  right  of 
way  of  a  railroad  company.*'^  It  has  been  held  that,  under  a  stat- 
ute authorizing  telegraph  companies  to  construct  their  lines  "along 

etc.,  Ass'n,  48  Ohio  St.  390,  27  N.  E.  890,  29  Am.  St.  Rep.  559,  12  L.  R.  A. 
534 ;  State  v.  Bell  Tel.  Co.,  36  Ohio  St.  296,  38  Am.  Rep.  583 ;  People's  Tel., 
etc.,  Co.  V.  Berks,  etc.,  Turnpike  Road,  199  Pa.  411,  49  Atl.  284 ;  Texarkana 
V.  Southwestern  Tel.,  etc.,  Co.,  48  Tex.  Civ.  App.  16,  106  S.  W.  915;  Roberts 
V.  Wisconsin  Tel.  Co.,  77  Wis.  589,  46  N.  W.  800,  20  Am.  St.  Rep.  143 ;  Postal 
Tel.  Cable  Co.  v.  Southern  R.  Co.  (C.  C.)  89  Fed.  190;  Beaver  County  v. 
Central  District,  etc.,  Tel.  Co.,  219  Pa.  340,  68  Atl.  846,  holding  that  a  bridge 
is  part  of  highway ;  Cable  Co.  v.  County,  160  Cal.  129,  116  Pac.  566 ;  Tel.,  etc., 
Co.  V.  Township,  80  N.  J.  Law,  158,  76  Atl.  444 ;  Bailey  v.  Tel.  Co.,  147  App. 
Div.  224,  131  N.  Y.  Supp.  1000 ;  Snee  v.  Tel.  Co.,  24  S.  D.  361,  123  N.  W.  729 ; 
Doty  V.  American,  etc.,  Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann.  Cas.  1912C, 
167 ;  Tel.  Co.  v.  Gainesville  (Tex.  Civ.  App.)  141  S.  W.  1044. 

60  §  56  et  seq. ;  §  70. 

61  People's  Tel.,  etc.,  Co.  v.  Berks,  etc.,  Turnpike  Road,  199  Pa.  411,  49  Atl. 
284;  Cincinnati  Inclined  Plane  R.  Co.  v.  City,  etc.,  Tel.  Assoc,  48  Ohio  St. 
390,  27  N.  E.  890,  29  Am.  St.  Rep.  559,  12  L.  R.  A.  534 ;  Texarkana  v.  Southwest- 
ern Tel.,  etc.,  Co.,  48  Tex.  Civ.  App.  16,  106  S.  W.  915;  Roberts  v.  Wiscon- 
sin Tel.  Co.,  77  Wis.  589,  46  N.  W.  800,  20  Am.  St.  Rep.  143.  See,  contra, 
Home  Tel.  Co.  v.  Nashville,  118  Tenn.  1,  101  S.  W.  770,  11  Ann.  Cas.  824; 
Sunset  Tel.,  etc.,  Co.  v.  Pomona  (C.  C.)  164  Fed.  561,  affirmed  in  172  Fed. 
829,  97  C.  C.  A.  251;  Canadian,  etc.,  R.  Co.  v.  Moosehead  Tel.  Co.,  106  Me. 
363,  76  Atl.  885,  29  L.  R.  A.  (N.  S.)  703,  20  Ann.  Cas.  721. 

6  2  See  Richmond  v.  Southern  Bell  Tel.,  etc.,  Co.,  174  U.  S.  701,  19  Sup.  Ct. 
778,  43  L.  Ed.  1102. 

6  3  Postal  Tel.  Cable  Co.  v.  Morgan's  Louisiana,  etc.,  R.  Co.,  49  La.  Ann.  58, 
21  South.  183 ;  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  173  111.  508,  51  N.  E. 
382 ;  Southwestern  Tel.  Co.  v.  Kansas  City,  etc.,  R.  Co.,  109  La.  892,  33  South. 
910;  South  Carolina,  etc.,  R.  Co.  v.  American  Tel.,  etc.,  Co.,  65  S.  C.  459,  43 
S.  E.  970 ;  Railroad  Co.  v.  Postal  Tel.  Cable  Co.,  101  Tenn.  62,  46  S.  W.  571, 
41  L.  R.  A.  403;  Ft.  Worth,  etc.,  R.  Co.  v.  Soutliwestern  Tel.,  etc.,  Co.,  9G 
Tex.  160,  71  S.  W.  270,  60  L.  R.  A.  145 ;  Postal  Tel.  Cable  Co.  v.  Farmville,. 
etc.,  R.  Co.,  96  Va.  661,  32  S.  E.  468;  Postal  Tel.  Cable  Co.  v.  Southern  R. 
Co.  (C.  C.)  89  Fed.  190 ;  Railroad  Co.  v.  Tel.  Co.,  106  Me.  303,  76  Atl.  885,  29 
L.  R.  A.  (N.  S.)  703,  20  Ann.  Cas.  721.  See,  New  York,  etc.,  R.  Co.  v.  Electric 
Co.,  219  Mass.  85,  106  N.  E.  566,  L.  R.  A.  1915B,  822,  electric  company  cross- 
ing track. 


74  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  74 

and  parallel  to  any  of  the  railroads  of  the  state,"  a  telegraph  com- 
pany is  not  authorized  to  condemn  a  right  of  way  along  and  upon 
the  right  of  way  of  a  railroad  company;  it  is  only  allowed  to  run  in 
the  direction  lengthwise  of  the  railroad,  alongside  and  equidistant 
from  it  throughout  all  its  parts.*'*  While  these  statutes  are  subordi- 
nate to  the  act  of  Congress  on  the  same  subject,  yet  they  may  never- 
theless be  resorted  to  for  condemnation  of  a  right  of  way  along  rail- 
roads when  necessary. ^^ 

§  74.  Same  continued — conditions  not  to  interfere  with  running 
trains. — These  statutes  provided  that  telegraph  or  telephone  lines 
shall  not  be  constructed  along  the  railroad  so  as  to  interfere  with 
travel.  If  it  were  not  for  this  condition  these  companies  might,  by 
a  multiplication  of  wires,  interfere  with  the  running  of  trains,  and 
the  possible  falling  of  poles  would  endanger  the  safety  of  trains.  It 
has  therefore  been  expressly  stated  both  in  the  act  of  Congress  and 
the  various  state  statutes  on  the  subject  that  the  lines  must  be  so 
constructed  and  maintained  as  not  to  interfere  with  travel.  They 
do  not  state  how  far  they  shall  be  from  the  railroad,  but  it  is  an  im- 
plied condition  on  the  part  of  these  companies  that  the  lines  shall 
not  be  so  closely  erected  to  the  road  as  to  obstruct  the  operation  of 
the  railroad.®^ 

§  75.  Same  continued — ^^award. — Another  condition  required  of  a 
telegraph  or  a  telephone  company  before  constructing  a  line  of 
wires  along  and  upon  a  railroad's  right  of  way  is  that  the  latter 

64  Postal  Tel.  Co.  v.  Norfolk,  etc.,  R.  Co.,  SS  Va.  920,  14  S.  E.  803.  See  St. 
Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  173  111.  508,  51  N.  E.  382 ;  Southwestern 
Tel.  Co.  V.  Kansas  City,  etc.,  R.  Co.,  109  La.  892,  33  South.  910;  Postal  Tel. 
Cable  Co.  v.  Farmville,  etc.,  R.  Co.,  96  Va.  661,  32  S.  E.  468 ;  South  Carolina, 
etc.,  R.  Co.  V.  American  Tel.,  etc.,  Co.,  65  S.  C.  459,  43  S.  E.  970;  Postal  Tel. 
Cable  Co.  v.  Morgan's,  etc.,  R.  Co.,  49  La.  Ann.  58,  21  South.  183. 

65  Postal  Tel.  Cable  Co.  v.  Morgan's,  etc.,  R.  Co.,  49  La.  Ann.  58,  21  South. 
183. 

6  6  See  notes  8  and  59  for  cases  cited.  See,  also,  §§  161,  201.  See  also, 
Western,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42  L. 
R.  A.  (N.  S.)  225. 

Right  of  railroad  to  cut  toires  at  crossing. — In  determining  the  respective 
rights  of  a  telephone  company  and  a  railroad  company  at  a  place  where  the 
former's  wires  on  a  public  highway  cross  the  railroad  right  of  way,  the 
rights  of  the  public,  as  well  as  property  rights,  should  be  considered.  So, 
where  a  telephone  company  constnicts  its  lines  along  a  public  highway  in 
a  proper  manner  under  the  terms  of  a  legislative  grant,  and  uses  them  in 
the  public  service,  a  railroad  company  has  no  authority  to  treat  the  wires 
at  a  railroad  crossing  as  a  nuisance  and  cut  them  down,  if  they  do  not  in 
any  way  endanger  the  railroad  employes,  or  interfere  with  the  moving  of 
trains  or  with  the  railroad  right  of  way.     Alt  v.  State,  88  Neb.  259,  129  N. 


§    76)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  75 

must  be  compensated  for  the  use  of  its  roadbed  by  either  of  these 
companies."     While  it  is  very  clear  that  the  railroad  should  be 
compensated  for  the  use  of  its  easement,  since  not  to  do  so  would 
be  against  the  constitutional  guaranty  to  every  property  owner,  in 
that  it  would  be  depriving  it  of  its  property  without  due  compensa- 
tion,^«  yet,  in  a  matter  of  this  kind,  it  is  very  difficult  to  determine 
how  much  should  be  awarded.    The  construction  of  the  line  of  wires 
along  a  railroad  will  occupy,  with  its  poles  and  crosspieces  thereon, 
a  right  of  way  of  the  company  of  some  eight  or  ten  feet,  but,  know- 
ing this  fact,  there  is  no  means  of  ascertaining  the  amount  of  dam- 
ages in  money  that  would  be  inflicted  upon  the  railroad.    The  land 
along  the  railroad  company's  right  of  way  may  be  of  a  peculiar  or 
particular  value  for  specific  purposes,  and  this  fact  must  be  taken 
into  consideration  in  the  awarding  of  damages  to  the  road,  smce 
the  telegraph  or  telephone  company  cannot  avail  itself  of  improved 
conditions  without  due  and  proper  compensation.    There  is  one  fact, 
however,  undisputed:    The  telegraph  or  telephone  company  must 
make  compensation  proportionately  for  the  cost  and  expense  of  the 
railroad  in  putting  in  condition  its  right  of  way.*'^     The  circum- 
stances in  every  case  are  not  the  same,  so  each  must  be  considered 
in  the  light  of  its  own  surroundings  and  decided  on  its  own  peculiar 

state  of  facts. 

§  76.  Canal— under  same  statutes.— In  some  states  these  stat- 
utes grant  to  telegraph  and  telephone  companies  the  right  to  con- 
struct their  lines  upon,  or  along,  by,  and  across  canals.  Thus,  under 
a  Louisiana  statute,^"  the  land  of  the  state,  though  appropriated  to 
the  use  of  a  canal,  may  be  used  by  a  telephone  company  along  and 
over  the  waters  of  the  state,  provided  that  the  ordinary  use  of  the 
company  does  not  interfere  with  it  in  any  manner,  or  obstruct  in 
the  least  the  use  of  it  by  the  state  or  the  plaintiff  company.'^ 

W.  432,  35  L.  R.  A.  (N.  S.)  1212.  See,  also,  St.  Louis,  etc.,  R.  Co.  v.  Bates- 
ville,  etc..  Tel.  Co.,  SO  Ark.  490,  97  S.  W.  660;  McGowan  v.  State,  140  Ala. 
079,  40  South.  142. 

6  7  Postal  Tel.  Cable  Co.  v.  Southern  R.  Co.  (C.  C)  S9  Fed.  190. 

6  8  See  §§  64,  6.5. 

6  0  Postal  Cable  Tel.  Co.  v.  Morgan's  Louisiana,  etc.,  R..  etc.,  Co.,  21  South. 
183,  49  La.  Ann.  58,  affirming  Postal  Tel.  Co.  v.  Louisiana,  etc.,  R.  Co.,  43 
La.  Ann.  522,  9  South.  119.  In  the  latter  case  an  award  of  $50  per  mile  was 
allowed. 

7  0  No.  124,  Laws  1880. 

71  State  V.  Cumberland,  etc.,  Tel.  Co.,  .52  Lh.  Ann.  1411.  27  South.  795.  See 
Minnesota,  etc.,  P.  Co.  v.  Pratt,  101  Minn.  197,  112  N.  W.  395,  11  L.  R.  A. 
(N.  S.)  105,  electric  plant. 


76  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  77 

§  77.  The  term  "highway"  embraces  city  streets. — These  stat- 
utes which  confer  upon  telegraph  and  telephone  companies  the  right 
to  occupy  "public  highways"  of  the  state  embrace  city  streets,  un- 
less a  different  intent  is  clearly  indicated/^  yet  it  has  been  held  that, 
where  the  term  "public  roads"  is  used  in  the  statutes,  streets  of  a 
city  are  not  embraced  therein. '^^  The  term  will  also  embrace  a  turn- 
pike,^* but  not  a  railroad  or  its  right  of  way,^^  nor  will  it  embrace 
lands  granted  for  canal  purposes.'^® 

§  78.  Conditions  of  grantee. — In  the  granting  by  the  state  to 
telegraph,  telephone,  and  electric  companies  the  right  to  construct 
and  operate  lines  of  wires  across  private  property,  along  and  upon 
highways,  railroads,  and  along,  across,  and  under  navigable  waters, 
there  are  certain  conditions  for  the  welfare  and  convenience  of  the 
public  always  required  of  the  grantees,  for  the  enjoyment  of  such 
right.  For  instance,  in  some  states  authority  is  given  by  statutes 
to  all  telegraph  and  telephone  companies  to  erect  poles  on  which 
to  place  their  wires,  on  all  highways  or  public  roads,  by  first  obtain- 
ing the  consent  in  writing  of  the  county  board  of  the  county  in 
which  such  highway  is  situated,^'^  and  that  the  posts,  arms,  insula- 
tors, and  other  fixtures  of  such  telegraph  or  telephone  lines  be  so 
erected,  placed,  and  maintained  as  not  to  obstruct  or  interfere  with 
the  ordinary  use  of  such  highways,  railroads,  streets,  or  water,  or 
with  the  convenience  of  any  landowners  more  than  may  be  unavoid- 
able,^^ or  change  or  adjust,  when  necessary,  its  system  of  operat- 
ing its  lines  as  not  to  curtail  the  enjoyment  by  the  public  of  the 
best  mode  of  travel  and  transportation,'^''  or  not  to  interfere  with  the 

7  2  Abbott  V.  Duluth  (C.  C.)  104  Fed.  833;  Chamberlain  v.  Iowa  Tel.  Co., 
119  Iowa,  619,  93  N.  W.  596,  city's  consent  unnecessary ;  East  Tenn.  Tel.  Co. 
V.  Eussellville,  106  Ky.  667,  51  S.  W.  308;  Duluth  v.  Duluth  Tel.  Co.,  84 
Minn.  486,  87  N.  W.  1127;  Northwestern  Tel.  Exch.  Co.  v.  Minneapolis,  81 
Minn.  140,  S3  N.  W.  527,  86  N.  W.  69,  53  L.  R.  A.  175 ;  Michigan  Tel.  Co.  v. 
Boston  Harbor,  121  Mich.  512,  80  N.  W.  386,  47  L.  R.  A.  104 ;  State  v.  Shey- 
boygan.  111  Wis.  23,  86  N.  W.  657. 

7  3  Nebraska  Tel.  Co.  v.  West.  Independent  Long  Distance  Tel.  Co.,  68  Neb. 
772,  95  N.  W.  18. 

7  4  People's  Tel.,  etc.,  Co.  v.  Berks,  etc.,  Turnpike  Road,  199  Pa.  411,  49 
Atl.  284. 

7  5  West.  U.  Tel.  Co.  v.  Penn.  R.  Co.,  123  Fed.  33,  59  C.  C.  A.  113,  reversing 
(C.  C.)  120  Fed.  981. 

7  0  State  V.  Cumberland  Tel.,  etc.,  Co.,  52  La.  Ann.  1411,  27  South.  795. 

7  7  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  111.  507,  47  Am.  Rep.  453. 

7  8  Miss.  Laws  1886,  p.  93. 

7  9  Cincinnati  Inclined  Plane  R.  Co.  v.  Tel.  Association,  48  Ohio  St.  390,  29 
Am.  St.  Rep.  559,  12  L.  R.  A.  534,  27  N.  E.  890. 


§    79)  CONSTRUCTION,  MAINTENANCE  AND   REGULATION  77 

opening  and  closing-  of  a  drawbridge  across  a  navigable  stream, ^° 
nor  obstruct  steamers  or  travels  upon  the  navigable  waters.  And 
these  companies  must  always  first  make  compensation  for  damages 
and  injuries  inflicted  upon  the  owners  of  the  fee  or  right  of  way,^^ 
or  they  would  be  taking  the  property  of  others  without  compensa- 
tion. 

§  79.  Municipal  grants — right  to — how  acquired. — Telegraph, 
telephone,  or  electric  companies  cannot  occupy  the  streets  of  a  city 
without  first  obtaining  the  authority  so  to  do  from  the  state,  but  this 
may  be  done  directly  or  indirectly  by  the  legislature,^^  and,  while 
this  power  is  vested  primarily  in  the  legislature,^^  it  may  be  dele- 
gated to  a  municipality.^*  Whether  the  right  to  authorize  the  use 
of  its  streets  exists  in  the  municipality  in  particular  cases  is  a  ques- 
tion to  be  determined  by  the  construction  of  its  charter  and  legisla- 
tive provisions  in  force  in  the  state.*-''  When  the  right  has  been 
granted,  an  easement  is  vested  in  the  company  which  becomes  a 
property  right,  and  thereby  entitled  to  all  the  constitutional  protec- 
tion afforded  to  other  property  and  contracts.*^  However,  this  right 
must  be  exercised  in  such  a  manner  as  not  unnecessarily  to  obstruct 

80  Pac.  Mut.  Tel.  Co.  v.  Chicago,  etc.,  Bridge  Co.,  36  Kan.  113,  12  Pac.  535. 

SI  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  111.  507,  47  Am.  Rep.  453. 

8  2  Morristown  v.  East  Tennessee  Tel.  Co.,  115  Fed.  304,  53  C.  C.  A.  132; 
Southern  Bell  Tel.,  etc.,  Co.  v.  Mobile  (C.  C.)  162  Fed.  523 ;  People  v.  Chicago 
Tel.  Co.,  220  111.  238,  77  N.  E.  245;  Tel.  Co.  v.  Yail  (Iowa)  136  N.  W.  120; 
Pomona  v.  Tel.  Co.,  224  U.  S.  330,  32  Sup.  Ct.  477,  56  L.  Ed.  7SS. 

83  People  V.  Chicago  Tel.  Co.,  220  111.  238,  77  N.  E.  245;  Southern  Bell  Tel., 
etc.,  Co.  V.  Mobile  (C.  C.)  162  Fed.  523 ;  Morristown  v.  East  Tennessee  Tel. 
Co.,  115  Fed.  304,  53  C.  C.  A.  132;  Domestic  Tel.  Co.  v.  Newark,  49  N.  J. 
Law,  344,  8  Atl.  128. 

84  Morristown  v.  East  Tennessee  Tel.  Co.,  115  Fed.  304,  53  C.  C.  A,  132 ; 
Southern  Bell  Tel.  Co.  v.  Mobile  (0.  C.)  162  Fed.  523 ;  Tel.,  etc.,  Co.  v.  Pasa- 
dena, 161  Cal.  265,  118  Pac.  796 ;  Tel.  Co.  v.  Holliday,  143  Ky.  149,  136  S.  W. 
135;  Vermillion  v.  Exch.  Co.,  189  Fed.  289,  111  C.  C.  A.  21;  Crawford  Elec. 
Co.  V.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119,  Ann.  Cas.  1914C,  933. 

85  St.  Louis  V.  Bell  Tel.  Co.,  96  Mo.  623,  10  S.  W.  197,  9  Am.  St.  Rep.  370, 
2  L.  R.  A.  278 ;  Dillon  on  Mun.  Corp.  (3d  Ed.)  §  89. 

86  Southern  Bell  Tel.  Co.  v.  Mobile  (C.  C.)  162  Fed.  523 ;  Plattsmouth  v. 
Nebraska  Tel.  Co.,  80  Neb.  460,  114  N.  W.  588,  14  L.  R.  A.  (N.  S.)  654,  and 
note,  127  Am.  St.  Rep.  799 ;  Kibble  Tel.  Co.  v.  Landphere,  151  Mich.  309,  115 
N.  W.  244,  16  L.  R.  A.  (N.  S.)  689 ;  West.  U.  Tel.  Co.  v.  Polhemus,  178  Ffed. 
904,  102  C.  C.  A.  105,  29  L.  R.  A.  (N.  S.)  465. 

Streets  abandoned. — Where  streets  are  abandoned  by  the  city,  poles  and 
lines  thereon  cannot  be  removed  without  compensating  the  company.  L.  &  N. 
R.  Co.  V.  Russellville  Home  Tel.  Co.,  163  Ky.  415,  173  S.  W.  1105,  L.  R.  A. 
1915E,  138. 


78  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  80 

or  injure  the  street/'^  and  be  subject  to  all  proper  legislative  or  mu- 
nicipal regulations.^^  Having  this  right  in  the  streets,  the  com- 
pany has  the  further  right  to  place  therein  all  necessary  and  proper 
appliances  for  such  purpose ;  ^^  but  this  does  not  authorize  any  in- 
vasion of  adjoining  private  property  for  the  purpose  of  constructing 
the  line  or  stringing  wires  across  such  property. '"^  Where  the  mu- 
nicipality has  the  power  to  grant  to  these  companies  the  right  to  the 
use  of  its  streets,  it  must  be  confined  to  a  reasonable  exQrcise  there- 
of, and  it  cannot  therefore  grant  to  a  private  citizen  the  right  to  con- 
struct a  line  of  wires  for  his  own  use.'^^  While  the  legislature  may, 
and  which  is  ordinarily  the  case,  delegate  the  power  to  municipali- 
ties to  grant  the  use  and  occupation  of  its  streets  to  these  com- 
panies, yet  this  is  not  necessary,  because  if  the  state  has  authorized 
the  construction  of  telegraph  and  telephone  lines  on  all  public  high- 
ways of  the  state,  a  municipality  could  not  exclude  such  companies 
from  its  streets,^^  unless  this  grant  is  made  on  the  condition  that 
the  consent  of  the  municipality  be  first  obtained.®" 

§  80.  Duties  and  rights  of  municipality  under. — As  a  general 
rule,  telegraph,  telephone,  and  electric  companies  are  given  by  stat- 
ute the  right  to  occupy  highways  and  streets,***  but  it  is  made  the 
duty  and  right  of  each  municipality  to  fix  the  terms  and  conditions 

87  See  chapter  IX.  ss  See  chapter  V. 

8  9  Simonds  v.  Maine  Tel.,  etc.,  Co.,  104  Me.  440,  72  Atl.  175,  28  L.  R.  A. 
(N.  S.)  942 ;  Tel.  Co.  v.  Holliday,  143  Ky.  149,  136  S.  W.  135 ;  West.  U.  Tel. 
Co.  V.  Polhemus,  178  Fed.  904,  102  C.  C.  A.  105,  29  L.  R.  A.  (N.  S.)  465. 

9  0  Majenica  Tel.  Co.  v.  Rogers,  43  Ind.  App.  306,  87  N.  E.  165. 

91  Sheffield  v.  Central  Union  Tel.  Co.  (C.  C.)  36  Fed.  164. 

92  Hodges  V.  West.  U.  Tel.  Co.,  72  Miss.  910,  18  South.  84,  29  L.  R.  A.  770 ; 
Chamberlain  v.  Iowa  Tel.  Co.,  119  Iowa,  619,  93  N.  W.  596;  Michigan  Tel. 
Co.  V.  Benton  Harbor,  121  Mich.  512,  80  N.  W.  386,  47  L.  R.  A.  1(H ;  New  Or- 
leans V.  Great  Southern  Tel.,  etc.,  Co.,  40  La.  Ann.  41,  3  South.  533,  8  Am. 
St.  Rep.  502 ;  State  v.  Red  Lodge,  30  Mont.  338,  76  Pac.  758 ;  Summit  Tii.  v. 
New  York,  etc.,  Tel.  Co.,  57  N.  J.  Eq.  ]23,  41  Atl.  146;  American  U.  Tel.  Co. 
V.  Harrison,  31  N.  J.  Eq.  627;  Texarliana  v.  Southwestern  Tel.,  etc.,  Co.,  48 
Tex.  Civ.  App.  16,  106  S.  W.  915;  Carthage  v.  Central  New  York  Tel.,  etc., 
Co.,  185  N.  Y.  448,  78  N.  E.  165,  113  Am.  St.  Rep.  932 ;  Barhite  v.  Home  Tel. 
Co.,  50  App.  Div.  25,  63  N.  Y.  Supp.  659;  Wisconsin  Tel.  Co.  v.  Milwaukee, 
126  Wis.  1,  104  N.  W.  1009,  110  Am.  St.  Rep.  886,  1  L.  R.  A.  (N.  S.)  581 ;  Wis- 
consin Tel.  Co.  V.  Oshkosh,  62  Wis.  32,  21  N.  W.  828 ;  Wichita  v.  Old  Colony 
Trust  Co.,  132  Fed.  641,  66  C.  C.  A,  19 ;  Toronto  v.  Bell  Tel.  Co.,  6  Ont.  L. 
Rep.  335,  2  Ont.  Wkly.  Rep.  750.  Nature  of  right  acqmred,  see  Bland  v. 
Cumberland  Tel.,  etc.,  Co.,  109  S.  W.  1180,  33  Ky.  Law  Rep.  399. 

9  3  See  §  82. 
94  See  §  79. 


§    80)  CONSTRUCTION,  MAINTENANCE  AND   REGULATION  79 

upon  which  its  own  streets  may  be  used.^^  In  the  first  place,  in 
order  for  such  companies  to  take  advantage  of  and  be  protected  by 
these  statutes,  they  must  be  complied  with  in  the  manner  pointed 
out  by  such  statutes,'"^  otherwise  their  acts  will  be  prohibited  by  in- 
junction;'^^  these  statutes  cannot  be  enlarged  by  municipal  ordi- 
nances.'^^  Thus,  where  a  statute  grants  the  right  to  these  com- 
panies to  construct  a  line  of  wires  over  and  through  streets,  it  has 
been  held  that  this  did  not  give  the  city  the  authority  to  place  the 
wires  underground.'*'*  An  exercise  of  the  right  granted  by  such 
statutes,  delegated  to  the  municipal  authority,  does  not  deprive  the 
latter  of  the  police  power  over  its  streets ;  ^**°  and,  in  order  to  carry 
out  and  maintain  the  municipal  government,  a  license  tax  ^"^  or 
rental  ^''-  may  be  imposed  on  such  companies  doing  business  wholly 
or  partly  within  the  city  limits ;  this  right  is  not  afifected  by  the  act 
of  Congress  from  which  federal  grants  are  given. ^°^  The  munici- 
pality may  require  these  companies  to  compensate  it  in  other  and 
different  ways,  for  the  privilege  of  constructing  their  lines  over  and 
upon  the  streets,  where  the  same  is  used  to  make  the  repairs  ren- 
dered necessary  by  such  additional  use  to  which  the  streets  are 
used.^'**     It  has  been  held  that  a  legislative  act  or  municipal  ordi- 

9  5  See  chapter  V.  See,  also,  Postal  Tel.  Cable  Co.  v.  Chicopee,  207  Mass. 
341,  93  N.  E.  927,  32  L.  R.  A.  (N.  S.)  997. 

9  6  See  chapter  V. 

97  Broome  v.  New  York,  etc.,  Tel.  Co.,  42  N.  J.  Eq.  141,  7  Atl.  851;  New- 
York,  etc.,  Tel.  Co.  v.  Township  of  East  Orange,  42  N.  J.  Eq.  490,  8  Atl.  289. 

9  8  Chesapeake  Tel.  Co.  v.  Mackenzie,  74  Md.  36,  21  Atl.  690,  28  Am.  St. 
Rep.  219. 

9  9  Com.  V.  Warwick,  185  Pa.  623,  40  Atl.  93. 

100  West.  U.  Tel.  Co.  v.  Philadelphia  (Pa.)  12  Atl.  144;  American,  etc.,  Tel. 
Co.  V.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St.  Rep.  764,  13  L.  R.  A.  454n ; 
Indianapolis  v.  Consumers'  Gas  Trust  Co.,  140  Ind.  107,  39  N.  E.  433,  49  Am. 
St.  Rep.  183,  27  L.  R.  A.  514. 

101  West.  U.  Tel.  Co.  v.  Fremont,  39  Neb.  692,  58  N.  W.  415,  26  L.  R.  A. 
698 ;  Postal  Tel.  Cable  Co.  v.  Norfolk,  101  Va.  125,  43  S.  E.  207 ;  Postal  Tel. 
Cable  Co.  v.  Charleston,  153  U.  S.  692,  14  Sup.  Ct.  1094,  38  L.  Ed.  871 ;  Tel. 
Co.  V.  Richmond  (C.  C.)  178  Fed.  310. 

10  2  See  §  84  et  seq. 

103  St.  Ivouis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380.     See  §  72. 

104  Zanesville  v.  Zanesville  Tel.,  etc.,  Co.,  64  Ohio  St.  67,  59  N.  E.  781,  83 
Am.  St.  Rep.  725,  52  L.  R.  A.  150 ;  Norwood  Borough  v.  West.  U.  Tel.  Co.,  25 
Pa.  Super.  Ct.  R.  406 ;  Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160, 
23  Sup.  Ct.  817,  47  L.  Ed.  995;  West.  U.  Tel.  Co.  v.  New  Hope,  187  U.  S. 
419,  23  Sup.  Ct.  204,  47  L.  Ed.  240. 

Power  requiring  company  to  carry  municipal  wires  on  poles. — A  munici- 
pality may  require  public  service  corporation,  as  a  condition  to  receiving  a 


80  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  81 

nance,  authorizing  the  construction  of  the  line  of  wires  upon  the 
streets  is  void  if  it  fails  to  provide  for  compensation  to  abutting 
owners. ^"^  But  where  the  municipalities  are  given  the  right  and 
duty  to  fix  the  terms  and  conditions  upon  which  their  own  streets 
may  be  used,  they  cannot  defeat  the  grant  of  the  company's  right 
given  by  the  statute,  by  either  refusing  to  name  the  conditions,  or 
by  imposing  unreasonable  restrictions  or  conditions.^"®  Whenever 
there  is  a  disagreement  between  the  municipality  and  these  com- 
panies about  some  term  or  condition  imposed  by  the  former,  there 
should  be  and  generally  is  a  court  in  which  this  disagreement  may 
be  settled.  It  is  not  only  of  interest  to  the  municipality  and  to  these 
companies  that  all  the  conditions  should  be  agreed  upon  as  speedily 
as  possible,  but  it  is  also  of  great  interest  to  the  public. ^°^ 

§  81.  Same  continued — unconditional  statutes. — It  has  been 
seen  that  the  legislature  may  grant  to  telegraph,  telephone  and 
electric  companies  the  right  to  occupy  city  streets  upon  such  com- 
panies complying  with  conditions  and  restrictions  of  the  city,  but 
the  legislative  grant  may  be  unconditional;  and  when  such  is  the 
case  the  city  cannot  impose  any  conditions  or  restrictions  upon  such 
companies,^"^  except  under  the  police  power,^*'^  nor  can  its  officers 

license,  to  place  poles  on  its  streets  to  permit  the  municipality  to  use  them 
to  carry  its  fire  alarm  and  electric  light  wires  without  compensation,  where 
the  benefit  to  the  municipality  does  not  exceed  the  cost  of  inspecting  the 
poles  to  keep  them  safe  from  travelers  and  the  risk  it  runs  of  being  held  li- 
able to  them  for  injuries  because  of  the  presence  of  the  poles  in  the  street ; 
and  it  is  immaterial  that  the  high  current  of  the  municipal  wires  renders 
greater  care  necessary  on  the  part  of  the  employes  at  work  upon  the  poles, 
aniT  makes  possible  inductive  disturbance  on  the  licensee's  line,  which  may 
require  it  to  maintain  a  higher  voltage  than  it  otherwise  would.  This  would 
not  be  unconstitutional  as  an  interference  with  interstate  commerce.  Postal 
Tel.  Cable  Co.  v.  Chicopee,  207  Mass.  341,  93  N.  E.  927,  32  L.  R.  A.  (N.  S.) 
997;  West.  U.  Tel.  Co.  v.  Pachmond  (C.  C.)  178  Fed.  310;  Hudson,  etc.,  Tel. 
Co.  V.  Linden,  SO  N.  J.  Law,  158,  76  Atl.  444 ;  St.  Louis  v.  West.  U.  Tel.  Co. 
(C.  C.)  63  Fed.  68,  affirmed  166  U.  S.  3SS,  17  Sup.  Ct.  608,  41  L.  Ed.  1044; 
New  Orleans,  etc.,  Tel.  Co.  v.  Great  Southern,  etc.,  Tel.  Co.,  40  La.  Ann.  41, 
3  South.  533,  8  Am.  St.  Rep.  502 ;  Texarkana  Gas,  etc.,  Co.  v.  Texarkana,  58 
Tex.  Civ.  App.  109,  123  S.  W.  213,  condition  to  furnish  free  of  charge  elec- 
tric light  for  use  in  certain  public  buildings.     See  §  81. 

105  Stowers  v.  Postal  Tel.  Co.,  68  Miss.  559,  9  South.  356,  24  Am.  St.  Rep. 
290,  12  L.  R.  A.  864,  note;  Chesapeake,  etc.,  Tel.  Co.  v.  Mackenzie,  74  Md. 
36,  21  Atl.  690,  28  Am.  St.  Rep.  219;  Southwestern  R.  Co.  v.  Southern,  etc., 
Tel.  Co.,  46  Ga.  43,  12  Am.  Rep.  585. 

106  See  §  44. 

107  Zanesville  v.  Zanesville  Tel.,  etc.,  Co.,  64  Ohio  St.  67,  59  N.  E.  781,  83 
Am.  St.  Rep.  725,  52  L.  R.  A.  150. 

108  See  §  79.  loo  See  §  80. 


§    82)  CONSTRUCTION,  MAINTENANCE  AND   REGULATION  81 

interfere  with  the  exercise  of  the  companies'  privileges. ^^°  But 
should  the  city  be  without  authority  to  impose  reasonable  condi- 
tions upon  these  companies — having  merely  the  power  to  consent  or 
refuse  consent — they  may,  nevertheless,  annex  certain  conditions  on 
them  for  the  right  of  easement  over  the  streets ;  ^^^  and,  if  the  com- 
panies acquire  an  easement  in  the  streets  in  accordance  to  said  con- 
ditions, and  occupy  them,  they  cannot  afterwards  repudiate  the  con- 
ditions.^^^  This  principle  of  law  is  founded  on  the  ground  of  estop- 
pel and  will  be  closely  observed  as  in  all  other  cases  of  this  nature. 
The  city  authority  cannot  revoke  a  designation  of  the  streets  in. 
which  a  company,  may  place  its  poles,  when  the  company  has  con- 
formed to  the  conditions  upon  which  the  designation  was  made,  and 
has  expended  money  in  placing  poles  upon  the  designated  streets. ^^* 
§  82.  Must  obtain  consent  of  municipality. — Many  of  these  stat- 
utes, or  constitutions,  which  give  telegraph,  telephone,  and  electric 
companies  the  right  to  construct  lines  of  wires  upon  the  streets  of 
cities  provide  that  this  right  shall  not  be  exercised  without  first 
obtaining  the  consent  of  the  municipality,^^*  and  where  this  is  the 
case  the  consent  must  be  obtained,^^^  and  in  the  manner  provid- 
ed; ^^^  however,  if  there  is  no  particular  mode  of  manifesting  such 
consent  prescribed,  it  may  be  either  express  or  implied. ^^^     This 

110  state  V.  Flad,  23  Mo.  App.  185. 

111  See  chapter  V.    See,  also,  §  80,  and  cases  in  note. 

112  Southern  Bell  Tel.  Co.  v.  Richmond,  103  Fed.  31,  44  0.  C.  A.  147.  See 
§  44. 

113  Hudson  Tel.  Co.  v.  Mayer,  etc.,  Jersey  City,  49  N.  J.  Law,  303,  8  Atl. 
123,  60  Am.  Rep.  619. 

11*  See  Rough  River  Tel.  Co.  v.  Cumberland,  etc.,  Co.,  119  Ky.  470,  27  Ky. 
Law  Rep.  32,  84  S.  W.  517 ;  East  Tennessee  Tel.  Co.  v.  Anderson  County  Tel. 
Co.,  115  Ky.  488,  24  Ky.  Law  Rep.  2358,  74  S.  W.  218 ;  Postal  Tel.  Cable  Co. 
V.  Newport,  25  Ky.  Law  Rep.  635,  76  S.  W.  159 ;  Missouri  River  Tel.  Co.  v. 
Mitchell,  22  S.  D.  191,  116  N.  W,  67;  Dakota  Cent.  Tel.  Co.  v.  Huron  (C.  C.) 
165  Fed.  226;  Northwestern  Tel.  Exch.  Co.  v.  St.  Charles  (C.  C.)  154  Fed. 
386 ;  Haldiman  v.  Tel.  Co.,  25  Ont.  L.  R,  467,  19  Ont.  W.  R.  335,  2  Ont.  W.  R. 
194.  See  Salem  v.  Tel.,  etc.,  Co.,  61  Or.  319,  122  Pac.  290;  East  Tennessee 
Tel.  Co.  V.  Paris  Elec.  Co.,  156  Ky.  762,  162  S.  W.  530,  Ann.  Cas.  1015C,  543. 

115  Id.  See,  also.  East  Tennessee  Tel.  Co.  v.  Russellville,  106  Ky.  667,  51 
S.  W.  308,  2>L  Ky.  Law  Rep.  305. 

lie  Rural  Home  Tel.  Co.  v.  Kentucky,  etc.,  Tel.  Co.,  128  Ky.  209,  32  Ky. 
Law  Rep.  1068,  107  S.  W.  787;  Merchants'  Police,  etc.,  Tel.  Co.  v.  Citizens' 
Tel.  Co.,  123  Ky.  90,  29  Ky.  Law  Rep.  512,  93  S.  W.  642 ;  Bland  v.  Cumber- 
land Tel.,  etc.,  Co.,  33  Ky.  Law  Rep.  399,  109  S.  W.  1180;  East  Tennessee 
Tel.  Co.  v.  Paris  Elec.  Co.,  150  Ky.  762,  162  S.  W.  530,  Ann.  Cas.  1915C,  543. 

117  Dakota  Cent.  Tel.   Co.  v.  Huron  (C.  C.)  165  Fed.  226;   Pelhara  v.  Pel- 

JoNEs  Tel.(2d  Ed.) — 6 


82  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  83 

requirement  does  not  ordinarily  apply  to  the  company's  subsequent 
maintenance  and  operation,  but  is  intended  for  the  purpose  of  en- 
abling municipalities  to  impose  proper  conditions  within  the  limits 
of  the  police  power  before  the  company  can  place  its  poles  and  wires 
in  the  streets  ;^^^  but,  if  the  statute  requires  municipal  consent  to 
"maintain  and  operate,"  such  consent  is  necessary  for  the  mainte- 
nance as  well  as  for  the  construction.^^®  Where  this  consent  is  nec- 
essary, a  company  which  occupies  the  streets  of  a  city  without  first 
obtaining  such  consent  will  be  guilty  of  trespass,  and  the  poles  and 
wires  upon  the  streets  would  become  a  public  nuisance,^-"  however, 
the  municipality,  by  permitting  the  company  to  construct  its  lines 
upon  the  streets  and  expend  large  sums  of  money  in  so  doing, 
might  be  precluded  by  its  acquiescence  and  laches  from  objecting 
to  the  occupancy  of  the  streets,^^^  if  the  provisions  in  the  statutes 
are  not  mandatory.^^^  The  consent  when  necessary  may  ordinarily 
be  granted  subject  to  any  reasonable  and  proper  conditions ;  ^^^ 
but  conditions  cannot  be  legally  imposed  by  a  municipality  other 
than  those  permitted  by  the  statute,^^*  unless  they  can  be  sustained 
under  its  police  powers  in  regard  to  the  control  and  regulation  of  its 
streets. ^^^  However,  it  has  been  held  that  the  company,  by  accept- 
ing the  rights  granted,  may  be  bound  by  a  condition  annexed  there- 
to which  the  municipality  was  not  authorized  to  impose. ^^® 

§  83.  Compensation  to  municipality — charge  must  be  reasonable. 
When  telegraph  or  telephone  companies  occupy  the  streets  of  a 
municipality  where  the  latter  owns  its  streets,  it  may  exact  com- 

Tiam  Tel.  Co.,  131  Ga.  325,  62  S.  E.  186;  Missouri  River  Tel.  Co.  v.  Mitchell, 
22  S.  D.  191,  116  N.  W.  67. 

lis  Dakota  Cent.  Tel.  Co.  v.  Huron  (C.  C.)  165  Fed.  226. 

119  Southern  Bell  Tel.,  etc.,  Co.  v.  Richmond.  103  Fed.  31,  44  C.  C.  A.  147. 

120  East  Tennessee  Tel.  Co.  v.  Russell ville,  106  Ky.  6G7,  21  Ky.  Law  Rep. 
305,  51  S.  W.  308 ;  Bland  v.  Cumberland  Tel.,  etc.,  Co.,  109  S.  W.  IISO,  33 
Ky.  Law  Rep.  399. 

121  Bradford  v.  New  York,  etc.,  Tel.  Co.,  206  Pa.  582,  56  Atl.  41. 

122  Southern  Bell,  etc.,  Tel.  Co.  v.  Richmond,  103  Fed.  31,  44  C.  C.  A.  147; 
East  Tennessee  Tel.  Co.  v.  Anderson  Tel.  Co.,  115  Ky.  488,  74  S.  W.  218,  24 
Ky.  Law  Rep.  2358 ;  State  v.  Spokane,  24  Wash.  53,  63  Pac.  1116 ;  Marshfleld 
V.  Wisconsin,  etc.,  Tel.  Co.,  102  Wis.  604,  78  N.  W.  735,  44  L.  R.  A.  565, 
note ;  St.  Paul  v.  Freedy,  86  Minn.  350,  90  N.  W.  781. 

123  Southern  Bell  Tel.,  etc.,  Co.  v.  Richmond,  103  Fed.  31,  44  C.  C.  A.  147. 

124  Missouri  River  Tel.  Co.  v.  Mitchell,  22  S.  D.  191,  116  N.  W.  67;  State  v. 
Flad,  23  Mo.  App.  185. 

125  See  State  v.  jVIilwaukee  Independent  Tel.  Co.,  133  Wis.  588,  114  N.  W. 
108,  315. 

12  6  Southern  Bell,  etc.,  Tel.  Co.  v.  Richmond,  103  Fed.  31,  44  C.  C.  A.  147. 


§    83)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  83 

pensation  of  these  companies  in  the  nature  of  a  rental/''^  without 
infringing  upon  the  rights  acquired  by  these  companies  under  the 
act  granted  by  Congress/^®  The  charge  thus  imposed  is  not  a  tax, 
but  is  in  the  nature  of  a  rental.^-"  This  right,  however,  has  been 
denied  under  other  charter  and  statutory  provisions. ^^"  As  a  police 
measure,  however,  there  may  be  imposed  a  license  fee  or  tax  to 
cover  the  cost  of  police  regulation  and  supervision,  provided  the 
amount  of  the  fee  or  tax  is  reasonably  commensurate  with  such 
cost.  ^^^  Where  the  municipality  has  the  power  to  demand  com- 
pensation for  the  privilege  of  maintaining  a  telephone  system  upon 
its  streets,  the  charge  therefor  may  be  fixed  by  means  of  competitive 
bidding,  and  the  municipality  may  award  the  franchise  or  privilege 
to  the  bidder  offering  the  largest  percentage  of  its  gross  receipts. ^^- 
In  whatsoever  manner  the  charge  is  fixed,  it  should  be  reasonable, 

127  Nebraska  Tel.  Co.  v.  Lincoln,  82  Neb.  59,  117  N.  W.  284,  28  D.  R.  A. 
(N.  S.)  221 ;  Postal  Tel.  Cable  Co.  v.  Baltimore,  79  Md.  502,  29  Atl.  819,  24  L.  R. 
A.  161,  affirmed  in  156  U.  S.  210,  15  Sup.  Ct.  356,  39  L.  Ed.  399 ;  St.  Louis  v. 
West.  U.  Tel.  Co.,  149  U.  S.  465,  13  Sup.  Ct.  990,  37  L.  Ed.  810 ;  St.  Louis  v. 
West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed.  380;  Mempbis  v. 
Postal  Cable  Co.,  145  Fed.  602,  76  C.  C.  A.  292,  reversing  (C.  C.)  139  Fed.  707 ; 
Tel.,  etc.,  Co.  v.  Pasadena,  161  Cal.  265,  118  Pac.  796;  Springfield  v.  Postal 
Tel.  Cable  Co.,  164  111.  App.  276 ;  Mitchell  v.  Tel.  Co.,  25  S.  D.  409,  127  N.  W. 
582 ;   Tel.  Co.  v.  Richmond  (C.  C.)  178  Fed.  310.     See  §  61.     See  §  675. 

128  St.  Louis  V.  West.  TJ.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380.    See  §  61. 

129  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380;  Memphis  v.  Postal  Tel.  Cable  Co.,  145  Fed.  602,  76  C.  C.  A.  292.  See  § 
675. 

130  Hodges  V.  West.  U.  Tel.  Co.,  72  Miss.  910,  18  South.  84,  29  L.  R.  A.  770. 

131  Allen  town  v.  West.  U.  Tel.  Co.,  148  Pa.  117,  23  Atl.  1070,  33  Am.  St. 
Rep.  820 ;  Schellsburg  v.  West.  U.  Tel.  Co.,  26  Pa.  Super.  Ct.  R.  343 ;  Phila- 
delphia V.  Postal  Tel.  Cable  Co.,  67  Hun,  21,  21  N.  Y.  Supp.  556 ;  Kittanning 
Borough.v.  West.  U.  Tel.  Co.,  26  Pa.  Super.  Ct.  R.  346 ;  Atlantic,  etc.,  Tel.  Co. 
V.  Philadelphia,  190  U.  S.  160,  23  Sup.  Ct.  817,  47  L.  Ed.  995;  West.  U.  Tel. 
Co.  V.  New  Hope,  187  U.  S.  419,  23  Sup.  Ct.  204,  47  L.  Ed.  240;  Lancaster  v. 
Briggs,  118  Mo.  App.  570,  96  S.  W.  314 ;  Springfield  v.  Postal  Tel.  Cable  Co., 
253  111.  346,  97  N.  E.  672;  Tel.  Co.  v.  Richmond  (C.  C.)  178  Fed.  310.  See  § 
61.  See  Ex  parte  Cramer,  62  Tex.  Cr.  R.  11,  136  S.  W.  61,  36  L.  R.  A.  (N.  S.) 
78,  Ann.  Cas.  1913C,  588 ;  Postal  Tel.  Cable  Co.  v.  Chicopee,  207  Mass.  341,  93 
N.  E.  927,  32  L.  R.  A.  (N.  S.)  997.     See  §  675. 

132  Plattsburg  v.  People's  Tel.  Co.,  88  Mo.  App.  306.  See  California  v. 
Bunceton  Tel.  Co.,  112  Mo.  App.  722,  87  S.  W.  604,  holding  that  payment  can- 
not be  avoided  by  a  telephone  company  which  has  obtained  its  right  by  offer- 
ing a  certain  percentage  of  its  gross  receipts  at  a  competitive  bidding  on 
the  ground  that  others  have  been  granted  a  like  privilege  without  charge. 
California  v.  Bunceton  Tel.  Co.,  112  Mo.  App.  722,  87  S.  W.  604;  Plattsburg 
V.  People's  Tel.  Co.,  88  Mo.  App.  306 ;  Moberly  v.  Richmond  Tel.  Co.,  120  Ky. 
369,  103  S.  W.  714,  31  Ky.  Law  Rep.  783. 


■84  TELEGRAPH   AND   TELEPHONE   COMPANIES  (§    84 

Otherwise  the  ordinance  imposing  it  will  be  invalid. ^^^  As  to  the 
reasonableness  of  an  ordinance  which  charges  five  dollars  a  pole  per 
annum,  it  was  said :  "Prima  facie  an  ordinance  like  that  is  reason- 
able. The  court  cannot  assume  that  such  a  charge  is  excessive,  and 
so  excessive  as  to  make  the  ordinance  unreasonable  and  void ;  for, 
as  applied  in  certain  cases,  a  like  charge  for  so  much  appropriation 
of  the  streets  may  be  reasonable.  If,  within  a  few  blocks  of  Wall 
Street,  New  York,  the  telegraph  company  should  place  on  the  pub- 
lic streets  1,500  of  the  large  poles,  it  would  seem  as  though  no  court 
could  declare  that  five  dollars  a  pole  was  an  excessive  annual  rental 
for  the  ground  so  exclusively  appropriated ;  while,  on  the  other 
hand,  a  charge  for  a  like  number  of  poles  in  a  small  village,  where 
space  is  abundant  and  land  of  little  value,  would  be  manifestly  un- 
reasonable, and  might  be  so  excessive  as  to  be  void.  Indeed,  it  may 
be  observed,  in  line  with  thoughts  heretofore  expressed,  that  this 
charge  is  one  in  the  nature  of  rental ;  that  the  occupation  by  this 
interstate  commerce  company  of  the  streets  cannot  be  denied  by 
the  city ;  that  all  that  it  can  insist  upon  is,  in  this  respect,  reasonable 
compensation  for  the  space  in  the  streets  thus  exclusively  appropri- 
ated; and  it  follows  in  the  nature  of  things  that  it  does  not  lie 
exclusively  in  its  power  to  determine  what  is  reasonable  rental. 
The  inquiry  must  be  open  to  the  courts  and  it  is  an  inquiry  which 
must  depend  largely  upon  matters  not  apparent  upon  the  face  of  the 
ordinance,  but  existing  only  in  the  actual  state  of  aft'airs  in  the 
city."  ^^*  It  has  been  held  that  a  charge  by  a  city  of  three  dollars 
per  pole  as  rental  for  the  occupancy  and  use  of  its  streets  by  a  tele- 
graph company  is  reasonable. ^^^ 

§  84.  Termination  of  franchise  to  occupy  streets. — A  municipal 
ordinance  which  grants  to  a  company  authority  to  construct  and 
maintain  telegraph,  telephone,  and  electric  lines  on  the  streets  of  a 
city,  without  any  limitation  as  to  time,  and  for  a  consideration  there- 
in named,  is,  when  accepted  and  acted  upon  by  the  grantee,  a  con- 
tract with  the  city  which  cannot  thereafter  be  abolished  or  altered 

133  Collingdale  Borough  v.  Keystone  State  Tel.,  etc.,  Co.,  33  Pa.  Super.  Ct. 
R.  351 ;  Postal  Tel.  Cable  Co.  v,  New  Hope,  192  U.  S.  55,  24  Sup.  Ct.  204,  48 
L.  Ed.  338 ;  Postal  Tel.  Cable  Co.  v.  Taylor,  192  U.  S.  64,  24  Sup.  Ct.  208,  48  L. 
Ed.  342.     See  §  675. 

134  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380. 

135  Memphis  v.  Postal  Tel.,  etc.,  Co.,  1G4  Fed.  600,  91  C.  C.  A.  135,  16  Ann. 
Cas.  342 ;  Springfield  v.  Postal  Tel.  Cable  Co.,  253  111.  346,  97  N.  E.  672,  pre- 
sumption of  reasonableness.  See  Jamestown  v.  Tel.  Co.,  125  App.  Div.  1,  109 
N.  Y.  Supp.  297. 


§    85)  CONSTRUCTION,  MAINTENANCE   AND   REGULATION  85 

in  its  essential  terms  without  the  consent  of  the  grantee. ^'°  The 
franchise  or  right  to  use  the  streets  is  an  irrevocable  contract  and 
cannot  be  revoked  without  just  cause/"  and  one  which  the  city 
cannot  by  indirection  or  otherwise  arbitrarily  declare  forfeited; '^^ 
nor  can  it  remove  the  company's  lines  arbitrarily  and  without  no- 
tice,^^''  upon  the  expiration  of  the  right  by  lapse  of  the  stipulated 
period.  When  the  company's  stipulated  time  has  expired  for  the 
use  of  the  streets,  it  has  no  right  to  continue  the  said  use  without 
the  consent  of  the  city,  and  should  it  attempt  so  to  do,  the  city 
may  enjoin  it  from  further  use.^*°  And  it  has  been  held  that, 
where  the  right  of  the  company  to  use  the  streets  is  unsettled,  the 
company  cannot  have  a  preliminary  injunction  to  restrain  the  re- 
moval of  its  poles  by  the  municipality/*^ 

§  85.  Grants  to  electric  companies — municipal  ownership — lia- 
bility of. — The  power  of  a  municipality  to  maintain,  purchase,  or 
lease  an  electric  lighting  plant  or  to  contract  for  lighting  its  streets 
and  public  places  depends  upon  the  extent  of  authority  conferred 
upon  the  municipality  by  the  legislature,  and  also  upon  the  manner 
of  the  exercise  of  the  powers  granted.  There  is  no  question  about 
the  legislature  having  the  right  to  authorize  municipalities  to  erect, 
maintain,  sell,  or  lease  electric  light  plants,  or  to  contract  for  elec- 
tric lighting  of  its  streets. ^"^     The  grant  may  be  made  to  an  indi- 

130  New  Orleans  v.  Great  Southern  Tel.,  etc.,  Co.,  40  La.  Ann.  41,  3  South. 
533,  8  Am.  St.  Kep.  502 ;  Indianapolis  v.  Consumers'  Gas  Trust  Co.,  140  Ind. 
107,  39  N.  E.  433,  49  Am.  St.  Rep.  183,  27  L.  R.  A.  514 ;  Williams  v.  Citizens' 
R.  Co.,  130  Ind.  71,  29  N.  E.  408,  30  Am.  St.  Rep.  201,  15  L.  R.  A.  64;  Greg- 
sten  V.  Chicago,  145  111.  451,  36  Am.  St.  Rep.  496,  34  N.  E.  426.     See  §  44. 

13  7  West.  U.  Tel.  Co.  v.  Toledo  (C.  C.)  103  Fed.  746.  See,  also,  In  re  Sea- 
board Tel.,  etc.,  Co.,  OS  App.  Div.  283,  74  N.  Y.  Supp.  15.     See  §  44. 

138  Abbott  V.  Duluth  (C.  C.)  104  Fed.  833;  Old  Colony  Trust  Co.  v.  Wichita 
(C.  C.)  123  Fed.  762.     See  §  44. 

130  Mutual  U.  Tel.  Co.  v.  Chicago  (C.  C.)  16  Fed.  309.  See  §  44.  See,  also, 
L.  &  N.  R.  Co.  V.  Russellville  Home  Tel.  Co.,  163  Ky.  415,  173  S.  W.  1105, 
L.  R.  A.  1915E,  1.38. 

14  0  Mut.  U.  Tel.  Co.  v.  Chicago  (C.  C.)  16  Fed.  309.     See  §  44. 

141  New  York,  etc.,  Co.  v.  East  Orange  Tp.,  42  N.  J.  Eq.  490,  8  Atl.  289. 
See  §  44. 

142  Jacksonville  Elec.  L.  Co.  v.  Jacksonville,  36  Fla.  229,  18  South.  677,  51 
Am.  St.  Rep.  24,  30  L.  R.  A.  540 ;  Crawf ordsville  v.  Braden,  130  Ind.  149,  28 
N.  E.  849,  14  L.  R.  A.  208,  30  Am.  St.  Rep.  214 ;  State  v.  City  of  Hiawatha, 
53  Kan.  477,  36  Pac.  1119 ;  Citizens'  Gaslight  Co.  v.  Town  of  Wakelield,  161 
Mass.  432,  37  N.  E.  444,  31  L.  R.  A.  457 ;  Opinion  of  Justices,  150  Mass.  593, 
24  N.  E.  1084,  8  L.  R.  A.  487 ;  Mitchell  v.  Negaunee,  113  ]\Iich.  359,  71  N.  W. 
646,  38  L.  R.  A.  157,  67  Am.  St.  Rep.  468 ;  Tuttle  v.  Brush  Elec.  111.  Co.,  50  N. 
Y.  Super.  Ct.  464 ;  Black  v.  Chester,  175  Pa.  101,  34  Atl.  354 ;  Linn  v.  Cham- 
bersburg  Borough,  160  I'a.  511,  28  Atl.  842,  25  L.  R.  A.  217 ;  Smith  v.  City  of 


86  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  85 

viclual,^*^  or  to  a  private  corporation,  or  the  authority  may  be  con- 
ferred upon  the  municipality  to  own,  itself,  electric  lighting  plants, 
and  this  too,  not  only  for  the  use  of  the  municipality,  but  for  private 
use.^'**  Under  either  case,  the  municipality  would  have,  under  the 
police  power,  the  power  of  regulating  the  manner  in  which  the  use 
of  the  streets  should  be  put,^*^  and  in  this  the  same  as  it  would 
have  over  telegraph  and  telephone  companies  in  the  use  of  the 
streets.  And  where  a  municipality  owns  the  fee  of  the  streets  it 
may  authorize  the  erection  and  maintenance  of  poles  and  wires  in 
the  streets  for  the  purpose  of  furnishing  light  for  the  municipality 
and  its  inhabitants,  provided  the  ordinary  use  of  the  street  for  pur- 
poses of  travel  is  not  thereby  materially  obstructed.^*®  With  re- 
gard to  the  liability,  it  is  generally  held  that  a  municipality  engaged 
in  the  enterprise  of  manufacturing  and  selling  electric  light  to  its 
inhabitants  is  not  engaged  in  a  public  governmental  duty,  and  is 
consequently  held  to  the  same  responsibility  for  injuries  received 
on  account  of  the  negligent  conduct  of  its  officers  as  a  private  in- 
dividual or  company  running  an  opposition  plant  in  the  same  mu- 
nicipality would  be.^*^     The  rule  would  not  be  changed  if  the  au- 

Nashville,  88  Tenn.  464,  12  S.  W.  924.  7  L.  R.  A.  469;  Ellinwood  v.  Reeds- 
burg,  91  Wis.  131,  64  N.  W.  885 ;  Posey  v.  North  Birmingham,  154  Ala.  511, 
45  South.  663,  15  L.  R.  A.  (N.  S.)  711,  and  note.  But  city  cannot  condemn 
property  for  spur  track  to  power  plant.  Wise  v.  Yazoo  City,  96  Miss.  507, 
51  South.  453,  26  L.  R.  A.  (N.  S.)  11.30,  Ann.  Cas.  1912B,  377. 

143  Crawford  Elee.  Co.  v.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119, 
Ann.  Cas.  1914C,  9.33. 

144  Mitchell  V.  Negaunee,  113  Mich.  359,  71  N.  W.  646,  38  L.  R.  A.  157,  67 
Am.  St.  Rep.  468;  Crawfordsville  v.  Braden,  130  Ind.  149,  28  N.  E.  849,  14 
L.  R.  A.  268,  30  Am.  St.  Rep.  214 ;  Linn  v.  Chambei-sburg  Borough,  160  Pa. 
511,  28  Atl.  842,  25  L.  R.  A.  217 ;  Thompson-Houston  Elec.  L.  Co.  v.  City  of 
Xewton  (C.  C.)  42  Fed.  723. 

14  5  See  chapter  V. 

146  McWethy  v.  Aurora  Elec.  L.  &  P.  Co.,  202  111.  218,  67  N.  E.  9. 

i47Davoust  V.  Alameda,  149  Cal.  CO,  84  Pac.  760,  9  Ann.  Cas.  847,  5  L.  R. 
A.  (N.  S.)  536 ;  Eaton  v.  Weiser,  12  Idaho,  544,  86  Pac.  541,  118  Am.  St.  Rep. 
225 ;  Aiken  v.  Columbus,  167  Ind.  139,  78  N.  E.  657,  12  L.  R.  A.  (N.  S.)  416 ; 
Thomas  v.  Somerset,  30  Ky.  Law  Rep.  131,  97  S.  W.  420,  7  L.  R.  A.  (N.  S.) 
963;  Ilodgins  v.  Bay  City,  156  Mich.  687,  121  N.  W.  274,  132  Am.  St.  Rep. 
546;  Fisher  v.  New  Bern,  140  N.  C.  506,  53  S.  E.  342,  111  Am.  St.  Rep.  857,  5 
L.  R.  A.  (N.  S.)  542 ;  Abrams  v.  Seattle,  60  Wash.  356,  111  Pac.  168,  140  Am. 
St.  Rep.  916.  See  State  v.  Waseca,  122  ]Minn.  348,  142  N.  W.  319,  46  L.  R. 
A.  (N.  S.)  347.  But  see  Irvine  v.  Greenwood,  89  S.  C.  511,  72  S.  E.  228,  36 
L.  R.  A.  (N.  S.)  363 ;  Palestine  v.  Siler,  225  111.  630,  80  N.  E.  345,  8  L.  R.  A. 
(N.  S.)  205,  authority  to  perform  the  service  for  private  benefit  must  be 
shown ;  Greenville  v.  Pitts,  102  Tex.  1,  107  S.  W,  50,  14  L.  R.  A.  (X.  S.)  979, 
132  Am.  St.  Rep.  843.     See,  also,  §§  200,  267. 


§    85a)  CONSTRUCTION,  MAINTENANCE  AND  REGULATION  87 

thority  to  maintain  such  a  plant  is  conferred  on  a  board  of  trustees 
instead  of  directly  on  a  city ;  ^*^  nor  does  the  establishment,  by  the 
legislature,  of  a  commission  to  have  charge  of  the  electric  light, 
water,  and  sewer  system  of  a  city,  create  a  separate  corporation,  for 
whose  negligent  act  the  city  is  not  responsible.^*^ 

§  85a.  Use  of  force  to  set  or  remove  poles  on  land. — It  seems 
that  the  question  whether  persons  in  the  erection  of  telegraph,  tele- 
phone, or  electric  poles  have  the  right  to  overcome  resistance  by 
force  depends  on  the  place  where  they  are  to  be  erected.  For  in- 
stance, if  the  poles  are  being  erected  on  land  owned  by  and  in 
possession  of  the  company  erecting  same,  its  employes  would  be 
warranted  in  using  reasonable  force  to  overcome  the  resistance  of  a 
stranger  who  might  enter  thereon  for  the  purpose  of  preventing  the 
erection  of  the  poles. ^^^  But  the  rule  would  be  otherwise  if  the 
poles  were  being  erected  on  the  private  property  of  another  under  a 
previous  license  from  him.^^^  The  same  rule  would  apply  to  the 
erection  of  poles  in  the  highway  under  a  license  from  the  state  or 
municipality. ^^^  And  where  poles  are  erected  upon  the  property  of 
another,  without  authority,  and  which  tend  to  interfere  with  the 
proper  use  of  such  property,  the  owner  thereof  would  not  be  liable 
for  cutting  down  such  poles  after  having  given  reasonable  notice 
to  the  company  to  remove  them.^^^     However,  the  owner  of  the 

148  Davoust  V.  Alameda,  149  Cal.  69,  84  Pac.  760,  9  Ann.  Cas.  847,  5  L.  R. 
A.  (N.  S.)  536. 

140  Fisher  v.  New  Bern,  140  N.  C.  506,  53  S.  E.  342,  111  Am.  St.  Rep.  857, 
5  L.  R.  A.  (N.  S.)  542 ;  Young  v.  Gravenhurst,  24  Ont.  L.  Rep.  467,  Ann.  Cas. 
1912B,  812. 

150  See  notes  to  Slingerland  v.  Gillespie,  1  Ann.  Cas.  886,  and  Hannabal- 
son  V.  Sessions,  93  Am.  St.  Rep.  250. 

151  The  general  rule  is  that  one  having  the  right  to  enter  on  another's 
land  has  no  right  to  overcome  the  latter's  resistance  by  violence  constitut- 
ing a  breach  of  tlae  peace.  See  the  note  to  Miller-Brent  Lumber  Co.  v.  Stew- 
art, 21  Ann.  Cas.  1149. 

15  2  In  Souther  v.  Northwestern  Tel.  Ex.  Co.,  118  Minn.  102,  136  N.  W.  571, 
45  L.  R.  A.  (N.  S.)  601,  Ann.  Cas.  1913E,  472,  it  was  held  that,  where  a  tele- 
phone company  had  a  license  from  a  city  to  place  a  telephone  pole  upon  a 
boulevard  upon  which  a  homestead  abutted,  and  its  servants,  when  ordered 
by  the  wife  of  the  owner  of  the  homestead  to  desist  from  digging  a  hole  In 
which  to  place  a  telephone  pole,  at  first  departed,  but  later  returned,  and 
though  the  said  wife  of  such  owner  was  in  possession,  and  was  still  urging 
that  they  had  no  right  to  do  so,  proceeded  to  dig  the  liole  and  set  up  the 
pole,  notwithstanding  her  objection  and  resistance,  the  said  company  wan 
liable  for  any  injury  inflicted  upon  her  by  the  wanton  negligence  of  its  serv- 
ants during  such  attempt. 

153  Maryland  Tel.,  etc.,  Co.  v.  Ruth,  106  Md.  644,  68  Atl.  358,  14  L.  R.  A. 
(N.  S.)  427,  124  Am.  St.  Rep.  506,  14  Ann.  Cas.  576. 


88  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  85a 

property  may,  by  estoppel,  be  denied  the  privilege  of  exercising  this 
right. ^^* 

154  West.  U.  Tel.  Co.  v.  Bullard,  67  Vt.  272,  31  Atl.  286;  Heck  v.  Green- 
wood Tel.  Co.,  35  Ind.  App.  244,  73  N.  E.  9G0;  Halleran  v.  Bell  Tel.  Co.,  64 
App.  Div.  41,  71  N.  Y.  Snpp.  685,  affirmed  177  N.  Y.  533,  69  N.  E.  1124.  In 
St.  Louis,  etc.,  R.  Co.  v.  Batesville,  etc.,  Tel.  Co.,  80  Ark.  499,  97  S.  W.  660, 
an  action  was  brought  by  a  telephone  company  against  a  railroad  company  to 
compel  the  removal  by  the  latter  of  a  number  of  miles  of  telegraph  lines 
from  the  railroad  right  of  way,  the  complaint  charging  that  the  railroad 
company,  while  laying  and  constructing  its  railway  and  telegraph  line,  un- 
lawfully, willfully,  and  intentionally  cut,  tore  down,  and  destroyed  a  large 
number  of  telephone  poles  and  wires  where  the  same  touched  the  right  of 
way  of  the  railway  company.  It  appeared  that  the  telephone  company  had 
obtained  a  right  of  way  over  private  land  by  verbal  consent  of  the  owner 
and  along  a  highway  under  authority  granted  by  the  statute,  and  that  its 
line  had  been  lawfully  constructed.  Subsequently  the  railroad  was  con- 
structed along  the  way  occupied  by  the  telephone  line,  its  right  of  way  hav- 
ing been  acquired  by  purchase  and  conveyance  from  the  landowners.  The 
telephone  line  was  constructed  and  maintained  so  as  not  to  render  dangerous 
the  operation  of  the  railroad,  and  not  to  interfere  therewith,  and  was  not  a 
nuisance  along  the  highway  or  right  of  way.  It  was  held  that  the  railroad 
company  had  no  right,  after  repeated  demands  upon  the  telephone  company 
to  remove  its  line  from  its  right  of  way,  to  remove  the  line  itself,  and  there- 
by destroy  its  utility.  Compare  West.  U.  Tel.  Co.  v.  Pennsylvania  B.  Co., 
195  U.  S.  540,  25  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann.  Cas.  517. 


CONSTRUCTION  AND  MAINTENANCE  89 


CHAPTER  V 

CONSTRUCTTON    AND    MAINTENANCE    OF    TELEGRAPH    AND    TELB> 

PHONE  LINES 

§  86.  In  streets — in  general. 

87.  Same — interest  acquired  in  streets. 

88.  City  control  in  the  erection  and  construction  of. 

89.  Place  of  location  of  line  in  streets. 

90.  Same — cannot  exclude  under  guise  of  regulation. 

91.  Same — electrical  companies. 

92.  Removal  or  change  of  location  of  line. 

93.  Underground  conduits. 

94.  Same — existing   lines   removable   to   conduits    without   impairment   of 

contract. 

95.  Same — independent  companies  may  construct  conduits. 

96.  Same— municipality  without  authority  cannot  compel  removal  to  con- 

duits. 

97.  Additional  sei-vitude — in  general. 

98.  Taking  of  property  for  public  use— what  is. 

99.  Same  continued — illustration. 

100.  When  dedicated  for  street  purposes— not  an  imposition. 

101.  The  different  uses  to  which  streets  and  highways  may  be  put. 

102.  Cases  holding  not  entitled  to  compensation. 

103.  Same  continued— expensiveness  of  easement. 

104.  Same  continued — new  use  of  the  easement. 

105.  Same  continued — upholding  same— on  highways  same  rule. 

106.  The  ground  upon  which  these  cases  are  sustained. 

107.  Same  continued— rule  not  changed  by  fact  that  they  are  not  things  of 

motion. 

108.  Contraiy  view — additional  servitude — so  held. 

109.  Same  continued— what  rights  included  in  an  easement. 

110.  When  fee  in  abutting  owner- meaning  of  taking  property  of  another 

under  constitution. 

111.  Same  continued— abutter's  interest  in  soil — to  what  use  he  may  put  it. 

112.  Same  continued— additional  use  of  easement  is  for  quasi-public  and 

not  for  public  use. 

113.  Same  continued — easement  put  to  different  use  than  that  for  which 

it  was  originally  acquired. 

114.  When  the  fee  is  in  the  public— not  entitled  to  compensation. 

115.  The  distinction — test  whether  fee  is  in  abutter  or  public. 
110.     Same  continued — when  fee  in  the  public — effect  of. 

117.  When  title  or  fee  is  in  third  party— effect  of  as  to  compensation. 

118.  Effect  of  legislative  grant — not  a  nuisance. 

119.  Amount  of  compensation  to  abutter. 

120.  Damages  to  abutting  owners — amount, 

121,  Remedies  of  adjoining  lot  owner — when  a  nuisance. 

122,  Same  continued — ignorance  of  rights. 

123,  Same  continued — action  for  damages. 

124,  Further  considered— unauthorized  use  of  street— may  be  enjoined. 


90  TELEGRAPH  AND  TELErHONE  COMPANIES  (§  86 

§  125.     When  poles  and   wires  of  au  electric  light  company  an  additional 
burden. 

126.  Liabilities  for  cutting;  trees  overhanging  sidewalks. 

127.  Same  continued — punitory  damages. 

128.  Willful  intent — question  for  jury. 

129.  Trees  on  the  sidewalk. 

§  86.  In  streets — in  general. — A  municipality  is  a  part  of  the 
government  and  exercises  such  powers  only  as  are  expressly  grant- 
ed in  its  charter,  or  such  as  are  necessarily  implied  to  carry  out 
those  expressly  given. ^  Legislative  powers  may  be  and  are  ustially 
delegated  to  municipalities,  and,  among  such  powers,  one  is  the 
right  to  grant  to  telegraph,  telephone,  and  electric  companies  the 
right  to  the  use  of  the  streets  for  their  respective  purposes.^  As  one 
of  its  delegated  authorities,  a  municipality  may  pass  ordinances  for 
the  betterment  of  its  internal  society  and  business,  provided  they  be 
consistent  with  its  charter  and  laws  of  the  state.  For  instance,  the 
manner  in  which  the  streets  are  kept  and  maintained  is  left  almost 
entirely  to  the  municipal  control,^  and  yet  the  streets  do  not  belong 
to  the  municipality  nor  to  the  citizens  therein,  but  to  the  public* 
They  are  public  thoroughfares  over  and  along  which  all  citizens 
have  the  same  right  to  travel ;  and  where  the  powers  have  not  been 
delegated  to  the  municipality,  the  state  should  and  does  have  them 
under  the  same  control  and  general  supervision  as  it  has  other 
public  highways.^  The  state  has  such  control  over  the  streets  and 
public  highways  as  to  prevent  them  from  being  obstructed  or  used 
in  any  manner  which  would  incommode  public  travel.*^     The  state 

1  Whiting  V.  West  Point,  88  Va.  905,  14  S.  E.  698,  29  Am.  St.  Rep.  750,  15 
L.  R.  A,  860,  note;  Wilson  v.  Beyers,  5  Wash,  303,  32  Pac.  90,  34  Am.  St. 
Rep.  858;  South  Covington,  etc.,  R.  Co.  v.  Berry,  93  Ky.  43,  18  S.  W.  1026, 
40  Am.  St.  Rep.  161,  15  L.  R.  A.  604 n ;  Phillips  v.  Denver,  19  Colo.  179,  34 
Pac.  902,  41  Am.  St.  Rep.  230 ;  Champer  v.  Greencastle,  138  Ind.  339,  35  N.  E. 
14,  46  Am.  St.  Rep.  390,  25  L.  R.  A.  768,  note. 

2  Southern  Bell  Tel.,  etc.,  Co.  v.  Mobile  (C.  C.)  162  Fed.  523 ;  Morristown 
V.  East  Tennessee  Tel.  Co.,  115  Fed.  304,  53  C.  C.  A.  132;  Plattsmouth  v. 
Nebraska  Tel.  Co.,  80  Neb.  460,  114  N.  W.  588,  14  L.  R.  A.  (N.  S.)  654,  127 
Am.  St.  Rep.  779.  See  §  79.  S6e,  also.  East  Grand  Forks  v.  Luck,  97  Minn. 
373,  107  N.  W.  393,  7  Ann.  Cas.  1015,  6  L.  R.  A.  (N.  S.)  198 ;  People  v.  Squire, 
107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893 ;  Salem  v.  Anson,  40  Or.  339, 
67  Pac.  190,  91  Am.  St.  Rep.  485,  56  L.  R.  A.  169. 

3  See  §  88.  See,  also,  note  to  McCormick  v.  District  of  Columbia,  54  Am. 
Rep.  291. 

One  company  cannot  grant  license  to  another  company.- —TSast  Tennessee 
Tel.  Co.  V.  Paris  Elec.  Co.,  156  Ky.  762,  162  S.  W.  530,  Ann.  Cas.  1915C,  543. 

4  See  §  87. 

5  See  §§  76,  96. 

6  See  §  79. 


§    87)  CONSTRUCTION   AND   MAINTENANCE  91 

may  grant  the  license  to  any  public  enterprise  which  has  an  interest 
to  perform  toward  the  government  to  use  the  streets  for  the  pur- 
pose of  carrying  on  its  business ;  but  there  must  not  be  such  a  use 
of  the  license  as  would  interfere  with  public  travel.  The  communi- 
cation of  news  by  means  of  the  telegraph  and  telephone,  traveling 
by  means  of  the  streets  cars,  and  the  lighting  of  streets  by  electri- 
city or  otherwise,  are  public  uses  for  which  the  streets  may  be  used, 
and  for  the  purpose  of  carrying  out  such  business  and  public  enter- 
prises certain  parts  of  the  streets  may  be  used  for  wires,  poles,  and 
other  appliances/  The  manner  in  which  this  right  is  exercised  is 
usually  under  the  police  power  of  the  municipality.^ 

§  87.  Same — interest  acquired  in  streets. — Statutes  authorizing 
a  corporation  to  construct  lines  of  wires  for  telegraph,  telephone,  or 
electric  lighting  purposes  along  and  upon  the  public  streets,  by  the 
erection  of  the  necessary  fixtures,  including  posts,  piers,  and  alDUt- 
ments  for  maintaining  wires,  do  not  grant  any  interest  in  such 
streets."  At  most,  they  only  confer  a  license  to  enter  thereon  for 
the  purposes  named,  and  merely  determine  that  one  of  the  purposes 
for  which  the  streets  may  be  used  is  the  erection  of  poles  and  string- 
ing of  wires  for  such  business,  and  that  such  use  is  a  public  one,  not 
inconsistent  with  the  use  of  the  street  for  general  street  purposes.^'' 
By  the  enactment  of  such  statutes,  the  state  does  not  divest  itself 
of  its  control  of  the  streets  for  the  public  welfare.  Such  grants  do 
not  abdicate  its  power  over  the  public  streets,  nor  in  any  way  cur- 
tail its  police  power  to  be  exercised  for  the  general  welfare  of  the 
public.^^  So,  if  the  poles  and  wires  become  a  serious  obstruction 
and  nuisance  in  the  streets,  the  legislature  may  take  such  action 
and  make  such  provisions  by  law  as  are  needful  to  remove  the  nui- 
sance and  restore  the  utility  of  the  streets  for  public  purposes. ^^ 

7  See  chapter  11.  See,  also,  followiug  sections  in  tliis  chapter.  See.  also, 
State  V.  Weber,  88  Kan.  175,  127  Tac.  536,  43  L.  R.  A.  (N.  S.)  1033 ;  Platts- 
mouth  V.  Nebraska  Tel.  Co.,  80  Neb.  4G0,  114  N.  AV.  588,  14  L.  11.  A.  (X.  S.) 
654,  127  Am.  St.  Rep.  779. 

s  See  §  88.  See  Portland  v.  West.  U.  Tel.  Co.,  75  Or.  37,  146  Pac.  14S,  L. 
R.  A.  1915D,  2G0. 

9  American,  etc.,  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep,  764,  13  L.  R.  A.  454,  note ;  Kibbie  Tel.  Co.  v.  Landphere,  151  Mich.  309, 
115  N.  W.  244,  16  L.  R.  A.  (N.  S.)  689. 

10  Id.  See,  also,  §  90.  See,  also.  East  Tennessee  Tel.  Co.  v.  Paris  Elec. 
Co.,  156  Ky.  762,  162  S.  W.  530,  Ann.  Cas.  1915C,  543. 

11  Id. 

12  Id.  See,  also,  §  225.  See  West.  U.  Tel.  Co.  v.  New  York  (C.  C.)  38  Fed. 
552,  3  L.  R.  A.  449;  Atty.  Gen.  v.  Walworth  L.,  etc.,  Co.,  157  Mass.  86,  31 
N.  E.  482,  16  L.  R.  A.  398. 


02  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  88 

§  88.  City  control  in  the  erection  and  construction  of. — While 
the  grant  to  telegraph,  telephone  or  electric  light  companies  to  use 
the  streets  for  their  respective  purposes  is  derived  from  the  state  ^^ 
— which  also  partly  controls  the  manner  of  their  use — the  city  may 
control  the  erection,  construction,  and  maintenance  of  these  com- 
panies' lines  as  shall  best  secure  the  public  safety,  convenience,  and 
freedom  in  the  use  of  the  streets.^*  The  design  is  to  invest  these 
companies  w^ith  the  right  to  use  the  streets  of  an  incorporated  town 
for  the  purpose  of  erecting  their  poles  therein,  subject  to  such  mu- 
nicipal control  as  shall  be  necessary  to  secure  the  public  safety,  con- 
venience, and  freedom  in  the  use  of  the  streets. ^°  Thus  municipal 
authorities  may  say  what  streets  shall  be  used,  at  what  points  in 
the  streets  the  poles  shall  be  erected,  and  how  they  shall  be  planted 
and  secured,  but  they  have  no  power  to  lay  an  embargo.^®  They 
may  adopt  regulations  fixing  the  elevation  at  which  the  wires  shall 
cross  the  streets ;  and  they  may  also  prescribe  such  other  precau- 
tions as  may  be  reasonably  necessary  to  the  safety  of  travel.  They 
have  the  right  to  regulate,  but  not  to  interdict,  and  their  regulation 
to  be  valid  must  be  reasonable  and  fair.^^ 

§  89.  Place  of  location  of  line  in  streets. — A  municipality  can 
not  exclude  a  telegraph,  telephone,  or  electric  company  from  its 
streets  where  the  right  has  been  acquired  from  the  legislature,^^ 
but  it  may  make  reasonable  and  proper  regulations  as  to  the  man- 
ner in  which  such  right  may  be  exercised. ^^    This  power  of  the  mu- 

13  See  §  86.  i*  See  following  sections. 

15  Barber  v.  Ropbury,  11  Allen  (Mass.)   320;    Angell  on  Highways,  §  223. 
See,  also,  §  87. 
i«  See  §  89. 

17  American  U.  Tel.  Co.  v.  Town  of  Harrison,  31  N.  J.  Eq.  G27. 

18  See  §  79. 

i9Barliite  v.  Home  Tel.  Co.,  50  App.  Div.  25,  63  N.  Y.  Supp.  659;  Phila- 
delphia V.  West  U.  Tel.  Co.,  11  Phila.  (Pa.)  327,  2  Wkly.  Notes  Cas.  455; 
State  V.  Milwaukee,  132  Wis.  615,  113  N.  W.  40;  Marshfield  v.  Wis,consin  Tel. 
Co.,  102  Wis.  604,  78  N.  W.  735,  44  L.  R.  A.  565.  See  §  90  et  seq.  Conrad  v. 
Springfield  Consol.  R.  Co.,  240  HI.  12,  88  N.  E.  180,  130  Am.  St.  Rep.  257 ;  City 
of  Crawfordsville  v.  Braden,  130  Ind.  149,  28  N.  E.  849,  14  L.  R.  A.  268,  30 
Am.  St.  Rep.  214 ;  Clements  v.  Louisiana  Electric  Light  Co.,  44  La.  Ann.  692, 
11  South.  51,  16  L.  R.  A.  43,  32  Am.  St.  Rep.  348;  Moren  v.  New  Orlean.s 
Ry.  &  Light  Co.,  125  La.  944,  52  South.  106,  136  Am.  St.  Rep.  344 ;  Suburban 
Light  &  Power  Co.  v.  Aldermen  of  Boston,  153  Mass.  200,  26  N.  E.  447,  10 
L.  R.  A.  497 ;  State  ex  rel.  Laclede  Gaslight  Co.  v.  Murphy,  130  Mo.  10,  31 
S.  W.  594,  31  L.  R.  A.  798;  Mize  v.  Rocky  Mt.  Bell  Tel.  Co.,  38  Mont.  521, 
100  Pac.  971,  129  Am.  St.  Rep.  659,  16  Ann.  Cas.  1189 ;  Palmer  v.  Larchmont 
Elec.  Co.,  158  N.  Y.  231,  52  N.  E.  1092,  43  L.  R.  A.  672 ;  Mitchell  v.  Raleigh 
Elec.  Co.,  129  N.  C.  166,  39  S.  E.  801,  55  L.  R.  A.  398,  85  Am.  St.  Rep.  735; 


§    89)  CONSTRUCTION  AND   MAINTENANCE  93 

nicipality  extends  as  a  rule  to  the  determination  of  the  particular 
spots  on  which  poles  and  other  fixtures  shall  be  erected,  and  the 
manner  in  which  wires  shall  be  strung.-"  This  power  further  ex- 
tends to  the  designating  of  the  particular  streets  upon  which  such 
poles  and  wires  may  be  placed ;  ^^  however,  it  is  not  necessarily  un- 
der an  obligation  to  do  so."  Having  this  power,  a  municipality 
may  entirely  prohibit  the  erection  of  poles  on  a  particular  block  of 
a  particular  street  where  good  reason  for  such  regulation  exists, 
unless  the  company  will  thereby  be  cut  off  from  persons  whom  it 
desires  to  reach  and  whom  by  law  it  is  obliged  to  serve. -^  The 
mere  fact  that  a  route  designated  by  a  municipality  for  a  telephone 

Salem  v.  Anson,  40  Or.  339,  67  Pac.  190,  56  L.  R.  A.  169,  91  Am.  St.  Rep. 
485;  State  ex  rel.  Wisconsin  Tel.  Co.  v.  Janesville  St.  R.  Co.,  87  Wis.  72,  57 
N.  W.  970,  22  L.  R.  A.  759,  41  Am,  St.  Rep.  23;  Meek  v.  Nebraska  Tel.  Co.,. 
96  Neb.  539,  148  N.  W.  325. 

2  0  Michif/an.— Michigan  Tel.  Co.  v.  Benton  Harbor,  121  Mich.  512,  80  N.  W. 
386,  47  L.  R.  A.  104  ;  Michigan  Tel.  Co.  v.  St.  Joseph,  121  Mich.  502,  80  N.  W. 
383,  80  Am.  St.  Rep.  520,  47  L.  R.  A.  87. 

Minnesota.— St.  Paul  v.  Freedy,  86  Minn.  350,  90  N.  W.  781. 

Montana.— State  v.  Red  Lodge,  30  Mont.  338,  76  Pac.  758;  Id.,  33  Mont. 
345,  83  Pac.  642. 

Missouri.— See  State  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A. 
113;  Gannon  v.  Laclede  Gaslight  Co.,  145  Mo.  502,  46  S.  W.  968,  47  S.  W. 
907,  43  L.  R.  A.  505. 

Neio  7erse//.— Marshall  v.  Bayonne,  59  N.  J.  Law,  101,  34  Atl.  lOSO;  New 
York,  etc.,  Tel.  Co.  v.  Bound  Brook,  66  N.  J.  Law,  168,  48  Atl.  1022;  New 
York,  etc.,  Tel.  Co.,  v.  East  Orange,  42  N.  J.  Eq.  490,  8  Atl.  289. 

New  Yorfc.— Utica  v.  Utica  Tel.  Co.,  24  App.  Div.  361,  48  N.  Y.  Supp.  916 ; 
Carthage  v.  Central  New  York  Tel.,  etc.,  Co.,  185  N.  Y.  448,  78  N.  E.  165.  113 
Am.  St.  Rep.  932,  reversing  110  App.  Div.  625,  96  N.  Y.  Supp.  919,  and  af- 
firming 48  Misc.  Rep.  423,  96  N.  Y.  Supp.  917. 

0/mo.— Zanesville  v.  Zanesville  Tel.,  etc.,  Co.,  63  Ohio  St.  442,  59  N.  E.  109 ; 
Auerbach  v.  Cuyahoga  Tel.  Co.,  9  Ohio  S.  &  C.  P.  Dec.  389,  7  phio  N.  P.  633. 

Pennsylvania.— Central  Pennsylvania  Tel.,  etc.,  Co.  v.  Wilkes-Barre,  etc., 
R.  Co.,  11  Pa.  Co.  Ct.  R.  417 ;  New  Castle  v.  Central  Dist,  etc.,  Tel.  Co.,  207 
Pa.  371,  56  Atl.  931 ;  Philadelphia  v.  West.  U.  Tel.  Co.,  11  Phila.  (Pa.)  327,  2 
Wkly.  Notes  Cas.  455. 

Wiscomin.— State  v.  Sheboygan,  111  Wis.  23,  86  N.  W.  657;  Tel.  Co.  v. 
Ludlow,  140  Wis.  510,  122  N.  W.  1030. 

As  to  changing  of  grade  of  streets,  see  New  York,  etc.,  R.  Co.  v.  Electric 
Co.,  219  Mass.  85,  106  N.  E.  566,  L.  R.  A.  1915B,  822. 

21  Jonesville  v.  Southern  Michigan  Tel.  Co.,  155  Mich.  86,  118  N.  W.  736, 
180  Am.  St.  Rep.  562,  16  Ann.  Cas.  4.39;  Wichita  v.  Missouri,  etc.,  Tel.  Co., 
70  Kan.  441,  78  Pac.  886 ;  Marshfield  v.  Wisconsin  Tel.  Co.,  102  Wis.  604,  78 
N.  W.  735,  44  L.  R.  A.  565. 

22  Marshall  v.  Bayonne,  59  N.  J.  Law,  101,  34  Atl.  1080. 

2  3  Jonesville  v.  Southern  Michigan  Tel.  Co.,  155  Mich.  86,  118  N.  W.  736,  130 
Am.  St.  Rep.  502,  16  Ann.  Cas.  439. 


^4  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  90 

line  is  less  convenient  or  involves  large  expense  on  the  part  of  the 
company  is  of  no  consequence,  so  long  as  the  company  is  not  there- 
by prevented  from  reaching  all  those  whom  it  desires  to  serve  and 
who  desire  service  from  it."*  The  municipality  may  regulate  the 
height  of  wires  where  they  cross  the  streets,  but  if  no  regulation 
has  been  made  and  the  wires  are  hung  at  a  sufficient  height  so  as 
not  to  interfere  with  travel,  and  the  poles  are  not  constructed  in  the 
streets,  but  upon  private  property  the  municipality  has  no  right,  as 
it  has  been  held,  to  destroy  them.^^  A  requirement  of  these  com- 
panies which  should  be  made  before  legally  and  properly  acquiring 
an  easement  in  streets  for  its  lines  is  that  a  petition  should  be  made 
to  the  municipality  asking  for  the  easement  or  privilege  to  the  use 
of  the  streets,  setting  out  in  the  petition,  in  clear  and  definite  lan- 
guage, the  street  or  streets  upon  which  the  construction  is  desired 
to  be  made;  the  size  of  the  poles ;  and  such  other  rights  as  may  be 
desired. ^'^  The  municipality  may  require  the  company  to  submit  a 
map  showing  the  proposed  location  of  each  pole,  and  other  fixtures 
necessarily  to  be  made  by  the  company.^^ 

§  90.  Same — cannot  exclude  under  guise  of  regulation. — A  mu- 
nicipality cannot,  under  the  guise  of  a  regulation,  practically  exclude 
a  telegraph,  telephone,  or  electric  company  from  its  streets  where 
the  right  to  use  the  streets  has  been  acquired  from  the  legislature ;  ^^ 
but  its  sole  authority,  in  this  respect,  is  the  proper  exercise  of  the 
police  power  to  protect  the  public  from  unnecessary  obstruction,  in- 
conveniences and  dangers,  and  to  determine  where  and  in  what 
manner  the  company  may  erect  its  poles  and  string  its  wires,  so  as 
to  accomplish  this  result.-^  Therefore,  in  consequence  of  the  fact 
that  a  municipality  cannot  thus  abuse  its  powers  to  regulate  the 
construction  of  the  lines  of  these  companies  on  the  streets,  it  cannot 
demand  of  them  conditions  which  may  be  unauthorized  and  ini- 

24  Id. 

2  5  American  U.  Tel.  Co.  v.  Harrison,  31  N.  J.  E}q.  627.  See  Winegarner  v. 
Edison  L.,  etc.,  Co.,  83  Kan.  67,  109  Pac.  778,  28  L.  R.  A.  (N.  S.)  677. 

2  6  Broome  v.  New  York,  etc.,  Co.,  49  N.  J.  Law,  624,  9  Atl.  754.  8  Cent. 
Rep.  589;  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  13  L. 
R.  A.  454,  21  Am.  St.  Rep.  764. 

2T  Auerbach  v.  Cuyahoga  Tel.  Co.,  9  Ohio  S.  &  C.  PI.  Dec.  389,  7  Ohio  N.  P. 
€33. 

2  8  State  V.  Sheboygan,  111  Wis.  23,  86  N.  W.  657;  State  v.  Milwaukee,  132 
"Wis.  615,  113  N.  W.  40 ;  Summit  Tp.  v.  New  York,  etc.,  Tel.  Co.,  57  N.  J.  Eq. 
123,  41  Atl.  146. 

2  9  Michigan  Tel.  Co.  v.  Benton  Harbor,  121  Mich.  512,  80  N.  W.  386,  47 
L,.  R.  A.  104. 


§    90)  CONSTRUCTION  AND   MAINTENANCE  95 

proper,^"  or  refuse  or  fail  to  designate  the  location  of  poles  or  make 
other  necessary  regulations,^^  and  thereby  practically  exclude  them 
from  operating  within  its  jurisdiction.  While  the  municipality  may 
under  its  police  power  regulate  the  time  and  method  under  which 
repairs  shall  be  made,  it  cannot,  however,  absolutely  deny  the  right 
to  make  such  repairs  and  thus  in  efifect  condemn  the  property  of  the 
company  and  confiscate  its  franchise. ^^  The  company  cannot 
under  such  circumstances  proceed  with  the  work  of  construction ;  ^^ 
but,  after  having  made  a  proper  request  or  application  to  the  mu- 
nicipality and  a  reasonable  time  allowed  for  the  latter  to  act;^*  the 
company  may  by  mandamus  or  other  legal  proceedings  compel  the 
municipality  to  act.^^  Where,  however,  such  actions  involve  the 
exercise  of  a  discretion  on  the  part  of  the  municipality,  the  court 
will  not  in  advance  prescribe  the  particular  action  to  be  taken, ^^ 
but  they  may  require  the  municipality  to  adopt  such  regulations, 
and  may  then  pass  upon  their  validity. ^^  The  legislature  cannot 
delegate  the  authority  to  a  court  to  designate  the  route  or  mode  of 
constructing  a  telegraph  or  telephone  line  ^^ 

3  0  Summit  Tp.  v.  New  York,  etc.,  Tel.  Co.,  57  N.  J.  Eq.  123,  41  Atl.  146; 
Michigan  Tel.  Co.  v.  Benton  Harbor,  121  Mich.  512,  80  N.  W.  386,  47  L.  R.  A. 
104;  State  v.  Central  U.  Tel.  Co.,  14  Ohio  Cir.  Ct.  R.  273,  7  O.  C.  D.  536; 
State  V.  Sheboygan,  111  Wis.  23,  86  N.  W.  657. 

31  State  V.  Red  Lodge,  30  Mont.  338,  76  Pac.  758;  Michigan  Tel.  Co.  v.  St. 
Joseph,  121  Mich.  502,  80  N.  W.  383,  80  Am.  St.  Rep.  520,  47  L.  R.  A.  87 ;  State 
V.  Sheboygan,  111  Wis.  23,  86  N.  W.  657. 

3  2  Matter  of  Seaboard  Tel.,  etc.,  Co.,  68  App.  Div.  283,  74  N.  Y.  Supp.  15. 

3  3  Marshfield  v.  Wisconsin  Tel.  Co.,  102  Wis.  604,  78  N.  W.  735,  44  L.  R.  A. 
565 ;  St.  Paul  v.  Freedy,  86  Minn.  350,  90  N.  W.  781. 

34  Marshfield  v.  Wisconsin  Tel.  Co.,  102  Wis.  604,  78  N.  W.  735,  44  L.  R.  A. 
565.  The  request  or  application  must  be  a  proper  one  for  action  which  it  is- 
the  duty  of  the  municipal  authorities  to  take.  State  v.  Red  Lodge,  33  Mont. 
345,  83  Pac.  642 ;  State  v.  Milwaukee,  132  Wis.  615,  113  N.  W.  40. 

3  5  St.  Paul  V.  Freedy,  86  Minn.  350,  90  N.  W.  781;  Michigan  Tel.  Co.  v.  St. 
Joseph,  121  Mich.  502,  80  N.  W.  383,  80  Am.  St.  Rep.  520,  47  L.  R.  A.  87 ;  New 
York,  etc.,  Tel.  Co.  v.  Bound  Brook,  66  N.  J.  Law,  168,  48  Atl.  1022 ;  State  v. 
Red  Lodge,  30  Mont.  338,  76  Pac.  758 ;  Matter  of  Seaboard  Tel.,  etc.,  Co.,  68 
App.  Div.  283,  74  N.  Y.  Supp.  15 ;  Com.  v.  Warwick,  185  Pa.  623,  40  Atl.  93 ; 
State  V.  Sheboygan,  111  Wis.  23,  86  N.  W.  657. 

3  6  State  V.  Milwaukee,  132  Wis.  615,  113  N.  W.  40.  See,  also,  State  v.  Red 
Lodge,  30  Mont.  338,  76  Pac.  758,  holding  that  the  effect  of  a  mandamus  pro- 
ceedings is  merely  to  compel  action,  and  not  to  interfere  with  the  discretion- 
ary powers  of  the  municipality  as  to  any  particular  lawful  and  reasonable 
regulations. 

3  7  Michigan  Tel.  Co.  v.  St.  Joseph,  121  Mich.  502,  80  N.  W.  383,  SO  Am.  St. 
Rep.  520,  47  L.  R.  A.  87. 

aszanesville  v.  Zanesville  Tel.,  etc.,  Co.,  63  Ohio  St.  442,  59  N.  E.  109: 
New  York,  etc.,  Tel.  Co.  v.  Bound  Brook,  66  N.  J.  Law,  168,  48  Atl.  1022. 


96  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  91 

§  91.  Same — electrical  companies. — Under  some  statutes,  an 
electrical  company  cannot  place  its  poles  in  the  streets  of  a  munici- 
pality without  first  obtaining  from  the  latter  a  particular  designa- 
tion thereof;^®  and  the  company  must  usually  exercise  the  right 
to  place  its  poles  and  string  its  wires  subject  to  the  police  power  of 
the  municipality. ■*"  The  company  cannot  place  a  pole  in  front  of 
property  abutting  on  a  street  unless  it  is  necessary  for  the  better 
transaction  of  its  business.*^  Poles  may  usually  be  erected  upon 
obtaining  the  consent  of  the  adjoining  owner;  *-  however,  the  con- 
sent is  not  always  necessary.*^  Thus  it  has  been  held  that,  where  a 
city  enters  into  a  contract  with  an  electric  light  company  requiring 
it  to  erect  poles  at  designated  points,  the  company  is  relieved  from 
the  necessity  of  obtaining  the  consent  of  the  adjoining  property 
owners.**  Under  the  police  power,  a  municipality  has  the  right  of 
designating  where  and  how  poles  and  wires  of  street  railway  com- 
panies shall  be  erected  and  strung.*^ 

§  92.  Removal  or  change  of  location  of  line. — Where  a  tele- 
graph, telephone,  or  electric  company  has  constructed  its  line  upon 

39  Meyers  v.  Hudson  County  Electric  Co.,  60  N.  J.  Law,  350,  37  Atl.  618. 
But  see  Suburban  Light,  etc.,  Co.  v.  Boston,  153  Mass.  200,  26  N.  E.  447,  10 
L.  R.  A.  497,  holding  that  a  statute  which  made  it  obligatory  upon  a  city 
board  to  designate  the  location  of  telegraph  poles,  and  which  was  subse- 
<iuently  extended  to  apply  to  electric  light  companies  "so  far  as  applicable," 
does  not  necessitate  any  action  on  the  part  of  the  board  as  to  the  location  of 
poles  for  the  latter  kind  of  company.  See  Taylor  v.  Service  Corp.,  75  N.  J. 
Eq.  .371,  73  Atl.  118 ;  Ice,  etc.,  Co.  v.  Moses  (Tex.  Civ.  App.)  134  S.  W.  379. 

•4  0  Monougahela  v.  Monongahela  Electric  Light  Co.,  12  Pa.  Co.  Ct.  R.  529; 
Lancaster  v.  Edison  Electric  Illuminating  Co.,  8  Pa.  Co.  Ct.  R.  178,  holding 
that  they  may  be  required  to  number  them  and  designate  them  with  ini- 
tials. See  Power  Co.  v.  Toronto,  24  Ont.  L.  R.  537,  20  Ont.  W.  R.  57,  3  Ont. 
W.  X.  77;  Butler  v.  Cincinnati,  25  Ohio  Cir.  Ct.  R.  772,  holding  that  a  re- 
moval of  wires  by  city  cannot  be  enjoined  where  they  were  originally  laid 
without  consent. 

41  Tiffany  v.  U.  S.  Illuminating  Co.,  51  N.  Y.  Super.  Ct.  280,  affirming  67 
How.  Prac.  (N.  Y.)  73.  See  Gurnsey  v.  Power  Co.,  160  Cal.  699,  117  Pac.  906, 
36  L.  R.  A.  (N.  S.)  185 ;  Taylor  v.  Service  Co.,  75  X.  J.  Eq.  371,  73  Atl.  118. 

4  2  Point  Pleasant  Electric  Light  Co.  v.  Bayhead,  62  X^.  J.  Eq.  296,  49  Atl. 
1108.  See  Yoe  v.  Power  Co.,  89  S.  C.  396,  71  S.  E.  979.  See  Souther  v.  North- 
western Tel.  Exch.  Co.,  118  Minn.  102,  136  X.  W.  571,  45  L.  R.  A.  (X.  S.)  601, 
Ann.  Cas.  1913E,  472,  must  not  use  force. 

43  Montclair  Light,  etc.,  Co.  v.  Montclair,  67  X.  J.  Law  151,  50  Atl.  350 ; 
Gas,  etc.,  Co.  v.  Davenport,  124  Iowa,  22,  98  X.  W.  892 ;  Brown  v.  Light  Co., 
208  Pa.  453,  57  Atl.  904 ;  Light  Co.  v.  Brown,  208  Pa.  461,  57  Atl.  1135 ;  State 
V.  Weber,  88  Kan.  175,  127  Pac.  536,  43  L.  R.  A.  (X.  S.)  1033. 

4  4  Montclair  Light,  etc.,  Co.  v.  Montclair,  67  X.  J.  Law,  1.51,  50  Atl.  .3.50. 

4  0  Kennelly  v.  Jersey  City,  57  X.  J.  Law,  293,  30  Atl.  531,  26  L.  R.  A.  281. 


§    92)  CONSTRUCTION  AND   MAINTENANCE  97 

the  streets  of  a  municipality  pursuant  to  legislative  authority,  or 
municipal  consent,  the  latter  cannot  require  the  entire  remoA'al  of 
the  line  therefrom,*®  nor  prevent  the  company  from  making  proper 
extensions  of  its  line.'*'  And,  where  one  of  these  companies  has  al- 
ready constructed  its  lines  upon  the  streets,  the  municipality  can- 
not, in  the  exercise  of  its  apparent  power  to  regulate  the  construc- 
tion and  maintenance  thereof,  arbitrarily  require  the  change  of 
their  location.*^  It  is  certainly  not  meant  by  this,  however,  that  a 
municipality  may  not,  under  certain  circumstances  and  in  the  exer- 
cise of  its  police  powers,  require  a  change  to  a  new  location,  and 
of  this  right  it  cannot  surrender  or  deny  itself,  either  by  consent  or 
agreement.*^  Consequently,  where  the  lines  of  0ese  companies 
have  become  an  obstruction  to  traffic  or  a  menace  to  the  public 
safety,  or  where  there  are  other  similar  reasons  of  a  public  nature 
requiring  the  lines  to  be  changed,  the  same  may  be  required. '^'^ 
although  it  may  involve  the  removal  of  the  lines  from  one  street  to 
another.^^  In  order,  however,  to  have  the  power  to  enforce  a  com- 
pany to  change  the  location  of  its  lines,  there  must  exist  a  reason- 
able necessity  for  such,  otherwise  it  could  not  be  compelled  to  incur 
the  expense  in  making  the  change."-  Furthermore,  where  a  change 
is  warranted  under  the  circumstances,  the  municipality  cannot  act 
arbitrarily  or  unreasonably  in  the  method  provided  for  effecting  the 
change. ^^  The  fact  that  the  company  has  accepted  the  Post  Roads 
Act  of  1866,  or  is  engaged  in  interstate  commerce,  does  not  preclude 

4c  Wichita  v.  Old  Colony  Trust  Co.,  132  Fed.  G41,  66  C.  C.  A.  19 ;  Diilutli 
V.  Dulnth  Tel.  Co.,  84  Minn.  486,  87  X.  W.  1127 ;  Abbott  v.  Duluth  (C.  C.)  104 
Fed.  833,  affirmed  in  117  Fed.  137,  55  C.  C.  A.  153 ;  London  Mills  v.  White. 
208  111.  289,  70  N.  E.  313 ;  Southern  Bell  Tel.,  etc.,  Co.  v.  Mobile  (C.  C.)  1G2 
Fed.  523. 

4  7  Duluth  V.  Duluth  Tel.  Co.,  84  Minn.  486,  87  N.  W.  1127. 

4  8  Southern  Bell  Tel.,  etc.,  Co.  v.  Mobile  (C.  C.)  162  Fed.  523;  Hannibal  v. 
Missouri,  etc.,  Tel.  Co.,  31  Mo.  App.  23 ;  Tel.  Co.  v.  Board  of  Couucilmeu,  141 
Ky,  588,  133  S.  W.  564. 

4  0  Michigan  Tel.  Co.  v.  Charlotte  (C.  C.)  93  Fed.  11. 

50  American  Tel.,  etc.,  Co.  v.  Harborcreek  Tp.,  23  Pa.  Super.  Ct.  437;  Ameri- 
can Tel.,  etc.,  Co.  v.  Milcreek  Tp.,  195  I'a.  643,  46  Atl.  140  ;  Ganz  v.  Ohio  Postal 
Tel.  Cable  Co.,  140  Fed.  692,  72  C.  C.  A.  186 ;  Michigan  Tel.  Co.  v.  Charlotte 
(C.  C.)  93  Fed.  11 ;  Tel.  Co.  v.  Gainsville  (Tex.  Civ.  App.)  141  S.  W.  1044. 

siJNIichigan  Tel.  Co.  v.  Charlotte  (C.  C.)  93  Fed.  11. 

5  2  Hannibal  v.  Missouri,  etc.,  Tel.  Co.,  31  Mo.  App.  23;  Northwestern  Tel. 
Exch.  Co.  V.  Minneapolis,  81  Minn.  140,  83  N.  W.  527,  86  N.  W.  69,  53  L.  li. 
A.  175. 

53  Hannibal  v.  Missouri,  etc.,  Tel.  Co.,  31  Mo.  App.  23;  Tel.  Co.  v.  Board  of 
Councilmen,  141  Ky.  588,  133  S.  W.  564. 
Jones  Tel.(2d  Ed.) — 7 


98  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  93 

a  municipality  from  compelling  a  change  of  location  of  the  line 
when  the  necessity  for  such  change  exists/* 

§  93.  Underground  conduits, — A  great  evil  has  grown  up  in  the 
last  few  years  and  afflicted  large  cities  by  the  multiplication  of  rival 
and  competing  companies  organized  for  the  purpose  of  distributing 
light,  heat,  water,  the  transportation  of  freight  and  passengers,  and 
facilitating  communication  between  distant  points,  and  which  re- 
quire in  their  enterprises  the  occupation,  not  only  of  the  surface 
and  air  above  the  streets,  but  indefinite  space  underground.  This 
evil  has  become  so  great  that  many  of  the  large  cities  are  covered 
with  a  network  of  cables  and  wires  attached  to  poles,  houses,  build- 
ings, and  elevaited  structures,  bringing  danger,  inconvenience,  and 
annoyance  to  the  public.  As  a  result  of  these  evils,^^  statutes  have 
been  enacted  in  many  of  the  states  requiring  corporations  owning 
telegraph,  telephone,  electric,  or  other  wires  or  cables  to  remove 
them  from  the  surface  of  the  streets  and  place  them  under  the 
ground.^*'  The  state,  or  a  municipality  pursuant  to  legislative  au- 
thority, may  authorize  the  construction  of  underground  conduits 
for  such  purposes,-"  and  where  the  authority  has  been  previously 
granted,  it  may  be  afterwards  ratified  by  the  legislature.^^     The 

5  4  Michigan  Tel.  Co.  v.  Charlotte  (C.  C.)  93  Fed.  11.  See  New  Orleans  Gas- 
light Co.  V.  Hart,  40  La.  Ann.  474,  4  South.  215,  8  Am.  St.  Rep.  544;  Postal 
Tel.  Cable  Co.  v.  Chicopee,  207  Mass.  341,  93  N.  E.  927,  32  L.  R.  A.  (N.  S.) 
997 ;  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454. 

5  5  See  People  v.  Squire,  107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  S93,  af- 
firmed in  145  U.  S.  175,  12  Sup.  Ct.  8S0,  36  L.  Ed.  666. 

5  6  State  V.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113,  statute 
permissive,  subject  to  municipal  consent ;  Chesapeake,  etc.,  Tel.  Co.  v.  Balti- 
more, 89  Md.  689,  43  Atl.  784,  44  Atl.  1033,  statute  permissive;  American 
Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St.  Rep.  764,  13 
L.  R.  A.  454,  statute  mandatory  in  cities  having  a  population  of  five  hundred 
thousand  or  over;  Bell  Tel.  Co.  v.  Owen  Sound,  8  Ont.  L.  Rep.  74,  4  Ont. 
Wkly.  Rep.  69,  statute  permissive  and  subject  to  municipal  supervision  as  to 
mode  of  construction.  See  the  statutes  of  the  several  states.  Geneva  v. 
Geneva  Tel.  Co.,  30  Misc.  Rep.  236,  62  N.  Y.  Supp.  172,  holding  that  such  a 
requirement  is  not  unconstitutional  as  imposing  taxation  on  such  corpora- 
tions without  their  consent  or  opportunity  of  being  heard ;  Missouri  v.  Mur- 
phy, 170  U.  S.  78,  18  Sup.  Ct.  505,  42  L.  Ed.  955 ;  Id.,  130  Mo.  10,  31  S.  W. 
594,  31  L.  R.  A.  798;  Ex.  p.  Light  Co.,  34  N.  Brunsw.  460.  See  Tel.  Cable 
Co.  V.  Worcester,  202  Mass.  320,  88  N.  E.  777;  Ilium.  Co.  v.  Grant,  55  Hun, 
222,  7  N.  Y.  Supp.  788. 

5  7  State  V.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113;  State  v. 
Murphy,  134  Mo.  548,  31  S.  W.  784,  34  S.  W.  51,  35  S.  W.  1132,  56  Am.  St. 
Rep.  515,  34  L.  R.  A.  369. 

58  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  89  Md.  689,  43  Atl.  784,  44  Atl. 
1033.    See  Queen  City  Tel.  Co.  v.  Cincinnati,  73  Ohio  St.  64,  76  N.  B.  392, 


§    94)  CONSTRUCTION   AND   MAINTENANCE  99 

authority  to  construct  underground  conduits  constitutes  a  valuable 
right,^®  and  when  granted  by  the  legislature  cannot  be  denied  by  a 
municipality; ''°  and  when  the  authority  has  been  granted  by  the 
municipality  and  accepted  by  the  company,  it  cannot  subsequently 
be  arbitrarily  revoked/^  or  materially  impaired  or  subjected  to 
new  and  burdensome  conditions,*'^  although  the  mode  of  construc- 
tion may  be  regulated  by  the  municipality. ''^ 

§  94.  Same — existing  lines  removable  to  conduits  without  im- 
pairment of  contract. — Not  only  may  new  lines  of  wires  be  required, 
under  these  statutes  to  be  placed  in  underground  conduits,^*  but 
existing  lines  to  which  have  been  granted  under  previous  statutes 
permission  to  maintain  lines  upon  the  streets  of  cities  may  also  be 
required   to  remove  their  lines   to   underground  conduits. ^^     The 

holding  that  the  probate  court  cannot  grant  to  a  telephone  company  the 
right  to  place  its  wires  in  underground  conduits  without  municipal  consent. 

5  9  State  V.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113;  Chesa- 
pealie,  etc.,  Tel.  Co.  v.  Baltimore,  89  Md.  689,  43  Atl.  784,  44  Atl.  1033. 

60  Where  a  telegraph  or  telephone  company  has  been  authorized  by  statute 
to  place  its  wires  underground,  subject  only  to  municipal  supervision  as  to 
the  mode  of  doing  the  work,  the  latter  cannot  under  this  power  arbitrarily 
refuse  to  permit  the  company  to  do  so.  Bell  Tel.  Co.  v.  Owen  Sound,  8  Ont. 
L.  Rep.  74,  4  Ont.  Wlily.  Rep.  69. 

61  State  V.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113;  Chesa- 
peake, etc.,  Tel.  Co.  v.  Baltimore,  89  Md.  689,  43  Atl.  784,  44  Atl.  1033 ;  Chesa- 
peake, etc.,  Tel.  V.  Baltimore,  90  Md.  638,  45  Atl.  446,  holding  that  a  munici- 
pality will  be  enjoined  from  preventing  the  construction  of  an  underground 
conduit  for  which  it  has  given  its  consent,  provided  it  is  constructed  in  a 
proper  manner  under  the  regulation  and  control  of  the  municipality  as  to 
the  mode  of  construction.  See  Allegheny  County  L.  Co.  v.  Booth,  216  Pa. 
564,  66  Atl.  72,  9  L.  R.  A.  (N.  S.)  404. 

62  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  89  Md.  689,  43  Atl.  784,  44  Atl. 
1033;  State  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113,  liolding 
that,  where  a  telegraph  or  telephone  company  has  constructed  an  under- 
ground conduit  for  its  wires  pursuant  to  municipal  authority,  the  latter  will 
be  compelled  by  mandamus  to  permit  connections  to  be  made  between  the  con- 
duit and  adjoining  buildings,  provided  they  do  not  materially  impair  the  use 
of  the  highway.  On  this  see  note  73  et  seq.  See  West.  U.  Tel.  Co.  v.  Syra- 
cuse, 24  Misc.  Rep.  338,  53  N.  Y.  Supp.  690,  holding  that,  where  an  under- 
ground conduit  has  been  constracted  pui-suant  to  municipal  consent,  a  mu- 
nicipality cannot  authorize  a  different  company  to  construct  another  conduit 
immediately  over  it  so  as  to  interfere  with  and  prevent  access  thereto. 

6  3  See  State  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113;  Chesa- 
peake, etc.,  Tel.  Co.  v.  Baltimore,  90  Md.  638,  45  Atl.  446. 

6  4  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454. 

6  5  People  V.  Squire,  107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893,  affirmed 
in  145  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  Ed.  666 ;  American  Rapid  Tel.  Co.  v. 
Hess,  125  N.  Y.  &41,  26  N.  E.  919,  21  Am.  St.  Rep.  764,  13  L.  R.  A.  454 ;  Gen- 


100  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  94 

scheme  of  these  statutes  is  not  to  annul  or  destroy  the  contract 
rights  of  such  companies,  but  to  regulate  and  control  their  exer- 
cise.''^ They  do  not  purport  to  deny  them  any  privileges  thereto- 
fore granted,  but  they  do  require  that  they  should  be  exercised  with 
due  regard  to  the  claims  of  others,  and  in  such  a  way  that  they 
should  cease  to  constitute  a  public  nuisance,  and  should  be  enjoyed 
in  such  a  manner  as  to  inconvenience  and  endanger  the  general 
public  as  little  as  possible.®"  Neither  is  it  taking  property  of  the 
company  for  public  use;  *'^  it  is  simply  removing  from  the  streets 
a  nuisance  which  the  public  authorities  have  the  same  right  to  re- 
move, doing  no  unnecessary  damage,  that  they  have  to  remove  any 
other  incumbrance  therefrom,  and  the  mere  fact  that  the  company 
will  be  subjected  to  expense  in  making  the  removal  is  no  answer  to 
the  right  of  the  public,  in  pursuance  of  law,  to  require  it  to  comply 
with  the  prescribed  regulations.*'"  Not  only  may  this  power 
emanate  directly  from  the  state,  but  the  latter  may  delegate  to  a 
municipal  corporation  the  power  to  make  such  requirements, '^° 
and  of  regulating  the  manner  in  which  the  work  of  excavation  and 
construction  shall  be  done.^^  Where  an  underground  system  has 
been  adopted  by  a  company  in  accordance  to  a  grant  to  that  effect, 
it  may,  as  an  incident  necessary  to  such  grant,  construct  conduits, 
terminal  poles,  or  any  such  appliances  as  are  or  may  be  reasonably 
necessary  as  a  means  of  benefiting  itself  under  such  system  or 
making  the  same  eft'ective.''-  But,  if  the  right  to  regulate  the  man- 
ner of  occupation  has  been  retained  by  the  municipality,  it  may,  as 
an  incident  to  this  right,  compel  the  company  to  adopt,  from  time  to 
time,   any   reasonable  and  general   accepted   improvements   which 

evil  V.  Geneva  Tel.  Co.,  30  Misc.  Rep.  2.36,  62  N,  T.  Supp.  172 ;  West.  U,  Tel. 
Co.  V.  New  York  (C.  C.)  38  Fed.  552,  3  L.  R.  A.  449 ;  State  v.  Jauesville,  etc., 
R.  Co.,  87  Wis.  72,  57  N.  W.  970,  41  Am.  St.  Rep.  23,  22  L.  R.  A.  759. 

6c  People  V.  Squire,  107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893,  af- 
firmed iu  145  U.  S.  175,  12  Sup.  Ct.  8S0,  36  L.  Ed.  666. 

6  7  Id. 

68  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454. 

6  9  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454 ;  People  v.  Squire,  107  N.  Y.  593,  14  N.  E.  820,  1 
Am.  St.  Rep.  893,  affirmed  in  145  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  Ed.  666. 

7  0  People  V.  Squire,  107  X.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893,  affirmed 
in  145  U.  S.  175,  12  Sup.  Ct.  S-SO,  36  L.  Ed.  666;  Geneva  v.  Geneva  Tel.  Co.,  30 
Misc.  Rep.  230,  62  X.  Y.  Supp.  172 ;   Tel.  Co.  v.  Richmond  (C.  C.)  178  Fed.  310. 

71  People  V.  Squire,  107  X.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893,  af- 
firmed in  145  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  Ed.  666. 

7  2  Allegheny  County  L.  Co.  v.  Booth,  216  Pa.  564,  66  Atl.  72,  9  L.  R.  A.  (X. 
S.)  404. 


g    95)  CONSTRUCTION   AND   MAINTEi^ANCE  101 

tend  to  decrease  the  obstructions  of  the  streets  or  increase  the  safe- 
ty and  convenience  of  the  public  in  their  use/^  Where  the  munici- 
pality has  given  due  notice  to  the  company  to  remove  its  wires  to 
conduits,  but  the  latter  refuses  to  make  such  removal,  the  former 
may  then  cut  down  and  remove  the  company's  poles  and  wires, 
and  not  thereby  be  subjected  to  an  injunction.'^*  Acts  of  Congress 
granting  to  telegraph  companies  the  right  to  construct  and  main- 
tain lines  of  telegraph  through  and  along  any  of  the  military  or  post 
roads  of  the  United  States  do  not  deprive  the  state  of  its  control 
over  its  highways  and  its  right  to  regulate  their  use,  by  the  police 
powers,  for  the  public  welfare,  and  hence  do  not  confer  the  right 
to  maintain  telegraph  and  wires  above  the  surface  of  the  public 
streets  after  the  enactment  of  a  statute  by  the  state  requiring  them 
to  be  placed  underground.'^^ 

§  95.  Same — independent  companies  may  construct  conduits. — 
Independent  companies  may  be  authorized,  by  the  state,  or  by 
municipalities  pursuant  to  legislative  authority,  to  construct  sub- 
ways or  underground  conduits  to  be  used  by  telegraph,  telephone, 
electric  lighting  companies,  or  other  companies  using  electrical  con- 
ductors,^*^ and  may  require  any  of  these  companies  to  remove  their 
wires  into  such  conduits."  This  is  none  the  less  an  exercise  of  the 
police  power  because  it  gives  to  such  company  special  privileges, 
but  no  exclusive  privileges  or  franchises.  Those  companies  using 
such  underground  conduits  may  be  required  to  pay  a  reasonable 
rental  therefor.^^  The  municipality  may  itself  construct  subways 
or  conduits,  and  require  electrical  companies  to  remove  their  lines 
to  such  conduits,^'*  and  refuse  such  companies  permission  to  con- 

7  3  Com.  V.  Warwick,  18-5  Pa.  623,  40  Atl.  93;  Montreal  v.  Standard  Liglit, 
etc.,  Co.,  A.  C.  527,  66  L.  J.  P.  C.  113,  77  L.  T.  Rep.  (N.  S.)  115. 

7  4  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  704,  13  L.  R.  A.  454. 

7  5  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454.  But  see  West.  U.  Tel.  Co.  v.  New  York  (C.  C.)  38 
Fed.  552,  3  L.  R.  A.  449. 

7  0  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St. 
Rep.  764,  13  L.  R.  A.  454 ;  West.  U.  Tel.  Co.  v.  New  York  (C.  C.)  38  Fed.  552, 
3  L.  R.  A.  449 ;  State  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113. 

7  7  West.  TJ.  Tel.  Co.  v.  New  York  (C.  C.)  38  Fed.  552,  3  L.  R.  A.  449;  Ameri- 
can Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St.  Rep. 
764,  13  L.  R.  A.  454. 

7  8  See  West.  U.  Tel.  Co.  v.  New  York  (C.  C.)  38  Fed.  552,  3  L.  R.  A.  449. 

7  9  Geneva  v.  Geneva  Tel.  Co.,  30  Misc.  Rep.  236,  62  N.  Y.  Supp.  172;  Mis- 
souri V.  Murphy,  170  U.  S.  78,  IS  Sup.  Ct.  505,  42  L.  Ed.  955 ;  State  v.  Murpby, 
130  Mo.  10,  31  S.  W.  594,  31  L.  R.  A.  798. 


102  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  96 

Struct  their  own  conduits,^"  provided  the  conduits  already  con- 
structed or  provided  are  adequate  and  suitable. ^^  The  legislature 
may  require  that  independent  companies  contemplating  construct- 
ing underground  conduits  shall  submit  to  the  local  authorities  for 
approval  plans  and  specifications  of  the  system  proposed,  and  the 
work  of  excavation  and  construction  shall  be  done  under  the  super- 
vision and  control  of  such  authorities. ^- 

§  96.  Same — municipality  without  authority  cannot  compel  re- 
moval to  conduits. — While  it  is  competent  for  the  state  to  delegate 
its  sovereign  power  to  municipalities  in  regard  to  the  construction, 
management,  and  control  of  telegraph,  telephone,  and  electric  com- 
panies, such  surrender  of  sovereignty  cannot  be  implied,  but  must 
rest  on  express  legislation  containing  a  clear  and  unqualified  grant 
of  power.^^  So  it  has  been  held  that,  under  the  transportation  cor- 
poration law  granting  such  companies  the  right  to  construct  and 
maintain  telegraph,  telephone,  or  electric  light  lines  upon,  over,  or 
under  any  public  roads,  streets,  and  highways,  and  the  municipal 
law  conferring  upon  the  board  of  trustees  of  municipalities  the 
power  to  regulate  the  erection  of  telegraph,  telephone,  or  electric 
light  poles,  and  the  stringing  of  wires  on  those  poles,  the  right  of 
these  companies  to  erect  poles  and  string  wires  is  derived  from  the 
state,  however,  the  municipal  authorities  may  regulate  their  erec- 
tion, that  is  to  say,  the  location  of  the  poles  and  the  streets  to  be 
occupied,  but  it  has  no  power  to  require  these  companies  to  place 
their  lines  in  underground  conduits,®'*  or  to  compel  them  to  remove 
the  extension  of  their  existing  lines  to  such  conduits.®^  This  power 
must  be  conferred  upon  the  municipality  by  the  state.  However, 
contrary  to  this,  it  has  been  held  that  the  municipality  has  the  right 
in  the  exercise  of  the  police  power  to  order  the  placing  of  these 
companies'  lines  under  ground  whenever,  in  the  exercise  of  a  fair 

80  Geneva  v.  Geneva  Tel.  Co.,  30  Misc.  Rep.  2.36,  62  N.  Y.  Supp.  172. 

81  Geneva  v.  Geneva  Tel.  Co.,  30  Misc.  Rep.  2.36,  62  N.  Y.  Supp.  172;  Roch- 
ester V.  Bell  Tel.  Co.,  52  App.  Div.  6,  64  N.  Y.  Supp.  S04. 

8  2  People  V.  Squire,  107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  S93,  affirmed 
in  145  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  Ed.  666 ;  State  v.  Murphy,  134  Mo. 
548,  31  S.  W.  784,  34  S.  W.  51,  35  S.  W.  1132,  56  Am.  St.  Rep.  515,  34  L.  R. 
A.  369. 

83  Carthage  v.  Central  New  York,  etc.,  Tel.  Co.,  185  N.  Y.  448,  78  N.  E.  165, 
113  Am.  St.  Rep,  932,  reversing  110  App.  Div.  625,  96  N.  Y.  Supp.  919,  re- 
versing 48  Misc.  Rep.  423,  96  N.  Y.  Supp.  917.     §  86  et  seq. 

84  State  V.  Red  Lodge,  30  Mont.  338,  76  Pac.  758. 

8  5  Carthage  v.  Central  New  York,  etc.,  Tel.  Co.,  185  N.  Y.  448,  78  N.  E.  165, 
113  Am.  St.  Rep.  932.  reversing  110  App.  Div.  625,  96  N.  Y.  Supp.  919,  and 
48  Misc.  Rep.  423,  96  N.  Y.  Supp.  917. 


§    97)  CONSTRUCTION  AND   MAINTENANCE  103 

discretion  it  decides  that  public  interest  requires  it  to  be  done/"  . 
but  it  cannot  act  arbitrarily  in  the  premises."    The  duty  of  making 
such  removal  may,  however,  be  imposed  upon  these  companies  by 
agreement  with  a  municipality  in  consideration  of  rights  and  privi- 
leges granted  by  the  latter,^* 

§  97.  Additional  servitude — in  general. — While  the  legislature 
has  authority,  in  the  exercise  of  the  police  power,  to  determine 
whether  the  erection  of  poles  and  stringing  of  wires  of  a  telegraph, 
telephone,  or  electric  corporation  along  and  upon  streets  and  public 
highways  is  a  public  use,  not  inconsistent  with  the  uses  to  which 
such  highways  are  adopted,^^  yet  the  difficult  and  perplexing  ques- 
tion which  has  so  often  puzzled  the  courts  is  whether  the  legisla- 
ture may  authorize  the  use  of  streets  and  highways  for  such  pur- 
poses, without  providing  for  the  adjoining  landowner  to  be  com- 
pensated therefor.  In  other  words,  whether  the  erection  of  poles, 
guys,  abutments  and  the  stringing  of  wires  of  a  telegraph,  tele- 
phone, or  electric  company  upon  and  along  streets  and  highways, 
by  authority  of  the  state,  is  a  different  use  than  that  of  a  public 
easement  for  travel — and  that  for  which  it  was  acquired  from  the 
public,  in  whatever  manner  as  that  by  the  exercise  of  the  power  of 
eminent  domain,  by  prescription,  by  dedication  or  by  grant — there- 
by creating  an  additional  servitude  to  the  easement,  and  for  which 
the  original  grantor  or  the  party  in  whom  the  fee  is  held  or  the  ad- 
joining lot  or  landowner  is  entitled  to  compensation.  This  question 
is  by  no  means  settled  by  the  courts,  as  some  hold — and  that  by 
good  reason — that  the  construction  of  a  line  of  these  companies 
upon  the  highways  is  not  an  additional  servitude  of  the  easement 
originally  granted  and  thereby  entitling  the  land  owner  to  addi- 
tional compensation;  "^   while  equally  as  many,  if  not  more,  of  the 

8  6  Northwestern  Tel.  Exch.  Co.  v.  Minneapolis,  81  Minn.  140,  S3  N,  W.  527, 
86  N.  W.  69,  53  L.  R.  A.  175. 

8  7  Northwestern  Tel.  Exch.  Co.  v.  Minneapolis,  81  Minn.  140,  S3  N.  W.  527, 
86  N.  W.  69,  53  L.  R.  A.  175.  See,  also,  Hudson  River  Tel.  Co.  v.  Johnstown, 
37  Misc.  Rep.  41,  74  N.  Y.  Snpp.  767. 

8  8  Baltimore  v.  Chesapeake,  etc.,  Tel.,  Co.,  92  Md.  692,  48  Atl.  465. 

89  §  86  et  seq. 

»o  Alabama.— Hohhs  v.  Tel.,  etc.,  Co.,  147  Ala.  893,  41  South.  1003,  7  L.  R. 
A.  (N.  S.)  87,  11  Ann.  Cas.  461. 

Indiana. — Magee  v.  Overshiner,  150  Ind.  127,  49  N.  E.  951,  65  Am.  St.  Rep. 
35S,  40  L.  R.  A.  370. 

A'aMsas.— McCann  v.  Tel.  Co.,  69  Kan.  210,  76  Pac.  870,  66  L.  R.  A.  171,  2 
Ann.  Cas.  156. 

Kentucky.— Te\.,  etc.,  Co.  v.  Avritt,  120  Ky.  34,  85  S.  W.  204,  27  Ky.  Law 
Rep.  394,  8  Ann.  Cas.  955. 


104  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  98 

courts,  of  later  setting,  have  held  otherwise.®^  It  will  now  be  our 
pleasure  to  discuss  at  some  length  both  sides  of  this  question,  giv- 
ing as  briefly  as  possible  the  reasons  and  opinions  presented  by  the 
authorities  on  either,  and  then  harmonizing  as  nearly  as  it  is  in  our 
power  these  differences. 

§  93.  Taking  of  property  for  public  use — what  is. — In  discuss- 
ing this  question,  it  might  be  well,  first,  to  say  a  few  words  as  to 
what  is  understood  by  taking  property  for  public  use  as  compre- 
hended by  the  constitution  when  it  declares  that  no  property  shall 
be  taken  for  public  use  without  first  compensating  the  owner  there- 
of. It  may  be  stated  as  a  general  principle — as  was  very  ably  ob- 
served by  an  eminent  writer  ^- — that  when  the  lawful  rights  of  an 
individual  to  the  possession,  use,  and  enjoyment  of  his  land  are  in 
any  degree  abridged  or  destroyed  by  reason  of  the  exercise  of  the 
power  of  eminent  domain,  his  property  is,  pro  tanto,  taken  for  public 
use.     In  early  times  it  was  held  that  property  could  be  deemed  to 

Louisiana. — Ii^vin  v.  Great  Southern  Tel.  Co.,  37  La.  Ann.  63. 

Massachusetts. — Pierce  v.  Drew,  136  Mass.  75,  49  Am.  Rep.  7. 

Michigan.— Peoiile  v.  Eaton,  100  Mich.  208,  59  N.  W.  145,  24  L.  R.  A.  721 ; 
Wyant  v.  Tel.  Co.,  123  Mich.  51,  81  N.  W.  928,  81  Am.  St.  Rep.  155,  47  L.  R. 
A.  497. 

Minnesota.— Cater  v.  Exch.  Co.,  60  Minn.  539,  63  N.  W.  Ill,  51  Am.  St. 
Rep.  543,  28  L.  R.  A.  310.  See  Willis  v.  Tel.,  etc.,  Co.,  37  Minn.  347,  34  N. 
W.  337. 

3Iissouri.— Julia  Bldg.  Ass'n  v.  Bell  Tel.  Co.,  88  Mo.  258,  57  Am.  Rep.  398. 
See  State  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A.  113 ;  Cartwright 
V.  Tel.  Co.,  205  Mo.  126,  103  S.  W.  982,  12  L.  R.  A.  (N.  S.)  1125,  12  Ann.  Cas. 
249. 

Montana.— Herahneia  v.  Rocky  Mountain  Bell  Tel.  Co.,  12  Mont.  102,  29 
Pac.  883. 

Ohio.— West.  U.  Tel.  Co.  v.  Champion  Electric  Light  Co.,  9  Ohio  Dec.  (Re- 
print) 540,  14  Wkly.  Law  Bui.  327;  Auerbach  v.  Cuyahoga  Tel.  Co.,  9  Ohio  S. 
&  C.  P.  Dec.  389,  7  Ohio  N.  P.  633. 

Pennsylvania.— Yovli  Tel.  Co.  v.  Keesey,  5  Pa.  Dist.  366;  Shinzel  v.  Tel. 
Co.,  31  Pa.  Super.  Ct.  221. 

South  Dakota.— Kirhy  v.  Citizens'  Tel.  Co.,  17  S.  D.  362,  97  N.  W.  3,  2 
Ann.  Cas.  152. 

Tennessee.— Frazier  v.  Tel.  Co.,  115  Tenn.  416,  90  S.  W.  620,  3  L.  R.  A. 
(N.  S.)  323,  112  Am.  St.  Rep.  846,  5  Ann.  Cas.  838. 

Vermont.— See  Rugg  v.  Tel.  Co.,  66  Vt.  208,  28  Atl.  1036. 

Washington.— Brandt  v.  Spokane,  etc.,  R.  Co.,  78  Wash.  214,  138  Pac.  871, 
52  L.  R.  A.  (N.  S.)  760. 

West  Virginia.— Maxwell  v.  Central  Dist.,  etc.,  Tel.  Co.,  51  W.  Va.  121,  41 
S.  E.  125;  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410.  " 

Umted  States.— Tel.,  etc.,  Co.  v.  Nalley  (C.  C.)  165  Fed.  263. 

91  See  §  108. 

9  2  Lewis  on  Eminent  Domain,  §  56. 


§    99)  CONSTRUCTION   AND   MAINTENANCE  105 

be  taken,  within  the  meaning  of  a  constitutional  provision  that  pri- 
vate property  should  not  be  taken  for  public  purposes  without  just 
compensation,  only  when  the  owner  was  wholly  deprived  of  its  pos- 
session, use  and  occupation.  But  a  more  just  and  liberal  doctrine 
has  been  long  since  firmly  established.  An  actual  physical  taking 
of  the  property  is  not  necessary  to  entitle  its  owner  to  compensa- 
tion. A  man's  property  may  be  taken  within  the  meaning  of  this 
constitutional  provision,  although  his  title  and  possession  remain 
undisturbed.  To  deprive  him  of  the  ordinary  beneficial  use  and  en- 
joyment of  his  property  is  in  law  equivalent  to  the  taking  of  it,  and 
as  much  a  taking  as  though  the  property  itself  were  actually  tak- 
en,^^  yet  in  order  for  him  to  be  able  to  enforce  this  right,  his  prop- 
erty must  be  directly  encroached  upon."* 

§  99,  Same  continued — illustrations. — The  following  cases  may 
be  cited  as  being  such  as  fall  under  this  constitutional  provision 
whereby  additional  servitude  is  placed  on  the  easement  for  which 
the  landowner  should  be  compensated :  The  appropriation  of  a 
country  highway  to  the  use  of  a  steam  railroad  is  undoubtedly  the 
imposition  of  a  new  servitude,  and  amounts  to  the  taking  of  the 
property  of  an  abutting  owner,  to  whom  additional  compensation 
must  be  made.^^  Where  the  fee  of  the  street  of  a  city  is  in  the 
abutting  owner,  and  not  in  the  city,""  the  construction  of  a  railroad 
for  the  purpose  of  transferring  freight  cars  from  the  terminals  of 
one  railroad  to  another,"^  and  not  regarded  merely  as  an  extension 
of  the  ordinary  uses  to  which  the  streets  have  been  dedicated,"^  is 

93  Lewis  on  Eminent  Domain,  §  56;  Tiedeman  on  Limit  of  Police  Power, 
397 ;  Cooley  on  Const.  Limit.  (6tli  Ed.)  670 ;  Hooker  v.  New  Haven  &  N.  Co., 
14  Conn.  146,  36  Am.  Dec.  477 ;  Rigney  v.  City  of  Cliicago,  102  111.  64 ;  Boston 
&  Rapbury  Mill  Corporation  v.  Newman,  12  Pick.  (Mass.)  467,  23  Am.  Dec. 
622 ;  Grand  Rapids  B.  Co.  v.  Jarvis,  30  Mich.  308 ;  Ashley  v.  Port  Huron.  35 
Mich.  296,  24  Am.  Rep.  552 ;  West  Orange  v.  Field,  37  N.  J.  Eq.  600,  45  Am. 
Rep.  670 ;  Seifert  v.  City  of  Brooklyn,  101  N.  Y.  136,  4  N.  E.  321,  54  Am.  Rep. 
664. 

91  Kennett  Petition,  24  N.  H.  139;  People  v.  Supervisors  of  Oneida  County, 
19  Wend.  (N.  Y.)  102. 

9  5  Cooley  on  Const.  Limit.     (6tli  Ed.),  683. 

96  Carli  V.  Stillwater  St.  R.,  etc.,  Tel.  Co.,  28  Minn.  373,  10  N.  W.  205,  41 
Am.  Rep.  290. 

9  7  Carli  V.  Stillwater  St.  R.,  etc.,  Tel.  Co.,  28  Minn.  373,  10  N.  W.  205,  41 
Am.  Rep.  290. 

9s  Carson  v.  Central  R.  Co.,  35  Cal.  325;  Market  Street  R.  Co.  v.  Central  R. 
Co.,  51  Cal.  583;  Elliott  v.  Fair  Haven,  etc.,  R.  Co.,  32  Conn.  579;  Savannah, 
etc.,  R.  Co.  v.  Mayor,  etc.,  of  Savannah,  45  Ga.  602;  Brown  v.  Duplessis,  14 
La.  Ann.  8J2  ;  Briggs  v.  Lewiston,  etc.,  Co.,  79  Me.  363,  10  Atl.  47,  1  Am.  St. 
Rep.  316 ;  Peddicord  v.  Baltimore,  etc.,  R.  Co.,  34  Md.  463 ;  Hiss  v.  Baltimore, 


106  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  100 

regarded  as  an  imposition  of  a  new  servitude,  for  which  compensa- 
tion must  be  made  to  the  owner.""  Land  taken  for  a  street  cannot 
be  appropriated  as  a  site  for  a  public  pound  or  jail  without  making- 
compensation  to  the  abutting  owner ;  ^°°  nor  for  a  market  house ;  ^°^ 
nor  for  a  house  in  which  to  confine  tramps. ^"^ 

§  100.  When  dedicated  for  street  purposes — not  an  imposition. 
Whenever  land  is  taken  or  dedicated  for  a  city  street,  it  is  undoubt- 
edly appropriated  for  all  the  ordinary  and  usual  purposes  of  such  a 
street ;  it  has  been  held  therefore  that  sewers  may  be  constructed  in 
a  street  and  gas  and  water  pipes  may  be  laid  in  it  for  the  purpose  of 
supplying  the  inhabitants  with  water  and  gas.^*^^  But  the  laying  of 
such  pipes  in  an  ordinary  country  road  is  the  imposition  of  an  addi- 
tional servitude,  and  compensation  must,  therefore,  be  made  to  the 
abutting  owner  :^°*  this,  therefore,  leads  us  to  discuss  briefly  the 
difference  between  a  city  street  and  a  public  highway — as  is  com- 
monly understood — with  respect  to  what  constitutes  an  additional 
servitude  on  each. 

§  101.  The  different  uses  to  which  streets  and  highways  may  be 
put. — The  uses  to  which  streets  in  a  city  may  be  put  are  greater 
and  more  numerous  than  those  of  an  ordinary  road  or  highway  in 
the  country.  With  reference  to  the  latter  all  that  the  public  ac- 
quires is  the  easement  of  passage  and  its  incidents ;  and  hence  the 
owner  of  the  soil  parts  with  this  use  only,  retaining  the  soil.  By 
virtue  of  this  ownership  he  is  entitled,  except  for  the  purposes  of 
repair,  to  the  earth,  timber,  and  grass  growing  thereon,  and  to  all 
minerals,  quarries,  and  springs  below  the  surface.  But,  with  re- 
spect to  the  streets  in  populous  places,  the  public  convenience  re- 
quires more  than  the  mere  right  of  way  over  and  upon  them.  They 
may  need  to  be  graded,  and  therefore  the  municipal  authorities 

etc.,  R.  Co.,  52  Md.  242,  36  Am.  Rep.  371 ;  Hinchman  v.  Paterson,  etc.,  R.  Co., 
17  N.  J.  Eq.  75,  86  Am.  Dec.  252 ;  Mahady  v.  Busbwick  R.  Co.,  91  N.  Y.  148, 
43  Am.  Rep.  661. 

9  9  Southern  Pac.  R.  Co.  v.  Reed,  41  Cal.  256;  Imlay  v.  Union  Branch  R. 
Co.,  26  Conn.  249,  68  Am.  Dec.  392 ;  Indianapolis,  etc.,  R.  Co.  v.  Hartley,  67 
111.  439,  16  Am.  Rep.  624 ;  Elizabethtown,  etc.,  R.  Co.  v.  Combs,  10  Bush  (Ky.) 
382,  19  Am.  Rep.  67 ;  Williams  v.  N.  Y.  Central  R.  Co.,  16  N.  Y.  97,  69  Am. 
Dec.  651 ;  Ford  v.  Chicago,  etc.,  R.  Co.,  14  Wis.  609,  SO  Am.  Dec.  791. 

10  0  state  V.  Mayor,  etc.,  of  Mobile,  5  Port.  (Ala.)  279,  30  Am.  Dec.  564. 
101  State  V.  Laverack,  34  N.  J.  Law,  201. 

10  2  Winchester  v.  Capron,  63  N.  H.  605,  4  Atl.  795,  56  Am.  Rep.  554. 

103  Crooke  v.  Flatbush,  etc.,  Co.,  29  Hun  (N.  Y.)  245 ;  State  v.  Laverack,  34 
N.  J.  Law,  201. 

lOiBloomfield  &  R.  Natural  Gaslight  Co.  v.  Calkins,  62  N.  Y,  386;  Ster- 
ling's Appeal,  111  Pa.  35,  2  Atl.  105,  56  Am.  Rep.  246. 


§    103)  CONSTRUCTION  AND   MAINTENANCE  107 

may  not  only  change  the  surface,  but  cut  down  trees  and  dig  up 
the  earth;  they  may  use  them  in  improving  the  street;  and  they 
may  make  culverts,  drains  and  sewers  upon  or  under  the  surface. 
Pipes  may  also  be  laid  under  the  surface  when  required  by  the  vari- 
ous agencies  adopted  in  civilized  life,  such  as  water,  gas,  electricity, 
steam  and  other  things  capable  of  that  mode  of  distribution. ^°^ 

§  102.  Cases  holding  not  entitled  to  compensation. — In  consid- 
eration of  the  fact  that  many  of  the  state  courts  have  differed  widely 
on  this  subject — the  question  being  res  integra  in  some — we  have 
deemed  it  proper  to  set  forth  as  briefly  as  possible  some  of  the  most 
important  opinions  of  the  different  courts  in  order  that  the  reader 
may  himself  see  the  ground  whereon  the  great  legal  thinkers  have 
used  their  reason.  While  we  are  aware  that  it  is  not  usual  for  a 
writer  to  quote  at  any  length  court  opinions,  yet  we  feel  by  adopt- 
ing this  method  all  who  may  peruse  this  work  may  be  thrown  in 
closer  touch  with  the  deep  and  profound  judicial  reasoners  of  our 
country  and  those  who  have  arrived  at  different  conclusions  after 
incessant  and  untiring  research.  In  accordance  to  such  method  we 
shall  first  take  up  the  cases  wherein  it  has  been  held  that  the  con- 
struction of  telegraph  and  telephone  lines  upon  a  street  or  public 
highway  does  not  constitute  an  additional  burden  to  the  easement 
and  thereby  entitle  the  abutting  landowner  to  additional  compensa- 
tion.^'^'^ 

§  103.  Same  continued — expansiveness  of  easement. — Judge 
Mitchell  of  the  Minnesota  court,  while  considering  this  subject  and 
the  nature  and  extent  of  the  public  easement  in  a  highway,  has  this 
to  say :  "If  there  is  any  one  fact  established  in  the  history  of  society 
and  of  the  law  itself,  it  is  that  the  mode  of  exercising  this  easement 
is  expansive,  developing  and  growing  as  civilization  advances.  In 
the  most  primitive  state  of  society,  the  conception  of  a  highway  was 
merely  a  footpath ;  in  a  slightly  more  advanced  state,  it  included 
the  idea  of  a  way  for  pack  animals ;   and,  next,  a  way  for  vehicles 

105  2  Dillon,  Mun.  Corp.  §§  G56,  688;  Chesapeake,  etc.,  Tel.  Co.  v.  Mac- 
kenzie, 74  Md.  36,  21  Atl.  690,  28  Am.  St.  Rep.  219.  For  the  reason  that  the 
uses  to  which  streets  and  highways  may  be  put,  the  following  cases  hold 
that  a  telephone  line  on  a  highway  is  not  an  additional  servitude :  McCann  v. 
Johnson  County  Tel.  Co.,  69  Kan.  210,  76  Pac.  870,  66  L.  R.  A.  171,  2  Ann. 
Cas.  156;  Cumb.  Tel.  Co.  v.  Avritt,  120  Ky.  34,  85  S.  W.  204,  8  Ann.  Cas. 
955 ;  Cater  v.  Northwestern  Tel.  Ex.  Co.,  60  Minn.  ,539,  51  Am.  St.  Rep.  343, 
63  N.  W.  Ill,  28  L.  R.  A.  310;  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E. 
410.  But,  as  holding  to  the  contrary  effect,  see  Gray  v.  York  State  Tel. 
Co.,  92  App.  Div.  89,  86  N.  Y.  Supp.  771.     See  §  93. 

10  6  See  §  97,  note  90,  for  other  cases. 


108  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  104 

drawn  by  animals — constituting,  respectively,  the  'iter,'  the  'actus,' 
and  the  'via'  of  the  Romans.  And  thus  the  methods  of  using  public 
highways  expanded  with  the  growth  of  civilization,  until  to-day  our 
urban  highways  are  devoted  to  a  variety  of  uses  not  known  in 
former  times,  and  never  dreamed  of  by  the  owners  of  the  soil  when 
the  public  easement  was  acquired.  Hence  it  has  become  settled 
that  the  easement  is  not  limited  to  the  particular  methods  of  use  in 
vogue  when  the  easement  was  acquired,  but  includes  all  new  and 
improved  methods,  the  utility  and  general  convenience  of  which 
may  afterwards  be  discovered  and  developed  in  aid  of  the  general 
purpose  for  which  highways  are  designed.  And  it  is  not  material 
that  these  new  and  improved  methods  of  use  were  not  contemplated 
by  the  owner  of  the  land  when  the  easement  was  acquired  and  are 
more  onerous  to  him  than  those  then  in  use.  *  *  *  It  is  now 
universally  conceded  that  urban  highways  may  be  used  for  con- 
structing sewers  and  laying  pipes  for  the  transmission  of  gas,  wa- 
ter, and  the  like  for  public  use.  *  *  *  As  a  matter  of  fact,  most 
of  these  uses  were  unknown  when  the  public  easement  was  ac- 
quired in  many  of  the  streets  in  the  older  cities.  *  *  *  in  our 
judgment,  public  highways,  whether  urban  or  rural,  are  designed  as 
avenues  of  communication ;  and  if  the  original  conception  of  a  high- 
way was  limited  to  travel  and  transportation  of  property  in  movable 
vehicles,  it  was  because  these  were  the  only  modes  of  communica- 
tion then  known ;  that  as  civilization  advances,  and  new  and  im- 
proved methods  of  communication  and  transportation  are  de- 
veloped, these  are  all  in  aid  of  and  within  the  general  purpose  for 
which  highways  are  designed.  Whether  it  be  travel,  the  transpor- 
tation of  persons  and  property,  or  the  transmission  of  intelligence, 
and  whether  accomplished  by  old  methods  or  by  new  ones,  they 
are  all  included  within  the  public  'highway  easement,'  and  impose 
no  additional  servitude  on  the  land,  provided  they  are  not  incon- 
sistent with  the  reasonably  safe  and  practical  use  of  the  highway 
in  other  and  usual  and  necessary  modes,  and  provided  they  do  not 
unreasonably  impair  the  special  easement  of  abutting  owners  in  the 
streets  for  purposes  of  access,  light,  and  air."  ^"'^ 

§  104,  Same  continued — new  use  of  the  easement. — The  courts 
of  Missouri  uniformly  hold  that  the  construction  of  telegraph  and 
telephone  wires  along  and  upon  the  streets  and  public  highways,  is 
not  a  new  and  additional  servitude  thereon,  but  is  a  new  use  of  the 

107  Cater  v.  Northwestern  Tel.,  etc.,  Co.,  60  Minn.  539,  63  N.  W.  Ill,  28  L. 
R.  A.  310,  51  Am.  St.  Kep.  343. 


§    104)  CONSTRUCTION   AND   MAINTENANCE  109 

easement  to  which  these  highways  may  be  put.^''^  One  of  the  deci- 
sions ^°^  in  that  state  was  based  on  the  following  reasons:  "These 
streets  are  required  by  the  public  to  promote  trade  and  facilitate 
communications  in  the  daily  transaction  of  business  between  the 
citizens  of  one  part  of  the  city  with  those  of  another,  as  wxll  as  to 
accommodate  the  public  at  large  in  these  respects.  If  a  citizen 
living  or  doing  business  on  one  end  of  Sixth  street  wishes  to  com- 
municate with  a  citizen  living  and  doing  business  on  the  other  end, 
or  at  any  intermediate  point,  he  is  entitled  to  use  the  street,  either 
on  foot,  on  horseback  or  in  a  carriage,  or  other  vehicle,  in  bearing 
the  message.  The  defendants  in  this  case  propose  to  use  the  streets 
by  making  the  telephone  poles  and  wires  the  messenger  to  bear 
such  communications  instantaneously  and  with  more  dispatch  than 
any  of  the  above  methods,  or  any  other  known  method  of  bearing 
oral  communications.  Not  only  would  such  communications  be 
borne  with  more  dispatch,  but  to  the  extent  of  the  number  of  com- ' 
munications  daily  transmitted  by  it,  the  street  would  be  relieved  of 
that  number  of  footmen,  horsemen  or  carriages.  If  a  thousand  mes- 
sages were  daily  transmitted  by  means  of  telephone  poles,  wires 
and  other  appliances  used  in  telephoning,  the  street  through  these 
means  would  serve  the  same  purpose,  which  would  otherwise  re- 
quire the  use  either  by  a  thousand  footmen,  horsemen  or  carriages 
to  efifectuate  the  same  purpose.  In  this  view  of  it  the  erection  of 
telephone  poles  and  wires  for  the  transmission  of  oral  messages, 
so  far  from  imposing  a  new  and  additional  servitude,  would,  to  the 
extent  of  each  message  transmitted,  relieve  the  street  of  a  servitude 
or  use  by  a  footman,  horseman  or  carriage.  If  it  be  true,  as  laid 
down  by  the  authorities  herein  cited,  that  when  the  public  acquires 
the  right  to  a  street,  either  by  dedication,  grant  or  communication, 
the  municipality  has  power  to  appropriate  it  not  only  to  such  uses 
as  are  common  and  in  vogue  at  the  time  of  its  acquisition,  but  also 
to  such  new  uses  as  advanced  civilization  may  suggest,  as  con- 
ducive to  the  public  good,  the  conclusion  is  inevitable  that  the  use 
of  Sixth  street  in  the  manner  and  for  the  purpose  proposed  is  allow- 
able, for  it  cannot  with  any  show  of  reason  be  denied  that  the  means 
these  appliances  would  afford  for  the  instantaneous  transmission  of 
communications  for  the  transaction  of  business,  without  resortins" 
to  the  slower  and  common  methods  of  bearing  them,  would  be  con- 

108  Gay  V.  Mut.  U.  Tel.  Co.,  12  Mo.  App.  485;  Julia  Bldg.  Ass'n  v. 
Bell  Tel.  Co.,  88  Mo.  258,  57  Am.  Rep.  398 ;  St.  Louis  v.  Bell  Tel.  Co.,  96  Mo. 
623,  10  S.  W.  197,  2  L.  R.  A.  278,  9  Am.  St.  Rep.  370. 

100  Julia  Bldg.  Ass'n  v.  Bell  Tel.  Co.,  above  cited. 


110  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  105 

ducive  to  the  public  good,  and  make  the  street  by  these  means  serve 
one  of  the  chief  purposes  for  which  it  was  dedicated.  But  it  is 
argued  that  the  erection  of  two  telephone  poles,  each  eighteen 
inches  at  the  bottom  with  a  gradual  taper  to  the  top,  would  obstruct 
the  street,  and  deny  to  the  public  the  complete  and  unrestricted  use 
of  the  street.  This  argument,  I  think  is  more  specious  than  sound. 
It  is  true  that  to  the  extent  of  the  space  of  eighteen  inches  each  of 
the  poles  proposed  to  be  erected  would  be  an  obstruction,  but  the 
same  could  be  said  of  lamp  posts  erected  on  the  streets  of  a  city,  the 
necessities  of  which  might  require  its  streets  to  be  lighted  with  oil, 
gas  or  electric  lights ;  and  yet  no  one  would  be  heard  to  complain 
that  the  lamp  posts  constituted  such  an  obstruction  or  impediment 
to  the  free  use  of  the  streets  as  to  demand  their  removal.  *  *  * 
If  the  conclusions  announced  in  the  foregoing  part  of  this  opinion, 
that  all  the  uses  to  which  a  street  may  properly  be  devoted  are  to  be 
regarded  as  permitted  by  and  included  in  the  original  appropriation 
or  dedication  of  the  street,  and  that  the  erection  and  maintenance  of 
telephone  poles  as  proposed  is  one  of  these  uses,  and  that  in  digging 
holes  through  the  stone  slabs  and  stone  walks  in  which  to  plant 
them  there  is  no  taking  of  private  property  of  the  abutting  lot 
owner  entitling  him  to  compensation,  are  correct,  it  would  seem  logi- 
cally to  follow  that  damages  resulting  from  such  use  need  not  be 
compensated  for.  If,  by  reason  of  the  dedication  the  public  have 
the  right  to  apply  the  private  property  of  the  plaintiff  to  the  use 
proposed,  without  his  being  entitled  to  compensation,  how  can  it  be 
that  it  becomes  entitled  to  compensation  for  damages,  following  as 
an  incident  from  an  act  which  the  dedicator  by  his  dedication  has 
authorized  to  be  done?  If  the  dedication  of  the  street  is  sufficiently 
operative  to  allow  private  property  in  the  soil  of  the  street  to  be 
actually  invaded,  and  physically  taken  for  a  street  use  without  com- 
pensation, why  is  it  not  sufficiently  operative,  if  in  such  taking  dam- 
ages ensue,  to  relieve  the  taker  from  the  payment  of  such  damages? 
If,  by  dedicating  property  for  a  street,  the  dedicator  gives  up  his 
right  to  compensation  for  the  uses  included  in  the  dedication,  how 
can  it  be  said  that  he  does  not  also  give  up  his  right  to  compensa- 
tion for  damages  to  adjacent  property  not  taken,  resulting  from  the 
application  of  the  street  to  use  which  by  his  dedication  he  author- 
ized it  to  be  put?" 

§  105.  Same  continued — upholding  same — on  highways,  same 
rule. — It  has  been  held  by  other  courts  that  the  above  rule  was  law, 
and  that  the  legislature  might  authorize  the  construction  of  lines  of 
these  companies  upon  the  highways  without  compensating  the  abut- 


§    105)  CONSTRUCTION   AND   MAINTENANCE  111 

ting  landowner.^^"  The  court  in  one  of  these  cases  said:  "When 
the  land  was  taken  for  a  highway,  that  which  was  taken  was  not 
merely  the  privilege  of  traveling  over  it  in  the  then  known  vehicles, 
or  using  it  in  the  then  known  methods  for  either  the  conveyance  of 
property  or  transmission  of  intelligence.  *  *  *  The  discovery  of 
the  telegraph  developed  a  new  and  valuable  mode  of  communicat- 
ing intelligence.  Its  use  is  certainly  similar  to,  if  not  identical  with, 
that  public  use  of  transmitting  information  for  which  the  highway 
was  originally  taken,  even  if  the  means  adopted  are  quite  different 
from  the  post  box  or  the  mail  coach.  *  *  *  Y/e  are  therefore 
of  the  opinion  that  the  use  of  a  portion  of  a  highway  for  the  public 
use  of  companies  organized  under  the  laws  of  the  state  for  the  trans- 
mission of  intelligence  by  electricity,  and  subject  to  the  supervision 
of  the  local  municipal  authorities,  which  has  been  permitted  by  the 
legislature,  is  a  public  use  similar  to  that  for  which  the  highway 
was  originally  taken,  or  to  which  it  was  originally  devoted,  and 
that  the  owner  of  the  fee  is  entitled  to  no  further  compensation. 
^  *  *  That  it  was  the  intent  of  the  statute  to  grant  to  those  cor- 
porations, formed  under  the  general  incorporation  laws  for  the  pur- 
pose of  transmitting  intelligence  by  electricity,  the  right  to  con- 
struct lines  of  telegraph  upon  and  along  highways  and  public  roads, 
upon  the  locations  assigned  them  by  the  officers  of  the  municipali- 
ties wherein  such  ways  are  situated,  cannot  be  doubted.  *  *  * 
There  remains  the  inquiry  whether  there  is  any  objection  to  the 
statute  because  it  does  not  provide  a  sufficient  remedy  for  the  own- 
ers of  the  property  near  to  or  adjoining  the  way  who  may  be  in- 
cidentally injured  by  the  structures  which  the  telegraph  companies 
may  have  been  permitted  to  erect  along  the  line  of  the  highway  and 
within  its  limits.  *  *  *  The  only  compensation  to  which  such 
owner  is  entitled  is  that  which  the  legislature  deems  just,  when  it 
permits  the  erection  of  these  structures.  The  legislature  may  pro- 
vide for  compensation  to  the  adjoining  owners,  but  without  such 

110  Pierce  v.  Drew,  136  Mass.  75,  49  Am.  Rep.  7.  See,  also,  Hewett  v.  West. 
U.  Tel.  Co.,  4  Mackey  (D.  C.)  424 ;  Magee  v.  Overshiner,  150  Ind.  127,  49  N. 
E.  951,  G5  Am.  St.  Kep.  358,  40  L.  R.  A.  370;  Irwiu  v.  Great  Southern  Tel. 
Co.,  37  La.  Ami.  G3 ;  Boston  v.  Richardson,  13  Allen  (Mass.)  100;  Ptmple  v. 
Eaton,  100  Mich.  208,  59  N.  W.  145,  24  L.  R.  A.  721n.  Compare  Willis  v. 
Erie  Tel.  Co.,  37  Minn.  347,  34  N.  W.  337 ;  Gay  v.  Mut.  U.  Tel.  Co.,  12  Mo. 
App.  491;  State  v.  St.  Louis,  etc.,  R.  Co.,  SG  Mo.  2SS ;  Hershfield  v.  Rocky 
Mt.  Bell  Tel.  Co.,  12  Mont.  102,  29  Pac.  883 ;  Kirby  v.  Citizens'  Tel.  Co.,  17 
S.  D.  362,  97  N.  W.  3,  2  Ann.  Cas.  152 ;  Patton  v.  Chattanooga,  108  Tenn.  197, 
65  S.  W.  414 ;  Hobbs  v.  Long  Dist.  Tel.,  etc.,  Co.,  147  Ala.  393,  41  South.  1003, 
7  L.  R.  A.  (N.  S.)  87,  11  Ann.  Cas.  461. 


112  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  106 

provision  there  can  be  no  legal  claim  to  it,  as  the  use  of  the  high- 
way is  a  lawful  one."  ^^^ 

§  106.  The  ground  upon  which  these  cases  are  sustained. — In 
reviewing  these  cases  in  which  it  is  held  that  the  abutting  land- 
owner should  not  have  additional  compensation  for  the  construc- 
tion of  a  line  of  telephone  along  and  upon  the  easement,  it  will  clear- 
ly be  seen  that  the  ground  upon  which  such  opinions  are  based  is 
that  they  are  only  a  new  method  of  enjoying  an  old  existing  use, 
and  one  actually  in  the  minds  of  the  parties  at  the  time  the  ease- 
ment was  acquired. ^^^  Some  of  the  authorities,  reaching  the  same 
conclusion,  treat  the  uses  of  streets  arising  from  dedication  or  con- 
demnation as  expansive,  and  not  confined  to  uses  already  permitted, 
but  as  civilization  advances  admitting  new  uses.^^^  "When  land  is 
taken,"  as  was  ably  said,  "or  dedicated  for  a  town  street,  it  is  un- 
questionably appropriated  for  all  ordinary  purposes  for  a  town 
street,  not  merely  the  purposes  to  which  such  streets  were  formerly 
applied,  but  those  demanded  by  new  improvements  and  new  wants. 
Among  these  purposes  is  the  use  for  carriages  which  run  on  a 
ground  track ;  and  the  preparation  of  important  streets  in  large 
cities  for  their  use  is  not  only  a  frequent  necessity  which  must  be 
supposed  to  have  been  contemplated,  but  it  is  almost  as  much  a  mat- 
ter of  course  as  the  grading  and  paving."  ^^*  "When  these  lands 
were  taken  or  granted  for  public  highways,  they  were  not  taken  or 
granted  for  such  use  only  as  might  then  be  expected  to  be  made  of 
them,  by  the  common  method  of  travel  then  known,  or  for  the  trans- 
mission of  intelligence  by  the  only  methods  then  in  use,  but  for 
such  methods  as  the  improvements  of  the  country,  or  the  discov- 
eries of  future  times,  might  demand."  ^^^  "The  discovery  of  the  tele- 
graph developed  a  new  and  valuable  mode  of  communicating  intelli- 
gence. Its  use  is  certainly  similar  to,  if  not  identical  with,  that 
public  use  of  transmitting  information  for  which  the  highway  was 
originally  taken,  even  if  the  means  adopted  are  quite  different  from 

111  Pierce  v.  Drew,  sup^'a. 

112  Eiehels  v.  Evansville  St.  R.  Co.,  78  Ind.  261,  41  Am.  Rep.  561;  Chicago, 
etc.,  R.  Co.  V.  Wliiting,  etc.,  R.  Co.,  139  Ind.  297,  38  N.  E.  604,  26  K  R.  A.  337, 
47  Am.  St.  Rep.  264 ;  Loclitiart  v.  Craig  Street  R.  Co.,  189  Pa.  419,  21  Atl.  26 ; 
Detroit  City  R.  Co.  v.  INIills,  85  Mich.  634,  48  N.  W.  1007. 

113  Angell  &  Ames  on  Corp.  §  312;  Julia  Bldg.  Ass'n  v.  Bell  Tel.  Co.,  88  Mo. 
258,  57  Am.  Rep.  398 ;  Cater  v.  Northwestern  Tel.,  etc.,  Co.,  60  Minn.  539.  63 
N.  W.  Ill,  28  L.  R.  A.  310,  51  Am.  St.  Rep.  343 ;  Detroit  City  R.  Co.  v.  Mills, 
85  Mich.  634,  48  N.  W.  1007. 

114  Elliott  on  Roads  and  Streets,  p.  529,  approving  Cooley's  Const.  Limit. 
556. 

115  People  V.  Eaton,  100  Mich.  208,  59  N.  W.  145,  24  L.  R.  A.  721,  note. 


8    107)  CONSTRUCTION  AND  MAINTENANCE  113 

the  post  boy  or  the  mail  coach.  It  is  a  newly  discovered  method 
of  exercising  the  old  public  easement,  and  all  appropriate  methods 
must  have  been  deemed  to  have  been  paid  for  when  the  road  was 
laid  out."  "° 

§  107.     Same  continued — rule  not  changed  by  fact  that  they  are 
not  things  of  motion. — A  reason  given  why  they  are  considered  an 
additional  servitude  to  the  highways  is  that  given  by  some  courts 
which  held  that  the  poles  are  not  in  motion  as  are  ordinary  instru- 
ments of  travel,  but  this  idea  was  refuted  by  the  following  case : 
"It  is  said  that  the  primary  law  of  the  street  is  motion.     It  is  true 
motion  is  the  law  of  the  street,  in  the  sense  that  the  person  or  thing 
to  be  transmitted  or  transported  must  move ;   but  it  is  not  true  m 
the  sense  that  the  medium  or  agency  by  or  through  which  it  is  con- 
veyed or  transmitted  must  move.     Pipes  laid  for  the  transmission 
of  water,  gas,  and  steam  are  immovable.    So  are  the  tracks  of  street 
railway,  also  the  poles  and  wires  of  the  trolley  system.    And  it  can 
make  no  difiference  in  principle  whether  the  immovable  structure  is 
on,  under,  or  above  the  surface  of  the  ground,  for  the  rights  of  the 
owner  of  the  fee  are  the  same  in  either  case.     Subject  only  to  the 
public  easement  for  highway  purposes,  he  remains  the  owner  of  the 
land  upward  and  downward  indefinitely.    If  the  transmission  of  in- 
telligence by  telegraph  or  telephone  is  not  included  in  the  public 
easement  in  a  highway,  it  would  be  equally  an  invasion  of  his  rights 
of  property,  even  if  the  wires  were  placed  under  the  ground.     If  an 
immovable  structure  in  a  highway  constitutes  an  additional  servi- 
tude, it  is  not  merely  because  it  is  immovable,  but  because  it  un- 
reasonably interferes  with  the  general  use  of  the  street  by  the  pub- 
He,  or  because  it  unreasonably  impairs  the  special  easement  of  abut- 
ting owners."  ^^^     "Poles  and  wires  for  electric  lighting  have  been 
admitted  as  a  proper  use,  on  the  ground  that  the  streets  are  lighted 
and  their  general  uses  thereby  made  safer  and  more  expeditious. 
Incidentally,  the  same  use  has  been  employed  for  supplying  light  to 
public,  business,  and  private  houses.     Sewers  have  been  admitted 
as  not  constituting  an  additional  servitude  because  they  aftorded  a 
means  of  drainage  for  the  streets,  although  one  use  was  in  carrying 
the  waste  from  the  building  of  citizens.     Gas  mains  and  poles  were 
admitted  in  like  manner  as  electric  lighting  systems  and  for  like 
uses.    They  were  always  deemed  to  constitute  a  beneficial  use  of  the 

116  Pierce  v.  Drew,  136  Mass.  75,  49  Am.  Rep.  7. 

117  Cater  v.  Northwestern,  etc.,  Tel.  Co.,  60  Minn.  539,  63  N.  W.  Ill,  51  Am. 
St.  Rep.  343,  28  L.  R.  A.  310. 

Jones  Tel.(2d  Ed.)— 8 


114  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  108 

streets  as  in  some  degree  aiding  in  the  means  or  opportunities  for 
conducting  the  affairs  of  the  inhabitants,  and  in  facilitating  the 
communication  indispensable  to  such  affairs."  ^^® 

§  108.  Contrary  view — additional  servitude — so  held. — While 
the  reasoning  to  the  effect  that  telegraph  and  telephone  lines  con- 
structed upon  streets  and  country  highways  create  no  additional 
servitude  thereon  is  very  strong,  profound  and  apparently  uncon- 
trovertible, yet  the  weight  of  opinion — and  that  more  recently  pro- 
mulgated— holds  that  they  do  create  a  different  use  of  the  easement 
than  that  contemplated  by  the  parties  at  the  time  the  public  ac- 
quired this  right  and  thereby  entitling  the  abutting  landowner  to  be 
additionally  compensated.^^'*    In  discussing  this  side  of  the  point  at 

118  Magee  v.  Overshiner,  150  Ind.  127,  65  Am.  St.  Rep.  360,  49  N.  E.  951,  40 
L.  R.  A.  370. 

119 /ZZtjfois.— Postal  Tel.  Cable  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365,  62 
Am.  St.  Rep.  390,  39  L.  R.  A.  722 ;  Union  Electric  Tel.,  etc.,  Co.  v.  Apple- 
quist,  104  111.  App.  517 ;  Goddard  v.  Chicago,  etc.,  R.  Co.,  202  111.  302,  66  N. 
E.  1066,  affirming  104  111.  App.  536;  American  Tel.,  etc.,  Co.  v.  Jones,  78  111. 
App.  372 ;  Tel.  Co.  v.  Barnett,  107  111.  507,  47  Am.  Rep.  453 ;  Tel.  Co.  v.  But- 
ton, 228  111.  178,  81  N.  E.  838,  10  L.  R.  A.  (N.  S.)  1057,  10  Ann.  Cas.  464.  See 
Drain  Dist.  v.  Knox,  237  111.  148,  86  N.  E.  636 ;  Bun-all  v.  American  Tel.,  etc., 
Co.,  224  111.  266,  79  N.  E.  705,  8  L.  R.  A.  (N.  S.)  1091. 

Manjland. — Chesapeake,  etc.,  Tel.  Co.  v.  Macl<enzie,  74  Md.  36,  21  Atl.  090, 
28  Am.  St.  Rep.  219. 

Mississippi.— Stowers.  v.  Postal  Tel.  Cable  Co.,  68  Miss.  559,  9  South.  356, 
24  Am.  St.  Rep.  290,  12  L.  R.  A.  864. 

Nehrasl-a.—Bvon^on  v.  Albion  Tel.  Co.,  67  Neb.  Ill,  93  N.  W.  201,  60  L.  R. 
A.  426,  2  Ann.  Cas.  639. 

^etc  ^crsei/.— Nicoll  v.  New  York,  etc.,  Tel.  Co.,  62  N.  J.  Law,  156,  40  Atl. 
€27 ;  Broome  v.  New  York,  etc.,  Tel.  Co.,  42  N.  J.  Eq.  141,  7  Atl.  851 ;  Win- 
ter V.  New  York,  etc.,  Tel,  Co.,  51  N.  J.  Law,  S3,  16  Atl.  188 ;  NicoU  v.  New 
York,  etc.,  Tel.  Co.,  62  N.  J.  Law,  733,  42  Atl.  583,  72  Am.  St.  Rep.  666 ;  Halsey 
V.  Rapid  Tr.  St.  R.  Co.,  47  N.  J.  Eq.  380,  20  Atl.  859.  See  Blanchard  v.  Pow- 
er Co.,  80  N.  J.  Eq.  10,  83  Atl.  505. 

New  York. — Metropolitan  Tel.,  etc.,  Co.  v.  Colwell  Lead  Co.,  50  N.  Y.  Super. 
Ct.  488;  Id.,  67  How.  Pr.  (N.  Y.)  365;  Andrews  v.  Delhi,  etc.,  Tel.  Co.,  66 
App.  Div.  616,  73  N.  Y.  Supp.  1129,  affirming  36  Misc.  Rep.  23,  72  N.  Y.  Supp. 
.50 ;  Tiffany  v.  U.  S.  Illuminating  Co.,  51  N.  Y.  Super.  Ct.  280,  67  How.  Pr, 
(N.  Y.)  73 ;  Gray  v.  York  State  Tel.  Co.,  41  Misc.  Rep.  108,  83  N.  Y.  Supp.  920 ; 
Eels  v.. Tel.,  etc.,  Co.,  143  N.  Y.  133,  38  N.  E.  202,  25  L.  R.  A.  640;  Osborne 
V.  Tel.  Co.,  189  N.  Y.  393,  82  N.  E.  428 ;  Tel.  Co.  v.  Forrestal,  56  Misc.  Rep. 
133,  106  N.  Y.  Supp.  404.  But  see  Gamiett  v.  Tel.  Co.,  55  Misc.  Rep.  555,  108 
N.  Y.  Supp.  3. 

North  Carolina.— Hodges  v.  West.  U,  Tel.  Co.,  133  N.  C.  225,  45  S.  E.  572. 

North  Dakota.— Donovan  v.  Allert,  11  N.  Dak.  289,  91  N.  W.  441,  58  L.  R. 
A.  775,  95  Am.  St.  Rep.  720 ;  Cosgriff  v.  Tel.,  etc.,  Co.,  15  N.  D.  210,  107  N.  W. 
525,  5  L.  R.  A.  (N.  S.)  1142. 

Ohio.— Daily  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  46  Am.  St.  Rep.  578, 


§    109)  CONSTRUCTION  AND  MAINTENANCE  115 

issue,  we  shall  first  deal  with  the  subject  when  the  title  to  the  fee 
of  the  easement  is  in  the  abutting  lotowner  or  landowner;  second, 
when  the  fee  is  in  the  public ;  and,  third,  when  the  fee  is  in  a  third 
party.  And  while  discussing  each  of  these  subordinate  subjects,  it 
shall  be  our  most  earnest  endeavor  to  harmonize  to  a  certain  degree 
this  very  important,  comprehensive,  intricate  and  unsettled  subject. 
§  109.  Same  continued — what  rights  included  in  an  easement. — 
Before  taking  up  either  of  these  subjects,  it  may  be  well  to  learn 
what  are  the  uses  to  which  an  easement  may  be  put  in  order  that 
they  may  fall  within  the  meaning  of  the  term  of  public  travel ;  or, 
in  other  words,  what  uses  were  contemplated  by  the  parties  at  the 
time  the  grant  was  made,  to  which  the  easement  might  be  put,  and 
for  which  consideration  was  given?  "The  public  easement  *  *  * 
is  primarily  a  right  of  passage  over  the  surface  of  the  highway  and 
of  so  using  and  occupying  the  land  within  it  as  to  facilitate  such 
passage.  In  this  primary  right  are  included  the  grading,  paving, 
cleaning,  and  lighting  of  the  highway,  the  construction  and  mainte- 
nance of  street  railways  ^-°  with  the  apparatus  proper  for  their  use, 
and  the  maintenance  of  appliances  conducive  to  the  protection  and 
convenience  of  travelers  while  using  the  way.  Secondarily,  the 
easement  covers  uses  which,  though  their  relation  to  the  right  of 
passage  is  remote  or  even  fanciful,  are  so  generally  advantageous  to 

24  L.  R.  A.  724 ;  Callem  v.  Columbus,  etc.,  Light  Co.,  66  Ohio  St.  166,  64  N.  E. 
141,  58  L.  R.  A.  782 ;  Schaaf  v.  Cleveland,  etc.,  R.  Co.,  66  Ohio  St.  215,  &4  N. 
E.  145 ;  Denver  v.  U.  S.  Tel.  Co.,  10  Ohio  Dec.  273,  8  Ohio  N.  P.  666 ;  Smith 
V.  Printing,  etc.,  Co.,  2  Ohio  Cir.  Ct.  R.  259,  1  O.  C.  D.  478. 

Pennsylvania. — Lancaster,  etc.,  Tr.  Road  v.  Columbus  Tel.  Co.,  18  Lane. 
L.  Rev.  161. 

Texas.— Erie  Tel.,  etc.,  Co.  v.  Kennedy,  SO  Tex.  71,  15  S.  W.  704 ;  Tel.,  etc., 
Co.  V.  Smithdeal,  103  Tex.  128,  124  S.  W.  027;  Id.  (Tex.  Civ.  App.)  126  S.  W. 
942. 

Virginia.— West.  U.  Tel.  Co.  v.  Williams,  86  Va.  696,  11  S.  E.  106,  S  L.  R. 
A.  429,  19  Am.  St.  Rep.  908. 

Washington.— Spokane  v.  Colby,  16  Wash.  610,  48  Pac.  248. 

West  Virginia.— Maxwell  v.  Tel.  Co.,  51  W.  Va.  121,  41  S.  E.  125. 

Wisconsin.— Krueger  v.  Wisconsin  Tel.  Co.,  106  Wis.  96,  81  N.  W.  1041,  50 
L.  R.  A.  298. 

United  States.— Fac.  Postal  Tel.  Cable  Co.  v.  Irvine  (C.  C.)  49  Fed.  113; 
Kester  v.  West.  U.  Tel.  Co.  (C.  C.)  108  Fed.  926. 

120  Baker  y.  Selma  Street,  etc.,  R.  Co.,  135  Ala.  552,  33  South.  685,  93  Am. 
St.  Rep.  42 ;  San  Antonio,  etc.,  R.  Co.  v.  Limburger,  88  Tex.  79,  30  S.  W.  533, 
53  Am.  St.  Rep.  730;  Doane  v.  Lake  St.,  etc.,  R.  Co.,  165  111.  510,  46  N.  E. 
520,  36  L.  R.  A.  97,  56  Am.  St.  Rep.  265.  It  is  otherwise  if  the  railway  is 
for  the  transportation  of  merchandise  as  well  as  passengers.  Chicago,  etc., 
R.  Co.  V.  Milwaukee,  etc.,  R.  Co.,  95  Wis.  561,  70  N.  W.  678,  60  Am.  St.  Rep. 
130,  37  L.  R.  A.  856. 


116  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  110 

the  owners  of  the  fee,  the  owners  of  abutting  property,  that,  rather 
by  common  consent  and  custom,  than  by  logical  deduction  from  the 
primary  design,  they  are.  now  recognized  as  legitimate.  Such  are 
the  construction  and  maintenance  of  sewers,  water  pipes  and  gas 
pipes  for  the  convenience  of  persons  occup3'ing  neighboring 
lands."  ^-^  It  has  been  held,  however,  that  telephone  companies  do 
not  fall  within  the  meaning  of  an  easement  in  its  secondary  sense. ^'^ 
"The  primary  intention  and  idea  of  the  use  of  the  street  was  for 
travel — moving  from  place  to  place  in  any  way  that  does  not  inter- 
fere with  the  use  of  the  street  for  travel  in  any  other  way.  The 
manner  or  mode  of  travel  is  not  restricted  to  those  means  known 
or  in  use  at  the  time  of  the  dedication,  but  may  be  those  modes  of 
travel  that  are  the  result  of  modern  inventions."  ^"^  A  telephone 
company  "is  a  totally  distinct  and  different  kind  of  use  from  any 
heretofore  known.  It  is  not  a  mere  difference  in  the  kind  of  vehi- 
cle, or  in  their  number  or  capacity,  or  in  the  manner,  method,  or 
means  of  location."  ^-*  "Whatever  the  means  used,  the  object 
to  be  attained  is  passage  over  the  territory  embraced  within 
the  limits  of  the  street.  Whether  as  a  pedestrian,  or  on  a  bicycle, 
or  in  a  vehicle  drawn  by  horses  or  other  animals,  or  in  a  vehicle 
propelled  by  electricity,  or  in  a  car  drawn  by  horses  or  moved  by 
electricity,  the  object  to  be  gained  is  moving  from  place  to  place."  ^^^ 
§  110.  When  fee  in  abutting  owner — meaning  of  taking  prop- 
erty of  another  under  constitution. — The  fee  in  an  easement  for  pub- 
lic travel  may  be  either  in  the  abutting  lotowner  or  landowner, 
which  it  most  often  the  case ;  ^-^  or  it  may  be  in  the  public,  acquired 
at  the  time  the  easement  was  obtained ;  or  it  may  be  in  a  third  par- 
ty, or  one  from  whom  the  abutting  owner  acquired,  directly  or  indi- 

121  State  V.  Laverack,  34  N.  J.  Law,  201. 

122  Xicoll  V.  New  York,  etc.,  Tel.  Co.,  62  N.  J.  Law,  733,  42  Atl.  5S3,  72  Am. 
St.  Rep.  666. 

123  Donovau  v.  Allert,  11  N.  D.  289,  91  N.  W.  441,  95  Am.  St.  Rep.  726,  58 
L.  R.  A.  775. 

124  Eels  V.  American  Tel.,  etc.,  Co.,  143  N.  Y.  133,  38  N.  E.  202,  25  L.  R.  A. 
640. 

12  5  Donovan  v.  Allert,  11  N.  D.  289,  91  N.  W.  441,  95  Am.  St.  Rep.  725,  58 
L.  R.  A.  775. 

126  reck  V.  Smith,  1  Conn.  103,  6  Am.  Dec.  216;  Dovaston  v.  Payne,  2 
Smith's  Lead.  Cas.  90,  where  the  authorities  are  collected.  The  presumption 
respecting  ownership  of  the  land  over  which  a  highway  runs  is  that  the  ad- 
jacent proprietors  each  own  to  the  middle  of  such  highway ;  or,  if  the  same 
person  owns  on  both  sides,  that  the  whole  road  belongs  to  him,  subject  to 
the  public  easement  of  the  right  of  passage  in  either  case.  West.  U.  Tel.  Co. 
V.  Williams,  86  Va.  696,  11  S.  E.  106,  19  Am.  St.  Rep.  908,  8  L.  R.  A.  429. 


§    111)  CONSTRUCTION   AND   MAINTENANCE  117 

rectly,  possession  of  his  property,  exclusive  of  the  title  to  the  ease- 
ment which  was  granted  before  the  abutting  owner  acquired  pos- 
session of  his  property.  If  the  fact  be  conceded  that  the  public  only 
acquires  the  easement  for  the  purpose  of  travel  and  the  incidents 
pertaining  thereto — and  such  as  was  described  above — any  uses 
other  than  these  would  be  nothing  more  nor  less  than  taking  the 
property  of  the  abutting  owner  without  due  compensation,  which 
would  be  more  than  the  state  would  have  the  power  to  do.  The 
federal  constitution  guarantees  that  no  private  property  shall  be 
taken  for  public  use  without  due  compensation ;  and,  while  some  of 
the  states  have  embodied  this  same  provision  in  their  constitutional 
laws,  most  of  them  have  enlarged  on  these  and  provided  that  no  pri- 
vate property  shall  be  taken,  injured  or  damaged  for  public  use 
without  compensation.  It  is  very  clear  that  the  private  property 
of  an  individual  and  such  as  has  not  theretofore  been  granted  for  an 
easement  cannot  be  taken  against  the  consent  of  the  owner  or  by 
a  condemnation  proceeding  for  public  use  without  first  compen- 
sating him  for  such  property.  This  fact  is  too  old  to  be  discussed. 
It  was  held  in  early  times  that  the  owner  had  to  be  wholly  deprived 
of  the  possession,  use  and  occupation  of  the  land,  but  a  more  just 
and  liberal  doctrine  has  long  since  been  established.  A  man's  prop- 
erty may  be  taken  within  the  meaning  of  the  constitutional  provi- 
sion, although  his  title  and  possession  remains  undisturbed.^-''  It 
follows,  then,  that  when  the  abutting  owner's  reversionary  interest 
in  the  property  on  which  an  easement  has  been  granted  has  been 
taken  for  any  other  use  than  that  for  which  it  was  granted,  his 
guaranteed  rights  have  been  disregarded ;  for,  while  his  reversion- 
ary interest  may  appear  insignificant  and  far-fetched,  yet  this  should 
be  as  securely  protected  by  the  highest  laws  of  our  land  as  the 
little  spot  around  which  his  dearest  and  most  pleasant  memories 
dwell,  and  upon  which  majestically  and  grandly  stands  the  walls  of 
his  castle. 

§  111.  Same  continued — abutter's  interest  in  soil — to  what  use 
he  may  put  it. — "The  abutter  has  the  exclusive  right  to  the  soil, 
subject  only  to  the  easement  of  right  of  passage  in  the  public  and 
in  the  incidental  right  of  property  fitting  the  way  for  the  use.  Sub- 
ject only  to  the  public  easement,  he  has  all  the  usual  rights  and 
remedies  of  the  owner  of  the  freehold.  He  may  sink  a  drain  under 
the  road  ;  *  *  *  he  may  mine  under  it."  ^^^  He  may  maintain 
trespass  against  one  who   unlawfully  cuts  and  carries   away  the 

127  Kennett's  Petition,  24  N.  H.  1.39. 

128  Elliott  on  Roads  and  Streets,  p.  519. 


118  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  112 

grass,  trees,  or  herbage  and  even  against  one  who  stands  upon  the 
sidewalk  in  front  of  his  premises  and  uses  abusive  language  against 
him,  refusing  to  depart.  He  may  also  maintain  ejectment  against  a 
railroad  company  which  has  placed  its  track  upon  his  side  of  the 
street  without  paying  or  tendering  damages  therefor,  or  against  an 
individual  who  has  wrongfully  and  unlawfully  encroached  there- 
on.^^^  He  "is  entitled  *  *  *  ^q  ^hg  entire  use  of  the  land, 
except  the  right  which  the  public  has  to  use  the  land  and  materials 
thereon  for  the  purposes  of  building  and  maintaining  a  highway 
suitable  for  the  safe  passage  of  the  travelers."  ^^*^  He  "is  entitled  to 
free  access  to  his  house,  and  light  and  air  for  his  house,  without 
obstruction.  If  by  any  public  purposes  inconsistent  with  the  grant 
to  the  public  of  the  use  of  the  street  the  street  is  obstructed  in  front 
of  his  lot  abutting  on  such  street,  such  lise  entitles  him  to  compen- 
sation." ^^^  The  question  is.  Does  the  construction  and  stringing 
of  telephone  wires  along  and  upon  a  public  street  interfere  with  the 
free  passage  thereon  or  obstruct  ingress  and  egress  of  air,  light  and 
passage  to  the  abutting  owners  of  property?  As  said  before,  the 
amount  of  damages  or  the  degree  or  the  character  in  which  the  in- 
terference or  obstruction  is  made  should  have  very  little  to  do  in 
the  consideration  of  the  question.  The  main  question  is.  Is  there 
any  interference  with  or  obstruction  to  the  uses  of  the  easement,  or 
is  it  used  for  an  additional  purpose  other  than  that  for  which  it  was 
granted  ? 

§  112.  Same  continued — additional  use  of  easement  is  for  quasi- 
public  and  not  for  public  use. — For  the  reason  that  the  public  has 
acquired  an  easement  over  private  property  for  the  purposes  of 
travel,  is  no  reason  why  a  quasi-public  corporation,  created  for  the 
convenience  and  welfare  of  the  government,  but  more  specially  for 
private  gain,  should  appropriate  part  of  this  easement  for  the  use  of 
such  companies  without  compensating  the  owner  of  the  fee  when 
the  consent  has  not  already  been  obtained.  "It  is  true  that  the  use 
of  a  telegraph  company  is  a  public  use.  The  company  is  a  public 
corporation,  as  to  which  the  public  has  rights  which  the  law  will 
enforce  but  these  public  rights  can  only  be  obtained  by  paying  for 
them.  The  use,  while  in  one  sense  public,  is  not  for  the  public  gen- 
erally. It  is  for  the  private  profit  of  the  corporation.  *  *  * 
There  is  no  reason  in  law  or  common  justice  why  it  should  not  pay 

129  Elliott  on  Eoads  and  Streets,  p.  535. 

130  Cole  V.  Drew  and  Wife,  44  Vt.  49,  8  Am.  Rep.  3G.3. 

131  Donovan  v.  Allert,  11  N.  D.  2S9,  91  N.  W.  441,  95  Am.  St.  Rep.  720,  58 
L.  R.  A.  775. 


( 


§    113)  CONSTRUCTION  AND  MAINTENANCE  119- 

for  what  it  needs  in  the  prosecution  of  its  business."  ^^^  The  streets 
and  highways  were  dedicated  to  the  public  for  the  exclusive  and 
unobstructed  passage  of  its  travelers,  and  any  use  or  hindrance  to 
which  it  might  otherwise  be  subjected  would  be  in  violation  of  the 
grant.  To  use  it  for  telephonic  purposes  would  have  this  effect. 
"The  erection  of  poles  in  the  streets  by  telegraph  or  telephone  com- 
panies is  a  permanent  and  exclusive  occupation  of  the  streets  by 
such  companies,  to  the  continued  exclusion  of  the  remainder  of  the 
public,  and  to  that  extent  is  a  continued  obstruction  of  the 
street."  ^^^ 

§  1 13.  Same  continued — easement  put  to  different  use  than  that 
for  which  it  was  originally  acquired. — As  has  been  very  ably  said : 
*'That  the  erection  of  a  telegraph  line  upon  a  highway  is  an  addi- 
tional servitude  is  clear  from  the  authorities.  *  *  *  jf  ^\^q  right 
acquired  by  the  commonwealth  in  the  condemnation  of  a  highway  is 
only  the  right  to  pass  along  over  the  highway  for  the  public,  then, 
if  the  untaken  parts  of  the  land  are  his  private  property,  to  dig  up 
the  soil  is  to  dig  up  his  soil ;  to  cut  down  the  trees  is  to  cut  down 
his  trees ;  to  destroy  the  fences  is  to  destroy  his  fences ;  to  erect 
any  structure,  to  affix  any  pole  or  post,  in  and  upon  his  land,  is  to 
take  possession  of  his  land ;  and  all  these  interfere  with  his  free  and 
unrestricted  use  of  property.  If  the  commonwealth  took  this  with- 
out just  compensation  it  would  be  a  violation  of  the  constitution. 
The  commonwealth  cannot  constitutionally  grant  it  to  another.  It 
is  true  that  the  use  of  the  telegraph  company  is  a  public  use ;  that 
the  company  is  a  public  corporation,  as  to  which  the  public  has 
rights  which  the  law  will  enforce.  But  the  public  rights  can  only 
be  obtained  by  paying  for  them.  The  use  while  in  one  sense  public 
is  not  for  the  public  generally ;  it  is  for  the  private  profit  of  the 
corporation.  It  is  its  business  enterprise,  engaged  in  for  g'ain.  The 
services  can  only  be  obtained  upon  their  being  paid  for.  There  is 
no  reason,  either  in  law  or  common  justice,  why  it  should  not  pay 
for  what  it  needs  in  the  prosecution  of  its  business.  Upon  this  bur- 
den being  placed  upon  it,  it  can  complain  of  no  hardship ;  it  is  the 
common  lot  of  all.  If  the  said  company  has  use  for  the  private 
property  of  a  citizen  of  this  commonwealth,  and  it  is  of  advantage 
to  it  to  have  the  same,  it  is  illogical  to  argue  that  the  property  is  of 
small  value  to  the  plaintiff,  and  in  the  aggregate  a  great  matter  to 
the  plaintiff  in  error.     This  argument  is  not  worth  considering;    it 

132  West.  U.  Tel.  Co.  v.  Williams,  86  Va.  696,  19  Am.  St.  Rep.  90S,  11  S.  E. 
109,  8  L.  R.  A.  429. 

13  3  Jaynes  v.  Omaha  St.  R.  Co.,  53  Neb.  631,  74  N.  W.  67,  39  L.  R.  A.  751. 


120  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  114 

cuts  at  the  very  root  of  the  rights  of  property.  It  would  apply  with 
equal  force  to  all  the  transactions  of  life.  It  is  sufficient  to  say,  the 
aegis  of  the  constitution  is  over  this  as  over  all  other  private  prop- 
erty rights,  and  there  is  no  power  which  can  divest  it  without  just 
compensation."  ^^* 

§  114.  When  the  fee  is  in  the  public — not  entitled  to  compensa- 
tion.— There  may  be  instances  when  the  fee  to  the  land  over  which 
the  easement  was  laid  out  is  in  the  public  and  acquired  at  the  same 
time  the  easement  was  granted ;  then  the  question  which  presents 
itself  for  consideration  is  whether  this  affects  the  rights  of  the  abut- 
ter for  additional  compensation ;  or,  in  other  words,  is  the  abutter 
entitled  to  additional  compensation  from  a  telegraph  or  telephone 
company  for  the  erection  of  its  lines  along  the  streets,  whether  the 
fee  to  the  easement  is  in  the  public  or  in  himself?  While  a  majority 
of  the  courts  hold  that  it  makes  very  little,  if  any,  difference  as  to 
who  owns  the  fee,^^°  yet  there  are  some  which  make  a  distinction. 
This  distinction  is  shown  in  the  following  case,  in  which  the  court 
said:  "It  appeared  that  the  poles  and  wires  were  erected  by  com- 
plainant under  a  grant  from  the  board  of  supervisors  so  to  do,  but 
without  the  consent  and  against  the  protest  of  the  defendants.  The 
right  of  way  granted  to  the  supervisors  was  for  a  public  road,  that 
is  to  say,  a  way  to  be  used  by  the  public  for  ordinary  travel.  Where 
the  fee  of  the  highway  is  vested  in  the  public,  there  is  no  valid  legal 
objection  to  the  grant  by  the  public  of  a  right  to  erect  such  poles 
and  wires,  without  regard  to  the  adjacent  property  holders;  but 
where,  as  here,  the  fee  of  the  highway  remains  in  the  adjacent 
owner,  and  its  use  for  public  purposes  of  public  travel  has  been 
granted.  I  think  it  clear  that  every  use  of  the  highway  not  in  the 
line  of  such  travel  is  an  additional  burden,  for  which  the  proprietor 
of  the  fee  is  entitled  to  additional  compensation,  and  which  cannot 
be  constitutionally  taken  from  him  without  his  consent  except  by 
proceedings  regularly  instituted  and  prosecuted  according  to- 
law."  i2« 

13  4  West.  U.  Tel.  Co.  v.  Williams,  8G  Ya.  696,  11  S.  E.  109.  19  Am.  St.  Rep. 
908,  8  L.  R.  A.  429.  Chesapeake,  etc.,  Tel.  Co.  v.  Mackenzie,  74  Md.  36,  21 
Atl.  690,  28  Am.  St.  Rep.  219. 

13  5  Stowers  v.  Postal  Tel.  Cable  Co.,  68  Miss.  559.  9  South.  356,  24  Am.  St. 
Rep.  290,  12  L.  R.  A.  864,  note;  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  Ul. 
507,  47  Am.  Rep.  453;  Dusenbury  v.  Mut.  U.  Tel.  Co.,  11  Abb.  N.  C.  (N.  Y.) 
440 ;  Metropolitan,  etc.,  Tel.  Co.  v.  Cohvell  Lead  Co.,  50  N.  Y.  Super.  Ct.  488 ; 
Broome  v.  N.  Y.,  etc.,  Tel.  Co.,  42  N.  J.  Eq.,  141,  7  Atl.  851.  Contra,  Hewett 
V.  West.  U.  Tel.  Co.,  4  Mackey  (D.  C.)  424 ;  Pierce  v.  Drew,  1,36  Mass.  75,  49 
Am.  Rep.  7 ;  Julia  Bldg.  Ass'n  v.  Bell  Tel.  Co.,  88  Mo.  258,  57  Am.  Rep.  398. 

13  6  Pacific  Postal  Tel.  Co.  v.  Irvine  (C.  C.)  49  Fed.  113. 


§    116)  CONSTRUCTION   AND   MAINTENANCE  121 

§  115.     The  distinction — test  whether  fee  is  in  abutter  or  public. 

While  a  great  number  of  the  courts,  which  are  composed  of  the 
ablest  expounders  of  the  law  of  jurisprudence,  have  declared  that 
the  abutter's  right  to  additional  compensation  is  not  afifected  by  the 
fact  that  the  fee  to  the  land  on  which  the  easement  has  been  laid 
out  is  in  the  public ;  yet  we  are  inclined  to  believe  and  are  forced 
to  assert  that  it  is  affected  to  such  an  extent  that  he  will  not  be  en- 
titled to  additional  compensation  for  such  use  unless  it  materially 
interferes  with  the  easement  of  access  to  his  property  or  passage 
over  the  streets.  Suppose  we  take  a  case  where  the  fee  to  the  land 
on  which  is  laid  out  an  easement  remains  in  the  grantor  or  the  abut- 
ting lotowner.  Here  the  public  only  acquires  the  right  to  travel 
over  the  easement,  and  all  other  rights,  titles  and  interest  to  the 
land  are  in  the  grantor;  then  if  the  public  should  lose  its  right  in 
the  easement,  which  may  be  done,  by  a  relinquishment  of  its  rights, 
what  would  become  of  these  rights  ?  Would  they  not  revert  to  the 
abutting  owner,  and  that,  too,  whether  he  acquired  his  interest  be- 
fore or  after  the  grant  of  the  easement?  He  most  assuredly  would. 
Let  us  suppose  again  that  a  telephone  company  is  constructed  on 
this  easement,  without  the  abutting  owner's  consent  or  without  ap- 
propriating additional  compensation  to  him ;  and  the  same  is  there 
at  the  time  the  public  loses  its  easement,  can  it  be  held  for  a  moment 
that  the  company  could  continue  to  use  the  easement  after  the  title 
has  reverted  to  the  original  owner,  without  making  compensation 
to  him  or  obtaining  his  consent?  If  it  should  have  this  right,  there 
might  be  some  reason  in  holding  that  it  might  occupy  this  easement 
for  its  right  of  way  before  the  public  easement  has  been  lost,  with- 
out giving  additional  compensation  to  the  owner  of  the  fee ;  but 
this,  as  we  hold — and  the  same  opinion  is  indulged  in  by  most  of 
the  late  courts,  as  we  have  shown — is  not  the  case.  The  same 
plausible  reason  might  be  entertained,  that  a  telephone  company 
could  as  well  continue  to  occupy  an  easement  to  which  the  public 
had  lost  its  interest — and  by  reason  of  which  the  public  interest  had 
reverted  back  to  the  abutting  owner — as  this  company  would  have 
to  occupy  other  private  property  of  the  abutting  owner  and  that 
over  which  no  easement  had  ever  been  granted. 

§  116.  Same  continued — when  fee  in  the  public — effect  of. — The 
same  results  would  not  occur  should  the  fee  be  in  the  public. ^^" 
Under  these  circumstances  we  can  hardly  conceive  of  an  instance 
when  the  public  would  lose  its  fee  in  the  land  on  which  the  ease- 

137  Cleveland  Burial  Case  Co.  v.  Erie  R.  Co.,  24  Ohio  Cir.  Ct.  R.  107;  Krue- 
ger  V.  Wisconsin  Tel.  Co.,  106  Wis.  96,  81  N.  W.  1081,  50  L.  R.  A.  298. 


122  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  IIT 

merit  is  laid  out  by  any  legal  proceeding.  It  surely  would  not  by 
nonuser.  Then,  if  this  is  the  case,  the  telephone  company  could 
continue  to  use  the  easement  as  a  right  of  way,  even  after  a  discon- 
tinuance on  the  part  of  the  public  to  use  the  easement.  While  it  is 
not  very  clear  to  our  mind,  yet  we  are  inclined  to  believe  that  the 
public  might  exact  of  these  companies  a  compensation  for  the  use 
of  its  easement,  but  the  same  would  have  to  be  done  by  a  statute 
to  that  effect.  When  the  legislature  gives  to  telephone  companies 
the  authority  to  construct  their  poles  and  lines  along  and  upon  the 
public  highways  and  streets,  the  state  then  at  that  time  gives  the 
consent  for  these  companies  to  occupy  these  highways  after  they 
have  complied  with  certain  requirements  and  conditions — among 
which  one  may  be  for  compensation.  When,  in  fact,  the  construc- 
tion of  these  lines  upon  a  street  or  highway  is  an  additional  servi- 
tude-thereon,  the  public,  if  it  can,  is  the  only  one  who  can  complain. 
It  therefore  follows  that  if  the  owner's  easement  of  access  to  his 
property  or  his  passage  over  the  streets  is  not  interfered  with,  he 
cannot  be  heard  to  complain.  In  other  words,  he  cannot  maintain 
an  action  for  an  injury  to  the  soil  or  bring  an  action  of  ejectment; 
but  he  nevertheless  has  a  remedy  for  any  special  injury  to  his  rights 
by  the  authorized  acts  of  others. ^^^  Thus  merely  stringing  of  wires 
before  one's  property  is  not  an  injury  entitling  him  to  preliminary 
injunction, ^^^  or  he  cannot  complain  if  the  wires  are  in  a  conduit 
laid  under  the  sidewalk. ^^"^  But  should  his  easement  to  travel  be 
obstructed  or  interfered  with,  he  might  demand  compensation  of 
the  company,  notwithstanding  the  fact  that  the  fee  is  in  the  public. 
Thus  the  easement  of  access  embraces  the  use  of  an  upper-story 
door  for  receiving  merchandise.^*^  If  the  multiplicity  of  wires  ob- 
structs the  free  passage  of  air  or  light,  or  if  they  materially  obstruct 
the  fire  department  in  putting  out  fire,  whereby  the  property  owner 
is  damaged,  he  may  exact  of  such  company  compensation  for  the 
uses  of  the  streets  for  its  posts  and  wires. 

§  117.  When  title  or  fee  is  in  third  party — effect  of  as  to  com- 
pensation.— We  now  come  to  the  third  and  last  division  of  this  sub- 
ject, that  is,  should  the  abutting  owner,  be  compensated  by  a  tele- 
graph or  telephone  company  which  constructs  its  line  of  wires 
upon  the  street  adjacent  to  his  property,  when  the  title  is  in  some 

138  Chesapeake,  etc.,  Tel.  Co.  v.  Mackenzie,  74  Md.  36,  21  Atl.  691,  28  Am. 
St.  Rep.  219. 

139  Roake  V.  American  Tel.,  etc.,  Co.,  41  N.  J.  Eq.,  35,  2  Atl.  618. 

14  0  Coburn  v.  New  Tel.  Co.,  156  Ind.  90,  59  N.  E.  .324.  52  L.  R.  A.  671. 
141  Hays  V.  Columbiana  County  Tel.  Co.,  12  O.  C.  D.  167,  21  Ohio  Cir.  Ct.  R. 
480. 


I    117)  CONSTRUCTION   AND   MAINTENANCE  123 

third  party  ?  ^^^  There  may  be  instances  where  neither  the  abutting 
owner  nor  the  public  has  acquired  the  fee  to  the  land  on  which  the 
easement  is  laid  out,  but  that  it  still  remains  in  the  original  owner 
-of  the  property  or  his  heirs.  Under  such  circumstances,  who,  if  any 
one,  is  entitled  to  compensation?  This  question,  as  far  as  it  has 
come  to  our  knowledge,  has  never  been  directly  adjudicated.^"  In 
such  instances,  there  may  be  two  entitled  to  compensation;  the 
original  owner,  and  the  abutter.  The  former  for  the  additional 
burden  or  injury  to  the  soil  and  the  latter  for  the  interference  of  his 
access  to  his  property.  The  original  owner  or  his  heirs  would  have 
the  same  right  to  exact  of  these  companies  additional  compensation 
for  the  use  of  the  public  easement  for  the  construction  of  their  lines 
as  the  abutter  would  have  in  case  the  fee  was  in  the  latter.  His 
grounds  for  same,  however,  would  be  the  fact  that  the  use  was  an 
additional  burden,  and  not  on  the  ground  that  it  was  an  interfer- 
ence with  the  access  to  his  property.  The  abutter  would  have  the 
same  ground  upon  which  to  base  his  right  for  exacting  compensa- 
tion for  the  use  of  the  public  easement  by  a  telephone  company,  as 
he  would  have  in  case  the  fee  was  in  the  public.  In  order  to  obtain 
compensation  from  these  companies,  under  such  circumstances,  it 
must  be  shown  that  access  to  his  property  has  been  interfered  with 
and  not  because  there  has  been  an  injury  inflicted  upon  the  soil. 
Hence,  if  an  appropriation  of  the  street  by  one  of  these  companies, 
even  under  legislative  and  municipal  sanction,  unreasonably 
abridges  the  right  to  use  the  streets  as  a  means  of  ingress  and 
egress,  or  otherwise,  and  he  is  thereby  deprived  of  his  right  without 
compensation,  an  action  will  lie  against  such  companies,  guilty  of 
usurping  such  unreasonable  and  exclusive  use,  for  the  recovery  of 
such  immediate  and  direct  damages  as  he  may  have  sufifered.^** 

142  It  will  be  settled  that  the  owners  of  lots  "have  a  peculiar  interest  in  thp 
adjacent  street  which  neither  the  local  nor  general  public  can  pretend  to 
claim— a  private  right  in  the  nature  of  an  incorporeal  hereditament  legally 
attached  to  their  contiguous  grounds— an  incidental  title  to  certain  facilities 
and  franchises  assured  to  them  by  contract  and  by  law,  and  which  are  as 
inviolable  as  the  property  in  the  lots  themselves."  Lexington  &.  O.  R.  Co.  v. 
Applegate,  8  Dana  (Ky.)  294,  33  ^\flii.  Dec.  497 ;  Haynes  v.  Thomas,  7  Ind.  38 ; 
Rowan  v.  Portland,  8  B.  Mon.  (Ky.)  232 ;  Le  Clercq  v.  Gallipolis,  7  Ohio,  217, 
pt.  1,  28  Am.  Dec.  641 ;  Cincinnati  v.  White,  6  Pet.  431,  8  L.  Ed.  4.52,  cited  in 
Elizabethtown,  etc.,  R.  Co.  v.  Combs,  10  Bush  (Ky.)  382,  19  Am.  Rep.  07. 

i4  3  Chesapeake,  etc.,  Tel.  Co.  v.  Mackenzie,  74  Md.  86,  21  Atl.  690,  28  Am. 
St.  Rep.  219. 

14*  Elizabethtown,  etc.,  R.  Co.  v.  Combs,  10  Bush  (Ky.)  382,  19  Am.  Rep.  67; 
Schurmeir  v.  St.  Paul,  etc.,  R.  Co.,  10  Minn.  82  (Gil.  59),  88  Am.  Dec.  59; 
Cooley,  Const.  Limit.  556. 


124  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  118 

§  118.  Effect  of  legislative  grant — not  a  nuisance. — Although 
the  posts  and  wires  composing  a  telegraph,  telephone,  or  electric 
line  are  an  additional  burden  on  the  street,  for  which  compensation 
must  be  made  to  the  owner  of  the  abutting  property,  yet  concurrent 
legislative  and  municipal  authority,  granted  to  a  company  to  erect 
its  poles  and  suspend  its  wures  in  and  over  the  streets  of  a  city,  will 
protect  it  from  being  treated  as  a  trespasser  and  its  works  from 
being  declared  a  nuisance,  if  they  are  so  constructed  as  not  to  ob- 
struct or  interfere  with  the  use  of  the  streets  by  the  public  or  the 
owner's  right  of  ingress  or  egress  to  and  from  his  abutting  prop- 
erty.^*^ 

§  119.  Amount  of  compensation  to  abutter. — It  being  conceded 
that  the  construction  of  a  telegraph  or  telephone  line  upon  a  street 
constitutes  a  new  use  thereof,  and  thereby  and  thereon  imposing  an 
additional  burden,  and  it  following  that  the  abutting  lotowner  may 
be  entitled  to  an  additional  compensation  for  such  use,  and  for  dam- 

145  Kester  v.  West.  U.  Tel.  Co.  (C.  C.)  108  Fed.  926 :  West.  U.  Tel.  Co.  v. 
Williams,  86  Va.  696,  11  S.  E.  109,  8  L.  R.  A.  429,  19  Am.  St.  Rep.  908; 
Postal  Tel.  Cable  Co.  v.  Norfolk,  etc.,  R.  Co.,  88  Va.  920,  14  S.  E.  803 ;  Eels 
V.  American  Tel.,  etc.,  Co.,  65  Hun,  516,  20  N.  Y.  Supp.  600,  affirmed  143  N. 
Y.  133,  38  N.  E.  202,  25  L..  R.  A.  640 ;  Southern  Bell  Tel.  Co.  v.  Francis,  109 
Ala.  224,  19  South.  1,  55  Am.  St.  Rep.  930,  31  L.  R.  A.  193 ;  Falls  Power  Co.  v. 
Sims,  6  Ga.  App.  749,  65  S.  E.  844 ;  People  v.  Transit  Development  Co.,  131 
App.  Div.  174,  115  N.  Y.  Supp.  297;  Scofield  v.  Poughkeepsie,  122  App.  Div. 
868,  107  N.  Y.  Supp.  767 ;  Mull  v.  Traction  Co.,  169  Ind.  214,  81  N.  E.  657 ; 
Townsend  v.  Norfolk,  etc.,  L.  Co.,  105  Va.  22,  52  S.  E.  970,  4  L.  R.  A.  (N.  S.) 
87,  115  Am.  St.  Rep.  842,  8  Ann.  Cas.  558 ;  Simonds  v.  Maine  Tel.,  etc.,  Co., 
104  Me.  440,  72  Atl.  175,  28  L.  R.  A.  (N.  S.)  942 ;  Hudson  River  Tel.  Co.  v. 
Turnpike  &  Ry.  Co.,  135  N.  Y.  393,  32  N.  E.  148,  31  Am.  St.  Rep.  838,  17  L.  R. 
A.  764.  Where  such  authority  has  not  been  given  they  will  constitute  a  li- 
cense. Cumberland  Tel.,  etc.,  Co.  v.  Mt.  Vernon,  176  Ind.  177,  91  N.  E.  714 ; 
Banks  v.  Highland  St.  Ry.  Co.,  1.36  :Ma.ss.  485;  Commonwealth  v.  Boston,  97 
Mass.  555;  Nebraska  Tel.  Co.  v.  Western  Ind.,  etc.,  Tel.  Co.,  68  Neb.  772,  95 
N.  W.  18 ;  Paterson  Ry.  Co.  v.  Grundy,  51  N.  J.  Eq.  213,  26  Atl.  788 ;  Hemp- 
stead V.  Electric  L.  Co.,  9  App.  Div.  48,  41  N.  Y.  Supp.  126,  75  N.  Y.  St.  Rep. 
582;  Jacksonville,  etc.,  Elec.  Co.  v.  Moses  (Tex.  Civ.  App.)  134  S.  W.  379; 
Knaeger  v.  Wisconsin  Tel.  Co.,  106  Wis.  96,  81  N.  W.  1041,  50  L.  R.  A.  298. 
See  §  121.  May  become  nuisance  after  expiration  of  permission  to  use  streets. 
Coverdale  v.  Edwards,  155  Ind.  374,  58  N.  E.  495 ;  American  Rapid  Tel.  Co.  v. 
Hess,  125  N.  Y.  &41,  26  N.  E.  919,  21  Am.  St.  Rep.  7&4,  13  L.  R.  A.  454; 
Blanchard  v.  West.  IJ.  Tel.  Co.,  60  N.  Y.  510,  wire  across  navigable  waters 
may  become  nuisance. 

Power  plant. — Whether  an  electric  power  plant  is  a  nuisance  depends  upon 
circumstances.  Smoke,  noise,  vibration,  dirt,  soot,  dust,  cinders,  steam, 
ashes,  bad  odors,  etc.,  may  constitute  such  a  nuisance.  Peck  v.  Newburgh, 
etc.,  P.  Co.,  132  App.  Div.  82,  116  N.  Y.  Supp.  433 ;  Hyde  Park,  etc.,  L.  Co.  v. 
Porter,  167  111.  270,  47  N.  E.  206 ;  Pritchard  v.  Edison  Elec.  111.  Co.,  179  N.  Y. 


g    120)  CONSTRUCTION  AND   MAINTENANCE  125 

ages  for  any  material  injury  to  the  easement  or  access  and  passage 
over  the  streets,  the  question  which  necessarily  follows  is,  How 
much  should  he  recover  from  these  companies  for  the  use  of  the 
easement,  and  how  much  should  he  be  allowed  as  damages  for  in- 
juries to  his  right  in  same?  "The  true  measure  of  damages  *  *  * 
is  not  what  a  particular  individual  would  be  willing  to  charge  for 
having  the  poles  put  up  or  remain,  nor  the  amount  some  other 
person  might  consider  the  rental  value  was  depreciated  for  the  pur- 
poses of  his  business;  but  where  the  land  of  plaintiff  is  not  taken 
nor  his  soil  actually  invaded,  the  measure  of  damages  as  adjudged 
in  many  cases  is,  either:  (1)  The  extent  to  which  the  rental  or 
usable  value  of  the  particular  property  has  been  .diminished  by  the 
trespass  or  injury  complained  of;^**'  or  (2)  the  difference  in  the 
value  of  the  property  before  the  construction  of  the  poles  and  its 
value  afterwards,  if  the  depreciation  in  value  has  been  caused  by 
the  erection  and  maintenance  of  the  poles."  ^^'^  Where  there  is  noth- 
ing to  show  that  any  special  damage  has  been  suffered,  the  principle 
seems  to  be  established  by  many  respectable  authorities  that  the 
abutter  is  entitled  to  recover  such  compensation  as  the  use  of  the 
ground  was  worth  during  the  time  and  for  the  purpose  it  was  oc- 
cupied.^*^ 

§  120.  Damages  to  abutting  owners — amount. — The  _  fact  that 
the  abutting  lotowner  is  compensated  for  the  new  use  of  the  street 
for  telegraph  and  telephone  lines  will  not  prevent  him  from  recov- 
ering damages  for  any  material  injury  to  the  easement  of  access  and 
passage  over  the  street.  As,  for  instance,  if  the  company  should 
erect  its  poles  and  string  its  wires  in  the  premises  of  the  abutter  so 
as  to  interfere  with  the  free  access  to  his  property  or  obstruct  the 
air  and  light  to  same,  he  would  be  entitled  to  damages  for  such  in- 

364,  72  N.  E.  243 ;  Townsend  v.  Norfolk,  etc.,  L.  Co.,  105  Va.  22,  52  S.  E.  970, 
4  L.  R.  A.  (N.  S.)  87,  115  Am.  St.  Rep.  842,  S  Ann.  Cas.  558.  A  dam  for  the 
creation  of  water  power  to  run  an  electric  plant  may  constitute  a  nuisance. 
McMeelvin  v.  Carolina  P.  Co.,  SO  S.  C.  512,  61  S.  E.  1020,  128  Am.  St.  Rep. 
885. 

146  Baltimore,  etc.,  R.  Co.  v.  Boyd,  67  Md.  32,  10  Atl.  815,  1  Am.  St.  Rep. 
362 ;  Wood  v.  State,  66  Md.  61,  5  Atl.  476. 

147  Shepherd  v.  Baltimore,  etc.,  R.  Co.,  130  U.  S.  426,  9  Sup.  Ct.  598,  32  L. 
Ed.  970. 

14S  Baltimore,  etc.,  R.  Co.  v.  Boyd,  67  Md.  32,  1  Am.  St.  Rep.  362,  10  Atl. 
815;  News  Co.  v.  Meine,  242  111.  568.  90  N.  E.  230,  26  L.  R.  A.  (N.  S.)  189. 
Compare  Tel.,  etc.,  Co.  v.  Cosgriff,  19  N.  D.  771,  124  N.  W.  75,  26  L.  R.  A. 
(N.  S.)  1171.  See  Long  Dist.  Tel.,  etc.,  Co.  v.  Schmidt,  157  Ala.  391,  47  South. 
731;  Board  of  Trade  Tel.  Co.  v.  Darst,  192  111.  47,  61  N.  E.  398,  85  Am.  St. 
Rep.  288. 


126  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  121 

jury,  notwithstanding  that  he  has  already  been  compensated  for  the 
additional  servitude  of  the  street.  And  he  may  be  allowed  punitory 
damages  when  there  is  an  element  of  wanton  or  malicious  motive, 
or  such  reckless  disregard  of  his  rights  by  the  company,  in  the  com- 
mission of  the  injury — and  all  repetitions  thereof — as  he  would  be 
entitled  to.^*^  If  such  are  not  the  facts  in  the  case,  he  would  only 
be  entitled  to  nominal  damages ;  and  the  measure  of  which,  where 
punitory  or  exemplary  damages  are  not  claimed,  is  the  difference  in 
the  value  of  the  property  before  the  construction  of  the  lines  and  its 
value  afterwards,  if  the  depreciation  in  value  has  been  caused  by 
the  erection  of  the  poles. ^^°  It  is  not  necessary  that  the  abutting 
owner  should  giv.e  affirmative  proof  of  his  having  sustained  any 
particular  amount  of  damages;  ^°^  for  any  unauthorized  entry  upon 
another's  land  is  a  trespass,  and,  whether  the  owner  suffers  sub- 
stantial injury  or  not,  he  at  least  sustains  a  legal  injury,  which  en- 
titles him  to  some  damages,  though  they  may  be  very  small  under 
some  circumstances.^^^ 

§  121.  Remedies  of  adjoining  lot  owner — when  a  nuisance. — 
When  a  telephone,  telegraph  or  electric  company  constructs  its 
lines  along  and  upon  a  street  without  first  having  obtained  the  con- 
sent of  the  legislative  authority,  the  occupation  thereof  becomes  un- 
lawful and  amounts  to  a  public  nuisance,^^''  and  the  abutter  may 
enjoin  the  company  or  bring  an  action  of  damages  against  it;  but 
in  determining  the  nature  of  the  case  to  be  brought,  the  circum- 
stances in  the  particular  cases  must  first  be  considered.  The  rem- 
edy may  be  by  an  action  of  ejectment,  an  injunction,  or  by  an  ac- 

149  Ashby  V.  White,  2  Ld.  Raym.  955;  Millor  v.  Spaterman,  1  Saund.,  note 
2,  p.  346a ;  Taylor  v.  Herniker,  12  Ad.  &  E.  488 ;  Dixon  v.  Clow,  24  Wend.  (N. 
Y.)  188 ;  Baltimore,  etc.,  R.  Co.  v.  Boyd,  67  Md.  32,  10  Atl.  815,  1  Am.  St.  Rep. 
362 ;  Woods  v.  State,  66  Md.  61,  5  Atl.  476. 

150  Shepherd  v.  Baltimore,  etc.,  R.  Co.,  130  U.  S.  426,  9  Sup.  Ct.  598,  32  L. 
Ed.  970;  Chesapeake,  etc.,  R.  Co.  v.  Mackenzie,  74  Md.  36,  28  Am.  St.  Rep. 
227,  21  Atl.  090;  Erie  Tel.  Co.  v.  Kennedy,  80  Tex.  71,  15  S.  W.  704.  See 
Postal  Tel.  Cable  Co.  v.  Bruen  (Sup.)  39  N.  Y.  Supp.  220,  where  the  erection 
of  poles  one  hundred  and  fifty  feet  apart  was  held  to  give  a  right  to  nomi- 
nal damages. 

isiMcConnel  v.  Kibbe,  33  111.  175,  85  Am.  Dec.  265;  Attwood  v.  Fricot,  17 
Cal.  37,  76  Am.  Dec.  567. 

i52Ashby  V.  White,  2  Ld.  Raym.  955;  Millor  v.  Spaterman,  1  Saund.,  note 
2,  p.  346a;  Taylor  v.  Henriker,  12  Ad.  &  E.  488;  Dixon  v.  Clow,  24  Wend.  (N. 
Y.)  188 ;  Baltimore,  etc.,  R.  Co.  v.  Boyd,  67  Md.  32,  10  Atl.  815,  1  Am.  St.  Rep. 
365. 

153  East  Tenn.  Tel.  Co.  v.  Russellville,  106  Ky.  667,  51  S.  W.  308,  21  Ky. 
Law  Rep.  305 ;  Bland  v.  Cumberland  Tel.,  etc.,  Co.  (Ky.)  109  S.  W.  1180.  See  § 
lis,  and  cases  cited  thereunder. 


.^ 


§    121)  CONSTRUCTION   AND   MAINTENANCE  127 

tion  for  damages.  If  the  fee  to  the  land  on  which  the  easement  is 
laid  out  is  in  the  abutting  owner,  and  the  company  constructs  a  line 
of  wires  thereon  without  his  consent  or  without  compensating  him 
therefor,  he  may  have  the  same  removed,  in  case  they  have  not 
progressed  too  far  in  the  construction  of  same,  by  an  action  of  eject- 
ment.^^* The  state  only  acquires  a  right  of  passage  to  the  ease- 
ment; and  all  the  other  rights  and  interest  to  the  soil,  except  such 
easement,  remain  in  the  abutting  owner.  Any  use  to  which  the 
easement  might  be  placed  other  than  such  as  would  fall  under  the 
right  of  passage  would  be  an  additional  servitude  to  the  land  for 
which  additional  compensation  would  have  to  be  made,  and  it  is 
pretty  generally  held  that  a  telegraph  or  telephone  line  upon  the 
easement  is  an  additional  burden  and  one  not  contemplated  at  the 
time  the  grant  was  given ;  so  this  additional  burden,  as  any  other 
trespass,  could  be  removed  by  an  action  of  ejectment.  "I  see  no 
ground,"  as  was  ably  observed  by  Lord  Mansfield,  "why  the  owner 
of  the  soil  may  not  bring  ejectment  as  well  as  trespass.  *  *  * 
'Tis  true,  he  must  recover  the  land  subject  to  the  way;  but  surely 
he  ought  to  have  a  special  remedy  to  recover  the  land  itself,  not- 
withstanding its  being  subject  to  an  easement  upon  it."  ^^^  As  the 
public  only  acquires  an  easement  of  travel  over  the  land,  the  abut- 
ting owner  thereof  has  the  same  remedies  to  remove  all  intruders, 
trespassers  and  obstructions  therefrom  as  he  would  have  should 
they  be  on  his  private  property.  When  any  of  these  injuries  are  on 
any  of  his  private  property  without  his  consent,  he  might  have  the 
same  removed  by  ejectment;  so  the  same  remedy  could  be  exer- 
cised when  they  had  encroached  upon  his  other  property  upon 
which  an  easement  had  been  laid  out,  and  this,  too,  notwithstanding 
the  fact  that  the  same  was  granted  before  he  acquired  the  title  to 
the  abutting  property. ^^^    It  has  been  held  that  an  action  of  mjunc- 

164  Postal  Cable  Tel.  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365,  62  Am,  St. 
Rep.  390,  39  L.  R.  A.  722 ;  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  111.  507,  47 
Am.  Rep.  453 ;  West.  U.  Tel.  Co.  v.  Williams,  86  Va.  69€,  19  Am.  St.  Rep.  90S, 
11  S.  E.  109,  8  L.  R.  A.  429.  Purchaser  succeeds  to  right  of  vendor.  Postal 
Tel.  Cable  Co.  v.  Eaton,  supra. 

1S5  Goodtitle  v.  Alker,  1  Burr.  133;  Cooper  v.  Smith,  9  Serg.  &  R.  (Pa.) 
26,  11  Am.  Dec.  658 ;  Alden  v.  Murdock,  13  Mass.  256 ;  Bissell  v.  N.  Y.  O.  R. 
Co.,  23  N.  Y.  61 ;  Carpenter  v.  Oswego,  etc.,  R.  Co.,  24  N,  Y.  655 ;  Jersey  City 
V.  Fitzpatrick,  30  N,  J.  Eq.  97;  Perry  v.  New  Orleans,  etc.,  R.  Co.,  55  Ala. 
413,  28  Am.  Rep.  740,  all  cited  in  Terre  Haute,  etc.,  Co.  v.  Rodel,  89  Ind. 
128,  46  Am.  Rep.  164.  See,  also,  Robert  v.  Sadler,  104  N.  Y.  229,  10  N.  E.  428, 
58  Am.  Rep.  498,  and  notes  thereunder. 

i5«  Postal  Tel.  Cable  Co.  v.  Eaton,  170  111.  573,  49  N.  E.  365,  62  Am.  St. 
Rep.  390,  39  L.  R.  A.  722. 


128  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  122 

tion  will  lie,^^^  but  in  either  instance  the  abutting  owner  might  be 
estopped  to  prosecute  such  actions  where  he  had  apparently  ac- 
quiesced in  the  construction  of  the  lines. ^^^  The  company  would  be 
allowed  an  opportunity  to  perfect  its  rights  by  instituting  condem- 
nation proceedings. 

§  122.  Same  continued — ignorance  of  rights. — The  same  state 
of  facts  will  exist  notwithstanding  that  the  company  erects  its 
poles  and  stretches  wires  along  the  streets  with  the  belief  that  it 
had  the  legal  right  so  to  do,  but  without  obtaining  the  consent  of 
the  abutting  owner  or  seeking  to  acquire  his  rights  by  negotiation 
or  condemnation  proceedings.^^''  Ignorant'm  juris  neminem  excusat, 
is  an  old  maxim  and  is  founded  on  the  presumption  that  every  one 
who  is  competent  to  act  for  himself  is  bound  to  know  the  law.^'^° 
It  is  presumed  that  every  company  has  investigated  the  law  appli- 
cable to  its  right  in  constructing  a  line  of  wires  upon  the  easement, 
and  if  it  has  not  and  afterwards  learns  that  it  has  no  right  to  make 
such  construction,  the  company  will  be  held  liable  just  the  same. 

§  123.  Same  continued — action  for  damages. — Another  remedy 
which  an  abutting  owner  may  maintain  against  a  company  for  con- 
structing, without  his  consent,  a  line  of  wires  upon  the  easement,  is 
by  an  action  of  damages.  This  method  is  generally  exercised  when 
the  abutter's  easement  of  access  is  interfered  with.  In  these  actions 
it  is  no  defense  that  the  company  has  obtained  legislative  authority, 
for  it  is  generally  in  such  cases  that  these  actions  are  brought. 
Damages  would  be  the  proper  action  where  the  company  has  been 
in  operation  for  some  time ;  as  the  abutting  owner  would  be  estop- 
ped to  enjoin  where  the  company  had  gone  to  considerable  expense 
in  erecting  the  line,  and  the  abutter  has  apparently  acquiesced  in  the 
erection  of  same.^*'^  There  may  be  exceptions  to  the  rule  where  the 
maintaining  of  the  line  wou.ld  become  too  obnoxious  to  the  com- 

15  7  Injunction  has  been  held  to  be  the  proper  remedy  in  such  a  case.  Gray 
V.  York  St.  Tel.  Co.,  41  Misc.  Rep.  108,  83  N.  Y.  Supp.  920.  See  Donovan  v. 
Alleit,  11  N.  D.  289,  91  X.  W.  441,  95  Am.  St.  Rep.  720,  58  L.  R.  A.  775; 
Denver  v.  U.  S.  Tel.  Co.,  10  Ohio  Dec.  273. 

158  Dafiinger  v.  Pittsburg,  etc.,  Tel.  Co.,  31  Pitts.  Leg.  J.  N.  S.  (Pa.)  37,  14 
York  Leg.  Rec.  (Pa.)  46;  Abendroth  v.  Manhattan  R.  Co.,  122  N.  Y.  1,  25  N. 
E.  496,  19  Am.  St.  Rep.  461.  11  L.  R.  A.  634,  note. 

15  9  Abendroth  v.  Manhattan  R.  Co.,  122  X.  Y.  1,  25  N.  E.  496,  19  Am.  St. 
Rep.  461,  11  L.  R.  A.  634,  note. 

160  Story's  Eq.  Juris.  §  116. 

161  Abendroth  v.  Manhattan  R.  Co.,  122  K  Y.  1,  25  X.  E.  496,  19  Am.  St. 
Rep.  461,  11  L.  R.  A.  634,  note ;  Bronson  v.  Albion  Tel.  Co.,  67  Xeb.  Ill,  93  N. 
W.  201,  60  L.  R.  A.  429,  2  Ann.  Cas.  639 ;  Maxwell  v.  Central  Dist.  Tel.  Co.,  51 
W.  Ya.  121,  41  S.  E.  125 ;  Omaha  v.  Flood,  57  Xeb.  124,  77  X.  W.  379. 


§    124)  CONSTRUCTION  AND   MAINTENANCE  129 

forts  of  life  or  the  enjoyment  of  his  rights.  For  instance,  cases  may 
happen  where  the  wires  become  so  numerous  as  that  the  bulk  of 
them  obstruct  the  abutting  owner's  free  access  to  air  and  light.  In 
such  cases  he  could  recover  damages  for  such  injury  and  also  enjoin 
the  company  from  using  the  easement  any  longer  for  such  use. 
Repeating  again  the  law — the  construction  of  a  telephone  line  upon 
an  easement  without  legislative  consent  becomes  a  public  nui- 
sance ^^^  and  may  be  abated  like  any  other  nuisance ;  yet  if  the  com- 
pany has  expended  much  capital  in  its  construction  and  is  nearing 
completion,  the  abutter  would  be  estopped  to  enjoin  further  work 
on  same,  on  the  ground  of  apparent  acquiescence,  but  this  would 
not  be  any  bar  to  his  recovering  compensation  for  the  additional 
use  to  which  the  easement  was  put,  and  also  damages  for  any  injury 
to  his  soil,  such  as  the  digging  of  holes  for  posts,  trimming  trees,^^^ 
cutting  up  hedges  and  throwing  down  fences,  and  also  for  any  ob- 
struction to  the  easement  of  access  to  his  property.  Should  the  use 
to  which  the  company  puts  the  easement  be  such  as  would  materi- 
ally, permanently  and  continuously  injure  the  premises  and  his  life 
and  home  comforts,  the  proper  remedy  would  be  by  an  action  of 
injunction.^®* 

§  124.  Further  considered — unauthorized  use  of  street — may  be 
enjoined. — Where  there  is  an  unauthorized  use  of  a  street  either  by 
the  company  not  complying  with  the  ordinance,  or  by  utter  lack  of 
authority  to  use  same,  it  may  be  enjoined  from  carrying  on  further 
business. ^^^  The  legislature  or  the  municipality  may  require  the 
company  to  construct  its  poles  and  wires  in  a  certain  prescribed 
manner,  and  this  it  must  do  or  be  subject  to  an  injunction.  As,  for 
instance,  it  is  often  required  of  these  companies  by  ordinances  that 
the  poles  must  be  of  such  a  size  and  a  certain  distance  apart,  or  that 

16  2  See  §  121. 

16  3  Daily  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  24  L.  R.  A.  724,  46  Am.  St. 
Rep.  578. 

164  Hay  V.  Columbiana  County  Tel.  Co.,  12  O.  C.  D.  167,  21  Ohio  Cir.  Ct.  R. 
480 ;  Broome  v.  N.  Y.,  etc.,  Tel.  Co.,  42  N.  J.  Eq.  141,  7  Atl.  851 ;  Russ  v.  Penu. 
Tel.  Co.,  15  Pa.  Co.  Ct.  R.,  226,  3  Pa.  Dist.  R.  654. 

165  Mut.  U.  Tel.  Co.  V.  Chicago  (C.  C.)  16  Fed.  309;  People  v.  Metropolitan 
Tel.,  etc.,  Co.,  31  Hun  (N.  Y.)  596 ;  Utica  v.  Utica  Tel.  Co.,  24  App.  Div.  361, 
48  N.  Y.  Supp.  916 ;  Marshfield  v.  Wisconsin  Tel.  Co.,  102  Wis.  604,  78  N.  W. 
735,  44  L.  R.  A.  565.  See,  also,  Reg.  v.  United  Kingdom  Electric  Tel.  Co.,  2 
B.  &  S.  648,  note  110  E.  C.  L.  648,  note  31  I..  J.  M.  C.  166 ;  Burrall  v.  Ameri- 
can Tel.  Co.,  224  111.  266,  79  N.  E.  705,  8  L.  R.  A.  (N.  S.)  1091 ;  Canadian,  etc., 
R.  Co.  V.  Moosehead  Tel.  Co.,  106  Me.  363,  76  Atl.  885,  29  L.  R.  A.  (N.  S.)  703, 
20  Ann.  Cas.  721. 

Jones  Tel.(2d  Ed.)— 9 


130  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  125 

the  wires  must  be  of  a  certain  height.^®^  In  some  states  there  have 
been  statutes  passed  which  require  all  telephone  companies  doing 
business  in  cities  above  a  certain  population  to  place  their  wires 
under  the  surface  ;^®'^  on  failure  to  perform  any  of  these  require- 
ments a  mandamus  suit  may  be  maintained  either  by  the  city  '^^^  or 
an  injunction  suit  may  be  maintained  by  an  abutting  lot  owner  who 
is  affected  by  the  unauthorized  use,^®^  but  not  at  the  suit  of  a  rival 
company. ^^^  And  the  rule  prevails  whether  the  occupation  of  a 
street  was  never  authorized  or  has  ceased  to  be  lawful  because  of 
the  valid  withdrawal  of  an  original  authority.^^^ 

§  125.  When  poles  and  wires  of  an  electric  light  company  an 
additional  burden. — When  poles  are  erected  and  wires  strung  for 
the  purpose  of  furnishing  heat,  light,  or  power  to  private  persons, 
an  additional  burden  is  imposed  on  the  easement  entitling  abutting 
owners  to  compensation  therefor  ;^^^  but  when  poles  and  wires  are 
placed  upon  a  street  or  highway  to  serve  public  interest,  such  as 
lighting  the  street  or  highway,  no  compensation  need  be  made.^^^ 

166  If  the  company  be  authorized  to  use  poles  of  such  a  size  and  height  as 
is  reasonably  necessary,  and  uses  poles  of  greater  size  and  height,  the  au- 
thority granted  to  it  is  no  protection.  People  v.  Metropolitan  Tel.,  etc.,  Co., 
31  Hun  (N.  Y.)  596.     See  §  89. 

167  See  §  92  et  seq. 

168  See  People  v.  Squire,  107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893,  af- 
firmed in  145  TJ.  S.  175,  12  Sup.  Ct.  880,  36  L.  Ed.  666 ;  American  Rapid  Tel. 
Co.  V.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St.  Rep.  764,  13  L.  R.  A.  454. 

16  0  Irwin  v.  Great  Southern  Tel.  Co.,  37  La.  Ann.  63;  Maxwell  v.  Central 
Dist,  etc.,  Tel.  Co.,  51  W.  Va.  121,  41  S.  E.  125.  See,  also,  Donovan  v.  Al- 
bert, 11  N.  D.  289,  91  N.  W.  441,  95  Am.  St.  Rep.  720,  58  L.  R.  A.  775. 

170  Chicago  Tel.  Co.  v.  v.  Northwestern  Tel.  Co.,  199  111.  324,  65  N.  E.  329, 
affirming  100  111.  App.  57. 

171  Mut.  U.  Tel.  Co.  V.  Chicago  (C.  C.)  16  Fed.  309;  American  Rapid  Tel. 
Co.  T.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am.  St.  Rep.  764,  13  L.  R.  A. 
454,  note. 

i72Goddard  v.  Chicago,  etc.,  R.  Co.,  104  111.  App.  533;  Tuttle  v.  Brush 
Electric  Illuminating  Co.,  50  N.  Y.  Super.  Ct.  464;  Callen  v.  Columbus  Edi- 
son Electric  Light  Co.,  66  Ohio  St.  166,  64  N.  E.  141,  58  L.  R.  A.  782 ;  Schaaf 
V.  Cleveland,  etc.,  R.  Co.,  66  Ohio  St.  215,  64  N.  E.  145;  McLean  v.  Brush 
Electric  Light  Co.,  8  Ohio  Dec.  (Reprint)  619,  9  Wkly.  Law  Bui.  65;  Haver- 
ford  Electric  Light  Co.  v.  Hart,  13  Pa.  Co.  Ct.  R.  369 ;  Post  v.  Light,  etc.,  Co., 
77  Misc.  Rep.  369,  136  N.  Y.  Supp.  401 ;  Brown  v.  Light  Co.,  138  N.  C.  533,  51 
S.  E.  62,  107  Am.  St  Rep.  554,  69  L.  R.  A.  631 ;  Andreas  v.  Bergen  County 
Gas,  etc.,  Co.,  61  N.  J.  Eq.  69,  47  Atl.  555;  Gumsey  v.  Northern  California 
Power  Co.,  160  Cal.  699,  117  Pac.  906,  36  L.  R.  A.  (N.  S.)  185,  and  note. 

17  3  Loeber  v.  Butte  Gen.  Electric  Co..  16  Mont.  1,  39  Pac.  912,  50  Am.  St. 
Rep.  468 ;  Palmer  v.  Larchmont  Electric  Co.,  158  N.  Y.  231,  52  N.  E.  1092,  43 
L.  R.  A.  672,  reversing  6  App.  Div.  12,  36  N.  Y.  Supp.  522;  Gulf  Coast  Ice, 
etc.,  Co.  V.  Bowers,  80  Miss.  570,  32  South.  113 ;  People  v.  Thompson,  65  How. 


§    126)  CONSTRUCTION   AND   MAINTENANCE  131 

§  126.  Liabilities  for  cutting  trees  overhanging  sidewalks. — A 
telegraph,  telephone,  or  electric  company  is  liable  for  trespassing 
upon  the  premises  of  an  abutting  owner  for  the  purpose  of  cutting 
or  trimming  trees  overhanging  the  sidewalk. ^^*     It  very  often  be- 

Prac.  (N.  T.)  407 ;  Hazleliurst  v.  Mayes,  84  Miss.  7,  36  South.  3.3,  64  L.  R.  A. 
805 ;  Brandt  v.  Spokane,  etc.,  R.  Co.,  78  Wash.  214,  138  Pac.  871,  52  L.  R.  A. 
(N.  S.)  760.  See  Post  v.  Light,  etc.,  Co.,  77  Misc.  Rep.  369,  136  N.  Y.  Supp. 
401;  Andreas  v.  Bergen  County  Gas,  etc.,  Co.,  61  N.  J.  Eq.  69,  47  Atl.  555; 
Johnson  v.  Thomson-Houston  Electric  Co.,  54  Hun,  469,  7  N.  Y.  Supp.  315; 
Tuttle  V.  Brush  Electric  Illuminating  Co.,  50  N.  Y.  Super.  Ct.  464. 

Compensation  for  underground  conduits. — It  has  been  held  that  the  use  of 
city  streets  for  conduits  for  underground  wires  does  not  constitute  such  an 
additional  servitude  as  entitles  abutting  owners  to  compensation,  if  such 
use  is  for  the  public  benefit.  Sears  v.  Crocker,  184  Mass.  586,  69  N.  E.  327, 
100  Am.  St.  Rep.  577;  Souch  v.  East  London  R.  Co.,  L.  R.  16  Eq.  108,  42  L.  J. 
Ch.  477,  21  Wkly.  Rep.  590,  22  Wkly.  Rep.  566.  But,  if  the  fee  to  the  ease- 
ment is  in  the  abutting  owner,  and  the  use  is  for  a  telegraph  or  telephone 
company  owned  by  a  private  company  for  private  gain,  as  all  of  such  com- 
panies are  generally  used,  there  is  no  reason  why  the  abutting  owner  may 
not  receive  additional  compensation  the  same  as  if  the  line  of  wires  are 
strung  on  poles  on  the  streets. 

174  Clay  V.  Postal  Tel.  Cable  Co.,  70  Miss.  406,  11  South.  658;  West.  U.  Tel. 
Co.  v.  Sattei-field,  34  111.  App.  386;  Memphis  Bell  Tel.  Co.  v.  Hunt,  16  Lea 
(Tenn.)  456,  1  S.  W.  159,  57  Am.  Rep.  237;  Roy  v.  Great  Northwestern  Tel. 
Co.,  2  Quebec  Super.  Ct.  135 ;  Barber  v.  Tel.  Co.,  105  App.  Div.  154,  93  N.  Y. 
Supp.  993;  Norman  Milling,  etc.,  Co.  v.  Bethurem,  41  Okl.  735,  1.39  Pac.  8.30, 
51  L.  R.  A.  (N.  S.)  1082,  trespass  ab  initio;  Cartwright  v.  Liberty  Tel.  Co., 
205  Mo.  126,  103  S.  W.  982,  12  L.  R.  A.  (N.  S.)  1125,  12  Ann.  Cas.  249,  must 
have  authority  from  city  ;  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  111.  507,  47 
Am.  Rep.  453,  distinction  where  fee  is  in  the  city  or  in  the  abutter ;  Brouson 
V.  Albion  Tel.  Co.  67  Neb.  119,  93  N.  W.  201,  60  L.  R.  A.  426,  2  Ann.  Cas.  6.39, 
liability  depending  on  question  whether  the  use  of  the  highway  for  poles 
and  wires  is  an  ordinary  use,  within  the  contemplation  of  the  parties  when 
the  highway  was  dedicated  or  condemned,  or  whether  it  is  an  additional 
burden ;  Daily  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  46  Am.  St.  Rep.  578, 
24  L.  R.  A.  724,  partly  on  abutter's  own  land  and  partly  on  highway,  entitle 
to  compensation ;  Gorham  v.  Eastchester  Elec.  Co.,  SO  Hun,  290,  30  N.  Y. 
Supp.  125,  granting  privileges  to  construct  poles  and  wires  does  not  confer 
authority  to  mutilate  ornamental  shade  trees ;  McAntire  v.  Joplin  Tel.  Co.,  75 
Mo.  App.  535,  liable  whether  the  work  was  carefully  or  negligently  per- 
formed ;  Brown  v.  Asheville  Elec.  Co.,  138  N.  C.  534,  51  S.  Ev  62,  107  Am.  St. 
Rep.  554,  69  L.  R.  A.  631,  authority  from  city  does  not  relieve  company  of 
liability  for  compensation  for  trees ;  O'Conner  v.  Nova  Scotia  Tel.  Co.,  22 
Can.  C.  278,  presumed  that  abutter  has  fee  to  center  of  street;  Slabaugh  v. 
Omaha  Elec.  L.,  etc.,  Co.,  87  Neb.  805,  128  N.  W.  505,  30  L.  R.  A.  (N.  S.) 
1084,  limitation  of  action,  must  compensate  in  absence  of  statute  or  ordi- 
nance; Betz  V.  Kansas  City  Home  Tel.  Co.,  121  Mo.  App.  475,  97  S.  W.  207, 
neither  city  or  company  has  right  to  cut  abutter's  trees  unless  a  necessity  for 
the  act  exists,  and  the  presumption  is  that  the  necessity  did  not  exist ;  State 
V.  Graeme,  130  Mo.  App.  138,  108  S.  W.  1131,  should  proceed  under  statute  to 


133  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  126 

comes  necessary  in  the  construction  of  these  lines  in  cities  to  cut 
and  trim  valuable  and  ornamental  trees  overhanging  the  sidewalk, 
in  order  to  suspend  the  wires  from  post  to  post;  in  doing  so,  the 
owner  thereof  usually  raises  serious  objections.  The  companies, 
then,  are  face  to  face  with  this  question  of  right  and  power.  They 
are  generally  given  the  power,  along  with  their  license,  to  cut  and 

have  damage  assessed;  Osborne  v.  Auburn  Tel.  Co.,  189  N,  Y.  393,  82  N.  B. 
428,  liable  whether  has  franchise  or  not ;  Kellar  v.  Central  Tel.,  etc.,  Co.,  53 
Misc.  Rep.  523,  105  N.  Y.  Supp.  63,  liable  whether  fee  is  in  abutter  and  that 
on  which  tree  is ;  to  same  effect  see  Osborne  v.  Auburn  Tel.  Co.,  Ill  App. 
Div.  702,  97  N.  Y.  Supp.  874,  reversed  on  other  grounds  in  189  N.  Y.  393,  82 
N.  E.  428 ;  Bathgate  v.  North  Jersey  St.  R.,  75  N.  J.  Law,  763,  70  Atl.  132,  li- 
able for  feed  wire  of  street  car  company  for  damaging  trees ;  Darling  v.  New- 
port Elec.  L.  Co.,  74  N.  H.  515,  69  Atl.  885,  liable  where  requirements  of 
statute  not  complied  with ;  Boland  v.  Washtenaw  Home  Tel.  Co.,  161  Mich. 
315,  126  N.  W.  425,  injury  to  oak  tree  by  trimming  limbs  whether  company 
trimmed  same  before  title  was  acquired  by  owner;  Russellville  Home  Tel. 
Co.  V.  Com.,  33  Ky.  Law  Rep.  132,  109  S.  W.  340,  statute  regulating  cutting, 
trees  located  on  abutter's  property,  but  bordering  on  highway ;  Brahan  v. 
Meridian  Home  Tel.  Co.,  97  Miss.  326,  52  South.  485,  city  cannot  authorize 
cutting  without  compensating,  even  though  city  can  destroy  trees  where  pub- 
lic use  demands  it ;  Jordan  v.  Delaware,  etc.,  Tel.  Co.,  1  Boyce  (Del.)  107,  75 
Atl.  1014,  consent  given  by  abutter  so  far  as  reasonably  necessary ;  to  same 
effect  see  Nachand  v.  Cumberland  Tel.,  etc.,  Co.,  134  Ky.  257,  120  S.  W.  319, 
and  holding  that  recovery  cannot  be  had  unless  it  is  shown  that  the  trees  trim- 
med were  not  an  obstruction  to  the  lines,  or  that  more  was  trimmed  than 
necessary  to  clean  the  lines ;  Cumberland  Tel.  etc.,  Co.  v.  Martin,  93  Miss. 
505,  46  South.  247,  where  telephone  has  maintained  line  along  highway  for 
seven  years,  and  during  that  time  it  has  cut  undergrowth  interfering  witlx 
the  line  without  objection  being  made,  not  liable  to  one  who  takes  property  by 
descent  for  a  statutory  penalty  for  willfully  cutting,  where  it  cuts  only  such 
small  growth  as  interferes  with  the  line ;  State  v.  Graeme,  130  Mo.  App.  138, 
108  S.  W.  1131,  must  be  willfully  and  wantonly  done ;  Hobbs  v.  Long-Distance 
Tel.  Co.,  147  Ala.  393,  41  South.  1003,  7  L.  R.  A.  (N.  S.)  87,  11  Ann.  Cas.  461, 
injunction  will  not  be  granted  to  abutter,  but  his  remedy  is  at  law  against 
the  company  for  trimming  or  mutilating  or  destroying  trees. 

Contrary  holding.— There  are  authorities  holding  contrary  to  the  text. 
Thus,  in  Miller  v.  Detroit,  etc.,  R.  Co.,  125  Mich.  171,  84  N.  W.  49,  84  Am.  St. 
Rep.  569,  51  L.  R.  A.  955,  it  was  held  that,  where  the  company  erecting  poles 
and  wires  has  been  authorized  to  use  the  highway  for  such  purpose,  no  li- 
ability is  incurred  by  the  removal  or  pruning  of  trees  located  in  the  highway, 
the  title  to  which  is  in  the  abutting  owners,  when  it  is  necessary  to  allow  the 
construction  and  maintainance  of  the  poles  and  wires.  This  and  the  follow- 
ing cases  do  not  consider  that  the  wires  and  poles  are  an  additional  servi- 
tude. Wyant  v.  Central  Tel.  Co.,  123  Mich.  51,  81  N.  W.  928,  81  Am.  St.  Rep. 
155,  47  L.  R.  A.  497,  need  not  give  owner  an  opportunity  to  first  trim  the 
trees ;  Hazlehurst  v.  Mayes,  84  Miss.  7,  36  South.  33,  64  L.  R.  A.  805,  installa- 
tion of  an  electric  lighting  plant  by  municipality  for  public  use ;  Meyer  v. 
Standard  Tel.  Co.,  122  Iowa,  514,  98  N.  W.  300,  when  done  reasonably  and 


§    126)  CONSTRUCTION  AND   MAINTENANCE  133 

trim  such  overhanging-  trees  as  may  be  an  obstruction  to  the  erec- 
tion of  their  wires,  but  when  this  grant  is  given  them,  it  is  not 
understood  that  the  owners  are  to  be  deprived  of  their  property 
without  the  company  first  making  or  tendering  them  due  compen- 
sation for  their  property;  or  otherwise  his  property  would  be  used 
for  public  purposes  without  compensation,  which  would  be  in  vio- 
lation of  the  constitution/'^^  These  companies  must  pay  to  the 
owners  of  the  trees  such  damages  as  they  would  be  entitled  to.^^*' 
While  the  gravamen  of  an  action  brought  for  the  purpose  of  recov- 
ering damages  for  the  cutting  of  overhanging  trees  on  the  sidewalk 
is  the  trespass  upon  the  premises  of  the  abutting  owner,^^^  this 
could,  however,  be  avoided  by  providing  means — as  by  stepladders 
or  other  means — to  reach  the  trees  or  limbs  from  the  street,  yet  then 
they  would  nevertheless  be  liable  if  the  trees  were  injured  to  any  ex- 
tent.^^^  For  instance,  if  it  were  necessary  to  cut  the  trees  in  order 
to  lay  the  telephone  line,  this  would  not  warrant  cutting  them  so  as 

in  good  faith ;  Slockbower  v.  East  Orange  Tp.,  61  N.  J.  Law,  202,  88  Atl.  803, 
to  be  relieved,  autliority  must  be  acquired  by  company  from  city ;  cases 
where  such  authority  was  given,  Southern  Bell  Tel.  etc.,  Co.  v.  Constantine 
61  Fed.  61,  9  C.  C.  A.  359,  Southern  Bell  Tel.  Co.  v.  Francis,  109  Ala.  224,  19 
South.  1,  .55  Am.  St.  Rep.  930,  31  L.  R.  A.  193 ;  Dodd  v.  Consolidated  Tr.  Co., 
57  N.  J.  Law,  482,  31  Atl.  980;  Barber  v.  Hudson  River  Tel.  Co.,  105  App. 
Div.  154,  93  N.  Y.  Supp.  993,  written  license  given  by  owner  confers  author- 
ity to  do  only  reasonable  trimming. 

17  5  Memphis  Bell  Tel.  Co.  v.  Hunt,  16  Lea  (Tenn.)  456,  1  S.  W.  159,  57  Am. 
Rep.  237.    See  Moore  v.  Carolina,  etc.,  P.  Co.,  163  N.  C.  300,  79  S.  E.  597. 

176  Bronson  v.  Albion  Tel.  Co.,  67  Neb.  Ill,  93  N.  W.  201,  60  L.  R.  A.  426,  2 
Ann.  Cas.  639,  holding  that  unless  special  circumstances  authorizing  such  re- 
lief are  shown  an  injunction  will  not  be  granted,  but  the  abutting  owner  will 
be  left  to  his  remedy  at  law.  Tri-State  Tel.,  etc.,  Co.  v.  Cosgriff,  19  N.  D. 
771,  124  N.  W.  75,  26  L.  R.  A.  (N.  S.)  1171,  present,  and  not  future,  value  of 
trees  recoverable. 

17  7  Telegraph  and  telephone  companies  have  no  right  to  go  upon  pri- 
vate property  for  the  purpose  of  cutting  or  trimming  trees  without  the  own- 
er's consent.  Tissot  v.  Great  Southern  Tel.,  etc.,  Co.,  39  La.  Ann.  996,  3 
South.  261,  4  Am.  St.  Rep.  248;  West.  U.  Tel.  Co.  v.  Satterfield,  34  111. 
App.  386;  Clay  v.  Postal  Tel.  Cable  Co.,  70  Miss.  406,  11  South.  658;  Cum- 
berland Tel.,  etc.,  Co.  v.  Shaw,  102  Tenn.  313,  52  S.  W.  163 ;  Van  Siclen  v.  Ja- 
maica Electric  Light  Co.,  45  App.  Div.  1,  61  N.  Y.  Supp.  210,  affirmed  in  168 
N.  Y.  650,  61  N.  E.  1135 ;  Cumberland  Tel.,  etc.,  Co.  v.  Poston,  94  Tenn.  696,  30 
S.  W.  1040 ;  Memphis  Bell  Tel.  Co.  v.  Hunt,  16  Lea  (Tenn.)  456,  1  S.  W.  159.  57 
Am.  Rep.  237;  Southwestern  Tel.,  etc.,  Co.  v.  Branham  (Tex.  Civ.  App.)  74 
S.  W.  949;  Gilchrist  v.  Dominion  Tel.  Co.,  19  N.  Brunsw.  553 ;  Roy  v.  Great 
Northwestern  Tel.  Co.,  2  Quebec  Sup.  Ct.  135. 

17S  Memphis  Bell  Tel.  Co.  v.  Hunt,  16  Lea  (Tenn.)  456,  1  S.  W.  1.50,  57  Am. 
Rep.  237 ;    Tissot  v.  Great  Southern  Tel.,  etc.,  Co.,  39  La.  Ann.  996,  3  South. 


134  TELEGRAPH  AND  TELErHONE  COMPANIES         (§  127 

to  leave  in  the  foliage  an  open  space  from  twenty-five  to  forty  feet 
in  circumference  for  the  mere  purpose  of  passing  through  it  an 
almost  imperceptible  wire.^'^^  This,  however,  would  not  be  the  case 
if  the  trees  had  been  declared  a  nuisance  and  the  owners  thereof 
had  been  authorized  to  move  same.  A  municipality  may  declare 
them  a  nuisance  when  they  obstruct  travel  along  the  streets  or 
when  the  limbs  prevent  the  sun  from  drying  the  sidewalks  and 
thereby  creating  constant  dampness  and  causing  decay;  but  a  tele- 
phone company  could  not  abate  the  nuisance  on  its  own  accord. 

§  127.  Same  continued — punitory  damages. — The  company  may 
commit  the  trespass  in  such  a  way  as  would  entitle  the  lot  owner 
to  punitory  or  exemplary  damages,  as  in  the  case  where  the  tres- 
pass was  wanton  and  malicious  the  injured  party  would  be  entitled 
to  recover  both  nominal  and  vindictive  damages.  This  was  so  held 
where  a  telephone  company  had  authority  from  the  city  to  con- 
struct a  line  of  wires  upon  the  streets  and  in  making  such  construc- 
tion attempted  to  cut  and  trim  limbs  on  ornamental  trees  overhang- 
ing the  sidewalk.  The  owners  of  these  trees  objected  to  their  being 
trimmed  in  any  manner,  but  in  order  to  accomplish  this  work  the 
employe  stole  a  march  on  the  lot  owner  by  going  to  the  premises 
late  at  night  and  then  entering  the  premises  and  doing  the  work.'-^" 
In  another  case  the  employes  of  the  company  waited  until  the  owner 
of  the  trees,  who  had  objected  to  the  cutting  of  his  trees,  had  gone 
off  on  a  visit  before  the  trimming  was  done.^^^  The  court  granted 
damages  to  these  injured  parties  for  malicious  and  willful  trespass 
of  the  company.  It  makes  no  difference  if  the  company's  agent  in 
charge  of  the  construction  was  absent  at  the  time  the  trespass  was 
committed,  the  company  will  still  be  liable. ^^^ 

261,  4  Am.  St.  Rep.  248;  Southwestern  Tel.,  etc.,  Co.  v.  Branham  (Tex.  Civ. 
App.)  74  S.  W.  949;  Roy  v.  Great  Northwestern  Tel.  Co.,  2  Quebec  Sup.  Ct. 
135. 

ivn  Tissot  V.  Great  Southern  Tel.,  etc.,  Co.,  39  La.  Ann.  996,  3  South.  261,  4 
Am.  St.  Rep.  248. 

An  electric  light  company  has  no  right  to  injure  or  mutilate  the  trees  of 
an  adjoining  owner,  if  it  can  be  avoided  by  reasonable  care  and  proper  in- 
sulation: Van  Siclen  v.  Jamaica  Electric  Light  Co.,  45  App.  Div.  1,  61  N.  Y. 
Supp.  210,  affirmed  in  168  N.  Y.  650,  61  N.  E.  1135;  Malone  v.  Waukesha 
Electric  Light  Co.,  120  Wis.  485,  98  N.  W.  247 ;  Norman  Milling,  etc.,  Co.  v. 
Bethurem,  41  Olvl.  735,  139  Pac.  830,  51  L.  R.  A.  (N.  S.)  1082,  and  note. 

ISO  Memphis  Bell  Tel.  Co.  v.  Hunt,  16  Lea  (Teun.)  456,  1  S.  W.  159,  57  Am. 
Rep.  237. 

181  Tissot  V.  Great  Southern  Tel.,  etc.,  Co.,  39  La.  Ann.  996,  3  South.  261, 
4  Am.  St.  Rep.  248. 

182  Clay  V.  Postal  Tel.  Cable  Co.,  70  Miss.  406,  11  South.  658. 


§    129)  CONSTRUCTION   AND   MAINTENANCE  135 

§  128.  Willful  intent — question  for  jury. — Punitive  damages  are 
imposed  on  a  corporation  as  a  means  of  punishment  for  its  wrong- 
ful acts,  and  in  order  for  a  corporation  to  be  guilty  of  a  criminal 
wrong/^^  it  must  have  had  an  intent  to  commit  such  wrong.  Ap- 
plying the  rule  to  the  present  discussion,  if  the  employes  of  a  tele- 
graph, telephone  or  electric  company  in  good  faith  honestly  thought 
from  the  circumstances  that  they  had  the  right  to  cut  certain  trees 
on  the  premises  of  another,  they  cannot,  within  the  meaning  of  the 
law,  be  held  to  be  guilty  of  a  crime,  although  they  had  no  right 
or  lawful  authority  to  cut  such  trees ;  however,  if  they  acted  heed- 
lessly, recklessly  and  carelessly,  without  honestly  believing  that 
they  had  the  right  to  do  so,  they  or  rather  the  company  for  which 
they  are  working,  will  be  liable  in  punitory  damages,  yet  it  is  a 
question  of  fact  to  be  decided  by  a  jury  as  to  whether  they  acted 
in  such  a  way  as  to  make  the  company  liable  for  such  damages.^®* 

§  129.  Trees  on  the  sidev/alk. — There  seems  to  be  a  difference 
in  the  effect  in  the  trimming  or  cutting  of  trees  which  are  growing 
in  front  of  the  premises  of  the  abutter  on  the  sidewalk,  or  between 
the  sidewalk  and  the  street,  and  those  growing  on  the  premises  of 
the  abutter  but  hanging  over  the  sidewalk.  The  sidewalk  and 
streets  are  for  the  benefit  of  public  travel,  and  all  obstructions 
thereon  may  be  declared  a  nuisance  and  removed  by  abatement.  In 
most  cities  and  towns,  there  may  be  seen  trees  growing  upon  or  on 
the  outer  edge  of  the  sidewalk — the  same  having  been  planted  either 
by  the  city  or  the  abutter  or  vendor,  and  for  the  purpose  of  shade, 
ornament  and  health.  The  question  may  be  asked :  What  interest 
has  the  abutter  in  these  trees?  His  interest  in  the  trees,  whether 
they  were  planted  by  him  on  the  sidewalk,  or  acquired  by  devolution 
of  title  to  the  adjacent  property,  is  a  qualified  and  limited  owner- 
ship, subordinate  to  the  public  right  to  safe  and  convenient  passage, 
and  to  the  rights,  powers  and  duties  of  the  governing  municipal 
body  in  the  protection,  promotion  and  establishing  of  every  public 
use  in  and  upon  the  streets  in  a  city.^®^  A  question  which  might 
necessarily  follow  is  this :  Has  the  city  such  control  over  the  streets 
as  would  enable  it  to  grant  to  a  telegraph,  telephone,  or  electric 
company  the  power  to  cut  or  trim  such  trees  without  compensating 
the  abutter?  If  the  fee  to  the  streets  is  in  the  city,  it  could  grant 
this  power,  but  should  the  fee  be  in  the  abutter,  the  city  would  have 

183  See  Russellville  Home  Tel.  Co.  v.  Com.,  109  S.  W.  340,  33  Ky.  Law  Rep. 
132. 

184  Daily  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  46  Am.  St.  Rep.  578,  24  L. 
R.  A.  724. 

18  5  Baker  v.  Town  of  Normal,  81  111.  108. 


136  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  129 

no  authority/^®  unless  it  were  necessary  and  beneficial  to  the  latter 
to  grant  such  a  power.^®^  The  abutter  only  grants  to  the  public 
the  right  of  easement  and  reserves  to  himself  all  other  interest  in  ■ 
the  soil.  So  it  follows  that  he  is  entitled  to  all  that  grows  upon  the 
easement  such  as  trees  and  grasses,  to  the  center  of  the  way,  and 
also  to  all  minerals  and  other  substances  beneath  the  soil;  yet  in 
making  the  grant  to  the  public  it  was  understood  that  the  easement 
would  necessarily  have  to  be  put  in  and  maintained  in  a  passable 
condition.  So,  also,  any  obstruction  which  would  interfere  with 
travel  or  the  convenience  thereto  might  be  abated ;  and  where  it  is 
necessary  to  remove  or  trim  these  trees  for  public  travel  or  for 
such  secondary  uses  to  which  these  streets  might  be  put,  the  same 
may  be  done  without  compensating  the  abutting  owner.  It  is  pre- 
sumed that  he  was  amply  compensated  for  these  at  the  time  the 
grant  to  the  street  was  acquired.  While  the  company  would  have 
to  compensate  these  lot  owners  for  cutting  and  trimming  these 
trees,  yet  if  in  connection  with  these  companies  there  is  another 
contrivance,  attached  to  the  poles  of  the  company — as  a  telegraph 
fire-alarm  wire — and  the  same  is  specially  for  the  benefit  of  the  city, 
the  owner  would  not  be  entitled  to  compensation  for  the  injury  to 

186  Tissot  v.  Great  Southern  Tel.,  etc.,  Co.,  39  La.  Ann.  996,  3  South.  201,  4 
Am  St.  Rep.  248 ;  Bronson  v.  Albion  Tel.  Co.,  67  Neb.  Ill,  93  N.  W.  201,  60 
L.  R.  A.  426,  2  Ann.  Cas.  639;  Van  Siclen  v.  Jamaica  Electric  Light  Co.,  45 
App.  Div.  1,  61  N.  Y.  Supp.  210,  affirmed  in  168  N.  Y.  650,  61  N.  E.  1135; 
Memphis  Bell  Tel.  Co.  v.  Hunt,  16  Lea  (Tenn.)  456,  1  S.  W.  159,  57  Am.  Rep. 
237 ;  Gilchrist  v.  Dominion  Tel.  Co.,  19  N.  Brunsw.  553.  See  Southern  Bell 
Tel.  Co.  V.  Francis,  109  Ala.  224,  19  South.  1,  55  Am.  St.  Rep.  930,  131  L.  R. 
A.  193;  Wyant  v.  Central  Tel.  Co.,  123  Mich.  51,  81  N.  W.  928,  81  Am.  St. 
Rep.  155,  47  L.  R.  A.  497. 

//  the  trees  are  not  the  owner's,  if  he  has  planted  them  in  front  of  his 
premises  with  the  acquiescence  of  the  citj-,  he  may  recover  for  their  wrong- 
ful or  willful  cutting.  Osborne  v.  Auburn  Tel.  Co.,  Ill  App.  Div.  702,  97 
N.  Y.  Supp.  874. 

187  The  authorities  are  conflicting.  See  Norman,  etc.,  Co.  v.  Bethurem,  41 
Okl.  735,  139  Pac.  830,  51  L.  R.  A.  (N.  S.)  1082 ;  Slabaugh  v.  Omaha,  etc.,  P. 
Co.,  87  Neb.  805,  128  N.  W.  505,  30  L.  R.  A.  (N.  S.)  1084 ;  Bronson  v.  Albion 
Tel.  Co.,  67  Neb.  Ill,  93  N.  W.  201,  60  L.  R.  A.  426,  2  Ann.  Cas.  625.  Some 
hold  that  the  abutting  o^vner  is  entitled  to  damages.  Board  of  Trade  Tel. 
Co.  V.  Barnett,  107  111.  507,  47  Am.  Rep.  453 ;  Bradley  v.  Southern  New  Eng- 
land Tel.  Co.,  66  Conn.  559,  34  Atl.  499,  32  L.  R.  A.  280;  Cumberland  Tel., 
etc.,  Co.  V.  Cassedy,  78  Miss.  606,  29  South,  762;  Cartwright  v.  Liberty  Tel. 
Co.,  205  Mo.  126,  103  S.  W.  982,  12  L.  R.  A.  (N.  S.)  1125,  12  Ann.  Cas.  249 ; 
State  V.  Graeme,  130  Mo.  App.  138,  108  S.  W.  1131;  McAntire  v.  Joplin  Tel. 
Co.,  75  Mo.  App.  535 ;  Osborne  v.  Auburn  Tel.  Co.,  Ill  App.  Div.  702,  97  N.  Y. 
Supp.  874 ;  Bronson  v.  Albion  Tel.  Co.,  67  Neb.  Ill,  93  N.  W.  201,  60  L.  R.  A. 
426,  2  Ann.  Cas.  625 ;  Marshall  v.  American  Tel.,  etc.,  Co.,  16  Pa.  Super.  CL 


§    129)  CONSTRUCTION   AND   MAINTENANCE  137 

his  said  trees,  caused  by  the  construction  of  this  fire-alarm  wire/®* 
for  this  is  a  secondary  use  to  which  the  streets  may  be  put  and  one 
contemplated  at  the  time  the  grant  was  made. 

615 ;  Boland  v.  Tel.  Co..  161  INIich.  315,  126  N.  W.  425.  See  Daily  v.  State,  51 
Ohio  St.  348,  37  N.  E.  710,  46  Am.  St.  Rep.  578,  24  L.  R.  A.  724 ;  Tri-State  Tel. 
Co.  V.  Cosgriff,  19  N.  D.  771,  124  N.  W.  75,  26  L.  R.  A.  (N.  S.)  1171.  Other  courts 
hold  that  he  is  not  entitled  to  damages.  Wyant  v.  Central  Tel.  Co.,  123  Mich. 
51,  SI  X.  W.  928,  81  Am.  St.  Rep.  155,  47  L.  R.  A.  497 ;  Southern  Bell  Tel.  Co. 
V.  Francis,  109  Ala.  224,  19  South.  1,  55  Am.  St.  Rep.  930,  31  L.  R.  A.  193; 
Southern  Bell  Tel.,  etc.,  Co.  v.  Constantine,  61  Fed.  61,  9  C.  C.  A.  359.  See, 
also,  West.  U.  Tel.  Co.  v.  Rich,  19  Kan.  517,  27  Am.  Rep.  159;  Tri-State  TeL 
Co.  V.  Cosgriff,  supra,  not  entitled  to  damages  for  future  value  of  trees. 

188  Southern  Bell  Tel.  Co.  v.  Francis,  109  Ala.  224,  19  South.  1,  55  Am.  St. 
Rep.  930,  31  L.  R.  A.  193. 


138  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  130 

CHAPTER  VI 

OVER  PRIVATE  PROPERTY, 

§  130.  By  consent. 

131.  By  condemnation  proceedings. 

132.  General  rule — conditions  precedent. 

133.  Same  continued — petition — contents. 

134.  iSame  continued — name  of  petitioners — who  may  be. 

135.  Same  continued — name  of  landowners — their  residence  and  interest 

in  lands — several  tracts  or  interests. 

136.  Same  continued — description  of  route. 

137.  Same  continued — description  of  poles. 

138.  Same  continued — notice — appointment  of  commissioners. 

139.  Same  continued — sworn  to  by  officers. 

140.  Same  continued — failure  to  acquire   land  by  agreement  with  land- 

owner. 

141.  The  interest  acquired. 

142.  Measure  of  damages. 

143.  Same — electric  companies. 

144.  Same — wireless  telegraph  companies. 

§  130.  By  consent. — Where  a  telegraph,  telephone,  or  electric 
company  occupies  the  private  property  of  an  individual  for  the 
construction  of  a  line  of  wires,  there  is  no  question  that  the  land- 
owner should  be  compensated  for  the  use  of  his  land.^     There  are 

1  Daily  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  24  L.  R.  A.  724,  46  Am.  St. 
Rep.  578;  West.  U.  Tel.  Co.  v.  Williams,  86  Va.  696,  11  S.  E.  106,  19  Am. 
St.  Rep.  90S,  8  L.  R.  A.  429,  note ;  Stowers  v.  Postal  Tel.,  etc.,  Co.,  68  Miss. 
559,  9  South.  356,  12  L.  R.  A.  864,  note,  24  Am.  St.  Rep.  290;  Board  of 
Trade  Tel.  Co.  v.  Barnett,  107  111.  507,  47  Am.  Rep.  453 ;  McCormick  v.  Dist. 
of  Columbia,  4  Mackey  (D.  C.)  396,  54  Am.  Rep.  290 ;  Pierce  v.  Drew,  136 
Mass.  75,  49  Am.  Rep.  14;  Postal  Tel.  Cable  Co.  v.  Eaton,  170  111.  513,  49 
N.  E.  365,  62  Am.  St.  Rep.  390,  39  L.  R.  A.  722;  Magee  v.  Overshiner,  150 
Ind.  127,  49  N.  E.  951,  40  L.  R.  A.  370,  65  Am.  St.  Rep.  358.  This  question  is 
decided  in  American  Telephone,  etc.,  Co.  v.  Pearce,  71  Md.  535,  18  Atl.  910, 
7  L.  R.  A.  200,  where  it  Is  determined  that  a  telegraph  or  telephone  company 
is,  with  respect  to  the  right  to  construct  its  lines  over  private  property,  just 
as  much  subject  to  the  constitutional  prohibition  against  taking  private  prop- 
erty for  public  use  without  just  compensation  as  is  a  railway  or  any  other 
corporation  clothed  with  the  power  of  taking  private  property  for  public  use ; 
and  the  averment  that  such  company  is  proceeding,  or  threatens  to  proceed, 
to  construct  its  line  of  poles  or  wires  on  and  over  the  complainant's  land 
without  his  leave  or  license,  and  without  paying  or  tendering  him  compensa- 
tion for  the  use  of  his  land  for  this  pui*pose,  is  sufficient  to  entitle  him  to  an 
injunction.  Under  a  license  from  a  municipal  corporation  for  the  erection 
of  a  telephone  line,  or  a  fire-alarm  telegraph,  there  is  no  authority  to  enter 
private  property  and  cut  off  the  limbs  of  trees,  although  they  project  over  the 
line  of  the  sidewalk  on  the  street.    Tissot  y.  Great  Southern  Telegraph,  etc., 


8    131)  OVER  PRIVATE   PROPERTY  139 

two  ways  by  which  the  company  may  legally  acquire  the  right  to 
occupy  the  lands  of  the  individual :  One  is  by  an  agreement  entered 
into  with  the  owner  of  the  land,  or  one  who  has  the  right  to  man- 
age and  control  it ;  ^  and  the  other  is  by  a  condemnation  pro- 
ceeding instituted  by  the  company.^  With  a  few  exceptions,  a  land- 
owner has  the  absolute  power  of  making  such  disposition  of  his 
land  as  he  may  see  fit.  He  may  sell,  rent,  lease,  mortgage,  or  make 
a  grant  or  gift  of  it  to  any  one,  by  any  kind  of  a  contract  or 
agreement  which  he  may  in  good  faith  voluntarily  make.  There- 
fore it  necessarily  follows  that  he  may  make  any  kind  of  an 
agreement  with  a  telegraph,  telephone,  or  electric  company  which 
the  latter  may  accept  for  the  construction  of  a  line  of  wires  upon 
and  across  his  private  property.  He  may  sell,  or  give  it  a  right 
of  way;  and  in  either  instance  the  parties  would  be  controlled  by 
the  contract  or  agreement  made  between  them;  and,  in  case  the 
right  is  acquired  by  the  means  of  purchase,  the  consideration  for 
which  may  be  in  money  value ;  or,  in  case  of  a  telephone,  it  may  be  for 
the  right  to  the  use  of  a  telephone  for  a  period  of  time ;  or  for  other 
conveniences  which  the  landowner  may  receive  by  reason  of  the  line  be- 
ing on  his  premises.  There  are  some  inconveniences  and  liabilities  at- 
tached to  a  company,  where  it  enters  upon  the  premises  of  an  indi- 
vidual's property,  by  a  mere  parol  license,  in  that  the  license  is 
revocable  at  will ;  *  and  a  transfer  of  the  land  is  an  implied  revo- 
cation of  it.°  Poles  and  wires  erected  under  an  agreement  with  a 
landowner  are  subject  to  the  lien  of  a  prior  mortgage,  which  in- 
cluded after-acquired  property.*' 

§  131.  By  condemnation  proceedings. — The  right  of  eminent  do- 
main may  be  exercised  either  directly  by  the  agents  of  the  gov- 
ernment, or  through  the  medium  of  corporate  bodies,  or  individ- 
ual enterprises,^  by  virtue  of  a  delegation  of  the  power.    The  right 

Co.,  39  La.  Ann.  996,  3  South.  201,  4  Am.  St.  Rep.  248;    Memphis  Bell  Tel. 
Co.  V.  Hunt,  16  Lea  (Tenu.)  456,  1  S.  W.  159,  57  Am.  Rep.  237. 

2Marj'land  Tel.,  etc.,  Co.  v.  Ruth,  106  Md.  644,  68  Atl.  358,  14  L.  R.  A. 
(N.  S.)  427,  124  Am.  St.  Rep.  506,  14  Ann.  Cas.  576,  owner  of  the  reversion  of 
leasehold  cannot  give  consent. 

3  Wissler  v.  Yadkin,  etc.,  P.  Co.,  158  N.  C.  465,  74  S.  E.  460,  electric  com- 
pany. 

4  Winter  v.  New  York  Tel.  Co.,  51  N.  J.  Law,  83,  16  Atl.  188. 

5  Andrews  v.  Delhi,  etc.,  Tel.  Co.,  66  App.  Div.  616,  73  N.  Y.  Supp.  1129. 

6  Monmouth  County  Electric  Co.  v.  Central  R.  Co.  (N.  J.)  54  Atl.  140.  See 
§  24.  See,  also.  Central  Tel.  Co.  v.  Fisher,  157  Iowa,  203,  138  X.  W.  436,  42 
L.  R.  A.  (N.  S.)  1021. 

7  Crawford  Elec.  Co.  v.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119, 
Ann.  Cas.  1914C,  933 ;    State  v.  Twin  Village  Water  Co.,  98  Me.  214,  56  Atl. 


140  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  131 

of  eminent  domain,  however,  can  only  be  delegated  for  public  pur- 
poses, as  private  property  cannot  be  taken  for  private  use.^  The 
business  of  transmission  of  intelligence  by  electricity  is  one  of  a 
public  character,  to  be  exercised  under  the  public  control,  in  the 
same  manner  as  the  transportation  of  goods  or  passengers  by  rail- 
road.® So  a  telegraph,  telephone,  or  electric  business  is  a  public 
use  authorizing  the  taking,  under  the  power  of  eminent  domain, 
of  private  property,^"  but  such  property  cannot  constitutionally  be 
taken  against  the  owner's  consent  without  compensation,^^  al- 
though already  devoted  to  a  public  use.^^  If  an  agreement  with  the 
landowner  cannot  be  obtained,  which  is  usually  first  required,  re- 
sort must  be  had  to  the  local  statutes  authorizing  the  right  of 
condemnation.  In  some  of  the  states  there  are  general  statutes 
existing  providing  for  the  acquisition  of  private  property  for  pub- 
lic use  on  due  compensation  being  given  or  tendered;  and  these 
statutes  embrace,  either  expressly  or  by  implication,  the  purposes 
of  telegraph  and  telephone  companies. ^^     In  other  states  there  are 

763;  Magee  v.  Overshiner,  1.50  Ind.  127,  49  N.  E.  951,  65  Am.  St.  Rep.  358, 
40  L.  R.  A.  370 ;  State  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E. 
319 ;    Haines  v.  Crosby,  94  Me.  212,  47  Atl.  137. 

8  Green  v.  Tel.  Co.,  136  N.  C.  489,  49  S.  E.  165,  67  L.  R.  A.  985,  103  Am. 
St.  Rep.  955,  1  Ann.  Cas.  349. 

9  New  Orleans,  etc.,  R.  Co.  v.  Southern,  etc.,  Tel.  Co.,  53  Ala.  211 ;  Pierce  v. 
Drew,  136  Mass.  75,  49  Am.  Rep.  7;  Trenton,  etc.,  Tr.  Co.  v.  American,  etc., 
News  Co.,  43  N.  J.  Law,  381. 

10  Prather  v.  West.  U.  Tel.  Co.,  89  Ind.  501 ;  Mobile,  etc.,  R.  Co.  v.  Postal 
Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408 ;  Green  v.  Tel.  Co.,  136  N.  C.  489, 
49  S.  E.  165,  67  L.  R.  A.  985,  103  Am.  St.  Rep.  955,  1  Ann.  Cas.  349 ;  New  Or- 
leans, etc.,  R.  Co.  V.  Southern,  etc.,  Tel.  Co.,  53  Ala.  211 ;  Trenton,  etc., 
Tr.  Co.  V.  American,  etc.,  News  Co.,  43  N.  J.  Law,  381 ;  York  Tel.  Co.  v. 
Keesey,  5  Pa.  Dist.  R.  366;  Wisconsin  Tel.  Co.  v.  Oshkosh,  62  Wis.  32,  21 
N.  W.  828;  Tel.  Co.  v.  Hill,  163  Ala.  IS,  50  South.  248,  23  L.  R.  A.  (N.  S.) 
648,  19  Ann.  Cas.  1058 ;  Oury  v.  Goodwin,  3  Ariz.  255,  266  Pac.  376 ;  Shuster 
V.  Tel.  Co.,  34  Pa.  Super.  Ct.  513;  State  v.  Super.  Ct.,  64  Wash,  189,  116 
Pac.  855 ;  Montana  Postal  Tel.  Cable  Co.  v.  Oregon  Shore  Line  R.  Co,  (D.  C.) 
114  Fed.  787;  Atty.  Gen.  v.  Edison  Tel.  Co.,  6  Q.  B.  D.  244,  50  L.  J.  Q.  B. 
145,  43  L.  T.  Rep.  (N.  S.)  697,  29  Wkly.  Rep.  428.  See  Union  Pac.  R.  Co.  v. 
Colorado  Postal  Tel.,  etc.,  Co.,  30  Colo.  133,  69  Pac.  564,  97  Am.  St,  Rep.  106, 
showing  what  is  not  a  public  use ;  Wissler  v.  Yadkin,  etc.,  P,  Co.,  158  N.  C. 
465,  74  S.  E.  460,  electric  company. 

11  See  §  52.  See  Souther  v.  Northwestern  Tel.  Exch,,  118  Minn.  102,  136 
N.  W.  571,  Ann,  Cas.  1913E,  472,  45  L,  R,  A,  (N,  S.)  001,  must  not  use  force 
in  erecting  its  poles  thereon.  . 

12  See  §  02  et  seq.     See  §  152. 

13  See  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.,  123  Fed.  33,  59  C.  C.  A.  113 ; 
Ft.  Worth,  etc.,  R,  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  96  Tex.  160,  71  S.  W. 


§    131)  OVER  PRIVATE   PROPERTY  141 

Statutes  relating  directly  to  telegraph  and  telephone  companies  ;^^ 
and  some  of  these  expressly  confer  the  power  upon  telegraph  com- 
panies without  mentioning  the  telephone,  but  the  latter,  being  a 
new  species  of  telegraph,  presenting  a  change  in  detail,  but  not  in 
substance,  the  right  of  eminent  domain  conferred  by  statutes  on 
telegraph  companies  is  applicable  to  telephone  companies,  although 
the  latter  is  not  mentioned  in  the  statute/^  This  same  rule  would 
apply  to  the  wireless  telegraph  or  telephone  company,  where  either 
desired  to  condemn  private  property  for  its  poles,  or  towers.  A 
company  incorporated  for  the  purpose  of  manufacturing  and  sell- 
ing electricity  for  public  and  private  lighting  is  not  for  a  private 
use,  and  it  could  therefore  exercise  the  right  of  eminent  domain  for 
the  purpose  of  erecting  and  maintaining  its  plant,  poles,  and  tow- 
ers, and  stringing  its  cables  and  wires,  and  could  condemn  private 
property  for  this  purpose.^''     Every  citizen  holds  his  land  subject 

270,  60  L.  R.  A,  145;  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co., 
76  Minn.  334,  79  N.  W.  315 ;  State  v.  New  Jersey  Cent.  Tel.  Co.,  53  N.  J.  Law, 
341,  21  Atl.  460,  11  L.  R.  A.  664 ;  Gulf,  etc.,  R.  Co.  v.  Southwestern  Tel., 
etc.,  Co.,  18  Tex.  Civ.  App.  500,  45  S.  W.  151;  Doty  v.  American  Tel.,  etc., 
Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann.  Cas.  1912C,  167. 

14  See  §  155. 

15  American  Tel.,  etc.,  Co.  v.  Smith,  71  Md.  535,  18  Atl.  910,  7  L.  R.  A.  200; 
Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn.  334,  79  N.  W. 
315 ;  Duke  v.  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460,  11  L.  R.  A. 
664 ;  San  Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.) 
56  S.  W.  201;  Gulf,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  18  Tex.  Civ. 
App.  500,  45  S.  W.  151;  Cincinnati  Inclined  Plane  R.  Co.  v.  City,  etc.,  Tel. 
Ass'n,  48  Ohio  St.  390,  27  N.  E.  890,  29  Am.  St.  Rep.  559,  12  L.  R.  A.  534 ; 
People's  Tel.,  etc.,  Co.  v.  Berks,  etc.,  Tr.  Road,  199  Pa.  411,  49  Atl.  284 ;  Tex- 
arkana  v.  Southwestern  Tel.,  etc.,  Co.,  48  Tex.  Civ.  App.  16,  106  S.  W.  915; 
Roberts  v.  Wisconsin  Tel.  Co.,  77  Wis.  589.  46  N.  W.  800,  20  Am.  St.  Rep.  143. 
Contra,  Home  Tel.  Co.  v.  Nashville,  118  Tenn.  1,  101  S.  W.  770,  11  Ann.  Cas. 
824.  But  see  Doty  v.  American  Tel.,  etc.,  Co.,  123  Tenn.  329,  130  S.  W.  1053, 
Ann.  Cas.  1912C,  167;  Sunset,  etc.,  Co.  v.  Pomona  (C.  C.)  164  Fed.  561,  af- 
firmed in  172  Fed.  829,  97  C.  C.  A.  251.  See  Railroad,  etc.,  Co.  v.  Tel.,  etc., 
Co.,  88  Miss.  438,  41  South.  258,  contrary  holding ;  Franklin  v.  Northwestern 
Tel.  Co.,  69  Iowa,  97,  28  N.  W.  461 ;  San  Antonio,  etc.,  R.  Co.  v.  Southwestern 
Tel.,  etc.,  Co.,  93  Tex.  313,  55  S.  W.  117,  77  Am.  St.  Rep.  884,  49  L.  R.  A.  459 ; 
Wisconsin  Tel.  Co.  v.  Oshkosh,  62  Wis.  32,  21  N.  W.  828. 

isGoddard  v.  Chicago,  etc.,  R.  Co.,  104  111.  App.  533;  Goddard  v.  Chicago, 
etc.,  R.  Co.,  104  111.  App.  526,  affirmed  in  202  111.  362,  66  N,  E.  1066;  State 
V.  Allen,  178  Mo.  555,  77  S.  W.  868 ;  Gulf  Coast  Ice,  etc.,  Co.  v.  Bowers,  80 
Miss.  570,  32  South.  113;  Palmer  v.  Larchmont  Electric  Co.,  158  N.  Y.  231, 
52  N.  E.  1092,  43  L.  R.  A.  672,  reversing  6  App.  Div.  12,  39  N.  Y.  Supp.  522 ; 
TifCany  v.  U.  S.  Illuminating  Co.,  51  N.  Y.  Super.  Ct.  280,  affirming  67  How. 
Prac.  (N.  Y.)  73 ;  People  v.  Thompson,  65  How.  Prac.  (N.  Y.)  407 ;  Haverford 
Electric  Light  Co.  v.  Hart,  13  Pa.  Co.  Ct.  R.  369 ;    Callen  v.  Columbus  Edison 


142  TELEGRAPH  AND  TELErHONE  COMPANIES         (§  131 

to  this  right;  but  it  must  be  clearly  understood  that  the  easement 
should  be  acquired  for  a  public  use;  and,  should  the  company,  at- 
tempting to  exercise  the  right,  construct  the  line  for  strictly  a 
private  use,^^  it  may  be  enjoined  by  the  landowner,^^  or  other- 
wise it  will  be  liable  for  an  unlawful  trespass.^ ^  The  owner  must 
also  be  compensated,  for  the  easement,  in  accordance  to  the  dam- 
Electric  Light  Co.,  66  Ohio  St.  166,  64  N.  E,  141,  58  L.  R.  A.  782;  Light, 
etc.,  Co.  V.  Stacher,  13  Cal.  App.  404,  109  Pac.  896;  Nolan  v.  Power  Co.,  134 
Ga.  201,  67  S.  E.  656;  Power  Co.  v.  Waters,  19  Idaho,  595,  115  Pac.  682; 
Canal,  etc.,  Co.  v.  Koochiching  Co.,  97  Minn.  429,  107  N.  W.  405,  5  L.  R.  A. 
(N.  S.)  638,  7  Ann.  Cas.  1182;  Canal,  etc.,  Co.  t.  Pratt,  101  Minn.  197,  112 
N.  W.  395,  11  L.  R.  A.  (N.  S.)  105 ;  Spratt  v.  Transmission  Co.,  37  Mont.  60, 
94  Pac.  631 ;  Light,  etc.,  Co.  v.  Hobbs,  72  N.  H.  531,  58  Atl.  46,  66  L.  R.  A.  531 ; 
McMillan  v.  Noyes,  75  N.  H.  258,  72  Atl.  759;  Matter  of  Power  Co.,  Ill 
App.  Div.  €86,  97  N.  Y.  Supp.  853 ;  Matter  of  Light,  etc.,  Co.,  49  Misc.  Rep. 
565,  99  N.  Y.  Supp.  109 ;  Wissler  v.  Power  Co.,  158  N.  C.  465,  74  S.  E.  460 ; 
Power  Co.  v.  Wissler,  160  N.  C.  269,  76  S.  E.  267,  43  L.  R.  A.  (N.  S.)  483, 
Ann.  Cas.  1914C,  268 ;  Tnttle  r.  Power,  etc.,  Co.,  31  Okl.  710,  122  Pac.  1102 ; 
Power  Co.  v.  Webb,  123  Tenn.  584,  133  S.  W.  1105;  River  Co.  v.  Paper  Co., 
83  Vt.  548,  77  Atl.  862;  Miller  v.  Pulaski,  109  Va.  137,  63  S.  E.  880,  22  L. 
R.  A.  (N.  S.)  552 ;  State  v.  Super.  Ct.,  35  Wash.  303,  77  Pac.  382 ;  State  v. 
Super.  Ct,  52  Wash.  196,  100  Pac.  317,  21  L.  R.  A.  (N.  S.)  448;  Hydro- 
Electric  Co.  V.  Listen,  70  W.  Va.  S3,  73  S.  E.  86,  40  L.  R.  A.  (N.  S.)  602 ;  Walk- 
er V.  Power  Co.,  160  Fed.  856,  87  C.  C.  A.  660,  19  L.  R.  A.  (N.  S.)  725 ;  Postal 
Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.  (C.  C.)  114  Fed.  787.  Compare, 
State  V.  Power  Co.,  39  Wash.  648,  82  Pac.  150,  2  L.  R.  A.  (N.  S.)  842,  4  Ann. 
Cas.  987;  McMeekin  v.  Central  Carolina  Power  Co.,  80  S.  0.  512,  61  S.  E. 
1020,  128  Am.  St.  Rep.  885;  Avery  v.  Vermont  Electric  Co.,  75  Vt.  235,  54 
Atl.  179,  59  L.  R.  A.  817,  98  Am.  St.  Rep.  818.  See  Act  of  Congress  IMay  14, 
1896,  c.  179,  §  2,  29  Stat.  120 ;   31  Stat.  790 ;    36  Stat.  1253,  public  lands. 

17  Chesapeake,  etc.,  Tel.  Co.  v.  Manning,  186  U.  S.  238,  22  Sup.  Ct.  881, 
46  L.  Ed.  1144;  Postal  Tel.  Cable  Co.  v.  Chicago,  etc.,  R.  Co.,  30  Ind.  App. 
654,  66  N.  E.  919. 

The  right  of  eminent  domain  conferred  on  telegraph  companies  by  the  stat- 
utes of  the  state  cannot  be  denied  by  defendant  in  a  suit  instituted  for  the 
condemnation  of  a  right  of  way  on  the  ground  that  it  is  only  a  pretended 
and  not  a  real  corporation.  This  question  can  only  be  raised  by  the  state. 
Pacific  Postal  Tel.  Cable  Co.  v.  Irvine  (C.  C.)  49  Fed.  113.  See  Fallsburg 
Power,  etc.,  Co.  v.  Alexander,  101  Va.  98,  43  S.  E.  194,  61  L.  R.  A.  129,  99  Am. 
St.  Rep.  855 ;  Brown  v.  Gerald,  100  Me.  351,  61  Atl.  785,  70  L.  R.  A.  472,  109 
Am.  St,  Rep.  526;  Union  Pacific  R.  Co.  v.  Colorado  Postal  Tel.  Cable  Co., 
30  Colo.  133,  69  Pac.  564,  97  Am.  St.  Rep.  106,  holding  not  a  public  use;  Jones 
V.  North  Georgia  Elec.  Co.,  125  Ga.  618,  54  S.  E.  85,  6  L.  R.  A.  (N.  S.)  122, 
5  Ann.  Cas.  526 ;  State  ex  rel.  Yakima  Industrial  Co.  v.  White  River  P.  Co., 
39  Wash.  648,  82  Pac.  150,  2  L.  R.  A.  (N.  S.)  842,  4  Ann.  Cas.  987. 

18  See  §  121  et  seq.  Doty  v.  American  Tel.,  etc.,  Co.,  123  Tenn.  329,  130  S.  W. 
1053,  Ann.  Cas.  1912C,  167.  See  Souther  v.  Northwestern  Tel.  Exch.,  118 
Minn.  102,  136  N.  W.  571,  Ann.  Cas.  1913E,  472,  45  L.  R.  A.  (N.  S.)  601. 

19  Id. 


I 
I 


§    133)  OVER   PRIVATE   PROPERTY  143 

ages  sustained.-^  In  the  exercise  of  the  power  of  emnient  domain 
these  companies  have  the  right  to  condemn,  cut,  or  remove  trees 
near  the  right  of  way.^^  They  may,  in  a  proper  manner,  trim  trees 
to  obtain  a  free  passage  for  their  wires  without  first  giving  the 
abutting  owner  an  opportunity  to  do  such  cutting,  but  the  company 
must  answer  for  any  unnecessary,  improper,  or  excessive  cutting." 

§  132.  General  rule — conditions  precedent. — The  general  rule 
applicable  in  this  connection,  with  respect  to  the  conditions  preced- 
ent to  the  right  to  condemn,  the  nature  of  the  right  and  the  pro- 
cedure to  be  adopted  are  those  governing  condemnations  general- 
ly, subject  only  to  the  modification  which  the  inherent  character 
of  the  structure  under  consideration  demands.^^  And,  while  this 
subject  could  be  more  appropriately  treated  under  the  title  of  emi- 
nent domain,  where  it  should  be  more  thoroughly  discussed,  we 
shall  nevertheless  comment  on  the  matter  to  some  extent  here, 
where  it  will  be  considered  specifically  with  respect  to  the  rights 
possessed  by  telegraph,  telephone,  and  electric  companies.  Where 
these  statutes  have  delegated  to  these  companies  the  authority 
to  exercise  the  power  of  eminent  domain,  they  require  of  such 
companies  certain  precedent  conditions  before  the  right  can  be 
legally  exercised;  and  it  will  be  our  purpose  to  relate  these  condi- 
tions. 

§  133.  Same  continued — petition — contents. — One  of  the  condi- 
tions precedent  to  be  performed  by  a  telegraph,  telephone,  or  elec- 
tric company,  before  it  can  legally  exercise  the  power  of  eminent 
domain,  is  that  a  petition  be  filed  with  the  court  of  the  county  in 

20  §  142. 

21  Power  Co.  v.  Wissler,  160  N.  C.  269,  76  S.  E.  267,  43  L.  R.  A.  (N.  S.)  4S3, 
Ann.  Cas.  1914C,  268. 

22  Wyant  v.  Central  Tel.  Co.,  123  Mich.  51,  81  N.  W.  928,  81  Am.  St.  Rep. 
155,  47  L.  R.  A.  497 ;  Memphis  Bell  Tel.  Co.  v.  Hunt,  84  Tenn.  456,  1  S.  W. 
159,  57  Am.  Rep.  237;  Pierce  v.  Drew,  136  Mass.  75,  49  Am.  Rep.  7;  San 
Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.  Co.,  93  Tex.  313,  55  S.  W.  117, 
77  Am.  St.  Rep.  884,  49  L.  R.  A.  459 ;  Darling  v.  Elec.  Co.,  74  N.  H.  515,  69 
Atl.  885. 

2  3  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.  (C.  C.)  104  Fed.  623; 
Lockie  v.  Mut.  U.  Tel.  Co.,  103  111.  401;  Postal  Tel.  Cable  Co.  v.  Morgan 
Louisiana  R.,  etc.,  Co.,  49  La.  Ann.  58,  21  South.  183 ;  Louisville,  etc.,  R.  Co. 
V.  Postal  Tel.  Cable  Co.,  68  Miss.  806,  10  South.  74;  Broome  v.  New  Yorlc, 
etc.,  Tel.  Co.,  49  N.  J.  Law,  624,  9  Atl.  754 ;  Duke  v.  Central  New  Jersey  Tel. 
Co.,  53  N.  J.  Law,  341,  21  Atl.  460,  11  L.  R.  A.  664 ;  Coles  v.  INIidland  Tel., 
etc.,  Co.,  67  N.  J.  Law,  490,  57  Atl.  448 ;  Nicoll  v.  New  York,  etc.,  Tel.  Co.,  62 
N.  J.  Law,  733,  42  Atl.  583,  72  Am.  St.  Rep.  666;  Postal  Tel.  Cable  Co.  v. 
Norfolk,  etc.,  R.  Co.,  87  Va.  349,  12  S.  E.  613 ;  Doty  v.  American  Tel.,  etc., 
Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann.  Cas.  1912C,  167. 


144  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  134 

or  through  which  the  line  is  to  be  constructed  in  which  the  loca- 
tion of  the  land  is  specified,  setting  forth  the  names  of  the  peti- 
tioners, their  residence  and  authority  for  exercising  the  power; 
the  names  of  the  owners  of  the  lands  over  which  the  easement  is 
sought,  their  residence  and  the  interest  which  they  have  to  the 
lands ;  a  description  of  the  location,  termini  and  route  of  the  line, 
and  the  description  of  the  land  and  that  part  which  the  line  is  to 
traverse;  it  should  give  the  size  of  the  poles  or  towers  to  be  used, 
their  height,  length  of  cross-arms  and  distance  apart;  it  should 
ask  that  a  notice  be  given  and  commissioners  be  appointed  to  as- 
sess the  amount  of  damages  to  be  awarded  for  such  condemnation, 
and  that  the  same  be  sworn  to  by  the  petitioners,  acting  in  the  ca- 
pacity of  its  corporate  authority.  There  might  be  mentioned 
other  conditions  to  be  alleged  in  the  petition,  before  the  power  could 
be  exercised;  as,  for  instance,  that  the  company  has  been  unsuc- 
cessful in  an  attempt  to  acquire  the  easement  by  an  agreement  with 
the  landowner;  that  the  company  has  been  legally  incorporated; 
and  that  it  is  the  most  convenient  and  accessible  land  to  be  had 
by  the  company  for  the  right  of  way.  It  must  be  in  writing,  and 
state  that  the  taking  is  necessary  for  public  use ;  but  it  is  not  es- 
sential in  every  instance  to  make  all  of  such  allegations,  as  the 
statute  may  not  require  such ;  and  in  fact  the  statutes  of  each 
state  should  be  consulted  before  filing  such  petitions  since  there 
are  different  conditions  required  in  the  different  states.  While 
the  petition  is  one  of  the  conditions  precedent  to  a  company  be- 
coming empowered  with  the  authority  of  condemning  the  lands 
for  easements  each  of  the  conditions  stated  therein  is  as  essential 
to  be  shown,  before  the  right  can  be  exercised  as  the  petition  it- 
self. 

§  134.  Same  continued — name  of  petitioners — who  may  be. — 
Ordinarily  it  is  necessary  that  the  company  be  incorporated  in 
order  that  it  may  have  parties  appointed  who  may  have  the  au- 
thority to  make  a  petition  for  such  condemnation  proceedings.  It 
therefore  follows  that  an  unincorporated  company,  or  one  organized 
by  individuals,  for  strictly  private  purposes,  could  not  exercise  the 
power  of  eminent  domain.^*  We  presume  it  is  hardly  necessary  to 
discuss  this  requirement  here,  for  this  is  a  condition  to  be  per- 
formed by  all  bodies  aggregate  before  they  can  do  any  corporate 
acts;  yet  it  is  a  condition  precedent,  nevertheless,  and  one  to  be 
performed  before  there  can  be  parties  to  such  a  petition.  The  names 
and  residence  of  such  petitioners  should  be  given  in  such  a  man- 

24  See  §§  67,  131. 


§    135)  OVER  PRIVATE  PROPERTY  145 

ner  as  to  show  that  they  are  acting  for  and  under  the  authority  of 
the  company  seeking  the  right  of  way.  In  other  words,  it  must  be 
clearly  shown  that  it  is  the  company  which  is  seeking  through  these 
authorized  representatives  the  right  to  exercise  the  power  of  emi- 
nent domain.  It  is  not  to  be  understood,  however,  that  an  individ- 
ual cannot  engage  in  the  telegraph,  telephone,  or  electric  busi- 
ness ;  ^^  for  it  has  been  uniformly  held  that  in  the  absence  of  a  stat- 
utory prohibition  an  individual  may  engage  in  the  business  of 
supplying  any  public  utility,  and  if  a  franchise  is  essential,  as  where 
public  streets  are  to  be  occupied,  it  may  be  granted  as  well  to  an 
individual  as  to  a  private  corporation.^® 

§  135.  Same  continued — name  of  landowners — their  residence 
and  interest  in  lands — several  tracts  or  interests. — Another  condi- 
tion to  be  respected  by  the  company  before  the  power  of  eminent 
domain  can  be  exercised  is  that  the  names  of  the  landowners, 
their  residence,  and  the  interest  which  they  claim  to  the  land  shall 
be  given  in  the  petition.  The  court  should  have  some  knowledge 
of  these  facts  in  order  that  it  may  know  the  party  to  whom  no- 
tice should  be  given  of  the  condemnation  proceedings,  and  to  whom 
damages  should  be  awarded.  In  many  instances  the  land  through 
which  the  right  of  way  is  sought  is  held  in  trust  for  another,  or 
is  managed  and  under  the  control  of  a  guardian,  executor  or  ad- 

2  5  Crawford  Elec.  Co.  v.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119, 
Ann.  Cas.  1914C,  933 ;  State  v.  Twin  Village  Water  Co.,  98  Me.  214,  56  Atl. 
763;  Magee  v.  Overshiner,  150  Ind.  127,  49  N.  E.  951,  65  Am.  St.  Rep.  358, 
40  L.  R.  A.  370;  State  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E. 
319;  Haines  v.  Crosby,  94  Me.  212,  47  Atl.  137;  Bishop  v.  Riddle,  51  Tex. 
Civ.  App.  317,  113  S.  W.  151.  Likewise  it  has  been  held  that  the  word  "com- 
pany" in  an  act  authorizing  the  construction  of  a  telegraph  or  telephone  line 
includes  an  individual.  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410. 
See  §  2G6. 

26  Moran  v.  Ross,  79  Cal.  159,  21  Pac.  547;  Lawrence  v.  Morgan  Louisiana, 
etc.,  R.  Co.,  39  La.  Ann.  427,  2  South.  69,  4  Am.  St.  Rep.  265 ;  People  v.  Erie 
R.  Co.,  198  N.  Y.  369,  91  N.  E.  849,  19  Ann.  Cas.  811,  139  Am.  St.  Rep.  828, 
29  L.  R.  A.  (N.  S.)  240 ;  Beveridge  v.  Lewis,  137  Cal.  619,  67  Pac.  1040,  70 
Pac.  1083,  92  Am.  St.  Rep.  188,  59  L.  R.  A.  581;  Memphis,  etc.,  R.  Co.  v. 
Railroad  Com.,  112  U.  S.  609,  5  Sup.  Ct.  299,  28  L.  Ed.  837 ;  O'Neil  v.  Lamb, 
53  Iowa,  725,  6  N.  W.  59 ;  McKee  v.  Grand  Rapids,  etc.,  S.  R.  Co.,  41  Mich. 
274,  1  N.  W.  873,  50  N.  W.  469 ;  Nash  v.  Lowry,  37  Minn.  261,  33  N.  W.  787 ; 
Phoenix  v.  Gannon,  195  N.  Y.  471,  88  N.  E.  1066;  Beaumont  Trac.  Co.  v. 
State,  57  Tex.  Civ.  App.  605,  122  S.  W.  615 ;  Henderson  v.  Ogden  City  R.  Co., 
7  Utah,  199,  26  Pac.  286;  Farmers'  Loan,  etc.,  Co.  v.  Galesburg,  133  U.  S. 
156,  10  Sup.  Ct.  316,  33  L.  Ed.  576 ;  Barre  v.  Perry,  82  Vt.  301,  73  Atl.  574 ; 
Freeport  Waterworks  Co.  v.  Prager,  3  Pa.  Co.  Ct.  R.  371. 

Jones  Tel.(2d  Ed.)— 10 


146  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  136 

ministrator.  When  such  is  the  case,  the  name  of  the  trustee, 
guardian,  executor  or  administrator  should  be  given  in  the  peti- 
tion, in  his  fiduciary  capacity. ^'^  It  often  occurs  in  the  construction 
of  a  line  of  wire  that  the  land  over  which  the  right  of  way  is  sought 
belongs  to  different  owners  who  have  common  interest  therein,  or 
it  is  in  several  pieces  and  belonging  to  the  same  owner;  the  ques- 
tion which  presents  itself  is,  can  this  land,  in  such  instances,  be 
condemned  in  one  proceeding?  It  has  been  held  that  the  same  can 
be  done,^*  and  we  are  inclined  to  think  that  this  is  a  good  holding, 
because  much  trouble  and  expense  which  would  otherwise  be  in- 
curred can  be  avoided  by  bringing  several  suits  in  one.  While  the 
duties  of  the  commissioners,  in  ascertaining  the  amount  of  damages 
to  which  each  owner  would  be  entitled  or  the  amount  of  damages 
incurred  on  each  parcel  of  land,  would  be  the  same,  yet  the  result  of 
the  finding  or  the  amount  of  damages  assessed  might  be  quite 
different,  so  it  would  be  an  easy  matter  for  them  to  arrive  at  a  prop- 
er and  correct  result  in  one  proceeding.  Therefore,  where  possible, 
this  should  be  done. 

§  136.  Same  continued — description  of  route. — Another  essen- 
tial part  of  the  petition  is  that  the  route  of  the  line  should  be  suffi- 
ciently described.  As  in  all  other  proceedings  to  condemn  private 
property  for  public  use,  a  clear  and  distinct  description  of  the  land 
over  which  the  right  of  way  is  to  be  laid  out  should  be  described 
so  clearly  and  accurately  as  to  give  any  one  a  sufiicient  knowledge 
as  to  its  location.  The  beginning,  ending  and  intermediate  points 
of  the  line  must  be  given.  The  statutes  generally  provide  the  man- 
ner in  which  the  description  of  the  route  should  be  given ;  and  when 
they  do,  they  must  be  closely  complied  with  and  contain  such  a  de- 
scription of  the  land  as  that  its  metes  and  bounds  may  be  ascer- 
tained from  the  public  records.-^ 

27  Western,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42 
L.  R.  A.  (N.  S.)  225,  when  state  should  be  made  party,  interest  involved. 

2  8  Duke  V.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460,  11 
L.  R.  A.  664.     See  §  164. 

2  9  Ames  V.  Union  County,  17  Or.  COO,  22  Pac.  118.  In  a  certain  case  a  map 
containing  the  description  of  the  route  was  filed  with  the  petition.  The  loca- 
tion of  each  pole  was  indicated  on  the  map  in  small  circles  of  black  ink, 
numbered  in  red  ink  from  1  to  27,  which  was  the  total  number  of  poles  to 
l)e  erected.  The  distance  between  said  poles  was  indicated  by  figures  in 
black  ink  between  the  circles.  The  distance  of  the  poles  from  the  fence  on  the 
southerly  side  of  the  highway  was  indicated  by  figures  in  black  ink  beside 
each  circle.  The  distance  of  the  poles  from  the  fence  on  the  northerly  side 
of  the  highway  was  indicated  by  figiu'es  on  or  about  the  center  of  the  high- 
way.    It  was  held  that  the  description  conformed  to  all  the  requirements. 


§    138)  OVER  PRIVATE   PROPERTY  147 

§  137.  Same  continued — description  of  poles. — The  petition 
should  also  give  the  size  of  the  poles  or  towers  to  be  used,  their 
height,  length  of  cross-arms,  and  distance  apart.  A  map  or  draw- 
ing showing  the  general  course  of  the  line  and  the  distance  apart 
the  poles  or  towers  are  located  should  be  given  to  aid  in  the  de- 
scription of  the  route,  and  when  such  is  filed  with  the  petition  it 
becomes  a  part  of  same ;  provided  sufficient  meaning  is  given  to 
show  that  it  is  a  part  of  the  petition.^"  The  object  in  giving  a  clear 
description  of  the  route  and  the  size  and  height  of  the  towers  or 
poles  and  their  distance  apart  and  the  length  of  the  cross-arms  is 
to  provide  a  means  by  which  the  amount  of  damages  to  be  awarded 
may  be  assessed.  The  greater  the  space  the  line  occupies  the  greater 
should  be  the  damages  awarded.  In  many  instances,  where  these 
companies  construct  line  of  wires  across  private  property,  the  own- 
er thereof  is  actually  deprived  of  only  such  lands  as  that  occupied 
by  the  poles  or  towers ;  and  when  this  is  the  case,  the  damages 
would  seem  to  be  small ;  and  yet  the  fact  must  not  be  lost  sight 
of  that  the  company  still  retains  an  easement  to  the  land,  over 
which  the  wires  are  strung;  but  it  is  held  principally  for  the  pur- 
pose of  entering  thereon  to  maintain  and  make  repairs  on  the  lines. 
If  the  cross-arms  are  near  the  surface  and  heavily  strung  with 
wires,  the  landowner  would  be  deprived  of  more  of  his  land,  and 
of  course  he  would  be  entitled  to  a  greater  compensation. 

§  138.  Same  continued — notice — appointment  of  commissioners. 
— The  petition  should  pray  for  notice  to  be  given  to  the  owner  of 
the  land,  over  which  the  easement  is  sought,  or  to  the  party  who 
has  this  in  charge,  and  to  those  who  have  any  interest  therein,  in 
order  that  they  may  appear  in  court  to  contest  the  petition,  or  to 
see  that  proper  steps  have  been  pursued  for  condemning  the  land, 
or  to  contest  the  results  of  the  commissioners.  The  same  notice 
is  required  to  be  given  in  a  case  of  this  kind  as  that  required  in 
all  other  chancery  or  equity  court  proceedings.  The  petition  also 
should  pray  that  a  commission  be  appointed  by  the  court,  whose  du- 
ties shall  be  to  investigate  the  route  and  determine  the  amount  of 
damages  to  be  awarded;  but,  in  order  to  be  better  posted  with  re- 
spect to  the  duties  of  these  commissioners,  it  would  be  well  for  the 

Duke  V.  New  Jersey  Central  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460,  11  L.  R. 
A.  664;  Morrison  v.  American,  etc.,  Tel.  Co.,  115  App.  Div.  744,  101  N.  Y. 
Supp.  140. 

3  0  Duke  V.  New  Jersey  Central  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460. 
11  L.  R.  A.  664. 


148  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  139 

reader  to  consult  the  statutes  of  his  state,  as  their  duties  are  regu- 
lated thereby  .^^ 

§  139.  Same  continued — sv/orn  to  by  officers. — Most  of  the  stat- 
utes provide  that  the  petition  should  be  sworn  to  by  some  one 
having  authority  to  act  for  the  corporation.  In  the  organiza- 
tion of  all  corporations,  certain  corporate  duties  are  to  be  performed 
by  officers  empowered  to  do  such  acts.  It  is  generally  provided 
in  the  articles  of  incorporation  that  certain  officers,  such  as  the 
board  of  directors  or  the  president  or  attorney,  shall  have  the 
power  to  bring  suit  for  the  company;  and  when  this  is  the  case, 
and  it  is  necessary  for  the  petition  to  be  sworn  to,  only  such  offi- 
cers or  parties  can  swear  to  the  petition.  The  form  of  the  signa- 
ture would  be  in  the  name  of  the  corporation,  by  said  officers  or 
attorney. 

§  140.  Same  continued — failure  to  acquire  land  by  agreement 
with  landowner. — Many  of  the  statutes  make  it  incumbent  upon 
the  company  to  first  make  an  attempt  to  acquire  the  right  of  way 
by  an  agreement  with  the  landowner,  before  they  resort  to  a  con- 
demnation proceeding.^-  The  object  of  such  a  provision  is  to  avoid 
litigation,  and  to  expedite  the  construction  of  the  line.  The  land- 
owner and  the  company  might,  and  generally  do,  arrive  at  a 
better  understanding  by  these  mutual  agreements  than  they  would 
under  a  condemnation  proceeding;  so  to  require  the  company  to 
first  make  an  attempt  to  acquire  the  right  of  way  by  these  agree- 
ments would  often  avoid  endless  and  constant  expense  and  need- 
less litigation.  Where  statutes  require  these  steps,  it  is  necessary 
that  the  petition  should  allege  the  fact  that  an  unsuccessful  at- 
tempt had  been  made  to  acquire  the  right  of  way  by  an  agreement 
with  the  landowner,  or  the  party  having  the  control  over  the  land 
and  the  person  who  would  be  a  necessary  party  in  a  condemnation 
proceeding. 

§  141.  The  interest  acquired. — When  these  companies  construct 
their  line  of  wires  upon  the  property  of  private  persons,  they  do 
not  acquire  a  fee  to  the  land,  but  only  an  easement  to  the  right 
of  way:  ^^  the  landowner  retains  the  right  to  use  the  land  for  any 
purpose  he  may  see  fit;   provided  the  same  does  not  conflict  with 

31  See  §  155. 

3  2  Doty  V.  American  Tel.,  etc.,  Co.,  123  Tenn.  329,  130  S.  W.  1053,  Ann. 
Cas.  1912C,  167.     See  §  67.     See,  also,  chapter  vii. 

33  See  §  51.  See,  also.  Union  Pacific  R.  Co.  v.  Colorado  Postal  Tel.  Cable 
Co.,  30  Colo.  133,  69  Pac.  564,  07  Am.  St.  Rep.  106. 


§    141)  OVER  PRIVATE   PROPERTY  149 

or  defeat  the  rights  of  these  companies.^*  It  is  the  general  rule 
that  where  these  easements  are  over  other  rights  of  way — as  rail- 
road rights  of  way — the  company  acquires  no  interest  in  the  land 
between  the  poles  and  that  over  which  its  wires  are  stretched,  more 
than  to  go  thereon  for  the  purpose  of  maintaining  and  repairing 
the  line;^^  the  owners  of  the  first  original  easement  may  use  this 
space  for  any  purpose  they  may  see  fit.  We  see  no  reason  why 
the  same  rule  may  not  be  applied  to  companies  whose  lines  are 
across  private  property.  It  is  true  that  the  owner  of  the  land 
should  not  use  this  strip  of  land  in  a  manner  that  would  obstruct 
its  use,  or  prevent  the  employes  of  the  company  from  entering 
thereon,  for  the  purpose  of  the  repairing  and  maintaining  the  line. 
He  may  cultivate  the  soil,  or  use  it  for  any  other  purpose  which 
would  not  interfere  with  the  use  of  the  wires;  but  should  he  cul- 
tivate or  use  the  land  for  other  purposes,  it  is  done  with  the  un- 
derstanding that  the  company's  employes  may  go  thereon  for  the 
purpose  of  maintaining  the  lines  without  being  guilty  of  trespass. 
Of  course  these  employes  could  not  enter  upon  and  trample  over 
any  space  of  land  they  may  see  fit ;  but  the  width  of  this  space 
should  be  reasonable. ^'^  The  landowner  is  not  under  any  obliga- 
tion to  keep  up  or  protect  this  strip ;  so,  where  he  abandons  it,  or 
leaves  it  unused,  or  uncultivated,  the  company  can  look  to  him 
for  no  protection  over  it.  If  it  deteriorates  in  value  or  becomes 
worthless  by  his  failure  to  keep  it  up,  he  is  the  loser,  and  the  com- 
pany cannot  look  to  him  for  any  assistance.     It  has  been  held  that 

34  The  statute  does  not  designate  the  width  of  the  strip  of  land  that  may 
be  condemned  for  telegraph  purposes,  but  only  authorizes  such  companies  to 
acquire  sucli  an  amount  of  land  as  may  be  necessary,  and  where  only  one 
line  of  poles  is  specified  in  the  petition,  and  where  the  evidence  does  not  show 
that  half  a  rod  in  width  is  an  unreasonable  amount  of  land,  the  judgment 
condemning  that  much  of  the  land  will  be  sustained,  and  will  be  construed 
to  authorize  the  erection  of  but  one  set  of  poles.  Lockie  v.  Mutual  Union 
Tel.  Co.,  103  111.  401 ;  Union  Pac.  R.  Co.  v.  Colorado  Postal  Tel.  Co.,  30  Colo. 
133,  69  Pac.  564,  97  Am.  St.  Rep.  106,  where  it  was  further  held  that  a  strip 
of  land  half  a  rod  in  width  was  not  too  much,  and  that  the  landowner  was 
not  bound  to  fence  his  land  from  this  strip. 

3s  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  173  111.  508,  51  N.  E.  382;  Chi- 
cago, etc.,  R.  Co.  V.  Chicago,  149  111.  457,  37  N.  E,  78,  and  Id.,  166  U.  S.  226, 
17  Sup.  Ct.  581,  41  L.  Ed.  979 ;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co., 
76  Miss.  731,  26  South.  370,  45  L.  R.  A.  223 ;    §  137. 

3  0  Duke  V.  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460,  11  L.  R.  A. 
664. 


150  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  142 

the  landowner  was  not  bound  to  fence  his  land  from  this  strip,  but 
that  it  may  be  left  unused  or  unconnected  therefrom.^^ 

§  142.  Measure  of  damages. — It  is  generally  very  difficult  to  de- 
termine the  exact  amount  of  damages  which  should  be  awarded 
to  the  landowner  for  the  right  of  way  for  a  telegraph  or  a  tele- 
phone company.  He  is  actually  deprived  of  only  the  land  which 
the  poles  occupy,  and  may  cultivate  that  lying  between  these;  for 
this  reason,  the  damages  should  be  small.  It  has  been  held  that  the 
landowner  is  entitled  to  compensation  where  the  wires  are  merely 
strung  across  his  soil,  although  there  is  no  actual  occupation  of 
the  land.^^  It  may  be  questioned  whether  or  not  the  courts  would 
recognize  such  an  injury.^^  It  appears  to  us  that  the  injury  to  the 
soil  is  so  slight  that  it  would  be  a  case  for  the  application  of  the 
rule,  De  minimis  lex  non  curat.  Of  course,  if  the  wires  were  strung 
so  low  or  near  to  the  land  as  to  interfere  with  the  use  of  this  space, 
the  question  would  be  quite  different.  In  such  instances,  the  land- 
owner would  be  entitled  to  the  value  of  the  use  of  this  space,  of 
which  he  is  deprived;  but,  as  a  general  rule,  the  parties  are  not 
confronted  with  questions  of  this  nature  as  the  wires  are  almost  al- 
ways strung  sufficiently  high  above  the  surface  of  the  soil  as  to 
give  ample  room  to  the  owner  thereof  to  use  the  intervening  space. 
In  other  words,  the  owner  of  the  space  between  the  poles  and  that 
over  which  the  wires  are  strung  is  not  deprived  of  its  use;  then 
the  question  is,  What  amount  of  damages  would  he  be  entitled  to? 
The  rule  laid  down  by  the  courts  for  the  measurement  of  dam- 
ages to  railroads  for  the  construction  of  these  lines  upon  their 
rights  of  way  is  that  the  measure  of  damages  suffered  by  the  rail- 
road is  not  the  value  of  the  land  embraced  within  the  right  of  way 
between  the  poles  and  under  the  wires ;  but  the  damages  is  the 
extent  to  which  the  value  of  the  use  of  such  space  by  the  railroad 
company  is  diminished  by  the  use  of  the  same  by  the  telegraph 
company  for  its  purposes.*"  This  rule  may  be  a  means  of  ascer- 
taining the  measure  of  damages  for  the  right  of  way  of  a  telegraph 

3  7  Union  Pac.  R.  Co.  v.  Colo.  Postal  Tel.  Cable  Co.,  30  Colo.  133,  69  Pac.  564, 
97  Am.  St.  Rep.  106 ;    Lockie  v.  Mut.  Union  Tel.  Co.,  103  111.  401. 

38  28  Am.  Law  Reg.  69;    Pollock  on  Torts,  281. 

3  9  Roake  V.  American  Tel.,  etc.,  Co.,  41  N.  J.  Eq.  35,  2  Atl.  618. 

40  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  173  111.  508,  51  N.  E.  382;  Chi- 
cago, etc.,  R.  Co.  V.  Chicago,  149  111.  457,  37  N.  E.  78,  and  Id.,  166  U.  S.  226, 
17  Sup.  Ct.  581,  41  L.  Ed.  979. 

Again  the  court  says :  "The  spaces  over  which  the  wires  are  strung  from 
pole  to  pole  are  not  taken  by  the  telegraph  company.  Such  damage  as  the 
consti-uction  and  operation  of  the  telegraph  line  causes  to  the  spaces  between 


( 


§    143)  OVER   PRIVATE   PROPERTY  151 

or  telephone  company  across  private  property.  As,  for  instance, 
the  owner  of  the  land  is  not  to  be  compensated  for  the  value  of 
the  space  of  land  betw^een  the  poles  and  that  occupied  by  the  said 
poles;  but  the  damages  to  w^hich  he  should  be  entitled  is  the 
extent  to  which  the  value  of  the  use  of  the  land  occupied  by  the 
poles — and  the  spaces  between  them — is  diminished  by  the  use  of 
the  same  by  these  companies.*^  In  fact,  the  space  between  the 
poles  is  diminished  approximately  to  nothing,  and  for  which  the  dam- 
ages should  be  small;  yet,  on  account  of  the  maxim,  Cujiis  est  soliuii, 
ejus  est  usque  ad  cahnn,  he  should  be  entitled  to  something.  There 
is  no  question  that  he  is  entitled  to  compensation  for  the  use  of  the 
ground  upon  which  the  poles  are  erected ;  this  is  to  be  regulated  by 
the  size,  number  of  poles,  and  the  value  of  the  ground  taken.*- 

§  143.  Same — electric  companies. — The  same  rule  given  in  the 
preceding  paragraph  may  apply  to  electric  companies  as  to  the 
measure  of  damages  to  be  awarded  to  a  private  individual  for  the 
use  of  his  property.*^     However,  there  may  -be  more  space  taken 

the  poles  the  appellants  are  entitled  to  recover.  The  telegraph  company  does 
not  acquire  by  the  judgment  of  condemnation  the  fee  to  any  portion  of  the 
right  of  way.  Any  construction  which  holds  that  it  does  acquire  the  fee  is 
not  sanctioned  by  the  language  of  the  act  in  relation  to  telegraph  companies. 
The  act  does  not  confer  the  right  to  use  the  land  condemned  for  any  other 
purpose  than  for  telegraph  purposes.  The  company  cannot  take  possession  of 
it  or  use  it  for  any  other  purpose  than  to  erect  telegraph  poles,  and  to  sus- 
pend wires  upon  them,  and  to  maintain  and  repair  the  same.  The  company 
will  have  the  right  to  enter  upon  that  portion  of  the  right  of  way  which  is 
between  the  telegraph  poles  and  under  its  wires  for  the  purpose  of  repairing 
its  lines.  But  the  telegraph  company  acquires  no  right  to  exclude  the  rail- 
road company  from  the  use  of  the  land.  The  ownership  of  the  railroad  com- 
pany remains  as  it  was  before,  while  the  telegraph  company  merely  acquires 
an  easement  upon  what  it  condemns  for  the  purpose  of  entering  thereon  in 
order  to  erect  and  repair  the  line."  St.  Louis  &  C.  R.  Co.  v.  Postal  Tel.  Co. 
(1898),  173  111.  508,  51  N.  E.  382.     See  §  177  et  seq. 

41  Illinois  Tel.  News  Co.  v.  Meine,  242  111.  568,  90  N.  E.  230,  2G  L.  R.  A. 
(N.  S.)  189.  In  Postal  Tel.  Cable  Co.  v.  Peyton,  124  Ga.  746,  52  S.  E.  803, 
3  L.  R.  A.  (N.  S.)  333,  it  was  held  in  assessing  damages  compensation  juay 
be  awarded  both  for  the  land  actually  taken  as  well  as  for  all  consequential 
damages  arising  from  the  erection  and  maintenance  of  poles,  wires,  or 
other  fixtures;  but,  before  a  recovery  of  such  damages,  proof  must  be  ad- 
duced disclosing  the  nature  and  extent  thereof,  and  furnishing  data  from 
which  a  reasonable  and  proper  estimate  of  the  amount  of  compensation  to 
which  the  landowner  is  entitled  may  be  made.  See  Mutual  U.  Tel.  Co.  v. 
Katkamp,  103  111.  420.     See,  also,  §  119  et  seq. 

•12  Morrison  v.  American,  etc.,  Tel.  Co.,  115  App.  Div.  744,  101  N.  Y.  Supp. 
140. 

4  3  Power  plant  as  damages,  see  Townsend  v.  Light  Co.,  105  Va.  22,  52  S.  B. 


152  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  144 

for  the  towers  of  the  electric  company  than  would  be  necessary  for 
the  poles  of  a  telegraph  or  telephone  company.  Furthermore,  the 
wires  or  cables  for  the  electric  company  may,  on  account  of  their 
dangerous  character,  necessitate  more,  if  not  all,  of  the  space 
between  the  towers;  and  in  either  instance  the  amount  of  dam- 
ages would  be  greater  than  that  required  of  telegraph  and  tele- 
phone companies,  and  so  the  manner  in  arriving  at  the  amount 
therefor  would  be  more  likened  to  that  acquired  by  a  railroad  com- 
pany. 

§  144.  Same — Wireless  telegraph  companies, — There  is  no 
doubt  that  wireless  telegraph  and  telephone  companies  may  con- 
demn private  property  for  their  stations,  towers,  etc.,  provided  a  suf- 
ficient consideration  be  paid  to  the  owner  of  the  property  thus  con- 
demned. But  the  difficult  question,  and  one  which  will  eventually 
present  itself  for  solution,  is  whether  these  companies  can  transmit 
their  wireless  messages  through  the  air  and  over  and  above  an  in- 
dividual's private  property  without  compensating  him  therefor? 
Under  the  maxim,  Cnjits  est  solum,  ejus  est  usque  ad  coclum,  would 
he  not  be  entitled  to  some  consideration?  However,  so  far  as  this 
question  is  concerned,  it  might  be  a  proper  time  and  place  for  the 
application  of  the  rule,  De  viinimis  lex  non  curat.  But,  nevertheless, 
would  not  these  companies,  in  the  exercise  of  this  assumed  right, 
be  guilty  of  trespassing?  Then,  if  this  be  true,  would  not  the  act 
of  Congress*"  relating  to  "Secrecy  of  Messages"  be  unenforce- 
able against  an  amateur  or  an  individual  owning  a  private  station 
located  on  his  private  property  where  he  received  the  messages 
when  passing  thereover? 

970,  4  L..  R.  A.  (N.  S.)  87,  115  Am.  St.  Rep.  842,  8  Ann.  Cas.  558;    Sherman, 
etc.,  Elec.  Co.  v.  Beldeu,  103  Tex.  59,  123  S.  W.  119,  27  L.  R.  A.  (N.  S.)  237. 
44  See  act  given  in  note  233,  c.  9. 


ON  RAILROAD   RIGHT   OF   WAY  153 

CHAPTER  VII 
ON  RAILROAD  RIGHT  OF  WAY 

145.  Right  acquired  by  act  of  congress. 

146.  Additional  servitude. 

147.  Subsequent  purchaser  may  recover. 

148.  When  for  benefit  to  railroad. 

149.  Same  continued— no  additional  burden. 

150.  Same  continued — must  be  in  good  faith. 

151.  Same  continued — not  taxable. 

152.  Railroad  companies  to  be  compensated. 

153.  Right  to — must  first  be  acquired. 

154.  Interest  acquired  by  telegraph  companies. 

155.  By  condemnation. 

156.  Exception  to  rule. 

157.  Same  continued— cannot  be  defeated  by  claiming  it  should  be  on  other 

lands. 

158.  Foreign  telegraph,  telephone  or  electric  companies— right  to  condemn. 

159.  Same  continued — consolidation  or  lease — agency. 

160.  Must  be  in  good  faith. 

161.  What  portion  of  right  of  way  may  be  taken. 

162.  Contract  arrangements  between  companies — when  revokable. 

163.  Effect  of  foreclosure  of  railroad — expiration  of  contract. 

164.  Exclusive  right,  cannot  give. 

165.  Contract  with  railroad  company  to  that  effect. 

166.  State  legislation — no  exclusive  grant. 

167.  Same  continued — contra  view— lines  on  same  poles. 

168.  Nature  of  petition. 

169.  Same  continued — necessity  for  taking. 

170.  Ma~^^  condemn  land  in  several  counties  in  one  proceeding. 

171.  Same  continued — constitutional. 

172.  By  whom  assessments  are  made — qualifications  of. 

173.  Duty  of  commissioners. 

174.  Jurisdiction  of  federal  court. 

175.  The  award  of  commissioners. 

176.  May  have  new  award. 

177.  The  measure  of  damages — extent  of  injury. 

178.  Same  continued — expense  incurred — no  reason. 

179.  Same  continued — measurement — true  rule. 

180.  On  public  roads  or  highways. 

181.  Crossing  railroad  tracks. 

182.  Line  on  turnpike. 

183.  Same  rule  applied  to  telephone  companies. 

184.  Electric  light  companies  may  condemn — compensation. 


154  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  145 

§  145.  Right  acquired  by  act  of  Congress. — By  act  ^  of  Congress, 
"Any  telegraph  company  now  organized,  or  which  may  hereafter 
be  organized  under  the  laws  of  any  state  of  the  Union,  shall  have 
the  right  to  construct,  maintain  and  operate  lines  of  telegraph 
*  *  *  over  and  along  any  of  the  military  or  post  roads  of  the 
United  States,  which  have  been  or  may  hereafter  be  declared  such 
by  act  of  Congress,  *  *  *  provided  said  lines  shall  not  be  so 
constructed  as  to  interfere  with  the  travel,"  on  such  roads ;  and 
provided  also  "that,  before  any  telegraph  company  shall  exercise 
any  of  the  powers  or  privileges  conferred  by  this  act,  such  company 
shall  file  its  written  acceptance  with  the  postmaster  general  of  the 
restrictions  and  obligations  required  by  this  act."  Congress  in 
1872  declared  all  the  roads  in  the  country  which  are  now  or  may 
hereafter  be  in  operation  post  roads. ^  Statutes  have  been  enacted 
in  most  of  the  states  which  grant  to  telegraph  and  telephone  com- 
panies similar  rights ;  but  these  statutes  are  subordinate  to  said 
acts ;  ^  however,  they  may  be  resorted  to  for  condemnation  pro- 
ceedings, since  the  same  is  not  provided  for  in  the  former  acts."* 
Therefore  it  is  seen  that  a  part  of  an  easement  which  has  already 
been  granted  for  a  public  enterprise  may  afterwards  be  condemned 
for  another  easement  which  is  to  be  used  for  another  public  pur- 
pose.^ This  act  of  Congress  does  not  give  these  companies  the  right 
to  construct  a  line  of  wires  upon  the  right  of  way  of  a  railroad  com- 
pany without  first  obtaining  the  consent  of  the  railroad,®  or  making 
a  contract  with  the  original  landowner,^  or  condemning  the  right 
of  way.^ 

§  146.  Additional  servitude. — When  these  companies  have  ac- 
quired the  right  to  construct  a  line  of  wires  along  and  upon  the 
right  of  way  of  a  railroad  company,  the  natural  inquiry  is  whether 

1  Act  July  24,  18G6,  c.  230,  14  Stat.  221  (Comp.  St.  1913,  §§  10072-10077). 
See  §  55  et  seq. 

2  See  §  57. 

3  Postal  Tel.  Cable  Co.  v.  Morgan's  Louisiana,  etc.,  R.  Co.,  49  La.  Ann.  58, 
21  South.  183.     See  §  60  et  seq. 

*  See  Postal  Tel.  Cable  Co.  v.  Morgan's  Louisiana,  etc.,  R.  Co.,  49  La.  Ann. 
58,  21  South.  183.     See  §  69. 

5  See  §  155. 

6  See  §§  67,  140,  152. 

7  See  §  155. 

8  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  90  Fed.  379,  33  C.  C.  A.  113 ;  Postal 
Tel.  Cable  Co.  v.  Southern  R.  Co.  (C.  C.)  89  Fed.  190 ;  Postal  Tel.  Cable  Co.  v. 
Norfolk,  etc.,  R.  Co.,  88  Va.  920,  14  S.  E.  803.  See  §§  67,  140.  See  Western, 
etc.,  R.  Co.  V.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42  L.  R.  A.  (N.  S.> 
225. 


§    146)  ON   RAILROAD   RIGHT   OF   WAY  155 

or  not  it  is  an  additional  servitude  to  the  property ;  if  so,  who  are 
entitled  to  compensation,  and  how  much?  The  general  rule  is  that 
the  construction  of  a  telegraph  or  telephone  line  along  and  upon  the 
right  of  way  of  a  railroad — unless  the  same  is  constructed  by  the 
latter  in  good  faith,  and  for  its  own  benefit — is  an  additional  burden 
to  the  easement,  for  which  the  owner  of  the  fee,  and  also  the  first 
and  original  owner  of  the  easement,  shall  be  compensated.^  In 
many  cases  the  fee  in  the  right  of  way  remains  in  the  original  land- 
owner, while  there  is  merely  an  easement  granted  to  the  railroad 
which  will  revert  to  the  former  on  the  relinquishment  of  the  ease- 
ment. Therefore,  when  this  is  the  case,  the  owner  of  the  land  over 
which  the  line  is  to  be  built  should  always  be  compensated  for  the 
additional  burden ;  ^°  and  yet  it  is  not  meant  by  this  that  the  rail- 
road is  prevented  from  also  recovering  from  these  companies  com- 
pensation for  the  use  of  the  roadbed. ^^  The  right  of  ways  granted 
to  railroad  companies  are  similar  to  the  license  granted  by  an  abut- 
ting street  owner  to  the  use  of  the  land  on  which  the  street  is  con- 
structed ;  and  as  has  been  seen,  the  owner  should  receive  additional 
compensation  for  all  additional  burdens  placed  on  the  street.^^  In 
some  instances  the  railroad  company  acquires  the  fee  to  the  ease- 
ment: and,  when  such  is  the  case,  the  land  acquired  in  such  grant 
becomes  its  private  property  just  the  same  as  land  acquired  by  any 

0  West.  U.  Tel.  Co.  v.  American  U.  Tel.  Co.,  9  Biss.  72,  Fed.  Cas.  No.  17,- 
444;  American  Tel.,  etc.,  Co.  v.  Pearce,  73  Md.  535,  18  Atl.  910-,  7  L.  R.  A. 
200,  note ;  Phillips  v.  Postal  Tel.  Cable  Co.,  130  N.  C.  513,  41  S.  E.  1022,  89 
Am.  St.  Rep.  86S ;  New  Orleans,  etc.,  R.  Co.  v.  Southern,  etc.,  Tel.  Co.,  53 
Ala.  211 ;  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  L.  Ed.  708 ; 
Southwestern  R.  Co.  v.  Southern,  etc.,  Tel.  Co.,  46  Ga.  43,  12  Am.  Rep.  585; 
Montana  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.  (C.  C.)  114  Fed. 
787;  Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  2  Fed.  Cas.  No.  032,  6 
Biss.  158 :  R.  Co.  v.  Tel.  Co.,  106  Me.  363,  76  Atl.  885,  29  L.  R.  A.  (N.  S.)  703, 
20  Ann.  Cas.  721.  See,  also,  West.  U.  Tel.  Co.  v.  American  Tel.  Co.,  29  Fed. 
Cas.  No.  17,444,  9  Biss.  72.  See  §  62  et  seq.  See  §  102  et  seq.  See  §  142. 
See  Hodges  v.  West.  U.  Tel.  Co.,  133  N.  C.  225,  45  S.  E.  572 ;  West.  U.  Tel. 
Co.  V.  Rich,  19  Kan.  517,  27  Am.  Rep.  159 ;  St.  Louis,  etc.,  R.  Co.  v.  Bell  Tel. 
Co.,  134  Mo.  App.  40C,  114  S.  W.  586 ;  West.  U.  Tel.  Co.  v.  Nashville,  etc.,  R. 
Co.,    133  Tenn.  691,  182  S.  W.  254. 

10  Prather  v.  Jeffersonville,  etc.,  R.  Co.,  52  Ind.  16;  American  Tel.,  etc., 
Co.  V.  Pearce,  71  Md.  535,  18  Atl.  910,  7  L.  R.  A.  200 ;  Hodges  v.  West.  U.  Tel. 
Co.,  133  N.  C.  225,  45  S.  E.  572 ;  Phillips  v.  Postal  Tel.  Cable  Co.,  130  N.  C. 
513,  41  S.  E.  1022,  89  Am.  St.  Rep.  868;  Kansas,  etc.,  R.  Co.  v.  Le  Flore,  49 
Fed.  119,  1  C.  C.  A.  192,  reversing  (C.  C.)  46  Fed.  546;  Kansas,  etc.,  R.  Co. 
V.  Payne,  49  Fed.  114,  1  C.  C.  A.  183.     See  §§'  64,  147. 

11  See  §  62  et  seq. ;  §  152.  See  cases  cited  in  note  9,  upholding  this  proposi- 
tion. 

12  See  §  108  et  seq. 


156  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  147 

individual;  and  it  has  the  same  interest  in  and  can  dispose  of  it 
just  the  same  as  any  individual.  It  would  be  unconstitutional  to 
permit  a  telegraph  or  telephone  company  to  condemn  the  right  of 
way  of  a  railroad  company,  when  the  fee  was  in  the  latter,  or  to 
use  its  premises  for  a  line  of  wires  without  first  compensating  the 
railroad  company,  since  it  would  be  taking  private  property  without 
due  compensation.^^ 

§  147.  Subsequent  purchaser  may  recover. — It  is  not  necessary 
that  the  fee  in  the  land  over  which  the  right  of  way  is  laid  out 
should  be  in  the  original  landowner  at  the  time  the  additional  com- 
pensation is  demanded,  but  a  subsequent  purchaser  may  maintain 
an  action  for  damages ;  ^*  however,  neither  the  original  nor  subse- 
quent owners  have  any  right  to  an  accounting  for  the  rents  and 
profits  received  from  the  telegraph  or  telephone  company,  under 
its  contract  with  the  railroad.^^ 

§  148.  When  for  benefit  to  railroad. — There  is  an  apparent  ex- 
ception to  the  general  rule  that  the  original  landowner,  when  the 
fee  is  in  him,  shall  be  additionally  compensated  for  the  construc- 
tion of  a  telegraph  or  telephone  line  along  the  right  of  way  of  a 
railroad.  Thus,  he  would  not  be  entitled  to  further  compensation  if 
the  line  is  constructed  by  the  railroad,  in  good  faith,  for  its  own 
use,  and  when  it  is  reasonably  necessary  for  its  own  use.^®  A  tele- 
graph or  telephone  line  if  not  indispensable  to  a  railroad  company 
tends  so  much  to  facilitate  its  business  that  it  has  a  right  to  build 
such  a  line  and  to  use  its  right  of  way  therefor;  ^'^  and  it  may  re- 
move all  obstructions  thereon  for  the  purpose  of  constructing  the 
same.  Although  it  may  have  but  an  easement  in  the  land  and  that 
easement  limited  to  its  use  for  railroad  purposes,  yet  a  telegraph 
or  telephone  is  so  convenient,  if  not  indispensable  to  the  business, 
that  it  may  cut  down  every  tree  and  bush  on  the  right  of  way,  if 
necessary  for  the  most  efficient  use  of  a  line  built  by  it  over  and 
upon  such  right  of  way,  just  as  it  may  dig  away  a  hill  or  fill  up  a 
ravine  for  the  sake  of  a  water  tank  or  a  station  house. ^^ 

13  Southwestern  R.  Co.  v.  Southern,  etc.,  Tel.  Co.,  46  Ga.  43,  12  Am.  Kep. 
5S.5;  Canadian,  etc.,  R.  Co.  v.  Mooseland  Tel.  Co.,  100  Me.  3G3,  76  Atl.  SSo, 
29  L.  R.  A.  (N.  S.)  703 ;  Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  2  Fed. 
Cas.  No.  632. 

14  Phillips  V.  Postal  Tel.  Cable  Co.,  130  N.  C.  513,  41  S.  E.  1022,  89  Am.  St. 
Rep.  868. 

15  Chicago,  etc.,  R.  Co.  v.  Snyder,  120  Iowa,  532,  95  N.  W.  183. 

16  See  §  149. 

17  United  States  v.  West.  U.  Tel.  Co.  (C.  C.)  50  Fed.  28;  Id.,  160  U.  S.  .53, 
16  Sup.  Ct.  210,  40  L.  Ed.  337. 

18  West.  U.  Tel.  Co.  v.  Rich,  19  Kan.  517.  27  Am.  Rep.  159 ;  Southwestern  R. 


§    149)  ON   RAILROAD   RIGHT   OF  WAT  157 

§  149.  Same  continued — no  additional  burden. — When  a  tele- 
graph line  is  constructed  by  a  railroad  company  upon  its  roadbed 
for  its  own  use,  there  is  no  additional  servitude  placed  thereon  for 
which  the  landowner  may  recover  additional  damages,  since  it  is 
merely  a  legitimate  development  of  the  easement  originally  ac- 
quired.^^  If  the  line,  however,  is  not  constructed  for  such  a  pur- 
pose, and  the  fee  is  in  the  abutting  property  owner,  it  will  be  a 
new  servitude,  putting  an  additional  burden  on  the  land  for  which 
the  original  owner  of  the  land  would  be  entitled  to  compensation.-'^' 
Such  use  is  presumed  to  have  been  contemplated  in  the  original 
condemnation ;  and  the  damages  resulting  therefrom  are  part  of 
the  damages  included  in  the  assessment  therefor.     In  other  words, 

Co.  V.  Southeni,  etc.,  Tel.  Co.,  46  Ga.  43,  12  Am.  Rep.  585 ;  St.  Jos.  &  D.  C.  R. 
Co.  V.  Dryden,  11  Kan.  18G. 

19  West.  U.  Tel.  Co.  v.  Rich,  19  Kan.  519,  27  Am.  Rep.  159;  American  Tel. 
Co.  V.  Pearce,  71  Md.  535,  18  Atl.  910,  7  L.  R.  A.  200,  note ;  Adams  v.  Louis- 
ville, etc.,  R.  Co.  (IMiss.)  13  Soutli.  932 ;  Taggart  v.  Newport  St.  R.  Co.,  16  R. 
I.  668 ;  Hodges  v.  West.  U.  Tel.  Co.,  133  N.  C.  225,  45  S.  E.  572. 

2  0  An  abutting  property  owner  of  the  fee  of  a  railroad  right  of  way  may 
enjoin  a  telegraph  and  telephone  company  from  erecting  its  lines  on  such 
right  of  way,  even  with  the  consent  of  the  railroad  company.  Such  right 
must  first  be  condemned,  and  a  condemnation  statute  which  leaves  the  prop- 
erty owner  to  an  action  at  law  for  his  damages  is  contrary  to  the  constitu- 
tion of  ^Maryland.  The  Post  Roads  Act  of  Congress  gives  the  telegraph  com- 
pany no  right  to  build  such  line,  unless  the  right  of  way  is  first  acquired  hy 
purchase  or  condemnation.  American  Tel.  Co.  v.  Pearce,  71  Md.  535,  IS  Atl. 
910,  7  L.  R.  A.  200,  note ;  Phillips  v.  Postal  Tel.  Cable  Co.,  1.30  N.  C.  513,  41 
S.  E.  1022,  89  Am.  St.  Rep.  868.  A  landowner  who  has  granted  a  right  of 
way  to  a  railroad  may  collect  damages  from  a  telegraph  company  for  erect- 
ing a  telegraph  line  for  commercial  purposes  on  the  railroad  right  of  way. 
Hodges  V.  West.  U.  Tel.  Co.,  133  N.  C.  225,  45  S.  E.  572.  Where  a  railroad 
grants  to  a  telegraph  company  a  right  of  way  on  the  railroad  right  of  way 
the  owner  of  the  fee  may  maintain  trespass.  Pittock  v.  Central,  etc.,  Tel. 
Co.,  31  Pa.  Super.  Ct.  R.  589.  Where  the  employes  of  a  telegraph  company 
having  a  telegraph  line  on  the  railroad  adjacent  to  the  roadbed  cut  and  de- 
stroy the  property  owner's  fence  in  several  places  unnecessarily,  he  may  re- 
cover exemplary  damages.  West.  U.  Tel.  Co.  v.  Dickens,  148  Ala.  480,  41 
South.  469.  Even  though  a  telegraph  company  constructs  its  line  on  a  rail- 
road right  of  way  without  condemning  the  right  to  do  so  as  against  the  own- 
er of  the  fee,  yet  the  court  will  not  give  judgment  of  ejectment  provided  the 
company  pay  an  amount  equivalent  to  what  the  damages  would  have  been 
on  condemnation.  Fuselier  v.  Great,  etc.,  Tel.  Co.,  50  La.  Ann.  799,  24  South. 
274.  See  Spokane  v.  Colby,  16  Wash.  610,  48  Pac.  248,  holding  that,  where  a 
city  has  condemned  private  property  for  pipes  for  its  waterworks,  it  cannot 
construct  a  line  of  telephone  over  the  same  property,  between  the  station 
and  office,  without  paying  for  the  additional  burden.  See  West.  U.  Tel.  Co. 
V.  Rich,  19  Kan.  517,  27  Am.  Rep.  159.  See  §  146,  and  cases  cited  in  note  9 
thereunder. 


158  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  150 

the  railroad  company  may  use  its  right  of  way,  not  merely  for  its 
track,  but  for  any  other  building  or  erection  which  reasonably  tends 
to  facilitate  its  business  of  transporting  freight  and  passengers ;  and, 
by  such  use,  it  in  no  manner  transcends  the  purposes  and  extent 
of  the  easement,  or  exposes  itself  to  any  claim  for  additional  dam- 
ages to  the  original  landowner.^^ 

§  150.  Same  continued — must  be  in  good  faith. — In  order  to 
avoid  compensating  the  landowner  again  for  the  use  of  telegraph  or 
telephone  lines  upon  the  right  of  way  of  the  railroad,  the  same 
must  have  been  constructed  by  the  railroad,  in  good  faith,  for  its 
own  use.  If  it  is  constructed  by  any  company  other  than  the  rail- 
road, but  the  latter  is  to  use  it  for  the  business  of  operating  trains 
and  is  to  pay  the  telegraph  company  rental  for  such  use,  or  if  it  is 
to  give  the  telegraph  company  the  compensation  which  the  former 
would  be  entitled  to  receive  for  the  use  of  the  right  of  way  by  the 
latter,  or  if  it  enters  into  any  kind  of  an  agreement  with  the  tele- 
graph or  telephone  company  whereby  the  railroad  company  is 
merely  to  use  the  wires  of  the  former  in  the  manipulation  of  the 
trains  and  other  business  necessary  for  the  carrying  out  of  the  pub- 
lic and  corporate  duties,  and  not  to  be  an  owner  in  any  manner  of 
the  lines,--  the  owner  of  the  fee  would  be  entitled  to  additional 
compensation  for  the  use  of  his  land.-^  Should,  however,  the  line 
be  built  jointly  by  the  railroad  and  telegraph  companies,  or  should 
it  be  constructed  by  these  two  companies  as  partners — and,  in  either 
instance,  it  is  understood  that  the  railroad  company  is  to  use  the 
wires  for  its  corporate  purposes — the  landowner  would  not  be 
entitled  to  additional  compensation  from  either  of  these  compa- 
nies.^* If  the  railroad  company  could  build  by  itself  without  lia- 
bility, it  would  not  assume  any  liability  by  building  with  another. 
Whatever  it  could  do  and  would  have  done  for  its  own  use  and 
benefit,  and  was  so  done,  would  be,  so  far  as  the  landowner  is  con- 
cerned, damnum  absque  injuria,  no  matter  who  bore  the  expense ;  or, 
perhaps,   more  correctly   speaking,   it  would  be   damages  already 

21  West.  TJ.  Tel.  Co.  v.  Rich,  19  Kan.  517,  27  Am.  Rep.  159. 

2  2  See  West.  U.  Tel.  Co.  v.  West.,  etc.,  R.  Co.,  91  U.  S.  283,  23  L.  Ed.  350. 
The  telegraph  company  contracted  with  a  railroad  corporation  to  put  up  a 
special  wire  for  the  exclusive  use  of  the  railroad,  and  to  connect  it  with  all 
the  offices  along  the  route.  It  was  held  that  this  contract  did  not  amount  to 
a  sale  of  the  wire  to  the  railroad  company,  and  a  lessee  of  the  road  would 
have  no  right  to  the  wire  other  than  to  use  it  in  its  telegraphic  service. 

23  American  Tel.,  etc.,  Co.  v.  Pearce,  71  Md.  535,  18  Atl.  910,  7  L.  R.  A. 
200,  note. 

24  West.  U.  Tel.  Co.  v.  Rich,  19  Kan.  517,  27  Am.  Rep.  159. 


§    152)  ON   RAILROAD   RIGHT   OF  WAT  159 

paid  for.-^  The  telegraph  or  telephone  line  may  have  been  origi- 
nally constructed  by  the  railroad  company  for  its  own  use  but 
upon  a  transfer  of  such  a  line  by  the  railroad  company  to  a  tele- 
graph or  telephone  company  the  owner  of  the  fee  may  claim  com- 
pensation.-" 

§  151.  Same  continued — not  taxable. — Telegraph  and  telephone 
companies  are  generally  taxed  similarly  to  railroad  companies ; 
that  is,  they  are  assessed  with  so  much  taxes  for  every  mile  of  their 
line.  Statutes  which  provide  that  these  companies  shall  be  thus 
taxed,  unless  clearly  expressed  to  that  effect,  will  not  apply  to  com- 
panies built  by  railroads  for  the  purpose  of  managing  its  trains  and 
not  for  profit.^''  In  such  cases  these  lines  are  used  by  the  railroad 
companies  as  an  indispensable  part  of  their  machinery  for  the  safe 
and  expeditious  moving  of  their  trains. 

§  152.  Railroad  companies  to  be  compensated. — It  is  not  our 
purpose  to  leave  the  impression  that  railroad  companies  are  not  to 
be  compensated  for  the  easement  granted  to  telegraph  or  telephone 
companies  over  the  former's  rights  of  way  for  the  construction  of 
lines  of  such  companies,  when  the  fee  is  in  the  original  landowner, 
for  such  is  not  the  fact.  These  lines  are  regarded  as  subjecting  the 
easement  of  a  railroad  to  an  additional  servitude,  and  the  company 
is  entitled  to  compensation  therefor.-^  The  easement  granted  to 
railroad  companies  is  for  the  purpose  of  constructing  railway  facili- 
ties thereon ;  but  they  have  sufficient  title  in  the  easement  to  de- 
mand compensation  for  any  additional  rights  of  way  to  be  con- 

25  West.  U.  Tel.  Co.  v.  Rich,  19  Kan.  517,  27  Am.  Rep.  1.59. 

2'8  Hodges  V.  West.  U.  Tel.  Co.,  133  N.  C.  225,  45  S.  E.  572. 

2T  Adams  v.  Louisville,  etc.,  R.  Co.  (Miss.)  13  South.  932. 

28  Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  6  Biss.  158,  Fed.  Cas.  No. 
632,  federal  statute  does  not  prevent ;  West.  U.  Tel.  Co.  v.  Atlantic,  etc.,  Tel. 
Co.,  7  Biss.  367,  Fed.  Cas.  No.  17,445 ;  West.  U.  Tel.  Co.  v.  American  U.  Tel. 
Co.,  9  Biss.  72,  Fed.  Cas.  No.  17,444 ;  Kester  v.  West.  U.  Tel.  Co.  (C.  C.)  lOS  Fed. 
926;  Southwestern  R.  Co.  v.  Southern,  etc.,  Tel.  Co.,  46  Ga.  43,  12  Am.  Rep. 
585 ;  American  Tel.,  etc.,  Co.  v.  Pearce,  71  Md.  535,  IS  Atl.  910,  7  L.  R.  A.  200, 
note;  Northwestern  Tel.  Exch.  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn.  334,  79 
N.  W.  315;  Louisville,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  68  Miss.  806,  10 
South.  74.  See,  also,  Baltimore,  etc.,  Tel.  Co.  v.  Morgan's  Louisiana,  etc.,  R. 
Co.,  37  La.  Ann.  883  ;  Southeastern  R.  Co.  v.  European,  etc..  Electric  Printing 
Tel.  Co.,  9  Exch.  363 ;  Phillips  v.  Postal  Tel.  Cable  Co.,  130  N.  C.  513,  41  S.  E. 
1022,  89  Am.  St.  Rep.  868;  Montana  Postal  Tel.  Cable  Co.  v.  Oregon  Short 
Line  R.  Co.  (C.  C.)  114  Fed.  787 ;  R.  Co.  v.  Tel.  Co.,  106  Me.  363,  76  Atl.  885, 
29  L.  R.  A.  (N.  S.)  703,  20  Ann.  Cas.  721,  company  can  be  enjoined ;  Hodges  v. 
West.  U.  Tel.  Co.,  133  N.  C.  225,  45  S.  E.  572 ;  West.  U.  Tel.  Co.  v.  Rich,  19 
Kan.  517,  27  Am.  Rep.  1.j9  ;  West.  U.  Tel.  Co.  v.  Nashville,  etc.,  R.  Co.,  133 
Tenn.  691,  182  S.  W.  254. 


160  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  153 

structed  thereon,  as  that  of  an  easement  granted  to  a  telegraph  or 
telephone  company;  to  permit  one  of  these  companies  to  construct 
a  line  on  such  easement,  without  first  compensating  the  railroad 
company,  would  be  unconstitutional,  as  it  would  be  taking  property 
without  due  compensation.^^  The  same  rule  applies  in  these  cases 
as  that  of  acquiring  a  right  of  way  across  private  property,  or  upon 
the  public  highway — that  is,  the  telegraph  or  telephone  company 
should  first  try  to  acquire  an  easement  along  and  upon  the  right  of 
way  of  the  railroad  by  an  agreement  with  the  latter;^"  but  if  this 
cannot  be  accomplished  by  contract,  the  telegraph  or  telephone 
company  may  proceed  to  a  condemnation  proceeding.^^ 

§  153.  Right  to — must  first  be  acquired. — The  right  which  a  tele- 
graph company  may  have  to  construct  a  line  of  wires  on  the  right 
■of  way  of  a  railroad  company  must  first  be  given  by  either  some 
federal  ^^  or  state  statute,^^  or  by  both.  For  instance,  where  a  stat- 
ute provides  that  telegraph  companies  may  construct  their  lines 
"along  and  parallel  to  any  of  the  railroads  of  the  states,"  it  does  not 
authorize  the  condemnation  of  a  right  of  way  by  a  telegraph  com- 
pany along  and  upon  a  right  of  way  of  a  railroad  company.^*  In 
Mississippi,  whenever  a  telegraph  company  secures  this  right,  it 
becomes  the  duty  of  the  railroad  to  receive  and  transport  such  ma- 
terial, construction  cars,  etc.,  as  is  necessary  in  constructing  the 
line,  and  to  distribute  the  material  along  the  road  as  the  telegraph 
company  may  direct  "upon  such  terms  and  conditions  as  may  be 
reasonable  and  just."  ^^  When  the  right  is  acquired  under  a  federal 
grant,  the  company  must  file  its  written  acceptance  with  the  post- 
master general  "of  the  restrictions  and  obligations  required"  by  the 
statute. ^"^ 

2  9  Southwestern  E.  Co.  v.  Southern,  etc.,  Tel.  Co.,  46  Ga,  43,  12  Am.  Rep. 
585. 

3  0  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  I'tah,  474,  Go  Pac. 
735,  90  Am.  St.  Rep.  705. 

31  Louisville,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  68  Miss.  806,  10  South.  74. 

3  2  See  §  55  et  seq. 

3  3  See  §  72  et  seq. 

34  Postal  Tel.  Cable  Co.  v.  Norfolk,  etc.,  R.  Co.,  S8  Va.  920,  14  S.  E.  803 ; 
New  York  City,  etc.,  R.  Co.  v.  Central  U.  Tel.  Co.,  21  Hun  (N.  Y.)  261 ;  §  73. 

3  5  Laws  Miss.  1890,  c.  63,  p.  72. 

3  0  Chicago,  etc.,  Co.  v.  Pacific  Mut.  Tel.  Co.,  36  Kan.  113,  12  Pac.  535.  In 
this  case  it  was  held:  A  telegraph  company,  in  the  exercise  of  eminent  do- 
main, instituted  a  proceeding  to  condemn  and  appropriate  so  much  of  a 
bridge  as  was  necessary  to  support  a  line  of  magnetic  telegraph  proposed  to 
be  built,  and  for  the  construction,  maintenance  and  operation  of  the  same. 
The  bridge  was  built  in  pursuance  of  state  and  national  legislation,  and  spans 
the  Missouri  river  at  Atchison,  Kan.,  where  the  river  is  navigable,  and  where 


S    154)  ON   RAILROAD   RIGHT   OF   WAY  161 

§  154.     Interest  acquired  by  telegraph  companies. — Telegraph  or 

telephone  companies  which  are  constructed  along  and  upon  the 
right  of  way  of  a  railroad  company  acquire  no  title  or  interest  in 
the  easement."  The  fee  still  remains  in  the  original  landowner  or 
the  railroad  company,  whichever  it  may  be ;  and  the  telegraph  or 
telephone  companies  have  only  the  right  to  erect  their  poles  upon 
the  easement,  and  the  right  of  ingress  and  egress  thereon  for  the 
purpose  of  keeping  up  the  lines.  It  is  incumbent  upon  the  tele- 
graph or  telephone  company  to  construct  its  poles  and  wires  so  as 
not  to  interfere  with  the  moving  trains,^^  and  not  to  permit  its  lines 
to  become  dangerous  to  transportation  along  the  road.  The  first 
duty  which  a  railroad  company  owes  to  the  public  is  to  keep  its 
roadbed  in  proper  condition  for  the  safety  of  the  passengers  and 
goods  during  transportation;  and,  in  order  to  do  this,  the  railroad 
company  may  make  such  disposition  of  its  roadbed  as  may  be  nec- 
essary for  the  maintenance  of  same;  should  it  become  necessary 
to  remove  the  poles  for  this  purpose,  it  may  do  so  without  becoming 
liable  to  the  telegraph  or  telephone  company,  unless  the  same  is 
done  negligently,  carelessly  or  unnecessarily.  In  many  instances 
the  railroad  may  and  does  widen  its  roadbed  for  the  purpose  of  lay- 
ing a  side  track  or  a  double  track;  when  it  does  it  may  remove  the 
poles  of  these  companies  or  give  them  reasonable  time  or  proper 
notice  to  do  the  same  themselves  at  their  own  expense.^^  We  men- 
tion these  facts  to  show  that  a  railroad  company  does  not  lose  any 
interest  or  control  over  the  easement  but  may  make  any  disposition 
or  use  of  it  necessary  for  the  carrying  on  of  its  business. 

it  divides  the  states  of  Kansas  and  Missouri.  The  company  owning  the 
bridge,  claiming  that  the  condemnation  proceeding  was  without  authority  of 
law,  brought  an  action  to  enjoin  the  same,  and  to  prevent  any  interference 
with  the  bridge.  Held  that,  before  the  telegraph  company  can  construct  its 
lines  at  the  point  named,  it  must  file  with  the  postmaster  general  a  written 
acceptance  of  the  restrictions  and  obligations  imposed  by  congress  in  an  "Act 
to  aid  in  the  construction  of  telegraph  lines,  and  to  secure  to  the  government 
the  use  of  the  same  for  postal,  military,  and  other  purposes."    See  §  58. 

3  7  Postal  Tel.  Cable  Co.  v.  Louisiana  Western  R.  Co.,  49  La.  Ann.  1270,  22 
South.  219 ;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  120  Ala.  21,  24  South.  408. 
See  §§  51,  141.  See  Union  Pacific  R.  Co.  v.  Colorado  Postal  Tel.  Cable  Co.,  30 
Colo.  133,  69  Pac.  564,  97  Am.  St.  Rep.  100,  holding  telegraph  company  only 
acquires  an  easement ;  West.  U.  Tel.  Co.  v.  Penn.  R.  Co.,  195  U.  S.  540,  570, 
25  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann.  Cas.  517. 

28  See  §  74. 

3  9  Postal  Tel.  Cable  Co.  v.  Louisiana  Western  R.  Co.,  49  La.  Ann.  1270,  22 
South.  219 ;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  120  Ala.  21,  24  South.  408. 

Jones  Tel.(2d  Ed.)— 11 


IG2  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  155 

§  155.  By  condemnation. — When  a  telegraph  or  telephone  com- 
pany has  failed  to  acquire  an  easement  over  the  right  of  way  of 
a  railroad  by  an  agreement,  the  same  may  be  acquired  by  a  con- 
demnation proceeding.  It  has  long  been  settled  that  property  al- 
ready devoted  to  a  public  use  may  afterwards  be  condemned  for 
another  and  different  public  use  under  authority  from  the  state;  ^"^ 
and,  as  lands  whereon  telegraph  or  telephone  lines  are  to  be  con- 
structed are  granted  to  companies  for  public  enterprises,  it  neces- 
sarily follows,  therefore,  that  these  companies  may  condemn  a  part 
of  the  right  of  way  which  has  already  been  granted  to  a  railroad 
company,  provided  in  doing  so  the  use  of  the  way  for  the  railroad 

40  Kansas,  etc.,  R.  Co.  v.  Nol•th^Yeste^n,  etc.,  R.  Co.,  161  Mo.  2SS,  61  S.  W, 
684,  84  Am.  St.  Rep.  717,  51  L.  R.  A.  936;  Butte,  etc.,  R.  Co.  v.  Mon- 
tana, etc.,  R.  Co.,  16  Mont.  504,  41  Pac.  232,  50  Am.  St.  Rep.  508,  31  L.  R.  A. 
298;  Chicago,  etc.,  R.  Co.  v.  Stackweather,  97  Iowa,  159,  66  N.  W.  87, 
31  L.  R.  A.  183,  59  Am.  St.  Rep.  404 ;  Little  Nestucca  Road  Co.  v.  Tillamook 
Co.,  31  Or.  1,  48  Pac.  465,  65  Am.  St.  Rep.  802;  St.  Louis,  etc.,  R. 
Co.  V.  Hannibal  U.  Depot  Co.,  125  Mo.  82,  28  S.  W.  483;  Kansas  City  v. 
Marsh  Oil  Co.,  140  Mo.  458,  41  S.  W.  943 ;  Kansas  City,  etc.,  Bell  R.  Co.  v. 
Kansas  City,  etc.,  R.  Co.,  118  Mo.  599,  24  S.  W.  478 ;  Twelfth  Market  Street 
Co.  V.  Philadelphia,  etc.,  R.  Co.,  142  Pa.  589,  21  Atl.  902,  9S9 ;  The  Sunder- 
land Bridge,  122  Mass.  459 ;  Enfield  Toll  Bridge  Co.  v.  Hartford,  etc.,  R.  Co., 
17  Conn.  40,  42  Am.  Dec.  716. 

In  Central  Bridge  Corp.  v.  City  of  Lowell,  4  Gray  (Mass.)  474,  Bigelow,  J., 
uses  the  following  language  concerning  the  subject  in  question:  "Nor  is  the 
principle  thus  recognized  any  violation  of  justice  or  sound  policy,  nor  does  it 
in  any  degree  tend  to  impair  the  obligation  or  infringe  upon  the  sanctity  of 
contracts.  It  rests  on  the  basis  that  public  convenience  and  necessity  are  of 
paramount  importance  and  obligation,  to  which,  when  duly  ascertained  and 
declared  by  the  sovereign  authority,  all  minor  considerations  and  private 
rights  and  interests  must  be  held,  in  a  measure  and  to  a  certain  extent,  sub- 
ordinate. By  the  grant  of  a  franchise  to  individuals  for  one  public  purpose, 
the  legislatures  do  not  forever  debar  themselves  from  giving  to  others  new 
and  paramount  rights  and  privileges  when  required  by  public  exigencies,  al- 
though it  may  be  necessary,  in  the  exercise  of  such  rights  and  privileges,  to 
take  and  appropriate  a  franchise  previously  granted.  If  such  were  the  rule, 
great  public  improvements,  rendered  necessary  by  the  increasing  wants  of 
society  in  the  development  of  civilization  and  the  progress  of  the  arts  might 
be  prevented  by  legislative  grants  which  were  wise  and  expedient  in  their 
time,  but  which  the  public  necessities  have  outgrown  and  rendered  obsolete. 
The  only  true  rule  of  policy,  as  well  as  of  law,  is,  that  a  grant  for  one  public 
purpose  must  yield  to  another  more  urgent  and  important,  and  this  can  be 
effected  without  any  infringement  on  the  constitutional  rights  of  the  subject. 
If  in  such  cases  suitable  and  adequate  provision  is  made  by  the  Legislature 
for  the  compensation  of  those  whose  property  or  franchise  is  injured  or  taken 
away,  there  is  no  violation  of  public  faith  or  private  rights.  The  obligation 
of  the  contract  created  by  the  original  charter  is  thereby  i-ecognized." 


I 


§    155)  ON   RAILROAD   RIGHT   OF   WAY  163 

will  not  be  destroyed  or  materially  interfered  with.*^  If  the  use 
by  the  railroad  company  is  not  materially  interfered  with  or  de- 
stroyed, this  power  may  be  exercised  under  a  general  statutory 
authority  to  condemn  land/-   and  statutes  prohibiting-  the  taking 

41  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,. 65  Pac. 
735,  90  Am.  St.  Rep.  705;  Baltimore,  etc.,  R.  Co.  v.  Board  of  Commerce, 
156  Ind.  260,  58  N.  E.  837,  59  N.  E.  856;  Gold  v.  Pittsburgh,  etc.,  R. 
Co.,  153  Ind.  232,  53  N.  E.  285;  Steele  v.  Empsom,  142  Ind.  397,  41  N.  E. 
822;  Southern  Pacific  R.  Co.  v.  Southern  Cal.  R.  Co.,  Ill  Cal.  222,  43  Pac. 
602 ;  Southwestern  Tel.,  etc.,  Co.  v.  Gulf,  etc.,  R.  Co.  (Tex.  Civ.  App.)  52  S.  W. 
106;  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  173  111.  521,  51  N.  E. 
382 ;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408 ; 
Union  Pacific  R.  Co.  v.  Colorado  Postal  Tel.  Cable  Co.,  30  Colo.  133,  69  Pac. 
564,  97  Am.  St.  Rep.  106 ;  Southwestern  Tel.  Co.  v.  Kansas  City,  etc.,  R.  Co., 
109  La.  892,  33  South.  910 ;  Cleveland,  etc.,  R.  Co.  v.  Ohio  Postal  Tel.  Cable 
Co.,  68  Ohio  St.  306,  67  N.  E.  890,  62  L.  R.  A,  941;  Mobile,  etc.,  R.  Co.  v. 
Postal  Tel.  Cable  Co.,  101  Teun.  62,  46  S.  W.  571,  41  L.  R.  A.  403;  Postal 
Tel.  Cable  Co.  v.  Farmville,  etc.,  R.  Co.,  96  Va.  661,  32  S.  E.  468 ;  Idaho  Postal 
Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.  (C.  C.)  104  Fed.  623,  affirmed  in 
111  Fed.  842,  49  C.  C.  A.  663 ;  Railroad  Co.  v.  Tel.  Co.,  138  Ga.  420,  75  S.  E. 
471,  42  L.  R.  A.  (N.  S.)  225 ;  Tel.  Cable  Co.  v.  Railroad  Co.,  30  Ind.  App.  654, 
66  N.  E.  919 ;  Railroad  Co.  v.  Tel.  Co.,  106  Me.  363,  76  Atl.  885,  29  L.  R.  A. 
(N.  S.)  703,  20  Ann.  Cas.  721 ;  Railroad  Co.  v.  Tel.  Co.,  134  Mo.  App.  406,  114 
S.  W.  586 ;  Railroad  Co.  v.  Tel.,  etc.,  Co.,  96  Tex.  160,  71  S.  W.  270,  60  L.  R. 
A.  145 ;  Cable  Co.  v.  Railroad  Co.  (C.  C.)  89  Fed.  190 ;  Tel.  Cable  Co.  v.  Rail- 
road Co.  (C.  C.)  163  Fed.  967.  See  §  73  et  seq. ;  §  131.  See,  also,  Western, 
etc.,  R.  Co.  V.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42  L.  R.  A.  (N.  S.) 
225. 

42  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408 ; 
Postal  Tel.  Cable  Co.  v.  Chicago,  etc.,  R.  Co.,  30  Ind.  App.  654,  66  N.  E.  919 ; 
Postal  Tel.  Cable  Co.  v.  Oregon,  etc.,  R.  Co.,  23  Utah,  474,  65  Pac.  735,  90 
Am.  St.  Rep.  705.  See  Railroad  Co.  v.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42 
L.  R.  A.  (N.  S.)  225.    See  §  131. 

Where  statutes  of  a  state  do  not  expressly  authorize  a  telegraph  company 
to  condemn  a  right  of  way  on  a  railroad  right  of  way,  yet  where  they  au- 
thorize these  companies  to  condemn  land,  or  to  exercise  the  right  of  eminent 
domain,  this  is  sufficient  to  sustain  condemnation  for  a  telegraph  right  of 
way  on  a  railroad  right  of  way,  it  being  shown  that  the  railroad  operations 
are  not  interfered  with  thereby.  Pacific  Postal  Tel.,  etc.,  Co.  v.  Oregon,  etc., 
R.  Co.  (C.  C.)  163  Fed.  967 ;  Oregon,  etc.,  R.  Co.  v.  Postal  Tel.,  etc.,  Co.,  Ill  Fed. 
842,  49  C.  C.  A.  663,  where  the  circuit  court  of  appeals  said:  "By  section 
5210  telegraph  companies  are  given  the  authority  to  exercise  the  right  of  emi- 
nent domain.  This  provision,  standing  alone,  unaffected  by  other  statutory 
enactments,  would  confer  upon  a  telegraph  company  the  authority  to  con- 
demn a  right  of  way  along  and  upon  the  right  of  way  of  a  railroad  company, 
provided  that  it  did  not  in  any  way  interfere  with  the  use  to  which  the  right 
of  way  was  already  dedicated."  Contra,  New  York  City,  etc.,  R.  v.  Central 
Union  Tel.  Co.,  21  Ilun  (N.  Y.)  261.  Under  the  Texas  statute  authorizing  tele- 
graph companies  to  condemn  a  right  of  way  over  the  lands  of  other  corpora- 


164  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  155 

of  property  appropriated  to  a  public  use  except  for  "a  more  neces- 
sary public  use"  do  not  prevent  the  appropriation  for  telegraph 
purposes  of  a  portion  of  a  railroad  right  of  way  not  occupied  by 
the  tracks  the  same  being  very  generally  considered  "a  more  nec- 
essary public  use."  ^^  However,  statutes  authorizing  telegraph 
companies  to  construct  their  lines  on  the  roads  and  highways,  but 
not  providing  for  compensation,  give  a  right  of  way  over  such 
roads  as  belong  to  the  state,  but  do  not  give  the  right  to  condemn 
a  right  of  way  on  a  railroad,  such  railroad  not  being  a  "highway" 
in  that  sense.**  In  a  number  of  the  states  statutes  have  been  en- 
acted specially  relating  to  condemnation  of  property  by  telegrapa 
companies;*^    and,  although  the  statute  mentions  telegraph  com- 

tions,  they  may  condemn  a  right  of  way  on  a  railroad  right  of  way.  Ft. 
Worth,  etc.,  R.  Co.  v.  Southwestern,  etc.,  Tel.  Co.,  96  Tex.  160,  71  S.  VV.  270, 
60  L.  R.  A.  145.  In  Northwestern,  etc.,  Co.  v.  Chicago,  etc.,  R.  Co.,  76  Minn. 
334,  79  N.  W.  315,  it  was  held  that  a  telegraph  company  might  have  the  right 
to  condemn  the  right  of  way  on  a  railroad  right  of  way  where  there  was  a 
reasonable  and  practical  necessity  for  using  such  route,  even  though  the 
statute  did  not  expressly  authorize  a  telegraph  company  to  condemn  a  right 
of  way  on  a  railroad  right  of  way,  but  the  court  held  that  in  that  case  the 
evidence  did  not  prove  such  reasonable  and  practical  necessity. 

4  3  Southern  Pacific  R.  Co.  v.  Southern  Cal.  R.  Co.,  Ill  Cal.  221,  43  Fac. 
602 ;  Montana  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.  (C.  C.)  114 
Fed.  7S7;  Idaho  Postal  Cable  Co.  v.  Oregon  Short  Line,  etc.,  R.  Co.  (C.  C.) 
104  Fed.  623,  affirmed  in  111  Fed.  842,  49  C.  C.  A.  663,  where  it  was  held 
that  such  a  special  provision  is  merely  declaratory  of  the  preceding  general 
rule.  Postal  Tel.  Cable  Co.  v.  Oregon,  etc.,  R.  Co.,  23  Utah,  474,  65  Pac.  735, 
90  Am.  St.  Rep.  705 ;  St.  Louis,  etc.,  R.  Co,  v.  Postal  Tel.  Co.,  173  111.  521,  51 
N.  E.  382. 

44  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  R.,  123  Fed.  33,  59  C.  C.  A.  113,  af- 
firmed 195  U.  S.  540,  25  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann.  Cas.  517;  New 
York,  etc.,  R.  Co.  v.  Central,  etc.,  Tel.  Co.,  21  Hun  (N.  Y.)  261. 

4  5  The  statutes,  as  may  be  seen,  vary  largely  on  this  subject: 

Alabama. — "A  telegraph  company  may  condemn  lands  for  right  of  way  not 
exceeding  100  feet  in  width."  Civ.  Code  1907,  §  3486.  But  see  §  3487.  A  for- 
eign telegraph  company  may  condemn.  §  3884.  When  property  already  de- 
voted to  a  public  use  may  be  taken  for  another  public  use.  §  3867,  construed 
in  West.  U.  Tel.  Co.  v.  South  &  North  Alabama  Railroad,  184  Ala.  66,  62 
South.  788  (1913).  In  this  state  it  was  held  that,  where  a  statute  gives  to 
telegraph  companies  a  right  to  construct  their  lines  "along  any  railroads"  in 
the  state,  a  company  may  condemn  the  right  under  the  general  condemnation 
statutes  of  the  state.  New  Orleans,  etc.,  R.  Co.  v.  Southern,  etc.,  Tel.  Co., 
53  Ala.  211  (1875).  Condemnation  of  a  railroad  company's  right  of  way  sus- 
tained under  the  statute  in  the  case  of  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Ca- 
ble Co.,  120  Ala.  21,  24  South.  408,  the  court  holding  that  only  nominal 
damages  need  be  paid.  A  landowner  is  entitled  in  condemnation  proceedings 
to  compensation  for  the  space  occupied  by  the  wires  as  well  as  the  ground 
actually  occupied  by  the  poles.    He  is  also  entitled  to  compensation  for  trees 


R    155)  ON   RAILROAD   RIGHT   OF   WAY  165 

panics  only  or  telephone  companies  only,  it  nevertheless   applies 
equally  to  telegraph  and  telephone  companies.*^     A  railroad  com- 

which  will  have  to  be  cut.     Long-Dist.,  etc.,  Co.  v.  Schmidt,  157  Ala.  391,  47 
South.  731  (1908). 

Arizona.— A  telegraph  company  is  not  given  power  to  condemn.  Rev.  St. 
1901,  §  2445. 

Arlansas.—Kivhy's  Digest  1904,  §§  2934-2936.  Telegraph  companies  may 
condemn  a  right  of  way  on  railroads.  St.  Louis,  etc.,  R.  Co.  v.  Southwestern 
Tel.,  etc.,  Co.,  121  Fed.  278,  58  C.  C.  A.  198.  See  Railroad  Co.  v.  Tel.  Co.,  SO 
Ark.  499,  97  S.  W.  660. 

California. — May  condemn  "real  property,"  Code  Civ.  Proc.  1907,  §§  1238- 
1240,  including  property  already  appropriated  to  a  less  necessary  public  use. 
§  1240.  Right  of  way  and  "lands"  and  structures  thereon  held  for  other  pub- 
lic uses  "may  be  connected  with,  crossed,  or  intersected."  "They  shall  also 
be  subject  to  a  limited  use,  in  common  with  the  owner  thereof."  §  1240,  subd. 
6.  A  nonresident  telegraph  company  which  has  accepted  the  Post  Roads  Act 
of  Congress  may  condemn  a  right  of  way  on  a  railroad.  West.  U.  Tel.  Co.  v. 
Superior  Court,  15  Cal.  App.  679,  115  Pac.  1091,  1100, -(1911).  The  legality  of 
the  existence  of  the  corporation  cannot  be  questioned,  if  it  is  a  de  jure  or  de 
facto  corporation.    West.  U.  Tel.  Co.  v.  Superior  Ct.,  supra. 

Colorado. — May  condemn  "any  real  estate  or  right  of  way  or  easement  or 
other  right,"  Rev.  St.  1908,  §  2461 ;  also  "across,  upon  and  under  any  public 
highway,"  §  2451 ;  and  "over,  upon,  under  and  across  all  public  lands,"  §  2452 ; 
also  "over  or  under  the  lands,  property,  privileges,  rights  of  way  and  ease- 
ment of  other  persons  and  corporations,"  §  2455 ;  but  has  no  power  to  con- 
demn upon  a  railroad  right  of  way  except  to  cross  the  same,  §  2454.  Land 
commissioners  may  grant  a  right  of  way  across  state  lands.  Chapter  207, 
Laws  1909.  LTnder  statute  of  1885  a  telegraph  company  could  condemn  a 
right  of  way  on  a  railroad.  Union  Pacific  R.  Co.  v.  Colorado  Postal  Tel.,  etc., 
Co.,  30  Colo.  133,  69  Pac.  564,  97  Am.  St.  Rep.  106.  But  that  statute  was  re- 
pealed by  Laws.  1907,  c.  175. 

Connecticut. — May  construct  lines  "upon  any  highway  or  across  any  wat- 
ers," Gen.  St.  1887,  §  3944 ;  but  the  consent  of  adjoining  proprietors  must  be 
obtained,  §  3945 ;  or  in  lieu  of  such  consent  the  consent  of  two  of  the  county 
commissioners. 

Deiftirare.— Laws  1899,  c.  273,  §  102,  re-enacted  in  Laws  1903,  c.  394,  §  105. 
See  Laws  1913,  c.  189,  p.  470. 

Florida. — May  construct  lines  "on  or  beside  any  public  road  or  highway," 
Gen.  St.  1906,  §  2820 ;  a  railroad  right  of  way,  §  2821. 

Georgia. — May  condemn  a  right  of  way  upon  "lands,"  public  highways, 
railroad  right  of  way  and  "private  lands."  Code  1911,  §§  2808-2811.  A  for- 
eign telegraph  company  may  condemn  a  right  of  way  on  a  railroad,  but  the 
statute  is  void  if  it  does  not  provide  for  the  compulsory  payment.  South- 
western R.  V.  Southern,  etc.,  Tel.  Co.,  40  Ga.  43,  12  Am.  Rep.  585  (1872). 
The  telegraph  company  may  proceed  to  erect  its  lines,  even  though  the  rail- 

4  G  See  §  131.  See,  also,  R.  Co.  v.  Tel.,  etc.,  Co.,  88  Miss.  4.38,  41  South.  258. 
The  term  "public  business"  in  §  2841,  R.  L.  1905,  includes  electric  companies. 
Minnesota,  etc.,  P.  Co.  v.  Pratt,  101  Minn.  197,  112  N.  W.  395,  11  L.  R.  A. 
(N.  S.)  105. 


166  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  155 

pany  cannot  enjoin  a  condemnation  proceeding  by  a  telegraph 
company  on  the  ground  that  the  poles  would  be  a  menace  to  the 

road  company  takes  an  appeal.  Savannah,  etc.,  R.  Co.  v.  Postal  Tel.  Cable 
Co.,  115  Ga.  554,  42  S.  E.  1.  See,  also,  in  general.  Savannah,  etc.,  R  Co.  v. 
Postal  Tel.  Cable  Co.,  112  Ga.  941,  38  S.  E.  353;  Savannah,  etc.,  R.  Co.  v. 
Postal  Tel.  Cable,  etc.,  Co.,  113  Ga.  916,  39  S.  E.  399 ;  Georgia  R.  v.  Atlantic, 
etc.,  Co.  (C.  C.)  152  Fed.  991 ;  Atlantic,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co., 
120  Ga.  268,  48  S.  E.  15,  1  Ann.  Cas.  734.  See  Western  &  Atlantic  R.  v.  West. 
U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42  D.  R.  A.  (N.  S.)  225 ;  West.  U.  Tel. 
Co.  V.  American  U.  Tel.  Co.,  65  Ga.  160,  38  Am.  Rep.  781. 

Idaho. — May  construct  upon  any  public  highway  or  any  "lauds."  Rev. 
Codes  1908,  §  2833.  The  land  commissioners  may  grant  right  over  state 
lands.  §  1637.  May  condemn  private  lands,  including  lands  not  already  de- 
voted to  a  more  necessary  public  use.  §§  5210-.5213.  Latter  statute  applies 
to  a  right  of  vray  of  a  railroad  right  of  way,  in  Oregon,  etc.,  R.  Co.  v.  Postal 
Tel.  Cable  Co.,  Ill  Fed.  842,  49  C.  G.  A.  663,  affirming  (C.  C.)  104  Fed.  623. 
See  St.  Paul,  etc.,  R.  v.  West.  U.  Tel.  Co.,  118  Fed.  497,  55  C.  C.  A.  263 ;  Id. 
(C.  C.)  106  Fed.  243,  explained  in  West.  U.  Tel.  Co.  v.  Pennsylvania  R.,  195 
U.  S.  540,  572,  25  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann.  Cas.  517 ;  Great  North- 
ern R.  v.  West.  U.  Tel.  Co.,  174  Fed.  321,  98  C.  C.  A.  193. 

Illinois. — May  construct  upon  "any  railroad,  road,  highway,  street  or  al- 
ley *  *  *  or  lands."  Rev.  St.  1909,  c.  134,  §  2.  See  St.  Louis,  etc.,  R.  Co. 
V.  Postal  Tel.  Cable  Co.,  173  111.  508,  51  N.  E.  382. 

Indiana. — May  condemn  "real  estate."  Burns'  Ann.  St.  1908,  §  5770.  Stat- 
ute sufficient  to  authorize  a  telegraph  company  to  condemn  a  right  of  way  on 
a  railroad.  Postal  Tel.  Cable  Co.  v.  Chicago,  etc.,  R.  Co.,  30  Ind.  App.  654, 
66  N.  E.  919.  Where  the  owner  stands  by  and  allows  a  structure  to  be  erect- 
ed, see  McClarren  v.  Jefferson  School  Tp.,  169  Ind.  140,  82  N.  E.  73,  13  L. 
R.  A.  (N.  S.)  417,  13  Ann.  Cas.  978. 

Iowa. — May  construct  lines  upon  public  roads  or  upon  "lands."  Code  1S97, 
§  2158. 

Kan.ms. — May  condemn  "lands,"  Gen.  St.  1909,  §  1807;  public  roads,  §  17S9 ; 
"lands"'  of  any  corporation  whether  acquired  by  purchase  or  by  provision  of 
the  charter  of  said  corporation,  §  1790. 

Kentucky. — A  foreign  or  domestic  telegraph  company  may  construct  lines 
over  any  "public  lands,"  "highways,"  and  railroad  right  of  way  and  struc- 
tures. Ky.  St.  1909,  §  4679a.  See  Postal,  etc.,  Tel.  Co.  v.  Mobile,  etc.,  R. 
Co.  (Ky.)  54  S.  W.  727;  West.  U.  Tel.  Co.  v.  Louisville,  etc.,  R,  Co.,  Miss.  U. 
S.  Court,  1912,  holding  statute  constitutional.  See  West.  U.  Tel.  Co.  v.  Louis- 
ville, etc.,  R.  Co.  (D.  C.)  201  Fed.  946  (1912). 

Louisiana. — A  foreign  or  domestic  telegraph  company  may  construct  lines 
along  "public  roads  or  works"  and  along  railroads  and  over  public  lands 
and  "lands,  privileges  and  servitudes"  of  persons  and  corporations.  Rev. 
Laws  1904,  §  696;  Postal  Tel.  Cable  Co.  v.  Morgan's  Louisiana,  etc.,  R.  Co., 
49  La.  Ann.  58,  21  South.  183.  A  foreign  telephone  must  prove  that  it  was 
legally  organized.  Cumberland,  etc.,  Co.  v.  St.  Louis,  etc.,  R.  Co.,  117  La. 
199,  41  South.  492.  See,  also.  Postal  Tel.  Cable  Co.  v.  Louisiana  Western  R. 
Co.,  49  La.  Ann.  1270,  22  South.  219 ;  Southwestern  Tel.  Co.  v.  Kansas  City, 
etc.,  R.  Co.,  109  La.  892,  33  South.  910. 

Maine. — May  "take  and  hold  as  for  public  uses,  land  necessary  for  the  con- 


i 


§    155)  ON   RAILROAD   RIGHT   OF   WAY  167 

trains  and  tracks  of  the  railroad  company,  where,  according  to  the 
papers  in  the  condemnation  proceeding,  the  poles,  even  if  they  fell 
over,  would  not  reach  the  nearest  cross-ties,  and  there  is  already 
another  telegraph   line   on   the   railroad  right  of  way  which   does 

struction  and  operation  of  its  lines.  Land  may  be  so  taken  and  damages 
therefor  may  be  estimated,  secured,  determined  and  paid  as  in  case  of  rail- 
roads." Rev.  St.  190.3,  c.  55,  §  11.  A  railroad  company  may  enjoin  a  telephone 
company  from  constructing  its  telephone  line  on  the  former's  right  of  way, 
although  the  railroad  commissioners  have  granted  that  right  and  the  stat- 
utes provide  that  if  the  parties  cannot  agree  the  railroad  commissioners 
may  hear  the  matter  and  malie  an  award.  Canadian  Pac.  R.  v.  Moosehead 
Tel.  Co.,  106  Me.  363,  76  Atl.  885,  29  L.  R.  A.  (N.  S.)  703,  20  Ann.  Cas.  721, 
holding,  however,  that  condemnation,  perhaps,  might  have  been  had  under 
another  statute  authorizing  the  telephone  company  to  take  "land"  for  con- 
struction and  operation  of  its  line.  See  Canadian,  etc.,  R.  Co.  v,  Moosehead 
Tel.  Co.,  106  Me.  363,  76  Atl.  885,  29  L.  R.  A.  (X.  S.)  703,  20  Ann.  Cas.  721. 

Manjland. — May  construct  lines  "upon  any  postal  roads  and  postal  routes, 
roads,  streets  and  highways"  and  bridges.  Pub.  Gen.  Laws  1904,  art.  23,  § 
324.  "May  acquire  by  condemnation  any  easement  or  interest  in  the  land 
which  may  be  necessary  to  give  effect  to  the  purposes  for  which  such  cor- 
poration is  formed."  §  3G6.  See  Chesapeake,  etc.,  Tel.  Co.  v.  Mackenzie,  74 
Md.  36,  21  Atl.  690,  28  Am.  St.  Rep.  219. 

Massachusetts. — May  construct  lines  "upon  and  along  the  public  ways"  but 
shall  not  incommode  the  public  use  of  public  ways.  Rev.  Laws  1902,  c.  122, 
§  1.  The  location  of  poles,  etc.,  is  under  the  mayor  and  aldermen  of  a  city 
or  the  selectmen  of  a  town.     Laws  190G,  c.  117. 

Michigan. — May  construct  lines  on  the  highways  "or  upon  or  over  the  land 
of  any  individual — the  owner  of  any  land  through  which  said  telegraph  line 
may  pass,  and  the  railroad  corporation  on  whose  right  of  way  the  same  may 
be  constructed,  having  first  given  consent."  Comp.  Laws  1897,  §  6660.  Any 
person  "over  or  through  whose  lands"  such  line  is  constructed  may  have  his 
damages  appraised  by  commissioners  appointed  by  the  court,  etc.  Id.  §  6672. 
Company  cannot  continue  its  line  on  a  railroad  right  of  way,  the  consent  of 
the  latter  not  having  first  been  obtained.  West.  U.  Tel.  Co.  v.  Ann  Arbor  R. 
Co.,  90  Fed.  379.  33  C.  C.  A.  113  ;  Id.,  178  U.  S.  239,  20  Sup.  Ct.  807,  44  L.  Ed. 
1052.  Tlie  conflict  of  authority  on  this  subject  is  referred  to  in  West.  U, 
Tel.  Co.  V.  Pennsylvania  R.  Co.,  195  U.  S.  540,  572,  25  Sup.  Ct.  133,  49  L.  Ed. 
312,  1  Ann.  Cas.  517. 

Minnesota. — May  have  a  right  of  way  upon  any  public  road.  Rev.  Laws 
1905,  §  2927;  upon  railroads.  Id.  §  2926.  See  Northwestern,  etc.,  Co.  v.  Chi- 
cago, etc.,  R.  Co.,  76  Minn.  334,  79  N.  W,  315;  Minnesota  Canal,  etc.,  Co.  v. 
Pratt,  101  Minn.  197,  112  N.  W.  395,  11  L.  R.  A.  (N.  S.)  105,  construing  § 
2841,  R.  L.  1905. 

Mississippi. — May  construct  lines  iipon  highways,  turnpikes,  railroads, 
canals,  and  public  lands.  Code  1006,  §  925;  across  railroads,  §  1876.  See  Mo- 
bile, etc.,  R.  Co.  V.  Postal  Tel.  Cable  Co.,  76  Miss.  731,  26  South.  370,  45  L.  R. 
A.  223;  Louisville,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  68  Miss.  806,  10 
South.  74;  Postal  Tel.  Cable  Co.  v.  Alabama,  etc.,  R.  Co.,  68  Miss.  314,  8 
South.  375.     Statute  authorizing  a  foreign  telephone  company  right  to  con- 


168  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  155 

not  interfere  with  the  railroad  itself.*''  A  telegraph  company  may 
acquire  a  right  of  way  on  a  railroad  or  highway  or  private  land  not 

demn.  Cumberkind  Tel.,  etc.,  Co.  v.  Yazoo,  etc.,  R.  Co.,  90  Miss.  686,  44  South. 
166.  Private  land  cannot  be  condemned  in  this  state  by  a  telegraph  com- 
pany. 

Missouri. — May  construct  lines  upon  roads  and  condemn  land  owned  by 
other  coiTporations,  Rev,  St.  1909,  §§  3326,  3327,  provided  the  latter  is  not 
materially  interfered  with,  §  2368;  Postal  Tel.  Cable  Co.  v.  Southern  R. 
Co.  (C.  C.)  89  Fed.  190.  See  American,  etc.,  Co.  v.  St.  Louis,  etc.,  R.  Co.,  202 
Mo.  656,  101  S.  W.  576.  Lands  or  other  property  may  be  condemned,  §  2300, 
but  buildings  or  dwellings  cannot  be  taken,  §  2366. 

Montana. — May  construct  lines  upon  the  "public  roads,  streets  and  high- 
ways," Rev.  Codes  1907,  §  4400 ;  private  lands,  including  lands  not  already 
devoted  to  a  more  necessary  public  use,  §§  7330-7333 ;  a  right  of  way  on  a 
railroad  right  of  way  in  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line,  etc.,  R. 
Co.  (C.  C.)  114  Fed.  787. 

JVebraska. — A  foreign  or  domestic  telegraph  company  may  condemn  a  right 
of  way  upon  public  roads.  Comp.  St.  1907,  §  6271.  See  Bronson  v.  Albion 
Tel.  Co.,  67  Neb.  Ill,  93  N.  W.  201,  60  L.  R.  A.  426,  2  Ann.  Cas.  639 ;  Ne- 
braska Tel.  Co.  V.  West.  U.  Tel.  Co.,  68  Neb.  772,  95  N.  W.  18,  holding  that 
public  roads  do  not  include  streets  and  alleys  in  cities. 

IVevada. — May  condemn  "real  property,"  which  includes  a  railroad  right  of 
way.    Laws  1907,  c.  128,  §  3. 

New  Hampshire. — May  construct  lines  "in  any  public  highway."  Pub.  St. 
1901,  c.  81,  §  1. 

Neiv  Jersey. — A  telegraph  company  may  construct  its  lines  on  the  highways 
"upon  first  obtaining  the  consent  in  writing  of  the  owners  of  the  soil 
*  *  *  and  upon,  through  or  over  any  other  land,  subject  to  the  right  of 
the  owners  thereof  to  full  compensation  for  the  same."  Laws  1909,  c.  195. 
The  condemnation  of  the  right  to  erect  a  telephone  line  on  a  street  is  not  a 
condemnation  in  the  usual  sense  of  the  term,  inasmuch  as  there  is  no  taking 
of  property  for  the  exclusive  use  of  the  party  condemning.  Nicoll  v.  New 
York,  etc.,  Tel.  Co.,  62  N.  J.  Law,  156,  40  Atl.  627,  affirmed   62  N.  J.  Law,  733, 

42  Atl.  583,  72  Am.  St.  Rep.  666.  See  State  v.  American  Tel.,  etc.,  Co.,  43 
N.  J.  Law,  .381;  West.  U.  Tel.  Co.  v.  Pennsylvania  R,  Co.,  123  Fed.  33,  59 
C.  C.  A.  113,  affirmed  in  195  U.  S.  540,  25  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann. 
Cas.  517. 

New  Mexico. — May  condemn  a  right  of  way  upon  "lands  or  other  pi'operty." 
Laws  1905,  c.  97,  §  1 ;    Union  Trust  Co.  v.  Atchison,  etc.,  R.  Co.,  8  N.  M.  327, 

43  Pac.  701. 

New  York. — A  telegraph  company  may  construct  its  lines  over  "any  of  the 
public  roads,  streets  and  highways"  and  upon  "any  other  land."  Trans.  Corp. 
Law  (Consol.  Laws,  c.  63)  §  102.  However,  this  statute  does  not  authorize 
telegraph  companies  to  condemn  the  right  of  way  of  a  railroad.  New  York 
City,  etc.,  R.  Co.  v.  Central  Union  Tel.  Co.,  21  Hun  (N,  Y.)  261.  Other  lands 
devoted  to  a  public  use  may  be  condemned.  Matter  of  City  of  Gloversville, 
42  Misc.  Rep.  559,  87  N.  Y.  Supp.  612 ;    Matter  of  Rochester,  etc.,  R.  Co.,  110 

4  7  Georgia,  etc.,  R.  Co.  v.  Atlantic,  etc.,  Co.  (C.  C.)  152  Fed.  991. 


§    155)  ON  RAILROAD   RIGHT  OF  WAT  169 

only  by  grant  or  condemnation  proceeding,  but  may  also  acquire 
it  by  prescription/^  unless  there  is  a  statute  to  the  contrary,*^  or 

N.  T.  119,  17  N.  E.  678 ;  Re  New  York,  etc.,  R.  Co.  v.  Kip,  46  N.  Y.  546,  7 
Am.  Rep.  385. 

North  Carolina. — May  construct  its  lines  "along  any  railroad  or  other  public 
higlaway,"  1  Revisal  1908,  §  1571;  also  "the  right  of  way  over  the  lands, 
privileges  and  easements  of  other  persons  and  corporations,"  §  1573.  See, 
also,  §  2575.  Telegraph  companies  may  condemn  a  right  of  way  "along"  a 
railroad.  1  Code,  1883,  p.  769,  §§  2007,  2009.  See  Postal  Tel.  Cable  Co.  v. 
Southern  R.  Co.  (C.  C.)  89  Fed.  190 ;  Postal  Tel.  Cable  Co.  v.  Southern  R.  Co. 
(C.  C.)  90  Fed.  30;  Southern  R.  Co.  v.  Postal  Tel.  Cable  Co.,  93  Fed.  393, 
35  C.  C.  A.  366. 

North  Dakota.— May  condemn  a  right  of  way.  Code  1899,  §  5956,  upon  "all 
real  property,"  public  lands,  and  "property  appropriated  to  public  use,  but 
such  property  shall  not  be  taken  unless  for  a  more  necessary  public  use  than 
that  to  which  it  has  been  already  appropriated,"  §  5958.  All  rights  of  way 
mentioned  in  §  5956  "are  subject  to  a  limited  use  in  common  with  the  owner 
thereof."  §  5958.  But  it  must  appear,  if  the  property  is  already  appropriated 
to  a  public  use,  that  the  use  to  which  it  is  to  be  applied  is  a  more  necessary 
public  use.    §  5959. 

Ohio. — May  construct  lines  upon  "any  public  road,"  Bates,  Ann.  St.  (6th 
Ed.)  §§  3454,  3461;  also  "any  land,  whether  held  by  an  individual  or  cor- 
poration, and  whether  acquired  by  purchase  or  appropriation,  or  in  virtue  of 
any  provision  in  its  charter,"  §  3456 ;  limited  to  land  within  five  feet  of  the 
outer  limits  of  the  railroad  right  of  way,  except  where  it  is  impracticable  so 
to  do,  §  3459 ;  shall  not  appropriate  a  building  or  yard  for  nor  injure  or  de- 
stroy any  fruit  or  ornamental  tree,  §  3457.  Line  must  not  interfere  with  the 
railroad  business.  Cleveland,  etc.,  Co.  v.  Ohio,  etc.,  Co.,.  68  Ohio  St.  306, 
67  N.  E.  890,  62  L.  R.  A.  941.     A  foreign  telegraph  company  without  license 

4  8  West.  U.  Tel.  Co.  v.  Polhemus,  178  Fed.  904,  102  C.  C.  A.  105,  29  L.  R.  A. 
(N.  S.)  465,  reversing  (C.  C.)  167  Fed.  231.  See  Hindley  v.  Manhattan  Ry.  Co., 
185  N.  Y.  355,  78  N.  E.  276. 

4  9  The  following  states  have  statutes  which  in  general  stipulate  that  no 
person,  or  corporation,  building  and  maintaining  telegraph,  telephone  or  elec- 
tric light  or  power  wires  or  fixtures,  or  electrical  wires,  conductors  or 
fixtures  of  any  kind,  shall,  by  reason  of  any  occupation  or  use  of  any  build- 
ings or  lands  for  the  support  of  the  wires  of  said  person  or  corporation,  or 
by  reason  of  said  wires  passing  over  or  through  any  buildings  or  lands  ac- 
quire by  the  continuance  of  such  use  or  occupation  any  prescriptive  rights 
to  so  occupy  or  use  the  same :  Connecticut,  Gen.  St.  1902,  §  3908 ;  Illinois, 
Rev.  St.  1908,  c.  134,  §  14 ;  Maine,  Laws  1885,  c.  378,  §  7 ;  Massachusetts,  Rev. 
Laws  1902,  c.  122,  §  26;  New  Hampsliire,  Pub.  St.  1901,  c.  81,  §  17;  New 
Jersey,  3  Gen.  St.  1895,  p.  3462,  §  25;  New  York,  Real  Prop.  Law  (Consol. 
Laws,  c.  50)  §  201 ;  North  Carolina,  Pell's  Revisal  1908,  §§  388,  389 ;  Oregon 
Bellinger  &  Cotton's  Codes  &  Statutes  1902,  §  5433;  Pennsylvania,  Purdon's- 
Dig.  1910,  vol.  4,  p.  4731,  §  9 ;  Rhode  Island,  Gen.  Laws,  1909,  c.  256^  §  9 ; 
Vermont  P.  S.  1906,  §  4854 ;   Wisconsin,  Sanborn  St.  1898,  §  4216a. 


170  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  155 

by  adverse  possession,^"  or  by  equitable  estoppel, ^^  or  by  actual 
possession  made  permanent  by  decree  of  the  court.^^  If  the  rail- 
to  do  business  in  the  state  cannot  condemn  the  right  of  way  of  a  railroad. 
Postal  Tel.  Cable  Co.  v.  Cleveland,  etc.,  R.  Co.  (C.  C.)  94  Fed.  234. 

Oklahoma. — IMay  condemn  a  right  of  way  over  "lands  and  real  property" 
and  "highways."  Gen.  St.  1908,  §  5948.  Railroads  are  public  highways. 
Const,  art.  9,  §  6. 

Oreffon.—MRj  condemn  a  right  of  way  upon  any  public  road,  highway  and 
street,  except  streets  in  an  incorporated  city  or  town,  public  lands,  and  "lands 
of  private  individuals,"  B.  &  C.  Codes  &  St.  1902,  §  4748 ;  may  condemn  a 
strip  not  more  than  25  feet  wide  upon  "lands,"  Laws  1903,  p.  Ill,  and  Laws 
1907,  p.  289 ;  may  under  the  last  statute  condemn  the  railroad  right  of  way, 
Pacific  Postal  Tel.,  etc.,  Co.  v.  Oregon,  fete,  R.  Co.  (C.  C.)  163  Fed.  967. 

Pennsijlvania. — May  condemn  a  right  of  way  "upon  any  of  the  public  roads, 
streets,  lanes  or  highways."  Purdon's  Digest  (13th  Ed.  Supp.)  p.  6083,  §  2 ; 
Pennsylvania,  etc.,  Co.  v.  Hoover,  209  Pa.  555,  58  Atl.  922;  West.  U.  Tel.  Co. 
V.  Pennsylvania,  etc.,  R.  Co.,  123  Fed.  33,  59  C.  C.  A.  113,  affirmed  in  195  U.  S. 
540,  25  Sup.  Ct.  133,  49  L.  Ed.    312,  1  Ann.  Cas.  517. 

Rhode  Island. — Cannot  condemn  a  right  of  way  except  by  special  act  of 
the  legislature  giving  such  power  to  the  corporation.  Const.  1892,  art.  9,  §§ 
1,  2.  A  telegraph  company  is  prohibited  from  placing  its  poles  on  private 
property  except  with  the  consent  of  the  owner.  Gen.  Laws  1909,  e.  345,  §  58. 
And  town  or  city  by  vote  may  grant  rights  and  franchises  for  the  use  of  the 
sti'eets  and  highways  for  telegraph  purposes.     Id.  c.  91,  p.  341. 

South   Caroli)ia. — May   construct  its  lines  upon   "public  lands,    highways," 

5  0  Boyce  v.  Missouri,  etc.,  R.  Co.,  168  Mo.  583,  68  S.  W.  920,  58  L.  R.  A.  442 ; 
Texas,  etc.,  R.  Co.  v.  Scott,  77  Fed.  726,  23  C.  C.  A.  424,  37  L.  R.  A.  94 ;  Id., 
94  Fed.  340,  36  C.  C.  A.  282,  affirmed  180  U.  S.  635,  21  Sup.  Ct.  920,  45  L.  Ed. 
709. 

51  In  Union  Pacific  R.  Co.  v.  City  of  Greeley,  189  Fed.  1,  110  C.  C.  A.  571, 
it  was  said  that :  "Each  of  the  respondents  are  public  corporations,  in  whose 
behalf  the  police  power  of  the  state  could  be  exercised  to  condemn  a  neces- 
sary part  of  complainant's  right  of  way  for  public  use  to  an  extent  which 
would  not  prevent  complainant  from  fully  performing  its  duty  to  the  public, 
and  it  would  seem  to  be  a  reasonable  and  just  rule  to  say  that  property 
which  can  be  acquired  by  the  exercise  of  the  power  of  eminent  domain  may 
be  acquired  for  the  same  public  use  by  the  application  of  equitable  estoppel." 
Ejectment  does  not  lie  on  the  part  of  a  property  owner ;  he  is  only  entitled 
to  recover  damages.  Gurnsey  v.  Northern  California,  etc.,  Co.,  160  Cal.  699, 
117  Pac.  906,  36  L.  R.  A.  (N.  S.)  185.  See,  also.  Northern  Pacific  R.  Co.  v. 
Smith,  171  U.  S.  260,  18  Sup.  Ct.  794,  43  L.  Ed.  157;  Roberts  v.  Northern 
Pacific  R.  Co.,  158  U.  S.  1,  15  Sup.  Ct.  756,  39  L.  Ed.  873 ;  Northern  Pacific 
R.  Co.  v.  Murray,  87  Fed.  648,  31  C.  C.  A.  183;  Southern  California  Ry.  v. 
Slauson,  138  Cal.  342,  71  Pac.  352,  94  Am.  St.  Rep.  58 ;  Donohue  v.  El  Paso, 
etc.,  R.  Co.,  214  U.  S.  499,  29  Sup.  Ct.  C98,  53  L.  Ed.  1060.  See  Fresno  v. 
Southern  Pacific  R.  Co.,  135  Cal.  202,  67  Pac.  773 ;  West.  U.  Tel.  Co.  v.  Pol- 
hemus,  178  Fed.  904,  102  C.  C.  A.  105,  29  L.  R.  A.  (N.  S.)  465,  reversing  (C.  C.) 
167  Fed.  231. 

5  2  St.  Paul,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  118  Fed.  497,  55  C.  C.  A.  263. 


156)  ON   RAILROAD   RIGHT   OF   WAY 


171 


road  is  in  the  possession  of  a  federal  court  through  its  receiver,  a 
telegraph  company  cannot  without  the  consent  of  the  federal  court 
condemn  any  portion  of  the  right  of  way  by  proceedings  instituted 
in  the  state  court. °^ 

§  156.  Exception  to  rule. — There  are  some  exceptions  to  the 
general  rule  that  land  can  be  condemned  for  a  public  use  which  is 

private  lands  and  railroad  riglit  of  way.  Civ.  Code  1902,  §§  2211,  2213 ;  South 
Carolina,  etc.,  R.  Co.  v.  American  Tel.,  etc.,  Co.,  65  S.  C.  459,  43  S.  E.  970. 

South  Dakota. — Real  property  may  be  condemned.  Civ.  Code  1908,  §  563, 
subd.  9.  May  condemn  a  right  of  way  over  "lands"  belonging  to  the  state; 
also  streets,  highways  and  public  grounds.     §  554. 

Ten)iessce.—Uaj  construct  lines  upon  highways,  public  or  private  lands, 
railroad  right  of  way  and  railroad  bridges.  Shannon's  Code  1896,  §  1830. 
See  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  101  Tenu.  62,  46  S.  W.  571, 
41  L.  R.  A.  403.  See  Doty  v.  American,  etc.,  Tel.  Co.,  123  Tenn.  329,  130  S.  W. 
1053,  Ann.  Cas.  1912C,  167,  holding  telegraph  or  telephone  company  may  con- 
demn private  property,  and  the  owner  has  the  remedy  at  law  for  damages 
recoverable  within  twelve  months.  See  West.  U.  Tel.  Co.  v.  Nashville,  etc.,  R. 
Co.,  133  Tenn.  691,  182  S.  W.  254. 

Terras. — Telegraph  and  telephone  companies  may  condemn  a  right  of  way 
on  "lands,"  and  this  is  construed  as  including  railroad  rights  of  way.  Rev. 
Civ.  St.  1911,  arts.  1231,  1232.  See  Ft.  Worth,  etc.,  R.  Co.  v.  Southwestern 
Tel.,  etc.,  Co.,  96  Tex.  IGO,  71  S.  W.  270,  60  L.  R.  A.  145 ;  Gulf,  etc.,  R.  Co.  v. 
Southwestern  Tel.,  etc.,  Co.,  18  Tex.  Civ.  App.  500,  45  S.  W.  151;  Houston, 
etc.,  R.  Co.  V.  Postal  Tel.  Cable  Co.,  18  Tex.  Civ.  App.  502,  45  S.  W.  179; 
San  Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  56 
S.  W.  201 ;  Texas,  etc.,  R.  Co.  v.  Southwestern,  etc.,  Co.  (Tex.  Civ.  App.)  57 
S.  W.  312. 

Utah. — May  condemn  a  right  of  way  upon  "all  real  property,"  including 
property  already  appropriated  to  a  public  use.  Comp.  Laws  1907,  §§  3588- 
3591.  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65 
I'ac.  735,  90  Am.  St.  Rep.  705,  holding  right  of  way  of  railroad  may  be  con- 
demned. Foreign  companies  may  condemn  where  they  have  qualified  under 
the  laws  of  the  state.    Laws  1909,  c.  20. 

Vermo)it. — May  construct  lines  upon  the  highways.  P.  S.  1906,  §  4837. 
"A  domestic  telegraph,  telephone  or  electric  light  company  may  erect  and 
maintain  its  line  along  the  sides  of  railroad  tracks  within  the  limits  of  lands 
owned  or  held  by  a  railroad  corporation  on  paying  to  it  reasonable  compensa- 
tion therefor.  If  they  cannot  agree  upon  such  compensation  it  shall  be  de- 
termined by  commissioners  residing  in  the  vicinity  of  the  railroad,  who  shall 
be  appointed  and  ascertain  such  compensation  agreeably  to  the  provisions  of 
law  in  case  of  land  taken  for  railroads."     §  4848. 

Virginia. — May  condemn  a  right  of  way  upon  "lands,"  Code  1904,  §  1294h, 
cl.  3;  and  also  a  right  of  way  "along  and  parallel  to"  railroads,  §§  1294h, 
1033d;  also  Const.  §  124  (Code  1904.  p.  ccxli).  A  statute  authorizing  a  tele- 
graph company  to  construct  its  lines  "along  and  parallel  to"  any   railroad 

53  West.  U.  Tel.  Co.  v.  Atlantic,  etc.,  Tel.  Co.,  Fed.  Cas.  No.  17,445,  7  Biss. 
367. 


172  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  156 

already  being  used  for  a  public  use ;  for  instance,  property  cannot 
be  taken  from  one  corporation  by  another  to  be  used  for  the  same 
purpose  and  in  the  same  manner  for  which  it  was  used  by  the  cor- 
poration which  first  appropriated  it  to  such  use  and  purpose.^*  In 
other  words,  every  corporation  holds  property  subject  to  the  rights 
of  the  state  to  take  it  for  another  public  use,  whenever,  in  the 
discretion  of  the  legislature,  the  exercise  requires  the  use  for 
such  other  purpose.  This  is  true  even  as  to  the  franchise  itself 
of  any  corporation;^^    and,  in  order  for  one  corporation  to  take 

authorizes  it  to  construct  its  line  on  tlie  railroad  right  of  way.  Postal  Tel. 
Cable  Co.  v.  Farmville,  etc.,  R.  Co.,  96  Va.  661,  32  S.  E.  468. 

Washington. — May  have  a  right  of  way  upon  a  railroad  right  of  way,  public 
roads  and  lands.  Rem.  &  Bal.  Code,  §§  9302,  9304,  and  9314.  The  statute 
requires  railroads  to  allow  a  telegraph  company  to  construct  its  line  on  and 
along  the  right  of  way  of  the  railroad,  and  for  a  failure  or  refusal  so  to  do 
the  railroad  company  is  liable  for  damages  from  $1,000  to  $5,000  for  each 
offense,  and  $100  a  day.     §§  9302,  9318. 

West  Virginw,. — May  condemn  "private  property."  Code  Supp.  1909,  §  1361. 
See  Laws  1901,  c.  82. 

Wisco7}sin. — May  condemn  a  right  of  way  over  "any  public  road,  highway 
or  bridge  *  *  *  or  upon  the  land  of  any  owner  consentive  thereto," 
Sanborn  St.  Supp.  1906,  §  1778 ;  also  private  alleys,  §  1778a ;  and  across  rail- 
road rights  of  way,  chapter  631,  Laws  1907. 

Wyo77iing. — May  condemn  a  right  of  way  upon  any  road  or  street;  Laws 
1901,  c.  31,  §  1 ;   also  upon  "any  land"  except  railroad  right  of  way,  §  2, 

United  States.— See  Oregon  Short  Line  R.  Co.  v.  Postal  Tel.  Cable  Co.,  Ill 
Fed.  842,  49  C.  C.  A.  663,  affirming  (C.  C.)  104  Fed.  623;  Postal  Tel.  Cable 
Co.  V.  Oregon  Short  Line  R.  Co.  (C.  C.)  114  Fed.  787 ;  St.  Louis,  etc.,  R.  Co.  v. 
Southwestern  Tel.,  etc.,  Co.,  121  Fed.  276,  58  C.  C.  A.  198,  holding  that  a 
statute  granting  to  telegraph  and  telephone  companies  the  right  to  condemn  a 
right  of  way  along  highways,  railroads  and  post  roads  is  constitutional. 

The  right  is  not  conferred,  however,  by  a  statute  authorizing  the  erection 
of  fixtures  and  structures  along  and  across  "highways,"  West.  U.  Tel.  Co.  v. 
Pennsylvania  R.  Co.,  123  Fed.  33,  59  C.  C.  A.  113 ;  or  "over  any  public  roads, 
streets,  and  highways,"  New  York  City,  etc.,  R.  Co.  v.  Central  Tel.  Co.,  21 
Hun  (N.  Y.)  261;  and  a  federal  statute  authorizing  the  construction  of  tele- 
graph lines  along  any  post  roads  of  the  United  States  does  not  confer  such 
right  without  condemnation  in  accordance  with  the  laws  of  the  state  there 
situated.  Postal  Tel.  Cable  Co.  v.  Southern  R.  Co.  (C.  C.)  89  Fed.  190. 

5  4  Kansas,  etc.,  R.  Co.  v.  Northwestern,  etc.,  Co.,  161  Mo.  288,  61  S.  W.  684, 
84  Am.   St.  Rep.  717,  51  L.  R.  A.  936;    Lewis  on  Eminent  Domain,   §  276. 

5  5  Kansas,  etc.,  R.  Co.  v.  Northwestern,  etc.,  Co.,  161  Mo.  288,  61  S.  W. 
684,  84  Am.  St.  Rep.  717,  51  L.  R.  A.  936 ;  Twelfth  Market  St.  Co.  v.  Phila- 
delphia, etc.,  R.  Co.,  142  Pa.  589,  21  Atl.  902,  989;  The  Sunderland  Bridge, 
122  Mass.  459;  In  re  Opinion  of  the  Justices,  66  N.  H.  629,  33  Atl.  1076; 
New  York  Central,  etc.,  R.  Co.  v.  Metropolitan  Gas  Light  Co.,  63  N.  Y.  326; 
In  re  Bellona  Co.,  3  Bland  (Md.)  442 ;   Enfield  Toll  Brig.  Co.  v.  Hartford,  etc., 


§    156)  ON   RAILROAD   RIGHT   OF   WAT  178 

the  lands  or  franchises  of  another  which  is  in  actual  use  by  the 
latter,  the  same  must  have  been  authorized  by  the  legislature.^® 
A  telegraph  or  telephone  company  would  not  deprive  the  railroad 
of  the  use  of  its  right  of  way  or  any  part  thereof;  so  that  part 
which  is  not  essential  to  the  employment  of  its  franchise  and 
property,  or  which  is  not  in  actual  use,  may  be  condemned  for 
telegraph  lines;  ^^  provided  they  are  so  constructed  as  not  to  inter- 
fere with  the  free  exercise  of  the  former's  franchise  or  with  the 
actual  operation  of  the  road.^^  A  somewhat  different  rule  has 
been  held  in  a  few  cases,  where  it  was  emphasized  that  the  possible 
future  needs  of  the  railroad  company  must  be  given  full  consid- 
eration in  determining  whether  any  portion  of  its  right  of  way 
may  be  taken  from  it  for  a  telegraph  line.^^  A  railroad  company 
acquires  the  right  to  use  the  right  of  way  for  such  purposes,  and 

R.  Co.,  17  Conn.  40,  42  Am.  Dec.  716 ;  Boston,  etc.,  Co.  v.  Salem,  etc.,  R.  Co., 
2  Gray  (Mass.)  1. 

5  6  Butte,  etc.,  R.  Co.  v.  Montana,  etc.,  R.  Co.,  16  Mont.  504,  41  Pac.  232,  50 
Am.  St.  Rep.  508,  31  L.  R.  A.  29S.     See  §  155. 

57  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408; 
Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Pac,  735, 
90  Am.  St.  Rep.  705,     See  §  155. 

5s  These  foregoing  rules  were  well  stated  by  Folger,  J.,  in  Matter  of  City 
of  Buffalo,  68  N.  Y,  167,  175,  as  follows:  "In  determining  whether  a  power 
generally  given  is  meant  to  liave  operation  upon  lands  already  devoted  by 
legislative  authority  to  a  public  purpose,  it  is  proper  to  consider  the  nature 
of  the  prior  public  works,  the  public  use  to  which  it  is  applied,  the  extent  to 
which  that  use  would  be  impaired  or  diminished  by  the  taking  of  such  part 
of  the  land  as  may  be  demanded  for  the  subsequent  public  use.  If  both  uses 
may  not  stand  together,  with  some  tolerable  interference  which  may  be  com- 
pensated for  by  damages  paid,  if  the  latter  use,  when  exercised,  must  super- 
sede the  former,  it  is  not  to  be  implied  from  a  general  power  given,  without 
having  in  view  a  then  existing  and  a  particular  need  therefor,  that  the  legis- 
lature meant  to  subject  lands  devoted  to  a  public  use  already  in  exercise  to 
one  which  might  thereafter  arise.  A  legislative  intent  that  there  should  be 
such  an  effect  will  not  be  inferred  from  a  gift  or  power  in  general  terms.  To 
defeat  the  attainment  of  an  important  public  purpose  to  which  lands  have 
already  been  subjected,  the  legislative  intent  must  unequivocally  appear.  If 
an  implication  is  to  be  relied  upon,  it  must  appear  from  the  face  of  the  en- 
actment, or  from  the  application  of  it  to  the  particular  subject-matter  of  it, 
so  that  by  reasonable  intendment  some  especial  object  sought  to  be  attained 
by  the  exercise  of  the  power  granted  could  not  be  reached  in  any  other  place 
or  manner."  Postal  Tel.  Co.  v.  Oregon,  etc,  R.  Co.,  23  Utah,  474,  65  Pac.  735, 
90  Am.  St.  Rep.  705;  Southern  Pac.  R.  Co.  v.  Southern  Cal.  R.  Co.,  Ill  Cal. 
231,  43  Pac.  602.     See  §  154. 

5  9  West.  U.  Tel.  Co.  v,  Pennsylvania  R.  Co.,  59  C.  C,  A.  113,  123  Fed.  33; 
Id.  (C.  C.)  .120  Fed.  362.  See,  also,  St.  Louis,  etc,  R.  Co.  v.  Southwestern  Tel., 
etc,  58  C.  C.  A,  198,  121  Fed.  278. 


174  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  157 

only  such,  as  may  be  necessary  to  carry  on  the  business  for  which 
it  was  incorporated.  It  cannot  carry  on  any  other  enterprise  or 
business  of  whatever  nature  upon  its  right  of  way,  except  that 
which  is  necessary  to  accomplish  the  business  of  railroading;  but 
when  it  does  become  necessary  to  use  all  or  a  greater  part  of 
its  easement,  and  this  cannot  be  done  while  the  telegraph  com- 
panies remain  on  the  right  of  way,  the  latter  must  give  way  to  the 
railroad  company,  to  the  extent  of  moving  its  lines  ofif  of  the  right 
of  way.®°  This  fact  seems  to  have  been  lost  sight  of  in  the  case 
cited. 

§  157.  Same  continued — cannot  be  defeated  by  claiming  it 
should  be  on  other  lands. — Such  a  condemnation  cannot  be  de- 
feated by  showing  that  a  right  of  way  for  the  telegraph  or  tele- 
phone line  may  be  secured  over  a  public  highway  near  or  adjacent 
to  the  railroad,  or  over  other  property. ^^  A  railroad  company  can 
have  no  greater  claim  to  its  right  of  way  than  the  public  can  have 
to  the  public  highways,  or  an  individual  to  his  private  property. 
So  to  allow  such  condemnation  to  be  defeated  by  a  railroad  com- 
pany on  this  ground  would  give  to  the  railroad  a  greater  right  than 
is  given  to  individuals ;  which  would  virtually  take  away  from 
telegraph  or  telephone  companies  the  power  of  exercising  the  right 
of  eminent  domain.  If  this  right  should  be  defeated  by  either  of 
these  parties  on  such  showing  it  should  be  by  the  two  latter ;  since 
there  is  no  question  that  there  would  be  less  danger  to  the  public 
if  these  lines  were  along  the  right  of  way  of  the  railroads;  and 
surely,  during  this  day  and  time,  it  would  be  much  more  convenient 
and  less  expensive  to  these  companies ;   and,  at  the  same  time,  the 

60  See  §  154. 

61  Union  Pacific  R.  Co.  v.  Colorado  Postal  Tel.  Cable  Co.,  30  Colo.  133, 
69  Pac.  564,  97  Am.  St.  Rep.  106,  holding  that  the  legislature  has  vested  cor- 
porations of  this  character  with  discretion  in  locating  their  lines,  and  so 
that  ordinarily  the  courts  cannot  exercise  supervision  with  respect  to  such 
matters.  The  discretion  which  the  corporation  may  exercise  in  determining 
the  route  of  its  lines  cannot  be  interfered  with  in  absence  of  a  showing  of  bad 
faith,  a  malicious  motive,  or  that  the  taking  of  a  particular  tract  sought  to 
be  condemned  would  entail  a  great  loss  which  might  readily  be  avoided.  The 
inconvenience,  and  possible  increase  of  the  hazard  of  railroading  would  be 
no  reason  for  objecting  to  the  use  of  the  roadbed  by  the  telegraphic  lines. 
Ft.  Worth,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  96  Tex.  160,  71  S.  W. 
270,  60  L.  R.  A.  145;  St.  Louis,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co., 
121  Fed.  276,  58  C.  C.  A.  198 ;  Savannah,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co., 
115  Ga.  554,  42  S.  E.  1.  See  Western,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  138 
Ga.  420,  75  S.  E.  471,  42  L.  R.  A.  (N.  S.)  225,  railroad  stringing  lines  on  each 
side  of  its  track. 


i 


§    158)  ON   RAILROAD   RIGHT   OF   WAY  ITS 

railroad  companies  would  not  be  incommoded  in  the  least  in  their 
business  affairs.  Furthermore,  the  expenses  of  the  railroad  com- 
pany might  be  greatly  reduced  on  account  of  the  competition  of 
the  many  lines  which  would  likely  be  on  the  right  of  way. 

§  158.  Foreign  telegraph,  telephone,  or  electric  companies — 
right  to  condemn. — A  corporation  can  have  no  legal  existence  out- 
side of  the  state  creating  it;  therefore  it  can  transact  business 
within  the  scope  of  its  powers  in  other  sovereignties  only  upon 
such  terms  and  conditions  as  such  sovereignties  may  provide ;  "^"^ 
and  while  under  the  general  rules  of  comity  a  corporation  organ- 
ized in  one  state  may  be  permitted  to  transact  business  in  other 
states/^  yet  the  power  of  eminent  domain  granted  to  a  corporation 
of  one  state  is  not  such  a  privilege  as  will  be  extended  by  comity 
alone  to  the  corporation  in  its  transactions  in  another  state. '^'^ 
Therefore,  this  being  the  rule  applicable  to  corporations  in  gen- 
eral, it  follows  that  a  foreign  telegraph,  telephone,  or  electric  com- 
pany has  no  power  under  the  charter,  nor  is  it  permitted  by  the 
rule  of  comity  alone  to  exercise  the  right  of  eminent  domain  be- 
yond the  state  of  its  creation."^ ^    A  state  may  confer  upon  a  for- 

62  Grangers',  etc.,  Insurance  Co.  v.  Kamper,  73  Ala.  325.  A  telegraph  com- 
pany is  not  relieved  from  compliance  with  a  statute  requiring  foreign  cor- 
porations to  comply  with  certain  conditions  for  the  privilege  of  exercising 
their  franchises  within  a  state  because  of  its  acceptance  of  the  act  of  1SG6. 
State  V.  West.  U.  Tel.  Co.,  75  Kan.  609,  90  Pac.  299. 

63  Empire  ^NOns  v.  Alston  Grocery  Co.  (Tex.  App.)  15  S.  W.  200,  505,  12  L.  R. 
A.  366  ;  Canadian  Pac.  R.  Co.  v.  West.  U.  Tel.  Co.,  17  Canada  Sup.  Ct.  151 ; 
Bank  of  Augusta  v.  Earle,  13  Pet.  519,  10  L.  Ed.  274 ;  Atchison,  etc.,  R.  Co.  v. 
Fletcher,  35  Kan.  236,  10  Pac.  596;  Dodge  v.  Council  Bluffs,  57  Iowa,  560, 
10  N.  W.  900;  Reichwald  v.  Commercial  Hotel  Co.,  106  111.  439;  Miller  v. 
Ewer,  27  Me.  509,  46  Am.  Dec.  619 ;  Christian  Union  v.  Yount,  101  U.  S.  352, 
25  L.  Ed.  SSS ;  Newburg  Petroleum  Co.  v.  Weare,  27  Ohio  St.  343 ;  Williams 
V.  Creswell,  51  Miss.  817;  Baltimore,  etc.,  R.  Co.  v.  Glenn,  28  Md.  287,  92 
Am.  Dec.  688;  Blair  v.  Perpetual  Ins.  Co.,  10  Mo.  559,  47  Am.  Dec.  129; 
Ohio  Life  Ins.,  etc.,  Co.  v.  Merchants'  Ins.,  etc.,  Co.,  11  Humph.  (Tenn.)  1, 
53  Am.  Dec.  742 ;  Thompson  v.  Waters,  25  Mich.  214,  12  Am.  Rep.  243 ;  Mer- 
rick V.  Van  Santvoord,  34  N.  Y.  208.  The  same  may  be  implied  unless  there 
is  an  affirmative  refusal.  Colwell  v.  Colorado  Springs  Co.,  100  U.  S.  55,  25 
L.  Ed.  547;  Id.,  3  Colo.  82;  Christian  Union  v.  Yount.  101  U.  S.  352,  25  L. 
Ed.  888 ;  Reichwald  v.  Commercial  Hotel  Co.,  106  111.  4.39.  See  note  to  Cone, 
etc.,  Co.  V.  Poole  (S.  C.)  24  L.  R.  A.  289. 

64  Middle  Bridge  Corp.  v.  Marks,  26  Me.  326;  State  v.  Boston,  etc.,  R.  Co., 
25  Vt.  433.  Compare  Baltimore,  etc.,  R.  Co.  v.  P.  W.  &  Ky.  R.  Co.,  17  W.  Va. 
812. 

65  Postal  Tel.  Cable  v.  Cleveland,  etc.,  R.  Co.  (C.  C.)  94  Fed.  234;  St.  Louis, 
etc.,  R.  Co.  V.  Southwestern  Tel.,  etc.,  Co.,  58  C.  C.  A.  198,  121  Fed.  278 ;  South- 
western Tel.   Co.  V.  Kansas  City,  etc.,   R.  Co.,  108  La.  691,  32   South.  958; 


176  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  159 

eign  telegraph,  telephone,  or  electric  company  the  right  of  eminent 
domain  ^^  by  an  express  grant;  ''^  and  sometimes  the  right  passes 
under  a  statutory  grant  of  power  to  corporations  generally ;  ^® 
thus  where  a  statute  provides  that  a  foreign  telegraph  company 
may  exercise  the  right  of  eminent  domain  as  a  quasi-successor  of 
another  company  to  which  it  was  originally  granted.''^  So  also, 
such  a  grant  may  sometimes  be  implied.'^"  Thus  it  was  held  that 
the  right  which  had  been  granted  to  a  domestic  corporation  would 
not  pass  to  a  foreign  company  which  by  deed  succeeds  to  its  rights 
and  powers  without  the  legislative  consent:  yet,  if  for  twenty 
years  the  state  had  dealt  with  the  company  on  the  assumption  that 
it  had  succeeded  to  all  the  rights  of  its  predecessor,  had  advanced  it 
a  large  sum  of  money,  and  had  allowed  it  to  mortgage  the  road 
and  sell  bonds  in  the  market,  a  presumption  of  the  assent  of  the 
legislature  would  prevail. '^^ 

§  159.  Same  continued — consolidation  or  lease — agency. — It 
seems  not  an  unusual  thing  for  large  telegraph  and  telephone  com- 
panies to  utilize  small  companies  in  order  to  carry  out  their  busi- 

West.  U.  Tel.  Co.  v.  Pennsylvania  R.  Co.  (0.  C.)  120  Fed.  362,  affirmed  in 
123  Fed.  33,  59  C.  C.  A.  113. 

6  6  Lewis  on  Eminent  Domain  (1888)  §  242 ;  State  v.  Sherman,  22  Ohio  St. 
434;  Morris  Canal,  etc.,  Co.  v.  Townsend,  24  Barb.  (N.  Y.)  658;  New  York, 
etc.,  R.  Co.  V.  Young,  33  Pa.  175;  Dodge  v.  Council  Bluffs,  57  Iowa,  560, 
10  N.  W.  886;  Abbott  v.  N.  Y.,  etc.,  R.  Co.,  145  Mass.  450,  15  N,  E.  91;  Gray 
V,  St.  Louis,  etc.,  R.  Co.,  81  Mo.  126.  See  Tel.  Co.  v.  Super.  Ct.,  15  Cal.  App. 
679,  115  Pac.  1091,  1100 ;  Tel.,  etc.,  Co.  v.  R.  Co.,  90  Miss.  686,  44  South.  166 ; 
Pittsburg  V.  Liston,  70  W.  Va.  83,  73  S.  E.  86,  40  L.  R.  A.  (N.  S.)  602.  See  note 
45  for  statutes  on  subject. 

67  Gray  v.  St.  Louis,  etc.,  R.  Co.,  81  Mo.  126.  See  Hydro-Elec.  Co.  v.  Liston, 
70  W.  Va.  83,  73  S.  E.  86,  40  L.  R.  A.  (N.  S.)  602. 

c8  Re  Marks,  53  Hun,  633,  6  N.  Y.  Supp.  105. 

6  9  Abbott  V.  N.  Y.,  etc.,  R.  Co.,  145  Mass.  450,  15  N.  E.  91. 

7  0  The  power  is  conferred  by  statutes  domesticating  foreign  corporations 
on  compliance  with  the  statutory  prerequisites  to  doing  business  in  the  do- 
mestic state  (see  St.  Louis,  etc.,  R.  Co.  v.  Foltz  [C.  C]  52  Fed.  627)  by  con- 
ferring on  them  the  same  powers  as  may  be  exercised  by  domestic  corpora- 
tions (San  Antonio,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  93  Tex.  313, 
55  S.  W.  117,  77  Am.  St.  Rep.  884,  49  L.  R.  A.  459;  Gulf,  etc.,  R.  Co.  v. 
Southwestern  Tel.,  etc.,  Co.,  25  Tex.  Civ.  App.  488,  61  S.  W.  406). 

A  federal  statute  conferring  the  power  of  eminent  domain  over  any  portion 
of  the  public  domain  does  not  give  the  right  of  eminent  domain  to  condemn  a 
right  of  way  over  private  property.  West.  U.  Tel.  Co.  v.  Pennsylvania  R. 
Co.  (C.  C.)  120  Fed.  362,  affirming  123  Fed.  33,  59  C.  C.  A.  113. 

Ti  Abbott  V.  N.  Y.,  etc.,  R.  Co.,  145  Mass.  450,  15  N.  E.  91. 


§    160)  ON   RAILROAD   RIGHT  OF  WAY  177 

ness.^^  A  telegraph  or  telephone  company  resulting  from  the  con- 
solidation or  lease  of  companies  created  by  dififerent  states  becomes 
a  domestic  company  in  each  of  them;  and  the  powers  which  each 
of  its  constituents  were  authorized  to  exercise  in  the  particular  lo- 
cality descends  to  it.  So,  if  its  local  predecessor  has  the  right 
of  eminent  domain,  the  consolidated  company  will  not  be  barred 
from  exercising  it  because  it  consists  in  part  of  a  foreign  com- 
pany." Some  of  the  courts  have  gone  further,  and  hold  that  it 
is  not  necessary  that  there  should  be  a  consolidation,  but  that  if  it 
is  subordinate  to  the  foreign  company,  and  is  only  to  assist  it  in 
carrying  out  its  object,  the  same  law  will  be  applicable.^*  In  other 
words,  it  may  be  nothing  more  to  the  foreign  company  than  a 
mere  agent;  ^^  however,  this  rule  has  not  been  followed  by  all  the 
courts.  Thus  it  was  held  that  such  company  will  not  be  permit- 
ted to  evade  this  provision,  and  do  indirectly  what  it  may  not  do 
directly  by  acquiring  a  right  of  way,  through  the  agency  of  a  do- 
mestic company.''^ 

§  160,  Must  be  in  good  faith. — In  order  for  a  telegraph  or  tele- 
phone company  to  be  endowed  with  the  authority  to  condemn  the 
right  of  way  of  a  railroad  company,  the  same  must  be  done  for 
itself  as  an  incorporated  concern,  or  as  an  agent  for  another  in- 
corporated company.  Thus  it  was  held  that  a  private  person 
could  not  condemn  land  for  a  right  of  way  for  a  private  business 
for  himself  or  for  another;  but  that  the  proceedings  could  be  main- 
tained only  by  one  who  is  in  charge  of  a  public  use,  and  who  in- 
tends to  perform  a  public  service,'^^  although  he  may  exercise  the 

7  2  rostal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Pac. 
735,  90  Am.  St.  Rep.  705. 

7  3  Toledo,  etc.,  R.  Co.  v.  Dunlap,  47  Mich.  456,  11  N.  W.  271;  Abbott  v. 
N.  Y.,  etc.,  R.  Co.,  145  Mass.  450,  15  N,  E.  91 ;  Trester  v.  Missouri  Pac.  R. 
Co.,  23  Neb.  242,  36  N.  W.  502. 

7  4  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co  (C.  C.)  104  Fed.  623, 
affirming  49  C.  C.  A.  662,  111  Fed.  842 ;  Union  Pac.  R.  Co.  v.  Colorado  Postal 
Cable  Co.,  30  Colo.  133,  69  Pac.  564,  97  Am.  St.  Rep.  106;  Postal  Tel.  Cable 
Co.  V.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Pac.  735,  90  Am.  St.  Rep. 
705 ;    Day  v.  Postal  Tel.  Co.,  66  Md.  354,  7  Atl.  60S. 

7  5  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Pac. 
735,  90  Am.  St.  Rep.  705. 

7  6  State  V.  Scott,  22  Neb.  628,  36  N.  W.  121;  Trester  v.  Missouri  Pac.  R. 
Co.,  23  Neb.  242,  36  N.  W.  502 ;  Koeing  v  Chicago,  etc.,  R.  Co.,  27  Neb.  699, 
43  N.  W.  423. 

77Beveridge  v.  Lewis,  137  Cal.  619,  67  Pac.  1040,  70  Pac.  10S3,  92  Am. 
St.  Rep.  188,  59  L.  R.  A.  581.     See  §  131. 

Jones  Tel.(2d  Ed.) — 12 


178  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  161 

right  as  agent  for  some  telegraph  or  telephone  company;  but,  in 
order  to  do  this,  his  agency  must  be  stated/^  A  person  is  not  in 
charge  of  a  public  duty  if  he  seeks  to  condemn  the  right  of  way 
merely  to  sell  the  same  to  another  company  ;^^  but  if  the  articles 
of  incorporation  of  the  company  seeking  to  exercise  the  right  dis- 
closes the  fact  that  it  was  organized  to  sell  or  otherwise  dispose  of 
the  lines  of  the  telegraph  company  which  it  might  construct  or  ac- 
quire, and  that  this  fact  was  in  connection  with  other  evidence  in 
the  case — as  that  it  was  a  foreign  corporation,  and  not  its  honest 
intention  to  operate  the  lines  in  question,  except  in  the  interest  of 
and  in  connection  with  that  corporation — does  not  establish  in  law 
an  intent  to  take  the  property  for  a  private  use.^°  What  a  public 
use  is  is  a  question  of  law  to  be  decided  by  the  court,^^  but  when 
and  by  what  companies  the  power  of  eminent  domain  may  be  exer- 
cised is  to  be  decided  by  the  legislature.^^ 

§  161,  What  portion  of  right  of  way  may  be  taken. — Where  the 
right  to  condemn  the  right  of  way  of  a  railroad  company  has  been 
conferred  upon  a  telegraph  or  telephone  company,  the  power  to 
select  so  much  of  the  right  of  way  as  may  be  necessary  for  the  lines 
is  conferred  by  implication,  subject  to  the  limitation  that  its  selec- 
tion must  not  essentially  interfere  with  the  operation  of  the  rail- 
road.*^ When  the  power  to  condemn  the  right  of  way  has  been 
acquired  by  the  telegraph  or  telephone  company,  there  is  generally 
very  little  dispute  between  the  two  companies  as  to  where  the 
line  shall  be  constructed;    provided  it  is  not  to  be  so  near  to  the 

7  8Beveridge  v.  Lewis,  137  Cal.  619,  67  Pac.  1040,  70  Pac.  10S3,  92  Am.  St. 
Rep'.  188,  59  L.  R.  A.  581.     See  §  159. 

7  9Beveridge  v.  Lewis,  137  Cal.  619,  67  Pac.  1040,  70  Pac.  1083,  92  Am.  St. 
Rep.  188,  59  L.  R.  A.  581. 

so  Union  Pac.  R.  Co.  v.  Colorado,  etc.,  Tel.  Co.,  30  Colo.  133,  69  Pac.  564, 
97  Am.  St.  Rep.  106;  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23 
Utah,  474,  65  Pac.  735,  90  Am.  St.  Rep.  705. 

SI  Judicial  notice  will  be  taken  that  a  public  telegraph  line  is  a  public  im- 
provement, for  which  property  may  be  taken  for  a  public  use.  Mobile,  etc., 
R.  Co.  V.  Postal  Tel.  Cable  Co.,  24  South.  408. 

82  Chicago,  etc.,  R.  Co.  v.  Morehouse,  112  Wis.  1,  87  N.  W.  849,  56  L.  R.  A. 
240,  88  Am.  St.  Rep.  918,  and  extensive  note  thereunder. 

83  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408; 
Savannah,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  112  Ga.  941,  38  S.  E.  353; 
Savannah,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  115  Ga.  554,  42  S.  E.  1.  See,  also, 
St.  Louis,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.,  58  C.  C.  A.  198,  121  Fed. 
278;  West.,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42 
L.  R.  A.  (N.  S.)  225;  West.  U.  Tel.  Co.,  v.  Nashville,  etc.,  R.  Co.,  133  Tenn. 
691,  182  S.  W.  254,  holding  telegraph  company  entitled  to  make  selection. 


§    162)  ON   RAILROAD   RIGHT   OF   WAY  170 

track  as  to  interfere  with  the  running  of  the  trains,  and  the  car- 
rying on  of  its  general  corporate  business.^*     The  most   difficult 
question  is,  What  shall  be  the  amount  of  damages  to  be  awarded? 
And  after  this  has  been   determined,  the  portion  of  the  right  of 
way  to  be  taken  for  the  telegraph  or  telephone  lines  is  easily  solved. 
§  162.     Contract  arrangements  between  companies — when  revok- 
able.— A  contract  between  a  telegraph  and  a  railroad  company  by 
which  they  join  in  defraying  the  expense  of  the  construction  of  a 
line  for  the  former  on  the  right  of  way  of  the  latter,  to  be  operated 
for  their  joint  benefit,  cannot  be  revoked  by  either  of  the  compa- 
nies, even  though  there  is  no  definite  time  fixed  in  the  contract  it- 
self for  its  duration,  but  where  from  the  terms  thereof  it  was  in- 
tended to  be  permanent   and  perpetual.     Where  such  a  contract 
exists,  a  court  of  equity  may,  at  the  instance  of  the  telegraph  com- 
pany, enjoin  the  railroad  company  from  terminating  the  contract 
and  removing  the  poles. ^^     However,   the   rule   may  be   different 
where  the  relief  sought  is  that  of  requiring  the  railroad  company 
to  specifically  perform  the  contract,  by  continuing  to  make  con- 
tributions of  money  and  property  and  to  exercise  judgment  and 
skill  in  performing  its  part  thereof ;    and  such  contract  may  be  ter- 
minable by  reason  of  changed  conditions  imposing  hardships  up- 
on the  railroad  by  reason  of  its  continuance.^^     Where  the  contract 

84  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Tac. 
735,  90  Am.  St.  Rep.  705;  Railway  v.  Petty,  57  Ark.  359,  21  S.  W.  8S4,  20 
L.  R.  A.  434n ;  Englewood  Connecting  R.  Co.  v.  Chicago,  etc.,  R.  Co.,  117  111. 
Gil,  6  N.  E.  684 ;  O'Hare  v.  Railroad  Co.,  139  111.  151,  28  N.  E.  923 ;  Stark 
V.  Railroad  Co.,  43  Iowa,  501;  Peavey  v.  Railroad  Co.,  30  Me.  498;  Fall  River 
Iron  Works  Co.  v.  Oil  Colony,  etc.,  R.  Co.,  5  Allen  (Mass.)  222 ;  Railroad  Co. 
V.  Speer,  56  Pa.  325,  94  Am.  Dec.  84 ;  In  the  Matter  of  New  York  R.  Co.,  46 
N.  Y.  546,  7  Am.  Rep.  385 ;  Kansas,  etc.,  R.  Co.  v.  Northwestern,  etc.,  Co.,  161 
Mo.  288,  84  Am.  St.  Rep.  719,  01  S.  W.  684,  51  L.  R.  A.  936 ;  Western,  etc.,  R.  Co. 
V.  Western  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471,  42  L.  R.  A.  (N.  S.)  225 ; 
Canadian,  etc.,  R.  Co.  v.  Telephone  Co.,  106  Me.  363,  76  Atl.  885,  29  L.  R.  A. 
(N.  S.)  703,  20  Ann.  Cas.  721.     See  §  74. 

85  West.  U.  Tel.  Co.  v.  Pennsylvania  Co.,  129  Fed.  849,  64  C.  O.  A.  285,  68 
L.  R.  A.  968,  reversing  (C.  C.)  125  Fed.  67,  further  holding  that  the  mutual 
covenants  between  such  companies  are  a  sufficient  consideration  under  the 
statute  of  frauds  for  sustaining  the  contract,  w^here  there  has  been  part  per- 
formance of  such  consideration.  A  contract  between  these  companies  con- 
solidating various  previous  contracts  does  not  necessarily  displace  the  pre- 
vious contracts,  but  the  same  may  continue  after  the  expiration  of  the  new 
contract.    West.  U.  Tel.  Co.  v.  Pittsburg,  etc.,  Ry.  (0.  C.)  137  Fed.  435. 

86  See  Keith,  Prowse  &  Co.  v.  Nat.  Tel.  Co.,  2  Ch.  147,  2  Keener,  188.  See 
68  Am.  St.  Rep.  753-762,  for  an  excellent  note  reviewing  the  cases  ou  this 
subject.     See,  also,  Pom.  Eq.  Jur.  §  1402f. 


180  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  163 

amounts  to  a  mere  license  to  the  telegraph  company  to  the  use  of 
poles  on  the  railroad  right  of  way,  and  belonging  to  the  latter, 
the  same  may  be  revoked  at  any  time  if  the  duration  for  which  is 
not  fixed. ^^ 

§  163.  Effect  of  foreclosure  of  railroad — expiration  of  contract. 
— It  has  been  held  that  where  a  telegraph  company  has  constructed 
a  line  on  the  right  of  way  of  a  railroad,  by  the  consent  of  the  lat- 
ter, and  after  it  had  mortgaged  its  property,  a  foreclosure  of  the 
mortgage  may  take  away  the  right  of  the  telegraph  company  to 
remain  on  such  right  of  way,^^  but  the  better  opinion  is  to  the  con- 
trary.^® The  same  rule  prevails  where  the  right  of  the  telegraph 
company  was  merely  for  a  term  of  years,  and  such  term  has  ex- 
pired.®**  In  each  of  these  instances,  however,  the  telegraph  com- 
pany may  proceed  to  condemn,  if  the  statute  provides  for  condem- 
nation,®^ when  the  court  may  then  allow  the  company  to  remain 

8  7  Where  teleplione  wires  are  strung  on  poles  owned  by  a  railroad  com- 
pany on  an  agreement  which  does  not  run  for  any  specific  time,  the  tele- 
phone company's  right  is  a  revocable  license  only,  and  the  wires  may  be 
removed  at  any  time  by  the  railroad  company,  but  no  unnecessary  injury  to 
them  should  be  done  in  their  removal.  West.  U.  Tel.  Co.  v.  Carver  (Tex. 
Civ.  App.)  74  S.  W.  55. 

8  8  West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  R.,  90  Fed.  379,  33  C.  C.  A.  113; 
West.  U.  Tel.  Co.  v.  Ann  Arbor  R.  R.,  178  U.  S.  239,  20  Sup.  Ct.  S67,  41  L. 
Ed.  1052. 

89  A  court  of  equity  may  allow  the  telegraph  company  to  continue  its  line 
upon  paying  a  reasonable  and  equitable  consideration  therefor  to  the  pur- 
chaser at  the  foreclosure  sale.  St.  Paul,  etc.,  Ry.  v.  West.  U.  Tel.  Co.,  118 
Fed.  497,  55  C.  C.  A.  263,  explained  in  West.  U.  Tel.  Co.  v.  Pennsylvania  R.  R., 
195  U.  S.  540,  25  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann.  Cas.  517.  See  Great 
Northern  Ry.  v.  West.  U.  Tel.  Co.,  174  Fed.  321,  98  C.  C.  A.  193. 

90  St.  Paul,  etc.,  Ry.  v.  West.  U.  Tel.  Co.,  118  Fed.  497,  55  C.  C.  A.  263, 
holding  that  a  grant  by  a  railroad  company  to  a  telegraph  company  of  a 
right  of  way  "for  the  use  and  purposes"  of  the  contract  is  not  an  absolute 
grant,  but  terminates  with  the  contract,  and  the  provision  that  the  grant 
should  apply  to  future  extensions  of  the  railroad  gives  the  telegraph  company 
a  mere  equitable  right  to  such  right  of  way  on  extensions.  See  Great  North- 
ern Ry.  V.  West.  U.  Tel.  Co.,  174  Fed.  321,  98  C.  C.  A.  193. 

91  Western  &  Atlantic  R.  R.  v.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E.  471, 
42  L.  R.  A.  (N.  S.)  225.  Where  a  telegraph  company  constructed  its  lines  on 
the  railroad  right  of  way  under  a  contract  which  is  terminated,  and  the 
former  commences  condemnation  proceedings  as  allowed  by  statute,  and  the 
latter  threatens  to  cut  down  these  lines,  the  court  will  enjoin  the  railroad 
company  from  doing  so,  even  though  the  railroad  claims  that  it  wishes  to 
construct  its  own  line  on  the  same  location  where  the  existing  telegraph  line 
has  been  constructed.  Such  injunction  may  be  not  only  as  to  the  telegraph 
line  within  the  state  where  the  United  States  court  is  sitting,  but  may  also 
apply  to  lines  owned  by  complainant  in  other  states  which  connect  with  the 


8    164)  ON   RAILROAD   RIGHT   OF   WAY  181 

in  possession  pending  the  proceedings,  or  may  in  a  litigation  insti- 
tuted by  the  railroad  company  to  oust  the  telegraph  company  pro- 
ceed to  assess  the  damages.^-  But,  where  the  railroad  company 
requires  the  use  of  its  entire  right  of  way,  the  telegraph  company 
will  not  be  permitted  to  condemn  a  right  of  way  thereon,  especially 
where  the  statutes  do  not  expressly  authorize  such  condemnation. 
And,  if  this  be  the  case,  a  telegraph  company  which  has  already 
constructed  a  line  on  a  railroad  right  of  way,  but  the  contract  right 
to  maintain  its  line  thereon  has  expired,  cannot  condemn  nor 
have  an  injunction  against  the  removal  of  its  line.®^ 

§  164.  Exclusive  right,  cannot  give. — There  seems  to  be 
some  conflict  among  the  courts  as  to  whether  a  telegraph  com- 
pany can  acquire,  by  a  contract  with  the  railroad  company,  an 
exclusive  right  to  construct  a  line  of  wires  along  and  upon  the 
railroad  right  of  way,  but  the  great  preponderance  of  authority  is 
that  such   rights   cannot   be   acquired."*     The   act   of  Congress"^ 

one  in  the  state.  West.  U.  Tel.  Co.  v.  Louisville,  etc.,  R.  Co.  (D.  C.)  201  Fed. 
946,  951. 

92  St.  Paul,  etc.,  Ry.  v.  West.  U.  Tel.  Co.,  118  Fed.  497,  55  C.  C.  A.  263, 
holding  further  that  the  court  has  power  to  appoint  commissioners  to  assess 
the  compensation  to  be  paid  to  the  railroad  company  for  the  right  of  way. 
Great  Northern  Ry.  v.  West.  U.  Tel.  Co.,  174  Fed.  321,  98  C.  C.  A.  193,  holding 
that  where  the  agreement  provided  for  half  rates  to  be  given  to  the  railroad 
company  that  this  may  be  deducted  from  the  award. 

9  3  West.  U.  Tel.  Co.  V.  Pennsylvania  R.  R.,  195  U.  S.  540,  25  Sup.  Ct.  133, 
49  L.  Ed.  312,  1  Ann.  Cas.  517.  Where,  after  the  expiration  of  the  contract, 
the  telegraph  company  organizes  a  local  company  to  condemn  the  right  of 
way  occupied  by  the  telegraph  line,  the  railroad  company  may  temporarily 
enjoin  such  condemnation  proceedings  in  its  suit  for  a  permanent  injunction 
on  the  ground  that  the  telegraph  line  will  interfere  with  the  railroad  con- 
structing its  own  telegraph  line.  West,  U.  Tel.  Co.  v.  Louisville,  etc.,  R.  Co. 
(D.  C.)  201  Fed.  946. 

94  West.  U.  Tel.  Co.  v.  American  Union  Tel.  Co.,  65  Ga.  160,  38  Am.  Rep. 
781 ;  Union  Trust  Co.  v.  Atchison,  etc.,  R.  Co.,  8  N.  M.  327,  43  Pac.  701 ;  U.  S. 
v.  Union  Pacific  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed.  319.  reversing 
59  Fed.  813,  8  C.  C.  A.  2S2,  affirming  (C.  C.)  50  Fed.  28;  Georgia  R.,  etc., 
Co.  V.  Atlantic  Tel.  Cable  Co.  (C.  C.)  152  Fed.  991;  Mercantile  Trust  Co.  v. 
Atlantic,  etc.,  R.  Co.  (C.  C.)  63  Fed.  910;  Pacific  Postal  Tel.  Cable  Co.  v. 
West.  U.  Tel.  Co.  (C.  C.)  50  Fed.  493 ;  Baltimore,  etc.,  Tel.  Co.  v.  West.  U. 
Tel.  Co.  (C.  C.)  24  Fed.  319;  West.  U.  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co. 
(C.  C.)  23  Fed.  12;  West.  U.  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.  (C.  C.)  19 
Fed.  660;  West.  U.  Tel.  Co.  v.  Burlington,  etc.,  R.  Co.  (C.  C.)  11  Fed.  1,  3 
McCrary,  130;    West.  U.  Tel.  Co.  v.  Kansas  Pac.  R.  Co.  (D.  C.)  4  Fed.  284; 

9  5  See  U.  S.  Rev.  St.  §§  5263,  3964  (Comp.  St.  1913,  §§  10072,  7456),  and 
chapter  772,  Act  Cong.  Aug.  7,  ISSS,  25  Stat.  382  (Comp.  St.  1913,  §§  10080- 
10086). 


182  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  165- 

granting  to  a  telegraph  company  the  right  to  construct  a  line  of 
wires  along  post  roads  did  not  give  it  the  sole  right  to  construct  a 
line  over  the  right  of  way,  so  as  to  exclude  other  companies  whose 
lines  would  not  interfere  with  those  of  the  first  company ;  and  this 
act  prevents  the  telegraph  company  from  acquiring  an  exclusive 
grant  in  any  manner.^^  If,  however,  the  illegal  provision  is  not  so 
interwoven  with  the  entire  contract  as  to  be  practically  inseparable, 
then  the  main  contract  will  be  upheld  and  the  exclusive  feature 
declared  void.^^  Moreover,  even  if  the  whole  contract  is  void,  the 
court  may  grant  time  during  which  either  company  may  make 
other  arrangements.®^ 

§  165.  Contract  with  railroad  company  to  that  effect. — This  act 
of  Congress  prevents  a  telegraph  company  from  acquiring  the  ex- 
clusive right  to  construct  a  line  upon  the  right  of  way  of  a  rail- 
road company  by  a  contract  entered  into  with  the  latter  to  that 
effect;  and  yet  this  is  not  the  only  reason  why  such  a  contract 
could  be  held  invalid.  The  state's  right  to  exercise  the  power  of 
eminent  domain  extends  over  every  foot  of  land  within  its  borders ; 
so  the  title  acquired  by  any  corporation,  under  the  power  of  emi- 
nent domain,  is  held  subject  to  the  rights  of  the  state.  As  has  been 
seen,  property  held  by  a  corporation  acquired  under  the  right  of 

West.  U.  Tel.  Co.  v.  St.  Joseph,  etc.,  R.  Co.  (C.  C.)  3  Fed.  430,  1  McCrary,  565 ; 
West.  U.  Tel.  Co.  v.  Marietta,  etc.,  R.  Co.,  38  Ohio  St.  24.  Where  the  railroad 
acquiesces  in  a  new  telegraph  company  erecting  its  line  on  the  railroad  right 
of  way,  the  old  rival  telegraph  company,  claiming  an  exclusive  contract,  can- 
not enjoin  such  construction  except  to  prevent  interference  with  its  operation 
and  use  of  its  own  lines.  West.  U.  Tel.  Co.  v.  American  Union  Tel.  Co.,  9 
Biss.  72,  Fed.  Cas.  No.  17,444;  West.  U.  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co. 
(C.  C.)  22  Fed.  133.  See,  also,  Cumberland  Tel.,  etc.,  Co.  v.  Morgan's  Lou- 
isiana, etc.,  R.  Co.,  51  La.  Ann.  29,  24  South.  803,  72  Am.  St.  Rep.  442. 

96  Union  Trust  Co.  v.  Atchison,  etc.,  R.  Co.,  8  N.  M.  327,  43  Pac.  701;  U.  S. 
v.  Union  Pac.  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed.  319 ;  West.  U. 
Tel.  Co.  V.  Baltimore,  etc.,  Tel.  Co.  (C.  C.)  19  Fed.  660 ;  West.  U.  Tel.  Co.  t. 
Burlington,  etc.,  R.  Co.  (C.  C.)  11  Fed.  1,  3  McCrary,  130. 

oTWest.  U.  Tel.  Co.  v.  Pittsburg,  etc.,  Ry.  (C.  C.)  137  Fed.  435;  U.  S.  v. 
Union  Pac.  Ry.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed.  319.  A  contract  be- 
tween a  telegraph  and  railroad  company  is  not  entirely  void,  even  though 
it  contains  an  illegal  provision  that  the  railroad  company  should  not  permit 
any  other  telegraph  company  to  build  or  operate  a  line  along  its  road,  where 
such  provision  was  not  the  main  consideration  of  the  contract.  West.  U. 
Tel.  Co.  v.  Pennsylvania  Co.,  129  Fed.  849,  64  C.  C.  A.  2S5,  68  L.  R.  A.  968. 
A  grant  to  a  telegraph  company  of  an  exclusive  right  of  way  along  a  railroad 
is  void  as  to  the  exclusive  part.  Pacific  Postal  Tel.  Co.  v.  West.  U.  Tel.  Co. 
(C.  C.)  50  Fed.  493. 

98  Central,  etc.,  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206,  32  L.  R.  A. 
(N.  S.)  494,  139  Am.  St.  Rep.  878. 


§    165)  ON   RAILROAD   RIGHT   OF   WAY  183 

eminent  domain  may  itself  be  again  condemned  for  other  public 
purposes ;  as  where  the  right  of  way  of  a  railroad  company  may 
be  condemned  for  the  right  of  way  of  another  railroad  company, 
or  for  the  use  of  a  line  of  telegraph  wires.  If  a  railroad  company 
could  acquire  a  right,  under  its  condemnation  proceedings,  to  con- 
tract with  a  telephone  company,  so  as  to  give  the  latter  an  exclu- 
sive right  to  construct  a  line  on  its  right  of  way,  the  state  could  not, 
of  course,  under  such  circumstances,  grant  the  power  to  another 
company.  It  therefore  follows  that  it  would  be  divested  to  the  ex- 
tent of  such  property,  of  its  power  of  eminent  domain;  but  of  this 
it  cannot  be  divested.  The  natural  conclusion  is  that  the  railroad 
can  have  no  power  to  grant  such  exclusive  right.  Again,  the  right 
of  way  of  a  railroad  company  was  acquired  for  certain  specific  pur- 
poses ;  and  for  this  reason  the  company  could  not  use  this  prop- 
erty for  any  other  purpose  except  that  for  which  it  was  acquired. 
It  is  never  contemplated  in  the  grant  of  such  property  that  it  will 
use  it  except  for  the  purpose  of  constructing  a  track  thereon,  and 
for  such  other  structures  and  uses  necessary  and  incident  to  the  op- 
eration of  its  road.  For  instance,  it  could  not  sell  or  incumber 
the  property,  or  even  construct  a  line  of  telegraph  thereon,  unless 
the  same  was  done  for  the  express  purpose  of  carrying  on  its  rail- 
road business. °^  An  attempt  to  grant  to  another  company  a  power 
which  it  cannot  exercise  itself,  or  an  attempt  to  add  an  unlim- 
ited franchise  to  one  which  is  limited,  would  be  nothing  less  than  an 
attempt  to  do  something  beyond  its  power.^""  It  has  been  further 
held  that  such  contracts  could  not  be  held  valid,  as  they  would  be 

9  9  Railroad  Co.  v.  Telegraph  Co.,  38  Ohio  St.  24,  holding  also  that  a  con- 
tract by  which  the  railroad  company  transfers  only  a  part  of  such  general 
telegraphic  business  to  a  telegraph  company  will  not  be  ordered  to  be  spe- 
cifically performed,  inasmuch  as  the  part  to  be  done  by  the  railroad  is  il- 
legal. The  court  held  that  the  railroad  may  sell  to  a  telegraph  company  wires 
for  general  telegraph  business.  In  Missouri  it  is  held  that  a  foreign  cor- 
poration, admitted  to  do  business  in  the  state  either  by  comity  or  by  express 
statutory  provisions,  can  transact  only  business  which  a  domestic  corporation 
of  like  character  is  authorized  to  transact,  and  hence  a  foreign  railroad  can- 
not build  a  telegraph  line  in  that  state.  State  v.  Cook,  171  Mo.  348,  71  S.  W. 
829.  A  municipality  cannot  prohibit  a  railroad  company  from  carrying  on  a 
telegraphic  business.  Pennsylvania  R.  R.  v,  Lilly  Borough,  207  Pa.  180,  56 
Atl.  412.  If  a  railroad  should  carry  on  a  commercial  telegraph  business,  it 
would  be  liable  for  a  failure  to  deliver  a  message.  Arkansas,  etc.,  Ry.  v. 
Stroude,  77  Ark.  109,  91  S.  W.  18,  113  Am.  St.  Rep.  130;  Hanna  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  89  Kan.  503,  132  Pac.  154. 

100  Mercantile  Trust  Co,  v.  Atlantic,  etc.,  R.  Co.  (C.  C.)  G3  Fed.  010. 


184  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  166 

in  restraint  of  trade  because  creating  monopolies  which  are  pro- 
hibited both  by  the  common  and  statutory  laws.^"^ 

§  166.  State  legislation — no  exclusive  grant. — Not  only  is  a 
railroad  company  prohibited  from  granting  exclusive  privileges  to 
a  telegraph  company  to  construct  a  line  upon  its  right  of  way,  but 
the  right  cannot  be  granted  by  state  legislation.^"^  The  right  ac- 
quired from  the  state  by  the  telegraph  companies  to  do  business  as 
a  corporation  is  in  the  nature  of  a  contract,  carrying  with  it  a  dele- 
gated authority  to  condemn  private  and  public  property  for  a  right 
of  way ;  but  this  inherent  delegated  power  does  not  carry  with  it 
immunity  from  future  legislations.  In  other  words,  it  does  not 
enter  into  and  become  a  part  of  the  contract  made  between  the  state 
and  the  incorporators,  whereby  the  latter  acquires  the  right  to  con- 
struct and  maintain  a  public  telegraph  line,  so  as  to  protect  it  under 
that  clause  of  the  constitution  which  prohibits  the  passing  of  a  law 
impairing  the  obligation  of  contracts.  As  was  very  ably  observed 
on  this  point  by  Cooley :  "Any  legislative  bargain  in  restraint  of 
the  complete  continuance  and  repeated  exercise  of  the  right  of  emi- 
nent domian  is  unwarranted  and  void ;  and  that  provision  of  the 
constitution  of  the  United  States  which  forbids  the  state  violating 
the  obligation  of  contracts  could  not  be  so  construed  as  to  render 
valid  and  effectual  such  a  bargain,  which  originally  was  in  excess  of 
proper  authority."  ^**^  The  right  of  eminent  domain  is  an  element 
of  sovereignty,  and  a  contract  in  restraint  of  a  free  exercise  of  this 
right  is  not  obligatory  on  the  state,  and  does  not  fall  within  the  in- 
hibition of  the  constitution  of  the  United  States.^"*  The  right  to 
exercise  the  power  of  eminent  domain  is  an  inherent  power  and  one 
from  which  the  state  cannot  be  divested,  and  it  has  the  right  to  ex- 
ercise this  power  over  every  foot  of  land,  whether  held  by  private 
citizens  or  corporations;  so,  if  it  could  possibly  grant  an  exclusive 
right  to  a  telegraph  company  to  construct  its  lines  upon  the  right 
of  way  of  a  railroad  company,  it  would  necessarily  be  divested  of 
this  power. 

101  West.  U.  Tel.  Co.  v.  American  Union  Tel.  Co.,  65  Ga.  160,  38  Am.  Rep. 
781;  Georgia  R.,  etc.,  Co.  v.  Atlantic  Postal  Tel.  Cable  Co.  (C.  C.)  152  Fed. 
991 ;  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  173  111.  508,  51  N.  E.  382 ; 
Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  76  Miss.  731,  26  South.  370,  45 
L.  R.  A.  223. 

102  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  L.  Ed.  70S,  af- 
firming 2  Woods,  643,  Fed.  Cas.  No.  10,9G0 ;  IMuskogee  Nat.  Tel.  Co.  v.  Hall, 
55  C.  C.  A.  208,  118  Fed.  382. 

103  Cooley  Const.  Lim.  (3d  Ed.)  525;  Railroad  Co.  v.  Railroad  Co.  97  111. 
506 ;   West  River  Bridge  Co.  v.  Dlx,  6  How.  531,  12  L.  Ed.  535. 

104  Hyde  Park  v.  Oak  Woods  Cemetery  Association,  119  111.  141,  7  N.  E.  627. 


§    168)  ON   RAILROAD   RIGHT   OF  WAY  185 

§  167.     Same  continued — contra   view — lines   on   same   poles. — 

While  the  above  is  the  general  and  accepted  rule,  yet  there  are  some 
courts  which  hold  that  a  telegraph  company  can  acquire  an  exclu- 
sive privilege  to  construct  a  line  of  w^ires  upon  the  right  of  way  of 
a  railroad  company. ^°^  We  see  no  reason  why  a  contract  made  be- 
tween a  railroad  and  a  telegraph  company  for  exclusive  rights 
should  be  void,  in  so  far  as  it  merely  excludes  competitors  from  the 
line  of  poles  erected  and  used  by  the  telegraph  company. ^''^  For 
instance,  a  telegraph  company  may  be  enjoined  from  constructing 
a  line  of  wires  upon  the  poles  of  another  telegraph  company  which 
has  acquired  from  the  railroad  a  contract  to  have  exclusive  privi- 
leges along  the  right  of  way  so  far  as  may  be  legally  done ;  but 
there  is  no  reason  why  the  other  company  may  not  construct  and 
maintain  another  line  of  poles  along  the  track  of  the  railroad  com- 
pany.^"^  A  railroad  company,  maintaining  telegraph  wires,  granted 
to  a  telegraph  company  the  right  to  place  a  wire  on  the  poles  of  the 
former,  and  to  establish  stations  and  do  business  with  points  off 
the  road,  the  railroad  company  reserving  for  itself  the  right  to  local 
business ;  it  was  held  that  the  right  granted  was  not  exclusive,  and 
that  the  railroad  could  put  up  and  maintain  another  wire  for  its 
own  use  or  for  the  use  of  a  third  party ;  ^"^  and  it  was  further  held, 
in  another  case,  that  exclusive  privilege  could  be  granted  to  a  tele- 
graph company  between  certain  points. ^°^ 

§  168.  Nature  of  petition. — The  nature  of  a  petition  presented 
asking  the  condemnation  of  a  portion  of  the  right  of  way  of  a  rail- 
road company  should  be  very  similar,  in  most  respects,  to  a  peti- 
tion filed  praying  the  condemnation  of  private  property  or  part  of  a 

105  West.  U.  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  86  111.  246,  29  Am.  Rep. 
28;  West.  U.  Tel.  Co.  v.  Atlantic,  etc.,  Tel.  Co.,  7  Ohio  Dee.  (Reprint)  163, 
1  Cine.  L.  Bui.  201 ;  West.  U.  Tel.  Co.  v.  Atlantic,  etc.,  Tel.  Co.,  ,5  Ohio  Dec. 
(Reprint)  407,  5  Am.  Law  Rec.  429 ;  West.  U.  Tel.  Co.  v.  Atlantic,  etc.,  Tel. 
Co.,  Fed.  Cas.  No.  17,445,  7  Biss.  367 ;  Canadian  Pac.  R.  Co.  v.  West.  U.  Tel. 
Co.,  17  Can.  Sup.  Ct.  151 ;  West.  U.  Tel.  Co.  v.  Marietta,  etc.,  R.  Co.,  38  Ohio 
St.  24. 

Holding  that  such  a  contract  Is  not  contrarj-  to  public  policy,  see  West. 
U.  Tel.  Co.  V.  Atlantic,  etc.,  Tel.  Co.,  Fed.  Cas.  No.  17,445,  7  Biss.  367 ;  West. 
U.  Tel.  Co.  V.  Cliicago,  etc.,  R.  Co.,  86  111.  246,  29  Am.  Rep.  28 ;  Canadian  Pac. 
R.  Co.  V.  West.  U.  Tel.  Co.,  17  Can.  Sup.  Ct.  151. 

106  West.  U.  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  86  111.  246,  29  Am.  Rep.  28. 
See  West.  U.  Tel.  Co.  v.  Marietta,  etc.,  R.  Co.,  38  Ohio  St.  24. 

107  West.  U.  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  86  111.  246,  29  Am.  Rep.  28. 

108  West.  U.  Tel.  Co.  v.  Marietta,  etc.,  R.  Co.,  38  Ohio  St.  24. 
100  California,  etc.,  Tel.  Co.  v.  Alta  Tel.  Co.,  22  Cal.  398. 


186  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  169 

public  highway  for  telegraph  and  telephone  companies.^^"  It  will 
be  unnecessary  therefore  to  enumerate  again  the  essential  parts  of 
a  petition;  yet  some  of  those  parts  which  have  been  spoken  of 
heretofore  may  be  somewhat  differently  alleged  in  a  petition  for  the 
condemnation  of  a  right  of  way  of  a  railroad  company.  For  in- 
stance, it  is  not  necessary  to  give  as  full  a  description  of  the  route 
of  the  contemplated  company,  or  the  property  to  be  condemned,  as 
that  given  in  a  petition  praying  for  the  condemnation  of  private 
property ;  because  the  route  has  already  been  most  thoroughly  de- 
scribed, when  the  property  was  condemned  for  the  railroad  com- 
pany's right  of  way,  and  of  which  there  are  accessible  records.^^^ 
If  the  fact  is  alleged  that  the  property  is  that  of  a  railroad  company, 
running  between  certain  termini,  within  certain  counties,  setting 
forth  the  amount  of  ground  needed  for  each  pole,  the  distance  of  the 
poles  from  each  other,  and  the  distance  they  will  be  from  the  rail- 
way track,  the  way  desired  will  be  sufficiently  described/^-  It  need 
not  designate  the  exact  positions  to  be  occupied  by  the  poles,  nor 
the  side  of  the  track  to  be  used,  nor  that  existing  lines  of  telegraph 
will  be  displaced,  nor  the  quantity  or  specific  description  of  land  to 
be  taken. ^^^ 

§  169.  Same  continued — necessity  for  taking. — There  seems  to 
be  some  doubt  prevailing  among  the  courts  as  to  whether  the  peti- 
tion should  allege  the  fact  of  the  necessity  of  taking  the  land  for 
the  right  of  way ;  but  the  weight  of  authority — which  we  think  to 
be  correct — is  that  it  is  not  necessary  to  specifically  allege  this  fact, 
as  the  same  will  be  implied. ^^*  There  are  states  whose  constitu- 
tions expressly  require  this  question  to  be  submitted  to,  and  deter- 
mined by,  a  jury;^^^  and  where  this  is  the  case,  there  can  be  no 
doubt  that  it  must  be  done.  There  are  cases,  too,  which,  in  a  gen- 
eral way,  have  spoken  of  the  question  as  if  it  were  a  constitutional 

110  See  §  133. 

111  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Pac. 
735,  90  Am.  St.  Rep.  705.  A  railroad  track  is  a  fixed  monument.  Lake  Shore, 
etc.,  R.  Co.  V.  Pittsburg,  etc.,  R,  Co.,  71  111.  40. 

112  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65 
Pac.  735,  90  Am.  St.  Rep.  705.  See  Pacific,  etc.,  Tel.  Co.  v.  Chicago,  etc., 
Bridge  Co.,  36  Kan.  118,  12  Pac.  560. 

113  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408. 
ii4]Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408 r 

Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Pac. 
735,  90  Am.  St.  Rep.  705 ;  Lynch  v.  Forbes,  161  Mass.  302,  37  N.  E.  437,  42 
Am.  St.  Rep.  402,  and  note. 

115  People  V.  Village  of  Brighton,  20  Mich.  57;  Power's  Appeal,  29  Mich. 
509. 


§    170)  ON   RAILROAD   RIGHT   OF   WAT  187 

one;  and  that  because  there  is  no  authority  in  the  legislature  to 
take  land  of  a  private  person  or  corporation,  except  for  public  use, 
he  necessarily  must  have  the  right  to  a  judicial  determination  as  to 
the  necessity  of  the  taking  in  any  particular  instance.^^^  Whether 
this  be  true  or  not,  it  is  not  necessary,  in  the  absence  of  a  constitu- 
tional or  statutory  provision  to  that  effect,  to  submit  the  question 
to  the  determination  of  a  jury.  Tt  may  doubtless  be  referred  for 
decision  to  a  court,  or  to  commissioners  appointed  for  that  purpose 
by  the  court,  and  acting  under  its  supervision  and  subject  to  its 
control ;  but,  if  it  is  not  presented  for  such  determination  before  the 
appointment  of  commissioners,  it  will  be  presumed  to  have  been 
waived."^  When  the  necessity,  therefore,  exists  for  the  taking— 
whether  it  be  alleged  specifically  in  the  petition,  or  whether  it  is 
implied  therein — it  is  not  a  question  whether  there  is  other  land  to 
be  had  equally  available;  but  the  question  is  whether  the  land 
sought  is  needed  for  the  construction  of  the  public  work."^  In 
other  words,  it  is  not  necessary  to  allege  in  the  petition  that  the 
land  sought  to  be  condemned  is  the  only  available  land  to  be  had ; 
but  the  reason  that  this  particular  land  is  sought  to  be  condemned 
is  sufficient  averment  that  it  is  the  most  available  to  be  had;  and 
this  fact,  of  itself,  is,  in  our  mind,  a  sufficient  averment  of  the  fact 
of  the  necessity  of  the  taking  of  this  land.  There  may  be  other 
lands  available,  but  if  the  railroad  company  refuses  a  bona  fide  oft'er 
to  negotiate  for  the  use  of  land  in  its  right  of  way  for  a  telegraph 
or  telephone  line — and  it  must  be  alleged,  as  has  been  shown,  that 
an  unsuccessful  attempt  to  acquire  this  land  by  agreement  has  been 
made — a  necessity  exists  for  the  taking  of  this  particular  land."** 

§  170.  May  condemn  land  in  several  counties  in  one  proceeding. 
— Where  the  railroad  traverses  several  counties  in  a  state,  and  a 
telegraph  or  telephone  company  is  seeking  to  condemn  its  right  of 
way  for  a  line  of  wires,  the  same  may  be  done  in  one  proceeding. 
While  the  general  rule  is  that  lands  belonging  to  different  individu- 

iieLecoul  v.  Police  Jury,  20  La.  Ann.  308;  New  Orleans,  etc.,  R.  Co.  v. 
Gray,  .32  La.  Ann.  471. 

iiT  Heyneman  v.  Blake,  19  Cal.  579. 

118  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65 
Pae.  735,  90  Am.  St.  Rep.  705;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co., 
120  Ala.  21,  24  South.  408.  See  St.  Louis,  etc.,  R.  Co.  v.  Southwestern  Tel. 
etc.,  Co.,  121  Fed.  276,  58  C.  C.  A.  198;  Savannah,  etc.,  R.  Co.  v.  Postal 
Tel.  Cable  Co.,  112  Ga.  941,  38  S.  E.  358 ;  Ft.  Worth,  etc.,  R.  Co.  v.  South- 
western, etc.,  Tel.  Co.,  96  Tex.  160,  71  S.  W.  270,  60  L.  R.  A.  145. 

110  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65 
Pa'c.  735,  90  Am.  St.  Rep.  705. 


188  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  171 

als  residing  in  the  same  county  may  be  condemned  in  one  proceed- 
ing/-" yet  the  rule  should  receive  a  much  greater  indorsement 
where  the  land  belongs  to  only  one  person,  as  in  the  case  of  a  right 
of  way  of  a  railroad  company ;  since  it  would  be  much  easier  to 
serve  notice  on  the  latter  than  it  would  be  in  case  there  were  several 
owners.  To  our  certain  knowledge,  we  cannot  say  whether  the 
question  has  been  settled  by  the  courts  with  respect  to  one  proceed- 
ing settling  the  rights  of  several  different  original  landowners  liv- 
ing in  different  counties  for  their  respective  damages  against  the 
telegraph  or  telephone  company  for  additional  burdens  to  the  land 
on  which  the  railroad  company's  right  of  way  is  laid  out;  but  we 
are  of  the  opinion  there  would  have  to  be  different  proceedings 
brought  against  the  landowners  in  each  county.  However,  all  the 
landowners  in  one  county  could  be  made  parties  defendant  in  one 
proceeding.  Where  the  proceeding  is  merely  for  the  condemnation 
of  the  right  of  way  of  a  railroad  company  traversing  several  coun- 
ties within  the  same  state,  there  is  no  question  that  the  same  can  be 
done  by  one  proceeding.^^^  The  damage  which  the  railroad  com- 
pany is  entitled  to  is  for  the  whole  property,  and  the  cause  of  action 
arises  in  all  the  several  counties  as  a  unit.  The  county  line  crossing 
the  railroad  company's  right  of  way  does  not  destroy  the  singleness 
of  its  use.^^^ 

§  171.  Same  continued — constitutional. — The  statutes  of  some 
states  provide  that  telegraph  or  telephone  companies  desiring  to 
exercise  the  right  of  eminent  domain  over  a  railroad  company's 
right  of  way  may  institute  the  proceedings  "in  any  county  through 
which  the  railroad  may  run" ;  or  "all  proceedings  under  this  chap- 
ter must  be  brought  in  the  district  court  for  the  county  in  which 

12  0  Duke  V.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  460, 
11  L.  R.  A.  664.  See  §  135.  See  Martin  v.  Chicago,  etc.,  Elec.  Co.,  220  111.  97, 
77  N.  E.  86. 

121  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  173  111.  508,  51  N.  E.  382; 
Houston,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  18  Tex.  Civ.  App.  502,  45  S.  W. 
179;  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65 
Pac.  735,  90  Am.  St.  Rep.  705.  And  the  courts  of  "either  of  the  counties  may 
condemn  the  right  for  the  entire  length  of  the  line,  even  though  it  is  crossed 
by  navigable  streams.  Postal  Tel.  Cable  Co.  v.  Texas,  etc.,  R.  Co.  (Tex.  Civ. 
App.)  46  S.  W.  912.  And  by  the  term  "right  of  way,"  as  applied  to  railroads 
in  such  connection,  is  meant  the  strip  of  land  over  which  the  track  is  laid 
through  the  country,  and  which  is  used  in  connection  therewith.  Postal 
Tel.  Cable  Co.  v.  Southern  R.  Co.  (C.  C.)  90  Fed.  30. 

12  2  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65  Pac. 
735,  90  Am.  St.  Rep.  705. 


g    172)  ON   RAILROAD   RIGHT  OF  WAT  ISO' 

the  property  or  some  part  thereof  is  situated."  ^-^  These  provisions 
do  not,  however,  conflict  with  that  section  of  the  constitution  which 
provides  in  effect  that  all  civil  and  criminal  business  arising  in  any 
county  must  be  tried  in  such  county.^-*  The  meaning  of  this  con- 
stitutional clause,  as  was  held,  is  that  actions  affecting  realty  shall 
be  tried  in  the  county  where  the  business  or  the  causes  arise,  or, 
if  the  cause  of  action  arises  in  more  counties  than  one,  then  in  either 
of  said  counties.^^^  The  object  in  permitting  one  proceeding  to 
settle  damages  arising  from  the  condemnation  of  the  right  of  way 
of  a  railroad  company  traversing  several  counties  is  to  avoid  trouble 
and  expense  in  instituting  proceedings  in  each  of  the  several  coun- 
ties, when  the  property  which  belongs  to  one  proprietor  and  is  con- 
tiguous and  used  together  for  a  common  purpose  can  be  considered 
in  one  proceeding. 

§  172.  By  whom  assessments  are  made — qualifications  of. — In 
the  absence  of  a  special  constitutional  or  statutory  provision,  there 
is  no  right  to  trial  by  jury  in  condemnation  proceedings  instituted 
by  a  telegraph  or  telephone  company .^^^  However,  it  is  frequently 
prescribed  by  provisions  in  either  of  these  that  damages  in  con- 
demnation proceedings  shall  be  assessed  by  a  jury.  In  the  absence 
of  a  constitutional  provision  forbidding  it,  the  legislature  may  pro- 
vide that  the  condemnation  may  be  assessed  by  commissioners  or 
arbitrators.  The  power  of  appointing  commissioners  is  sometimes 
delegated  to  courts  of  record,  but  does  not  exist  independent  of 
statute.^"  The  power  is  sometimes  delegated  to  justices  of  the 
peace,  to  sheriffs,  and  municipal  boards,  and  sometimes  it  is  pro- 
vided that  they  shall  be  selected  by  the  parties  to  the  proceeding. 
On  account  of  the  variance  of  the  laws  in  the  several  states  on  this 
subject,  no  fixed  and  definite  rule  can  be  given,  but  the  laws  of  the 
state  in  which  the  proceedings  are  instituted  should  be  consulted 
in  order  to  determine  the  question.     The  jurors  or  commissioners 

123  Laws  of  Utali. 

124  rostal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474,  65 
Pac.  735,  90  Am.  St.  Rep.  705. 

125  Deseret  Irr.  Co.  v.  Mclntyre,  16  Utah,  39S,  52  Pac.  628. 

126  Postal  Tel.  Cable  Co.  v.  Southern  R.  Co.  (C.  C.)  122  Fed.  156. 

127  Consent  of  the  owner  to  the  appointment  of  commissioners  does  not 
give  power  to  the  court  in  a  case  which  does  not  fall  within  the  statute. 
State  V.  New  York,  etc.,  Tel.  Co.,  51  N.  J.  Law,  83,  16  Atl.  188. 

An  order  appointing  commissioners  to  assess  damages  in  a  proceeding  by  a 
telegraph  company  to  condemn  a  right  of  way  on  a  railroad  is  not  appealable, 
it  not  being  a  final  judgment  or  order.  Southern  R.  Co.  v.  Postal  Tel.  Cable 
Co.,  179  U.  S.  641,  21  Sup.  Ct.  249,  45  L.  Ed.  355. 


190  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  173 

should  be  qualified  ^-®  to  act,  and  should  therefore  be  disinterest- 
ed ^-^  in  the  result  of  the  proceedings. 

§  173.  Duty  of  commissioners. — The  duties  of  the  commission- 
ers who  are  appointed  to  inspect  the  premises  for  the  purpose  of 
determining  the  amount  of  damages  which  are  to  be  awarded  for 
the  property  condemned  are  generally  regulated  by  the  statutes  on 
this  subject.  The  following  may  be  mentioned  as  some  of  their 
duties  after  the  oath  has  been  administered  to  them  to  well  inquire 
and  true  assessment  make  of  the  due  compensation  for  cash  value 
and  actual  damage  which  the  railroad  company  shall  be  entitled  to 
receive  for  the  appropriating  of  the  property :  They  may  hear  tes- 
timony of  witnesses  ofifered  by  either  party  as  to  the  cash  value  of 
the  land  sought  to  be  appropriated,  and  the  injury  resulting  to 
such  railroad  company,  as  the  necessary  and  immediate  conse- 
quence of  the  appropriation  sought  to  be  made ;  but  in  taking  such 
testimony,  none  should  be  admitted  with  reference  to  uncertain  or 
remote  benefits  or  disadvantages  that  may  or  may  not  occur  in  the 
future ;  neither  should  any  evidence  be  received  in  respect  to  the 
title  or  ownership  of  the  property ;  nor  upon  any  question  other 
than  that  of  the  cash  value  of  lands  sought  to  be  appropriated  by 
the  telegraph  or  telephone  company.  They  cannot  determine  the 
question  of  public  use,  nor  the  question  of  necessity  for  the  taking, 
except  as  to  the  amount  of  land  or  the  width  of  the  right  of  way.^^° 
All  of  this  testimony  should  be  taken  down  in  writing.  They  may 
sit  from  day  to  day  until  their  investigations  and  other  duties  are 
completed,  and  after  making  their  award,  which  may  be  done  by 
a  majority  of  the  commissioners,  they  shall  make  and  sign  a  report 
of  their  proceedings  in  the  premises  and  deliver  the  same  to  the 
sheriff,  who  shall  make  an  immediate  return  thereof  with  the  writ 
and  his  actions  thereon  to  the  clerk  of  the  county  court.  There  may 
be  other  duties  which  the  commissioners  are  to  perform,  but  it  will 
hardly  be  necessary  to  enumerate  them  here.     However,  it  may 

128  The  commissioners  sliould  be  good  and  lawful  men;  and  where  the 
record,  which  the  clerk  is  required  to  keep  shows  that  the  men  summoned  by 
the  clerk  were  good  and  lawful  men,  this  is  sufficient  evidence  of  that  fact, 
although  the  sheriff's  return  does  not  show  that  they  possessed  those  qualifica- 
tions, as  required  by  the  precept  under  which  they  were  summoned.  Louis- 
ville, etc.,  R.  Co.  V.  Postal  Tel.  Cable  Co.,  68  Miss.  806,  10  South.  74. 

12  9  Sometimes  the  charter  provides  that  the  commissioners  should  be  dis- 
interested parties,  and  where  this  is  the  case,  and  it  does  not  appear  any- 
where in  the  proceedings  that  they  were  disinterested,  the  same  will  be  void 
and  of  no  effect.    Madden  v.  Louisville,  etc.,  R.  Co.,  66  Miss.  258,  6  South.  181. 

130  Union  Pacific  R.  Co.  v.  Postal  Tel.  Cable  Co.,  30  Colo.  133,  69  Pac.  564,  97 
Am.  St.  Rep.  106. 


g    175)  ON   RAILROAD   RIGHT   OF   WAT  191 

be  well  to  make  mention  of  another  duty  which  is  of  the  highest 
importance  and  imposed  upon  all  who  are  intrusted  and  empowered 
with  the  authority  to  assess  damages  for  the  appropriation  of  pri- 
vate or  public  property  for  public  work;  that  is,  they  must  faith- 
fully  and  honestly  perform  all  duties  imposed  upon  them  as  commis- 
sioners. 

§  174.  Jurisdiction  of  federal  court. — The  federal  court  has  ju- 
risdiction of  a  condemnation  case  where  the  petition  alleges  that 
over  three  thousand  dollars  are  involved,  and  the  necessary  diverse 
citizenship  is  also  alleged.^"  In  such  condemnation  the  United 
States  court  follows  the  state  practice  as  near  as  possible.^'"  A 
condemnation  proceeding  may  be  removed  to  the  United  States 
court  if  the  necessary  diverse  citizenship  exists  and  the  amount  in- 
volved is  over  three  thousand  dollars. ^^^ 

§  175.  The  award  of  commissioners. — The  award  of  commis- 
sioners in  condemnation  proceedings  operates  as  a  judgment  be- 
tween the  parties  and  is  governed  by  the  same  rules  that  are  ordi- 
narily applied  to  judgments  of  courts.  Such  an  award,  or  a  verdict 
and  judgment  on  appeal  therefrom,  has  the  same  force  as  an  ordi- 
nary judgment  rendered  by  a  court  of  competent  jurisdiction. ^^^  It 
is  conclusive  upon  the  parties  and  privies,  unless  an  appeal  be  taken. 

131  Postal,  etc.,  Co.  v.  Cleveland,  etc.,  R.  Co.  (C.  C.)  94  Fed.  234. 

132  West.  U.  Tel.  Co.  v.  Louisville,  etc.,  R.  Co.  (D.  C.  1912)  201  Fed.  932. 

133  Madisonville,  etc.,  Co.  v.  St.  Bernard,  etc.,  Co.,  196  U.  S.  239,  25  Sup.. 
Ct.  251,  49  L.  Ed.  462;  Georgia,  etc.,  R.  Co.  v.  Atlantic,  etc.,  Co.  (C.  C.)  152 
Fed.  991.  The  fact  that  a  New  York  telegraph  corporation,  a  parent  company, 
owns  practically  all  the  stock  of  an  Idaho  corporation,  does  not  prevent 
the  latter  exercising  its  power  of  eminent  domain  in  Idaho.  Oregon,  etc., 
R.  Co.  V.  Postal  Tel.  Cable  Co.,  Ill  Fed.  842,  49  0.  C.  A.  663 ;  Alabama,  etc., 
Ry.  V.  Cumberland,  etc.,  Co.,  88  Miss.  438,  41  South.  258;  Postal  Tel.  Cable 
Co.  V.  Oregon,  etc.,  R.  R.  (C.  C.)  114  Fed.  787.  The  court  may  inquire  whether 
the  company  was  organized  merely  to  give  jurisdiction  to  the  United  States 
court  in  a  suit ;  yet  unless  it  is  clearly  proved  that  that  was  the  sole  cause 
of  the  incorporation  the  United  States  court  will  take  jurisdiction.  Percy 
Summer  Club  v.  Astle,  163  Fed.  1,  90  C.  O.  A.  527. 

134  Charleston,  etc.,  R.  Co.  v.  Hughes,  105  Ga.  1,  30  S.  E.  972,  70  Am.  St. 
Rep.  17 ;  Postal  Tel.  Cable  Co.  v.  Louisville,  etc.,  R.  Co.,  43  La.  Ann.  522,  9 
South.  119 ;  Aldrich  v.  Cheshire  R.  Co.,  21  N.  H.  359,  53  Am.  Dec.  212 ;  Louis- 
ville, etc.,  R.  Co.  v.  People's  St.  R.,  etc.,  Imp.  Co.,  101  Ala.  331,  13  South.  30S : 
Memphis,  etc.,  R.  Co.  v.  Birmingham,  etc.,  R.  Co.,  96  Ala.  571,  11  South.  642, 
18  L.  R.  A.  166;  Newton  v.  Ala.,  etc.,  R.  Co.,  99  Ala.  468,  13  South.  259;  Mc- 
Culley  V.  Cunningham,  96  Ala.  583,  11  South.  694;  New  Orleans,  etc.,  R.  Co. 
V.  Rabasse,  44  La.  Ann.  178,  10  South.  70S ;  Atchison,  etc.,  R.  Co.  v.  Boerner, 
34  Neb.  240,  51  N.  W.  842,  33  Am.  St.  Rep.  637;  Atchison,  etc.,  R.  Co.  v. 
Forney,  35  Neb.  607,  37  Am.  St.  Rep.  450,  53  N.  W.  585. 


192  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  176 

This  is  plainly  the  intent  of  the  statute,  for  the  institution  of  this 
tribunal  would  be  useless  unless  their  estimate  should  be  regarded 
as  final. ^^^  Any  other  view  of  the  question  would  lead  to  great 
practical  difficulties,  for,  if  we  could  go  behind  their  assessment,  it 
would  be  impossible  to  draw  any  line  beyond  which  we  should  not 
proceed.  There  would  be  scarcely  any  injury  a  landowner  or  a 
railroad  company  could  sustain  which  might  not  be  said,  with  more 
or  less  plausibility,  to  be  one  which  the  commissioners  could  not 
take  into  consideration. ^^^ 

§  176.  May  have  new  award. — These  statutes  provide  that  on 
good  cause  shown,  either  by  the  telegraph,  telephone,  or  railroad 
company,  by  motion  to  the  circuit  court  of  the  district  in  which  the 
proceedings  were  had,  a  new  inquiry  and  assessment  may  be  had. 
It  is  necessary  that  these  motions  should  state  the  grounds  upon 
which  said  inquiry  is  asked,  and  supported  by  an  affidavit  of  the 
party  applying  therefor,  in  which  it  should  be  stated  that  the  award 
of  the  commissioners  was  contrary  to  the  law  and  evidence.  A 
new  inquiry  does  not  follow  as  a  matter  of  course,  either  from  the 
fact  that  illegal  testimony  was  heard  or  that  a  party  was  wrong- 
fully denied  the  right  to  open  and  conclude  the  argument.^^''  A 
copy  of  all  the  proceedings  had  in  the  case,  including  a  copy  of  all 
the  evidence,  should  be  filed  with  the  motion.  And  after  the  op- 
posite party  has  had  proper  notice  of  said  motion,  the  court  should 
consider  the  same.  If  the  court  should  be  of  the  opinion  that  the 
commissioners  acted  upon  testimony  which  was  irrelevant,  imma- 
terial or  incompetent,  that  the  award  was  contrary  to  the  law  and 
the  evidence,  and  that  injustice  has  been  done,  a  new  hearing  and 
assessment  should  be  ordered  by  said  court.  The  court,  being  of 
the  opinion  that  a  new  award  should  be  had  on  said  motion,  should 
order  a  new  writ  to  issue  and  another  trial  and  assessment  to  be 
had.  There  are  generally  some  limitations  and  conditions  provided 
for  in  the  statutes  which  must  be  complied  with.  For  instance, 
it  is  provided  that  not  more  than  one  inquiry  and  assessment  shall 
be  allowed  at  the  instance  of  the  same  party  in  reference  to  the  same 
matter,  and  that,  in  case  an  appeal  be  taken  from  the  decision  of  the 
court  to  the  supreme  court,  the  same  must  be  done  within  a  limited 
time — generally  about  thirty  days — but  an  appeal  shall  not  hinder 
or  delay  the  telegraph  company  from  constructing  and  operating 
the  lines  over  the  right  of  way  of  the  railroad  company,  after  it  has 

135  Postal  Tel.  Cable  Co.  v.  Ala.,  etc.,  R.  Co.,  6S  Miss.  314,  8  South.  375. 

136  Aldrich  v.  Cheshire  R.  Co.,  21  N.  H.  359,  53  Am.  Dec.  212. 

13  7  Postal  Cable  Co.  v.  Ala.,  etc.,  R.  Co.,  68  Miss.  314,  8  South.  375. 


g    177)  ON   RAILROAD   RIGHT  OF  WAT  193 

paid  or  tendered  the  amount  of  award  for  which  they  are  consid- 
ered to  be  entitled. 

§  177.  The  measure  of  damages — extent  of  injury. — The  next 
thing  to  be  considered  is  the  measure  of  damages  to  be  awarded  a 
railroad  company  by  the  telegraph  or  telephone  company  for  the 
construction  of  a  line  of  its  wires  over  the  former's  right  of  way. 
The  only  interest  which  a  railroad  company  acquires  in  and  the 
only  purpose  to  which  it  can  use  its  right  of  way  is  such,  only,  as 
may  be  necessary  to  carry  on  the  railroad  business ;  but  everything 
which  may  be  necessary  to  do  this  may  be  done.  It  cannot  sell, 
transfer,  incumber  or  use  the  right  of  way,  except  as  its  necessities 
and  conveniences  may  demand  for  the  proper  operation  of  its  road. 
It  cannot  license  the  appropriation  of  any  part  of  such  right  of  way 
to  private  business  purposes,  nor  to  public  purposes  except  so  far 
as  may  be  needful  and  helpful  in  the  operation  of  the  road  itself.^^^ 
A  telegraph  or  telephone  company  does  not  under  a  condemnation 
proceeding  acquire  a  fee  to  the  land,  but  only  an  easement  thereon 
to  carry  on  the  business  of  telegraphy.^^^  It  cannot  use  the  land 
for  any  other  purpose.  The  company  cannot  take  possession  of  it 
or  use  it  for  any  other  purpose  than  to  erect  poles  and  suspend 
wires  thereon.  The  company  will  have  the  right  to  enter  upon  that 
portion  of  right  of  way  which  is  between  the  telegraph  or  telephone 
poles  and  under  its  wires,  for  the  purpose  of  repairing  its  lines ;  but 
the  telegraph  or  telephone  company  has  no  right  to  exclude  the 
railroad  company  from  the  use  of  this  land.  The  ownership  of  the 
railroad  company  to  the  roadbed  remains  as  it  was  before,  while 
the  telegraph  or  telephone  company  merely  acquires  as  easement 
upon  what  it  condemns,  for  the  purpose  of  entering  thereon  to  erect 
and  repair  the  lines. ^^'^  Therefore,  taking  these  facts  into  consid- 
eration, the  extent  of  injury  for  which  damages  shall  be  awarded  is 
very  small,  and  even  approaches  that  injury  which  courts  refuse 
to  notice,  although  it  is  held  by  some  of  the  courts  that  the  railroad 
companies  are  entitled  to  practically  nominal  damages,  at  least,  for 
such  use  of  their  right  of  way.^*^ 

138  Jones  on  Easements,  §  383. 

139  Union  Pac.  R.  Co.  v.  Colo.,  etc.,  R.  Co.,  30  Colo.  133,  69  Pac.  564,  97  Am. 
St.  Rep.  106. 

140  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Co.,  173  111.  508,  51  N.  E.  382; 
Chicago,  etc.,  R.  Co.  v.  City  of  Chicago,  166  U.  S.  226,  17  Sup.  Ct.  581,  4] 
L.  Ed.  979. 

141  Postal  Tel.  Cable  Co.  v.  Oregon,  etc.,  R.  (C.  C.)  104  Fed.  623,  affirming 
111  Fed.  842,  49  C.  C.  A.  663,  $500  for  a  distance  of  200  miles ;    Chicago,  etc. 

Jones  Tel.(2d  Ed.)— 13 


194  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  178 

§  178.     Same  continued — expense  incurred — no  reason, — It  has 

been  said  with  much  earnestness  and  with  some  degree  of  plausibil- 
ity that  it  would  be  unjust  to  allow  a  telegraph  or  telephone  com- 
pany to  plant  its  poles  along  the  right  of  way  when  the  railroad 
company  had  expended  thousands  of  dollars  to  clear  and  keep  it 
free  from  obstructions,  and  yet  pay  nothing  for  the  privilege.  But 
this  view  is  more  specious  than  sound,  for  the  railroad  must  incur 
this  expense  for  its  own  purposes,  whether  the  telegraph  or  tele- 
phone line  is  there  or  not,  and  must  keep  the  right  of  way  clear  of 
obstructions,  whether  it  is  occupied  by  a  telegraph  or  telephone 
line  or  not;  so  there  is  no  greater  burden  or  expense  because  of 
the  presence  of  the  telegraph  lines. ^^^  In  one  state,  in  particular, 
this  reasoning  is  not  held  sound. ^*^  In  this  state  the  amount  of 
damages  allowed  the  railroad  company  has  been  fixed  at  the  sum 
which  it  originally  cost  to  clear  eight  feet — that  being  the  width  of 
the  cross-arms  on  the  telegraph  line — of  the  right  of  way,  plus  the 
sum  which  would  yield  an  annual  interest  sufficient  to  keep  that 
portion  of  the  right  of  way  clear. 

§  179.  Same  continued — measurement — true  rule. — We  presume 
it  is  an  undisputed  fact  that  the  railroad  company  loses  no  interest 
to  its  right  of  way  but  that  it  may  be  used  for  any  purpose  neces- 
sary and  convenient  for  carrying  on  all  business  pertaining  to  rail- 
roading; on  the  other  hand,  the  telegraph  or  telephone  company 
becomes  subordinate  to  and  is  dependent  on  the  rights  of  the  for- 

R.  Co.  V.  Chicago,  166  U.  S.  226,  17  Sup.  Ct.  5S1,  41  L.  Ed.  979;  St.  Louis, 
etc.,  R.  Co.  T.  Postal  Tel.  Co.,  173  111.  508,  51  N.  E.  382 ;  Mobile,  etc.,  R.  Co. 
V.  Postal  Tel.  Cable  Co.,  101  Tenn.  62,  46  S.  W.  571,  41  L.  R.  A.  403 ;  Gulf, 
etc.,  R.  Co.  V.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  52  S.  W.  87 ;  South- 
western Tel.,  etc.,  Co.  v.  Gulf,  etc.,  R.  Co.  (Tex.  Civ.  App.)  52  S.  W.  107; 
Texas,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.  (Tex.  Civ.  App.)  52  S.  W.  108 ;  San 
Antonio,  etc.,  R.  Co.  v.  Southwestern  R.  Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  56  S.  W. 
201;  Texas  Midland  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.) 
57  S.  W.  313;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24 
South.  408 ;  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.,  23  Utah,  474, 
65  Pac.  735,  90  Am.  St.  Rep.  705. 

142  Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226,  17  Sup.  Ct.  581,  41  L.  Ed. 
979;  Atlantic  Coast  Line  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ga.  268,  48 
S.  E.  15,  1  Ann.  Cas.  734;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  101 
Tenn.  62,  46  S.  W.  571,  41  L.  R.  A.  403;  Postal  Tel.  Cable  Co.  v.  Oregon 
Short  Line  R.  Co.,  23  Utah,  474,  65  Pac.  735,  90  Am.  St.  Rep.  705 ;  South- 
western, etc.,  Tel.  Co.  v.  Gulf,  etc.,  R.  Co.  (Tex.  Civ.  App.)  52  S.  W.  106. 

143  Postal  Tel.  Cable  Co.  v.  Louisville  Western  R.  Co.,  49  La.  Ann.  1270,  22 
South.  219.  See,  also,  Postal  Tel.  Cable  Co.  v.  Morgan's  Louisville,  etc.,  R. 
Co.,  49  La.  Ann.  58,  21  South.  183;  Southwestern  Tel.  Co,  v.  Kansas  City, 
etc.,  R.  Co.,  109  La.  892,  33  South.  910. 


§    179)  ON   RAILROAD   RIGHT   OF  WAY     .  195 

mer  company  with  respect  to  the  uses  of  its  right  of  way,  by  reason 
of  which  their  lines  may  be  removed  from  the  right  of  way  of  the 
railroad  company,  if  it  is  necessary  for  the  latter  to  carry  out  its 
duties.^**  Therefore  it  seems  that  damages  by  reason  of  the 
probability  of  the  railroad  company  using  all  of  its  right  of  way  in 
the  future  for  an  enlargement  of  its  railroad  facilities  would  be  too 
remote  and  should  not  be  allowed.^*^  It  is  true,  also,  that  the  tele- 
graph or  telephone  company  actually  occupies  a  very  small  space 
of  the  railroad  company's  right  of  way,  the  poles  occupying  a  space 
of  ground,  on  the  average,  of  eighteen  inches  and  about  one  hun- 
dred and  seventy-five  feet  from  each  other,  and  about  thirty  feet 
from  the  outside  track.  And  while  the  wires  are  stretched  over  and 
cover  a  space  all  along  the  right  of  way  of  about  eight  feet,  yet  this 
can  only  be  used  by  the  telegraph  or  telephone  company  for  the 
purpose  of  entering  thereon  to  construct  and  maintain  the  line ;  "® 
therefore  in  most  instances  the  damages  would  practically  be  nomi- 
nal ;^*'^  however,  this  would  not  always  be  the  case.^***  There  is 
no  question  that  the  railroad  company  is  entitled  to  damages ;  since, 
if  its  property  should  be  taken  for  a  public  use  without  making  due 
compensation  for  same,  this  would  clearly  be  unconstitutional/*^ 
How  much  damages,  and  the  manner  in  which  the  measurement  is 
to  be  made,  seems  to  be  the  question  most  often  confronted  and 
least  seldom  understood.  The  following  rule — and  one  we  think 
to  be  clearly  correct — has  been  held  to  be  the  measure  of  damages 
to  which  a  railroad  company  is  entitled  for  the  use  of  its  right  of 
way  by  a  telegraph  company :  "The  measure  of  damage  *  *  * 
suffered  by  a  railroad  company  is  not  the  value  of  the  land  em- 
braced within  the  right  of  way  between  the  poles  and  under  the 
wires,  but  the  measure  of  damages  is  the  extent  to  which  the  value 
of  the  use  of  such  spaces  by  the  railroad  company  is  diminished  by 
the  use  of  the  same  by  the  telegraph  company  for  its  purposes."  ^'^'^ 

144  See  §  156. 

145  Chicago,  etc.,  R.  Co.  v.  Chicago,  160  U.  S.  226,  17  Sup.  Ct.  5S1,  41  L.  Ed. 
979. 

146  See  §  154. 

147  See  cases  cited  in  note  141,  infra. 

148  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  76  Miss.  731,  26  South.  370, 
45  L.  R.  A.  223,  overruling  68  Miss.  314,  8  South.  375;  American  Tel.,  etc., 
Co.  V.  St.  Louis,  etc.,  R.  Co.,  202  Mo.  656,  101  S.  W.  576. 

149  Mobile,  etc.,  R.  Co,  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408, 
See  §  64  et  seq.    See,  also,  §  108. 

150  St.  Louis,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  173  111.  508,  51  N.  E.  382; 
Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  76  Miss.  731,  26  South.  370, 
45  L.  R,  A.  223;    Cleveland,  etc,  R,  Co,  v.  Ohio  Postal  Tel,  Cable  Co.,   08 


196  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  180 

The  railroad  company  cannot  sell,  incumber,  transfer  or  use  its 
right  of  way  except  as  may  be  necessary  for  the  proper  operation 
of  the  roads;  therefore  any  supposed  market  value  of  this  land 
cannot  be  considered  in  determining-  the  measure  of  damages  to  be 
awarded  the  railroad  company;  but  the  value  of  this  space  must  be 
determined  by  the  use  to  which  it  is  applied.  And  in  determining 
this  last  question,  the  value  of  the  use  of  this  space  must  be  such 
as  that  for  which  the  railroad  company  may  apply  it,  and  not  the 
value  of  the  use  for  which  the  telegraph  company  may  apply  the 
same;  for  the  value  of  the  use  in  the  latter  may  be  greater  than 
that  in  the  former.  And  as  the  railroad  company  cannot  speculate 
upon  the  value  of  its  right  of  way,  it  could  only  recover  such  dam- 
ages for  the  appropriation  of  such  space  as  the  value  of  the  use  of 
same  for  railroad  purposes  had  been  decreased  or  dirninished.^^^ 

§  180.  On  public  roads  or  highways. — Not  only  may  an  individ- 
ual's private  property,  or  his   property  interest  in  the   land  over 

Ohio  St.  306,  67  N.  E.  890,  62  L.  R.  A.  941 ;  Postal  Tel.  Cable  Co.  v.  Oregon 
Short  Line  R.  Co.,  23  Utah,  474,  65  Pac.  735,  90  Am.  St.  Rep.  705;  Texas 
Midland  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  57  S.  W.  312 ; 
San  Antonio,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.  (Tex.  Civ.  App.)  52  S.  W. 
108;  Gulf,  etc.,  R.  Co.  v.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  52 
S.  W.  86 ;  Montana  Postal  Tel.  Cable  Co.  v.  Oregon  Short  Line  R.  Co.  (C.  C.) 
114  Fed.  787 ;  Western,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E. 
471,  42  L.  R.  A.  (X.  S.)  225. 

151 1,  c.  R.  Co.  V.  Chicago,  141  111.  509,  30  X.  E.  1046;  Chicago,  etc.,  R.  Co. 
V.  Chicago,  149  111.  457,  37  N.  E.  78;  Id.,  166  U.  S.  226.  17  Sup.  Ct.  581,  41 
L.  Ed.  979 ;  Western,  etc.,  R.  Co.  v.  West.  U.  Tel.  Co.,  138  Ga.  420,  75  S.  E. 
471,  42  L.  R.  A.  (X.  S.)  225 ;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  101 
Tenn.  62,  46  S.  W.  571,  41  L.  R.  A.  403;  Louisville,  etc.,  R.  Co.  v.  Postal  Tel. 
Cable  Co.,  68  Miss.  806,  10  South.  74,  sustaining  an  award  of  i?2,.500  for  a 
right  of  way  over  one  hundred  and  eight  miles  of  railroad  right  of  way ; 
Postal  Tel.  Cable  Co.  v.  Alabama,  etc.,  R.  Co.,  68  Miss.  314,  8  South.  375, 
sustaining  an  award  of  $40  per  mile ;  Postal  Tel.  Cable  Co.  v.  Louisville,  etc., 
R.  Co.,  49  La.  Ann.  1270,  22  South.  219,  holding  that  $8.50  a  mile  was  too 
small,  and  that  it  should  be  increased  to  $20  a  mile;  Oregon,  etc.,  R.  R.  v. 
Postal  Tel.  Cable  Co.,  Ill  Fed.  842,  49  C.  C.  A.  663,  holding  that  $500  dam- 
ages for  two  hundred  miles  of  right  of  way  of  railroad  was  adequate  com- 
pensation;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  76  :Miss.  731,  26 
South.  370,  45  L.  R.  A.  223,  holding  that  an  award  of  $310  for  three  hundred 
and  ten  miles  of  railroad  right  of  way  adequate;  Gulf,  etc.,  R.  Co.  v.  South- 
western Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  52  S.  W.  86,  upholding  an  award  of  $4 
per  mile;  Texas,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.  (Tex.  Civ.  App.)  52 
S.  W.  108,  sustaining  a  judgment  of  $83.90  for  sixteen  and  three-fourths 
miles ;  Mobile,  etc.,  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ala.  21,  24  South.  408 ; 
American  Tel.,  etc.,  Co.  v.  St.  Louis,  etc.,  R.  Co.,  202  Mo.  656.  101  S.  W.  576; 
Atlantic  Coast  Line  R.  Co.  v.  Postal  Tel.  Cable  Co.,  120  Ga.  268,  48  S.  E.  15, 
1  Ann.  Cas.  734. 


I    180)  .  ON   RAILROAD   RIGHT   OP  WAT  197 

which  a  street  is  laid  out,  or  that  over  which  a  railroad  has  con- 
structed a  line  of  track,  be  subjected  to  the  use  of  a  telegraph,  tel- 
ephone, or  electric  company,  but  also  his  property  rights  in  a  pub- 
lic road  or  highway  which  has  been  laid  out  over  his  land.^^^  This 
subject,  as  applied  more  specifically  to  city  streets,  has  been  dis- 
cussed elsewhere,^ ^^  but  the  condemnation  of  the  right  to  erect  a 
telephone  line  on  a  street  is  not  a  condemnation  in  the  usual  sense 
of  the  term,  inasmuch  as  there  is  no  taking  of  the  property  for 
the  exclusive  use  of  the  party  condemning.^^*  Nearly  all  the 
states  have  enacted  statutes  for  the  condemnation  by  telegraph,  tel- 
ephone, and  electric  companies  of  a  right  of  way  on  highways. ^°^ 
The  landowner  is  protected  in  this,  his  property  right,  by  the  dec- 
laration of  the  constitution  that  private  property  shall  not  be  taken 
or  damaged  without  just  compensation;^^®  and,  in  the  absence 
of  a  resort  to  a  condemnation  proceeding  or  his  being  otherwise 
compensated  for  such  property,  the  consent  of  the  proper  officers 
of  a  county  that  a  line  be  constructed  thereon  is  not  binding  on 
him.^^'^  The  courts  are  not  in  accord  as  to  the  amount  of  dam- 
ages which  should  be  awarded  to  the  landowner  by  the  telegraph 
or  telephone  company  for  its  right  of  way  over  the  easement  in  the 
public  road  or  highway,  but  the  better  rule  would  seem  to  be  that 

15  2  See  Postal  Tel.  Cable  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365,  G2  Am. 
St.  Rep.  390,  39  L.  R.  A.  722 ;  West.  U.  Tel.  Co.  v.  Polliemus,  178  Fed.  904, 
102  C.  C.  A.  105,  29  L.  R.  A.  (N.  S.)  465,  use  for  60  years  right  presumed; 
State  V.  Weber,  88  Kan.  175,  127  Pac.  536,  43  L.  R.  A.  (N.  S.)  1033 ;  Alt  v. 
State,  88  Keb.  259,  129  N.  W.  432,  35  L.  R.  A.  (N.  S.)  1212 ;  Weaver  v.  Dawson 
County,  etc.,  Tel.  Co.,  82  Neb.  696,  118  N.  W.  €50,  22  L.  R.  A.  (N.  S.)  1189 ; 
Power  Co.  v.  Wissler,  160  N.  C.  269,  76  S.  E.  267,  43  L.  R.  A.  (N.  S.)  483,  Ann. 
Cas.  1914C,  268. 

153  §  97  et  seq. 

154  Nicoll  V.  New  York,  etc.,  Tel.  Co.,  62  N.  J.  Law,  156,  40  Atl.  627. 

15  5  For  references  to  the  statutes  of  the  various  states  on  tliis  subject, 
see  §  155,  note  45.  See  West.  U.  Tel.  Co.  v.  Polhemus,  178  Fed.  904,  102 
C.  C.  A.  105,  29  L.  R,  A.  (N.  S.)  465;  Weaver  v.  Dawson  Comity,  etc.,  Tel. 
Co.,  82  Neb.  696,  118  N.  W.  650,  22  L.  R.  A.  (N.  S.)  1189,  applies  to  private 
roads.    But  see  Alt  v.  State,  88  Neb.  259,  129  N.  W.  432,  35  L.  R.  A.  (N.  S.)  1212. 

156  Postal  Tel.  Cable  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365,  62  Am.  St. 
Rep.  390,  39  L.  R.  A.  722.  See  dissenting  opinion  in  Cater  v.  Northwestern 
Tel.  Co.,  60  INIinn.  539,  63  N.  W.  Ill,  28  L.  R.  A.  310,  51  Am.  St.  Rep.  543 ; 
Cosgriff  V.  Tri-State  Tel.  Co.,  15  N.  D.  210,  107  N.  W.  52.5,  5  L.  R.  A.  (N.  S.) 
1142.  But  see  Hobbs  v.  Long-Distance  Tel.  Co.,  147  Ala.  393,  41  South.  1003, 
7  L.  R.  A.  (N.  S.)  87,  11  Ann.  Cas.  401. 

157  Postal  Tel.  Cable  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365,  62  Am.  St. 
Rep.  390,  39  L.  R.  A.  722.  See  Hobbs  v.  Long-Distance  Tel.,  etc.,  Co.,  147 
Ala.  393,  41  South.  1003,"  7  L.  R.  A.  (N.  S.)  87,  11  Ann.  Cas.  461,  injunction 
denied  for  cutting  trees. 


198  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  181 

he  is  entitled  to  only  nominal  damages,  unless  special  and  unusual 
damage  be  proved,  thus  reducing  to  a  bare  and  useless  technical 
right  the  property  owner's  claim. ^^^ 

§  181.  Crossing  railroad  tracks. — Where  a  telegraph,  telephone, 
or  electric  company  has  constructed  a  line  on  a  public  highway 
crossing  a  railroad  track,  it  must  be  constructed  across  the  latter  so 
as  not  to  interfere  with  the  operation  of  its  trains  or  the  mainte- 
nance of  its  road.^^^ 

158  Eels  V.  American,  etc.,  Tel.  Co.,  143  N.  Y.  133,  38  N.  E.  202,  25  L.  R.  A. 
640 ;  Postal  Tel.  Cable  Co.  v.  Bruen  (Sup.)  39  N.  Y.  Supp.  220 ;  Blashfield  v. 
Empire  State  Tel.  Co.,  147  N.  Y.  520,  42  N.  E.  2,  damages  being  one  dollar  a 
pole;  Mutual  Union  Tel.  Co.  v.  Katkamp,  103  111.  420,  a  judgment  of  $38.50 
for  eleven  poles  was  reversed  on  the  ground  that  it  was  excessive ;  Board  of 
Trade  Tel.  Co.  v.  Barnett,  107  111.  507,  47  Am.  Rep.  453 ;  Rugg  v.  Commercial 
Union  Tel.  Co.,  66  Vt.  208,  28  Atl.  1036,  setting  aside  an  award  of  $150.55  for 
twenty  poles  on  the  highway  and  for  cros,5-arms  and  wires  overhead  as  exces- 
sive ;  Illinois,  etc.,  Co.  v.  Meine,  242  111.  568,  90|  N.  E.  230,  26  L.  R.  A.  (N.  S.) 
189 ;  Tri-State,  etc.,  Co.  v.  Cosgriff,  19  N.  D.  771,  124  N.  W.  75,  26  L.  R.  A.  (N. 
S.)  1171,  allowing  damages  to  trees  already  growing,  but  not  future  damages 
to  such  trees ;  Long-Distance,  etc.,  Co.  v.  Schmidt,  157  Ala.  391,  47  South.  731, 
entitled  to  compensation  for  trees  which  will  have  to  be  cut.  An  award  of 
$1,400  for  a  right  of  way  for  a  pipe  line  and  telegraph  and  telephone  line 
taking  4.38  acres,  worth  $100  an  acre,  is  excessive  and  will  be  set  aside.  Cin- 
cinnati, etc.,  Co.  V.  Wilson,  70  W.  Va.  157,  73  S.  E.  306.  The  damage  cannot 
include  the  cost  of  rebuilding  a  fence  every  ten  years  for  one  hundred  years, 
such  damage  being  remote  and  speculative.  Board  of  Trade,  etc.,  Co.  v. 
Darst,  192  111.  47,  61  N.  E.  398,  85  Am.  St.  Rep.  288 ;  Postal  Tel.  Cable  Co.  v. 
Peyton,  124  Ga.  746,  52  S.  E.  803,  3  L.  R.  A.  (X.  S.)  333.  In  the  case  of  Wade 
V.  Carolina  Tel.,  etc.,  Co.,  147  N.  C.  219,  60  S.  E.  987,  a  verdict  of  $125  for  a 
telephone  line  on  the  line  between  the  highway  and  private  property,  there 
being  a  conflict  of  evidence  as  to  whether  it  was  actually  on  the  private  prop- 
erty, was  sustained  on  the  ground  that  it  covered  damage  for  the  future  as 
well  as  the  past,  the  action  being  not  for  trespass,  but  for  permanent  dam- 
age or  for  appropriation  of  land.  As  to  costs  in  condemnation  proceedings, 
see  Matter  of  Brooklyn,  etc.,  R.  R.,  176  N.  Y.  213,  68  N.  E.  249.  As  to  amount 
of  damages  to  be  awarded  to  an  abutting  street  owner,  see  §  119  et  seq. 

15  9  The  railroad  company  may  compel  the  telegraph  company  to  take  up 
its  wires  from  under  the  railroad  track  and  to  place  them  overhead,  if  the 
railroad  finds  that  the  underground  method  interferes  with  repairs  and  the 
reconstruction  of  its  tracks.  South  Eastern  Ry.  v.  European,  etc.,  Tel.  Co.,  9 
Exch.  363.  See  St.  Louis,  etc.,  Ry.  v.  Cape  Girardeau,  etc.,  Tel.  Co.,  134  Mo. 
App.  406,  114  S.  W.  586,  holding  that,  where  one  railroad  company  has  con- 
demned the  right  of  way  of  another  railroad  track,  the  former  may  author- 
ize a  telegraph  or  telephone  company  to  construct  its  poles  and  wires  on  such 
crossing,  the  former  railroad  being  given  the  right  to  place  its  own  wires  on 
such  poles;  Weaver  v.  Dawson  County,  etc.,  Tel.  Co.,  82  Neb.  696,  118  N.  W. 
650,  22  L.  R.  A.  (N.  S.)  1189 ;  Alt  v.  State,  88  Neb.  259,  129  N.  W.  432,  35  L. 
R.  A.  (N.  S.)  1212,  respective  rights  of  public  and  roads.  See  §§  74,  184a,  204. 
As  to  right  to  cut  wires,  see  §  220. 


^    183)  ON   RAILROAD   RIGHT   OF   WAY  199 

§  182.  Line  on  turnpike. — Where  the  statutes  of  a  state  author- 
ize a  telegraph  or  telephone  company  to  construct  a  line  of  wires 
on  any  of  the  public  highways  of  the  state,  it  may  enjoin  a  turn- 
pike company  from  interfering  with  such  construction,  where  it  is 
shown  that  the  poles  and  wires  as  constructed  will  not  interfere 
with  the  use  of  the  turnpike  as  a  highway.^*'"  In  any  event,  under 
the  principle  of  law  that  one  quasi-public  corporation  may  condemn 
land  held  by  a  similar  corporation,  so  far  as  such  land  is  not  nec- 
essary for  the  duties  of  the  latter,  a  telegraph  or  telephone  com- 
pany may  condemn  a  right  of  way  on  the  outer  line  of  a  turn- 
pike.^«i 

§  183.  Same  rule  applied  to  telephone  companies. — In  the  dis- 
cussion found  in  the  foregoing  sections  "telegraph  companies"  were 
occasionally  referred  to  without  mentioning  the  "telephone,"  but 
a  statute  relative  to  "telegraph"  is  usually  held  to  be  applicable  to 
"telephones."  ^^-  Thus,  a  telephone  company  may  be  organized 
under  the  telegraph  company  statute,  and  may  condemn  a  right  of 
way  thereunder,^ °^  since  the  word  "telegraph"  includes  "tele- 
phones." ^^*  Where  the  statute  authorizes  a  telegraph  company 
to  occupy  the  streets  in  the  city  such  statute  applies  also  to  tele- 
phone companies. ^"^^  So  also  a  statute  authorizing  condemnation 
for  right  of  way  on  highways  or  railroad  rights  of  way  by  tele- 
graph companies  applies  to  telephone  companies.^  *^*'     It  has  been 

I 

160  People's  Tel.,  etc.,  Co.  v.  Berks,  etc.,  Tr.  Co.,  199  Pa.  411,  49  Atl.  284.     See 

Hlnner.shitz  v.  United  Traction  Co.,  199  Pa.  ,3,  48  Atl.  874 ;  Id.,  20G  Pa.  91,  55 
Atl.  841 ;  Finchley,  etc.,  Co.  v.  Finchley,  etc.,  Council,  1  Ch.  866. 

161  State  V.  American,  etc.,  Co.,  43  N.  J.  Law,  381. 

1C2  Eels  V.  American  Tel.,  etc.,  Co.,  143  N.  Y.  133,  38  N.  E.  202,  25  L.  R.  A. 
640. 

103  State  V.  Central  New  Jersey  Tel.  Co.,  53  N.  J.  Law,  341,  21  Atl.  4C0,  11 
L.  R.  A.  664 ;  Wisconsin  Tel.  Co.  v.  Oslikosh,  62  Wis.  32,  21  N.  W.  828 ;  Ciim- 
l;erland  Tel.,  etc.,  Co.  v.  Union  Elect.  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544; 
Attorney  General  v.  Edison  Tel.  Co.,  L.  R.  6  Q.  B.  D.  244 ;  Hudson  River  Tel. 
Co.  V.  Watervliet,  etc.,  R.  Co.,  135  N.  Y.  393,  32  N.  E.  148,  17  L.  R.  A.  674,  31 
Am.  St.  Rep.  838 ;  Doty  v.  American  Tel.,  etc.,  Co.,  123  Tenn.  329,  130  S.  W. 
1053,  Ann.  Cas.  1912C,  167;  Northwestern,  etc.,  Co.  v.  Chicago,  etc.,  Ry.,  76 
Minn.  334,  79  N.  W.  315. 

164  Sunset  Tel.,  etc.,  Co.  v.  City  of  Eureka  (C.  C.)  172  Fed.  755;  Sunset  Tel., 
etc.,  Co.  V.  City  of  Pomona,  172  Fed.  829,  97  C.  C.  A.  251,  reversing  (C.  C.)  164 
Fed.  561,  but  reversed  itself  in  224  U.  S.  .3.30,  32  Sup.  Ct.  477.  56  L.  Ed.  788. 

ICG  City  of  Wichita  v.  Missouri,  etc.,  Co.,  70  Kan.  441,  78  Pac.  886. 

166  San  Antonio,  etc.,  Ry.  v.  Southwestern,  etc.,  Co.,  93  Tex.  313,  55  S.  W. 
117,  77  Am.  St.  Rep.  884,  49  L.  R.  A.  459;  San  Antonio,  etc.,  RJ^  v.  South- 
western Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  56  S.  W.  201 ;  Ft.  Worth,  etc.,  R.  Co.  v. 
Southwestern  Tel.,  etc.,  Co.,  96  Tex.  160,  71  S.  W.  270,  60  L,  R.  A.  145.    But 


200  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  184 

held,  however,  that  if  a  telephone  company  has  no  power  to  con- 
demn a  right  of  way,  it  may  organize  a  telegraph  company  and 
cause  the  latter  to  condemn,  as  allowed  by  statute.^''^ 

§  184.  Electric  light  companies  may  condemn — compensation. — 
An  electric  light  company  may  be  authorized  to  condemn  a  right 
of  way  for  its  poles  and  lines. ^^^  And  a  foreign  electric  light  and 
power  company  may  be  authorized  to  condemn.^*' ^  When 
poles  are  erected  and  wires  strung  for  the  purpose  of  furnishing 
heat,  light,  or  power  to  private  persons,  an  additional  servitude  is 
imposed  entitling  abutting  owners  to  compensation;  ^^"^  but  when 
poles  and  wires  are  placed  upon  a  street  or  highway  to  serve  public 
interest,  such  as  lighting  the  street  or  highway,  no  compensation 
need  be  made.^'^^ 

see  Alabama,  etc.,  R.  Co.  v.  Cumberland  Tel.,  etc.,  Co.,  88  Miss.  4-38,  41  South. 
258. 

iG 7  Alabama,  etc.,  Ry.  v.  Cumberland,  etc.,  Tel.  Co.,  88  Miss.  438,  41  South. 
258.  See  Home  Tel.  Co.  v.  Mayor,  118  Tenn.  1,  101  S.  W.  770,  11  Ann.  Cas. 
824,  reversed  by  Doty  v.  American  Tel.,  etc.,  Co.,  123  Tenn.  329,  130  S.  VV. 
1053,  Ann.  Cas.  1912C,  167. 

16  s  Shasta  Power  Co.  v.  Walker  (C.  C.)  149  Fed.  568,  affirmed  in  160  Fed. 
856,  87  C.  C.  A.  660,  19  L.  R.  A.  (N.  S.)  725 ;  Wissler  v.  Yadkin  &  Co.,  158  N. 
C.  465,  74  S.  E.  460 ;  Hydro-Elec  Co.  v.  Liston,  70  W.  Va.  83,  73  S.  E.  86,  40 
L.  R.  A.  (N.  S.)  602 ;  Minnesota,  etc.,  P.  Co.  v.  Koochiching,  97  Minn.  429,  107 
N.  W.  405,  5  L.  R.  A.  (N.  S.)  638,  7  Ann.  Cas.  1182.  See  Jones  v.  Elec.  Co.,  125 
Ga.  618,  54  S.  E.  85,  6  L.  R.  A.  (N.  S.)  122,  5  Ann.  Cas.  526,  must  be  for  public 
purpose ;  to  same  effect  State  v.  White  R.  P.  Co.,  39  Wash.  648,  82  Pac.  1.50,  2 
L.  R.  A.  (N.  S.)  842,  4  Ann.  Cas.  987 ;  Wisconsin  River  Imp.  Co.  v.  Pier,  137 
Wis.  325,  118  N.  W.  857,  21  L,  R.  A.  (N.  S.)  538 ;  State  v.  Superior  Court,  52 
Wash.  196,  100  Pac.  317,  21  L.  R.  A.  (N.  S.)  448;  Minnesota,  etc.,  P.  Co.  v. 
Pratt,  101  Minn.  197,  112  N.  W.  395,  11  L.  R.  A.  (N.  S.)  105.  But  see,  Minne- 
sota, etc.,  P.  Co.  V.  Koochiching  Co.,  97  Minn.  429,  107  N.  W.  405,  5  L.  R.  A. 
(N.  S.)  638,  7  Ann.  Cas.  1182. 

16  9  Pittsburg,  etc.,  Co.  v.  Liston,  70  W.  Va.  83,  73  S.  E.  86,  40  L.  R.  A.  (N. 
S.)  602. 

170  Goddard  v.  Chicago,  etc.,  R.  Co.,  104  111.  App.  533;  Goddard  v.  Chicago, 
etc.,  R.  Co.,  104  111.  App.  526;  Tuttle  v.  Brush  Electric  Illuminating  Co.,  50 
N.  Y.  Super,  Ct.  464 ;  Schaaf  v.  Cleveland,  etc.,  R.  Co.,  66  Ohio  St.  215,  64  N. 
E.  145;  Callen  v.  Columbus  Edison  Electric  Light  Co.,  66  Ohio  St.  166,  64 
N.  E.  141,  58  L.  R.  A.  782 ;  McLean  v.  Brush  Electric  Co.,  8  Ohio  Dec.  (Re- 
print) 619,  9  Cine.  Law  Bui.  65 ;  Haverford  Electric  Light  Co.  v.  Hart,  13  Pa. 
Co.  Ct.  R.  369.  See  Andreas  v.  Bergen  County  Gas,  etc.,  Co.,  61  N.  J.  Eq.  69, 
47  Atl.  555. 

171  Gulf  Coast  Ice,  etc.,  Co.  v.  Bowers,  SO  Miss.  570,  32  South.  113;  Loeber 
V.  Butte  Gen.  Electric  Co.,  16  Mont.  1,  39  Pac.  912,  50  Am,  St.  Rep.  468 ;  Palm- 
er V.  Larchmout  Electric  Co.,  158  N.  Y.  231,  52  N.  E.  1092,  43  L.  R.  A.  672, 
reversing  6  App.  Div.  12,  ,39  N.  Y.  Supp.  522 ;  People  v.  Thompson,  65  How. 
Prac.  (N.  Y.)  407;  Johnson  v.  Thomson-Houston  Electric  Co.,  54  Hun,  469,  7 


§    184)  ON  RAILROAD   RIGHT  OF  WAT  201 

N.  Y.  Supp.  716;  Tuttle  v.  Brush  Electric  Illuminating  Co.,  50  N.  Y.  Super. 
Ct.  464. 

An  electric  light  company  may  be  enjoined  from  erecting  its  poles  on  a 
country  highway  until  it  has  regularly  acquired  a  right  by  condemnation  pro- 
ceedings (Haverford  Electric  Light  Co.  v.  Hart,  1  Pa.  Dist.  R.  571) ;  and  an 
abutting  property  owner  owning  the  fee  of  the  highway  may  enjoin  an  elec- 
tric light  company  from  erecting  its  poles  on  the  highway  without  their  con- 
sent, the  electric  light  line  not  being  for  the  purpose  of  furnishing  light  on 
such  highway  (Post  v.  SufColk,  etc.,  Co.,  77  Misc.  Rep.  369,  136  N.  Y,  Supp. 
401). 


202  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§    184a 

CHAPTER  VIII 
ACROSS   AND   UNDER  NAVIGABLE  WATERS 

§  184a.  Across  bridges — condemnation. 

185.  Foreign  oceanic  cables — not  included  in  act. 

186.  Cable  business,  commerce — under  control  of  congress. 

187.  Not  paramount  right  to  use  of  navigable  waters — prima  facie  negli- 

gence. 

188.  Local  conditions  where  cable  is  laid. 

189.  Obstruction  and  interference,  no  distinction  between. 

190.  Degree  of  care  required. 

191.  Protection  of  cable  under  treaty. 

192.  Landing  cable — state  and  federal  authority. 
192a.  Canals,  dams,  etc.,  rights  for. 

§  184a.  Across  bridges — condemnation. — Under  the  Post  Roads 
Act,  telegraph  companies  have  the  right  or  privilege  to  construct 
and  maintain  their  lines  over  all  railroad  and  other  public  bridges, 
whether  they  are  erected  under  the  state  or  federal  authority,  or 
whether  they  span  interstate  waters,  navigable  or  unnavigable 
rivers,  or  other  natural  or  artificial  waterways.^  This  right  has 
not  been  left  to  implication,  for  the  act  expressly  grants  such  right, 
on  the  condition,  however,  that  the  lines  shall  be  so  constructed 
and  maintained  as  not  to  obstruct  the  navigation  on  said  waters 
or  rivers.^  The  Post  Roads  Act  does  not  apply  to  those  companies 
which  have  not  accepted  the  provisions  thereof,^  nor  to  those  not 
organized  under  any  state  laws,  but  of  a  foreign  country  for  trans- 
oceanic communication.*  A  bridge  can  only  be  condemned  under 
the  state  power  of  eminent  domain,  since  this  act  does  not  au- 
thorize condemnation. °  But,  where  a  bridge  over  an  interstate  nav- 
igable river  has  been  constructed  and  completed  in  accordance 
with  the  terms  and  conditions  of,  and  in  the  manner  provided  by 

1  Act  Cong.  July  24,  1866,  c.  230,  §  1,  14  Stat.  221;  Rev.  St.  §  5263  (L.  S. 
Comp.  St.  1913,  §  10072) ;  Kansas  P.  Tel.  Co.  v.  Leavenworth,  etc..  Bridge 
Co.,  89  Kan.  418,  131  Pac.  143.  A  bridge  is  a  part  of  the  public  highway. 
Beaver  County  v.  Central  Dist.,  etc.,  Tel.  Co.,  219  Pa.  340,  68  Atl.  846. 

2  Cannot  construct  a  line  along  a  public  bridge  so  as  to  interfere  with  the 
opening  of  the  draw  span.  Pacific  Mut.  Tel.  Co.  v.  Chicago,  etc.,  Bridge  Co., 
36  Kan.  118,  12  Pac.  560. 

3  Chicago,  etc.,  Bridge  Co.  v.  Pacific  Mut.  Tel.  Co.,  36  Kan.  113,  12  Pac.  535. 

4  De  Castro  v.  Compagnie  Francaise  du  Tel.  de  Paris,  85  Hun,  231,  32 
N.  Y.  Supp.  960,  affirmed  in  155  N.  Y.  688,  50  N.  E.  1116. 

5  Lock  Haven  Bridge  Co.  v.  Clinton,  157  Pa.  379,  27  Atl.  726.  See  §§  69,  155. 
See,  also.  New  York,  etc.,  R.  Co.  v.  Electric  Co.,  219  Mass.  85,  106  N.  E.  566, 
L.  R.  A.  1915B,  822. 


§    186)  ACROSS   AND   UNDER   NAVIGABLE   WATERS  203 

the  act  of  Congress,''  such  bridge  cannot  be  condemned  by  a  tele- 
graph company,  claiming  the  benefit  of  the  Post  Roads  Act,  un- 
less it  has  complied  with  such  express  requirements  of  said  stat- 
ute as  are  essential  and  prerequisite  to  an  exercise  of  the  rights  or 
privileges  conferred  thereby.'' 

§  185.  Foreign  oceanic  cables — not  included  in  act. — It  has  been 
held  that  the  Post  Roads  Act  does  not  apply  to  exterior  oceanic 
telegraphic  lines  constructed  for  the  express  purpose  of  carrying  on 
a  business  with  foreign  countries,  but  that  it  only  applies  to  in- 
terior lines  or  those  constructed  for  telegraphic  intercourse  between 
points  within  the  United  States.^  This  act  confers  the  privilege, 
in  express  terms,  upon  those  companies  organized  or  thereafter  or- 
ganized "under  the  laws  of  any  state."  ^  But  it  has  been  held  that 
an  American  cable  company  is  not  doing  business  in  Newfound- 
land, although  its  cables  land  in  Newfoundland,  where  the  company 
uses  the  station  merely  to  repeat  messages. ^° 

§  186.  Cable  business,  commerce — under  control  of  Congress. — 
While  the  Post  Roads  Act  authorizes  the  laying  of  telegraph  lines 
across  or  under  the  navigable  streams  or  waters  of  the  United 
States,  yet  they  must  be  constructed  and  maintained  so  as  not  to 
materially  interfere  with  navigation  thereon.^ ^  Navigation  is  in- 
cluded in  the  term  "commerce,"  and  Congress  is  vested  with  the 
power  to  determine  what  is  an  obstruction  to  navigation.^-     The 

8  Act  July  2,  1864,  c.  21G,  §  9,  13  Stat.  360. 

7  Chicago,  etc.,  Bridge  Co.  v.  Pacific  Mut.  Tel.  Co.,  36  Kan.  113,  12  Pac.  535. 
A  telegraph  company  has  no  right  to  lay  its  wires  over  a  highway  bridge 
which  passes  over  a  railway  unless  the  latter  consents  thereto,  the  latter 
having  paid  for  the  bridge,  and  the  English  statute  requiring  consent  where 
a  telegraph  line  crosses  a  railway.  South  Eastern  Ry.  v.  National  Tel.  Co., 
2  Ch.  50.  In  the  case  East  Tennessee  Tel.  Co.  v.  Board  of  Councilmeu,  etc., 
143  Ky.  86,  136  S.  W.  138,  holding  that  a  municipality  might  revoke  a  permit 
to  a  telephone  company  to  erect  its  poles  on  the  street  and  run  its  wires  over 
a  municipal  bridge,  even  though  they  had  been  there  thirty  years.  See  chap- 
ter IV. 

8  American  Atlantic  Cable  Tel.  Co.,  Matter  of,  14  Opinions  of  Attorney  Gen- 
eral, 62  (1872),  but  it  is  believed  that  this  is  not  sound  law. 

8  De  Castro  v.  Couipagnie  Francaise  du  Tel.  de  Paris,  85  Hun,  231,  236, 
32  N.  Y.  Supp.  960,  affirmed  (Mem.)  155  N.  Y.  688,  50  N.  E.  1116,  citing  opin- 
ion of  Attorney  General  referred  to  in  preceding  note. 

10  Commercial  Cable  Co.  v.  Attorney  General  (1912)  A.  C.  820. 

11  Act  Cong  July  24,  1866,  c.  230,  §  1,  14  Stat.  221;  Kev.  St.  §  5263  (U.  S. 
Comp.  St.  1913,  §  10072).  Sulimarine  cables,  see  Act  Feb.  29,  1888,  c.  17,  25 
Stat.  41  (U.  S.  Comp.  St.  1913,  §§  10087-10099).  See  IMinnesota,  etc.,  P.  Co.  v. 
I'ratt,  101  Minn.  197,  112  N.  W.  395,  11  L.  K.  A.  (N.  S.)  105,  electric  plant. 

12  Gibbous  V.  Ogden,  9  Wheat.  1,  6  L.  Ed.  23;    U.  S.  v.  Coal  Dealers'  Ass'n 


204  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  187 

constant  rule  of  law  is  that  navigation  upon  the  streams  and  waters 
of  the  United  States  must  not  be  so  obstructed  as  to  materially 
interfere  with  the  paramount  right  to  the  free  and  uninterrupted 
use  of  such  stream  or  waters.  However,  in  some  cases  the  general 
commerce  of  the  country  has  been  considered  the  controlling  fac- 
tor in  determining  whether  a  certain  obstruction  to  navigation  is 
unlawful. ^^ 

§  187.  Not  paramount  right  to  use  of  navigable  waters — prima 
facie  negligence. — While  the  bottom  of  navigable  waters  may  be 
used  for  lawful  purposes,  including  the  laying  of  a  cable,  however, 
every  one  using  such  waters  as  a  highway  for  the  navigation  of 
vessels,  employed  exclusively  in  carrying  passengers,  has  the  pri- 
mary and  paramount  right  to  the  use  of  such  waters.^''  And  so 
when  vessels  are  interfered  with,  hindered  or  obstructed  while  nav- 
igating such  waters,  the  cause  therefor  will  prima  facie  be  a  nui- 
sance. So,  if  telegraph  lines  or  cables  are  laid  under  or  over  such 
waters  in  such  a  manner  as  to  come  in  contact  with  a  vessel  law- 
fully navigating  the  same,  there  being  no  contributory  negligence 
on  the  part  of  the  vessel,  which  is  well  adapted  and  fitted  for  the 
navigation  of  the  particular  body  of  water  in  question,  and  as  a 
result  of  which  damages  are  incurred,  the  owner  of  such  lines  or 
cables  will  be  liable  therefor.^^     So  also,  where  the  bottom  of  a 

(O.  C.)  85  Fed.  252,  265 ;  South  Carolina  v.  Georgia,  93  U.  S.  4,  23  L.  Ed.  782 ; 
U.  S.  V.  Moline  (D.  C.)  82  Fed.  592;  PeDusylvania  v.  Wheeling  Bridge  Co., 
18  How.  421,  15  L.  Ed.  435 ;  Gilman  v.  Philadelphia,  8  Wall.  713,  18  L.  Ed. 
96 ;   Re  Provincial  Fisheries,  26  Can.  S.  O.  444. 

13  Compare  Blanchard  v.  West.  U.  Tel.  Co.,  60  N.  Y.  510 ;  Tennessee,  etc., 
R.  Co.  V,  Danforth,  112  Ala.  80,  20  South,  502;  Wheeling  Bridge  Case,  13 
How.  518,  14  L.  Ed.  249;  Cardwell  v.  American  Bridge  Co.,  113  U.  S.  205, 
5  Sup.  Ct.  423,  28  L.  Ed.  959;  Georgetown  v,  Alexandria  Canal  Co.,  12  Pet. 
91,  9  L.  Ed.  1012 ;  People  v.  Vanderbilt,  38  Barb.  (N.  Y.)  282,  24  How.  Prac. 
(N.  Y.)  301,  affirmed  26  N.  Y.  287,  25  How.  Prac.  (N.  Y.)  139;  Gilman  v. 
Philadelphia,  3  Wall.  713,  18  L.  Ed.  90;  Mississippi,  etc.,  R.  Co.  v.  Ward,  2 
Black,  485,  17  L.  Ed.  311 ;  Williamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S. 
1,  8  Sup.  Ct.  811,  31  Lr.  Ed.  629;  Sweeney  v.  Chicago,  etc,  Ry.,  60  Wis.  60, 
18  N.  W.  756 ;  Hamilton  v.  Vicksburg,  etc.,  R.  Co.,  119  U.  S.  280,  7  Sup.  Ct. 
206,  30  L.  Ed.  393 ;  Escanable  Co.  v.  Chicago,  107  U.  S.  678,  2  Sup.  Ct.  185, 
27  L.  Ed.  442.     See  Reg.  v.  Moss,  26  Can.  S.  C.  322. 

14  Gibbons  v.  Ogden,  9  Wheat.  1,  6  L.  Ed.  23,  cited  in  City  of  New  York  v. 
Miln,  11  Pet.  102,  9  L.  Ed.  648 ;  Passengers  Cases,  7  How.  283,  12  L.  Ed.  702 ; 
Hall  V.  De  Cuir,  95  U.  S.  485,  24  L.  Ed.  547.  See  Eastern,  etc.,  Tel.  Co.  v. 
Capetown  T.  Co.,  2  B.  R.  C.  114  (1902)  A.  C.  381,  71  L.  J.  P.  C.  (N.  S.)  122,  50 
Week.  R.  657,  86  L.  T.  N.  S.  457,  electric  railway  interfering  with  cable  not 
liable  in  the  absence  of  negligence. 

15  Blanchard  v.  West.  U.  Tel.  Co.,  60  N.  Y.  510;    Doboy,  etc.,  Tel.  Co.  v. 


§    189)  ACROSS   AND   UNDER   NAVIGABLE   WATERS  205 

river,  as  between  New  York  City  and  Jersey  City,  is  what  is  called 
"navigable  mud,"  which  steamers  easily  and  necessarily  plow 
through,  cables  in  such  mud  are  there  at  the  risk  of  the  owner,  and 
if  the  screws  of  a  steamer  catch  in  such  cables,  the  cable  company 
can  collect  nothing,  but,  on  the  other  hand,  it  is  liable  for  injuries 
to  the  steamer.^*'  The  Post  Roads  Act  does  not  confer  the  ab- 
solute right  to  lay  cables  upon  the  bottom,  and  the  solid  bottom 
at  that,  of  rivers  and  streams  of  the  United  States,  for  they  would 
be  in  the  water  and  not  under  it.^^  They  may,  furthermore,  be 
required  to  be  laid,  if  practicable,  below  the  surface  of  even  a  solid 
bottom  of  such  water,  regardless  of  the  inconveniences  which  may 
arise  necessarily  from  the  laying  of  such  cables.^* 

§  188.  Local  conditions  where  cable  is  laid. — In  the  laying  of 
telegraph  lines  or  submarine  cables,  the  conditions  of  the  particular 
locality  where  they  are  laid  should  be  considered  in  determining 
whether  they  are  an  obstruction  to  navigation.  In  other  words, 
they  may  be  laid  in  one  locality  or  place  without  being  an  obstruc- 
tion to  navigation,  when  if  laid  in  the  same  manner,  but  at  another 
locality  or  place,  they  would  be  a  serious  obstruction  to  naviga- 
tion. Thus,  if  they  are  laid  in  navigable  mud  where  steamships 
do  not  frequent,  they  would  not  be  an  obstruction  to  navigation, 
but,  on  the  other  hand,  if  they  are  laid  near  a  pier  where  ships  of 
deep  draught  are  accustomed  to  manoeuvre  in  making  anchor,  the 
effect  would  be  to  the  contrary.  So  the  degree  of  obstruction  mu3t 
vary  with  the  character  and  extent  of  the  navigation  at  the  place 
selected,  and,  as  a  consequence,  the  degree  of  precaution  required  in 
maintaining  them  at  such  place  is  dependable  upon  these  varying 
circumstances.  ^^ 

§  189.  Obstruction  and  interference,  no  distinction  between. — 
It  has  been  held  that  there  is  no  distinction  between  obstruction 
and  interference  respecting  the  laying  of  cables  in  navigable  wa- 
ters.    Any  "permanent  interference  which  prevents  a  vessel  from 

De  Magathias  (C.  C.)  25  Fed.  697;    Heiberger  v.  Missouri,  etc.,  Tel.  Co.,  133 
Mo.  App.  452,  113  S.  W.  730,  presumption  may  be  overcome. 

16  West.  U.  Tel.  Co.  v.  Inman,  etc.,  Co.  (D.  C.)  43  Fed.  85,  affirmed  59  Fed.  365, 
8  C.  C.  A.  152. 

17  West.  U.  Tel.  Co.  v.  Inman,  etc.,  Co.  (D.  C.)  43  Fed.  85,  affirmed  59  Fed. 
365,  8  C.  C.  A.  152. 

18  West.  U.  Tel.  Co.  v.  Inman,  etc.,  Co.  (D.  C.)  43  Fed.  So,  affirmed  59  Fed. 
365,  8  C.  C.  A.  152.  See  Stephens,  etc..  Trans.  Co.  v.  West.  U.  Tel.  Co.,  22 
Fed.  Cas.  1301. 

19  West.  U.  Tel.  Co.  v.  Inman,  etc.,  Co.  (D.  C.)  43  Fed.  85,  affirmed  59  Fed. 
365,  8  C.  C.  A.  152. 


206  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  190 

going  where  she  ordinarily  has  a  right  to  go,  and  where,  in  her 
mancEUvres,  she  may  find  it  necessary  to  go,  whether  that  neces- 
sity be  constant  or  frequent,  or  only  occasional,  as  emergencies 
may  compel  her,  seems  to  me  to  constitute  an  'obstruction.'  "  ^° 

§  190.  Degree  of  care  required. — Where  a  company  is  author- 
ized to  lay  its  cable  on  the  bottom  of  navigable  waters,  the  cable 
must  be  laid  so  as  not  to  catch  the  bottoms  of  vessels  navigating  the 
waters  in  the  ordinary  way,  and  the  vessels  are  bound  to  be  so  navi- 
gated as  to  avoid  disturbing  the  cable.^^  The  law  requires  that 
each  party — the  navigator  and  the  cable  company — should  exercise 
his  right  so  as  if  possible  to  avoid  a  conflict  with  the  right  of  the 
other.^^  The  navigator  is  not  bound  to  know  that  a  cable  is  laid 
at  a  certain  place  under  navigable  waters,  but  if  he  does  know  it — 
and  that  may  be  a  question  for  the  jury — he  must  use  due  care  so 
as  not  to  become  entangled  with  it.-^  Where  an  anchor  became 
entangled  in  a  cable,  and,  in  order  to  become  disentangled  there- 
from, the  cable  was  cut  by  the  mate,  acting  under  the  master's 
orders,  the  court  held  that  the  ship  was  liable  for  the  damage,  in 
the  absence  of  present  and  imminent  danger,  and  when  with  rea- 
sonable patience  and  skill  the  anchor  might  have  been  extricated 
without  cutting  the  cable.-*  But  where  the  master  and  crew  of  a 
vessel,  while  endeavoring  to  disentangle  the  anchor  from  a  sub- 
marine cable,  cause  it  to  break,  the  vessel  is  not  liable  for  the  dam- 
ages, no  negligence  or  intentional  breaking  being  shown. ^^  If  the 
cable  is  not  on  the  bottom  of  navigable  waters,  and  catches  the 
screw  of  a  vessel  navigating  the  same,  the  owner  of  the  former  is 

2  0  West.  U.  Tel.  Co.  v.  Inrnan,  etc.,  Co.  (D.  C.)  43  Fed.  So,  afliriiied  59 
Fed.  365,  8  C.  C.  A.  152. 

21  Stephens,  etc.,  Co.  t.  West.  U.  Tel.  Co.,  8  Ben.  502,  22  Fed.  Cas.  1301. 

2  2  The  Clara  Killam,  L.  R.  3  Adm.  &  Eccl.  161,  Allen's  Tel.  Cas.  557,  3 
Maritime  L.  Cas.  4G3. 

2  3  Submarine  Tel.  Co.  v.  Dickson,  15  C.  B.  N.  S.  759,  Allen's  Tel.  Cas.  229, 
question  for  jury ;  West.  U.  Tel.  Co.  v.  Inman,  59  Fed.  365,  8  C.  C.  A.  152,  af- 
firmed (D.  C.)  43  Fed.  85,  holding  that  officers  of  vessel  may  assume  that  the 
cables  are  so  laid  as  not  to  interfere  with  navigation ;  Blanchard  v.  West.  U. 
Tel.  Co.,  60  N.  Y.  510 ;  anchoring  in  a  prohibited  portion  of  a  river.  See  Bell  Tel. 
Co.  V.  The  Rapid,  5  Can.  Exch.  413,  Code  provisions  of  notice  of  cable-crossings 
when  cable  company  may  recover  in  case  of  injury.  See  Cal.  Civ.  Code,  §§ 
537,  539;  Wash.  Hill's  Ann.  Codes,  §§  1562,  1566;  Ballinger's  Ann.  Codes  & 
St.,  §§  4370,  4374. 

2  4  The  Clara  Killam,  L,  R.  3  Adm.  &  Eccl.  161,  Allen's  Tel.  Cas.  557,  3 
Maritime  L.  Cas.  463 ;  The  William  H.  Bailey  (D.  C.)  100  Fed.  115 ;  Id.  (D.  C.) 
103  Fed.  709,  111  Fed.  1006,  50  C.  C  A.  76. 

25  The  Anita  Berwind  (D.  C.)  107  Fed.  721. 


§    191)  ACROSS    AND   UNDER    NAVIGABLE    WATERS  207 

liable  for  damages  done.-^  The  rule  requiring  ordinary  or  due 
care  does  not  apply,  where  cables  are  laid  without  lawful  authority, 
and,  furthermore,  regardless  perhaps,  whether  the  cables  injured 
were  or  were  not  lawfully  placed  where  they  were.^''  The  burden 
of  proof  is  upon  the  company  to  show  that  its  cables  do  not  con- 
stitute an  obstruction  to  navigation.'^ 

§  191.  Protection  of  cable  under  treaty. — Under  a  treaty  en- 
tered into  between  the  United  States  and  a  number  of  foreign  coun- 
tries, and  between  each  other,  it  has  been  made,  expressly  for  the 
purpose  of  protecting  submarine  cables,  a  criminal  ofifense  to  break 
or  injure  such  cable.'^  As  a  means  of  carrying  out  the  provisions 
of  this  treaty,  the  United  States  Congress  has  enacted  a  law  im- 
posing a  punishment  upon  any  one  convicted  for  the  violation  of 
said  treaty.^"  So,  where  a  cable,  which  has  been  lawfully  laid  by 
virtue  of  the  company's  charter,  the  laws  of  the  state,  and  said 
treaty,  is  cut  by  the  officers  of  a  vessel,  instead  of  cutting  away  the 
anchor,  to  release  the  latter  from  its  entanglement  with  the  cable, 
a  libel  in  rem  lies  against  the  vessel  for  damages  for  a  maritime 
tort  for  the  cutting  of  such  cable. ^^     And  where  a  naval  officer  of 

2  6  Stephens,  etc.,  Co.  v.  West.  U.  Tel.  Co.,  8  Ben.  502,  22  Fed.  Cas.  1301. 

2T  Doboy,  etc.,  Tel.  Co.  v.  De  Magathias  (C.  C.)  25  Fed.  C97. 

2  8  West.  U.  Tel.  Co.  v.  Inman,  59  Fed.' 3G5,  8  0.  C.  A.  152,  affirmed  (D.  C.) 
43  Fed.  85. 

2  9  Convention  for  protection  of  submai-ine  cables,  concluded  March  14, 
1884 ;  ratification  advised  by  the  Senate  June  12,  1884 ;  ratified  by  the  Presi- 
dent January  26,  1885;  ratification  exchanged  April  IG,  1885;  proclaimed 
May  22,  1885.  (Treaties  and  Conventions,  1889,  p.  1176.)  Compilations  of 
treaties  in  force.  Prepared  under  Senate  resolution  February  11,  1904,  ar- 
ticles: I.  Application  of  convention.  II.  Punishment  for  injuries  to  cables. 
III.  Requirements  for  cable  laying.  IV.  Payment  for  repairs.  V.  Rules  for 
ships  laying  cables.  VI.  Vessels  to  avoid  cables.  VII.  Losses  from  cables. 
VIII.  Jurisdiction  of  courts.  IX.  Prosecutions  for  infractions.  X.  Evidence 
of  violations.  XI.  Trials.  XII.  Laws  to  be  enacted.  XIII.  Communication 
of  legislation.  XIV.  Adhesion  of  other  states.  XV.  Belligerent  action  not 
affected.  XVI.  Ratification.  XVII.  Operation ;  duration;  additional  ar- 
ticles; British  colonies.  See,  also:  1887.  Final  protocol  of  agreement  be- 
tween the  United  States  of  America  and  other  po^A•ers  fixing  May  1,  1SS8,  as 
the  date  of  effect  of  the  convention  concluded  at  Pai-is,  March  14,  1884.  for 
the  protection  of  submarine  cables;  signed  at  Paris,  July  7,  1887;  ratifica- 
tion advised  by  the  Senate  February  20,  1888;  ratified  by  the  President 
March  1,  18S8;  proclaimed  May  1,  1888.  (Treaties  and  Conventions,  1889,  p. 
1184.)  (Compilations  of  treaties  in  force;  prepared  under  Senate  resolution 
February  11,  1904.)     See  24  U.  S.  Stat.  989. 

30  See  chapter  17,  Act  Cong.  Feb.  29,  1SS8,  25  Stat.  41. 

31  The  William  H.  Bailey  (D.  C.)  100  Fed.  115,  103  Fed.  799,  affirmed  111 
Fed.  1006,  50  C.  C.  A.  76,  in  which  it  was  said :    "The  evidence  on  this  point 


208  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  192 

the  United  States  negligently  drops  an  anchor  upon  a  cable  and 
thereby  disrupts  it,  damages  may  be  recovered  therefor  by  the 
owner  of  the  cable  from  the  United  States ;  and  where,  by  resolu- 
tion of  the  Senate,  the  claim  for  same  has  been  referred  to  the  court 
of  claims,  it  may  then  be  brought  there. "- 

§  192.  Landing  cable — state  and  federal  authority. — It  has  been 
held  that  it  was  not  necessary  for  a  domestic  cable  company  to  first 
obtain  the  express  permission  of  Congress  or  the  United  States 
government  to  land  a  cable  on  the  shores  of  the  United  States.^' 
But  where  a  foreign  cable  company  has  authority  from  one  of  the 
states  of  the  Union  to  land  its  cable  on  the  shores  of  that  state,  it 
does  so  subject  to  any  future  action  of  Congress  while  acting  within 

is  that  the  night  was  calm  and  clear,  that  the  vessel  was  only  about  a  mile 
off  shore,  and  that  the  tugboat  had  agreed  to  come  back  for  it  in  the  morn- 
ing. If,  as  is  contended  by  coimsel  for  claimants,  the  vessel  anchored  within 
the  anchorage  grounds,  they  were  not  guilty  of  negligence  in  becoming  en- 
tangled, but,  becoming  entangled.  I  think  they  should  be  held  guilty  either 
of  willful  injury  or  culpable  negligence,  for  the  following  reasons:  First, 
the  statute  provides  that  a  cable  shall  be  cut  only  when  it  becomes  necessary 
in  order  to  save  life  or  limb  of  a  vessel.  Second,  there  would  have  been  no 
difficulty  in  waiting,  anchored  as  they  were,  until  morning,  and  then  cutting 
away  the  anchor  when  the  tug  came  to  take  them  on  their  course.  Third,  it 
appears  from  the  testimony  of  the  master  that  they  had  another  anchor  on 
board.  Fourth,  article  7  of  the  treaty  of  1SS8  provides  that  owners  of  such 
cables  shall  remunerate  vessel  owners  who  can  prove  that  they  sacrificed  an 
anchor  in  order  to  avoid  injuring  such  cables.  It  was  the  custom  of  libelant 
to  remunerate  all  vessel  owners  who  lost  anchor  in  such  circumstances.  In 
the  Clara  Killam  Sir  Robert  Phillimore  held  in  such  a  case  that  'it  was  the 
duty  of  the  ship  to  disentangle,  if  possible,  her  anchor  from  cable  without 
injuring  it,'  and  to  take  the  necessary  time  therefor,  'unless  she  thereby  ex- 
posed herself  to  present  or  imminent  peril,'  and  that  such  a  cable  might  have 
been  cleared  in  the  manner  testified  to  by  the  expert  for  libelant  therein ; 
and  he  concluded  that  the  cutting  of  the  cable,  in  circumstances  such  as  those 
here  shown,  was  reckless  and  wrongful."  The  Clara  Killam,  L.  R.  3  Adm.  & 
Eccl.  161,  Allen's  Tel.  Gas.  557.  See  The  Poughkeepsie  (D.  C.)  162  Fed.  494, 
affirmed  212  U.  S.  558,  29  Sup.  Ct.  6S7,  53  L.  Ed.  651;  Cleveland  Terminal, 
etc.,  R.  R.  v.  Cleveland  Steamship  Co.,  208  U.  S.  316,  28  Sup.  Ct.  414,  52  L.  Ed. 
508,  13  Ann.  Cas.  1215. 

32  Commercial  Pacific  Cable  Co.  v.  United  States,  decided  by  court  of  claims 
June  2,  1913,  where  the  court  allowed  835,894.47. 

Where  a  cable  company  gives  the  notice  that  it  will  make  compensation 
for  the  loss  of  anchor,  etc.,  refers  only  to  the  value  of  the  cable  and  chain, 
and  not  to  damages  resulting  from  the  loss  of  them,  however,  it  may  possibly 
include  consequential  damages.  Agincourt,  etc.,  Co.  v.  Eastern,  etc.,  Tel.  Co., 
2  K.  B.  305. 

33  U.  S.  V.  La  Compagnie,  etc.,  Tel.  (C.  C.)  77  Fed.  495.  See  American  At- 
lantic Cable  Tel.  Co.,  Matter  of,  14  Opinions  of  Attorney  General,  62. 


1 


§    192a)  ACROSS    AND   UNDER   NAVIGABLE   WATERS  20& 

its  powers  to  regulate  interstate  and  international  commerce.^* 
However,  when  such  a  cable  is  laid,  a  preliminary  injunction  will 
not  be  granted  to  prevent  it  from  being  laid  and  landed  upon  the 
territory  of  the  United  States  without  its  consent,  where  it  does  not 
appear  that  any  individual  or  the  government  will  sustain  irrepara- 
ble loss  or  injury  by  the  operation  of  said  cable  until  final  hear- 
ing.35 

§  192a.  Canals,  dams,  etc.,  rights  for. — The  generation  of  elec- 
tricity by  water  power  is  becoming  popular  and  will  become  more 
so  as  the  science  of  conveying  electricity  to  distant  points  without 
loss  of  power  becomes  more  developed.  As  a  result  of  which  many 
new  questions  may  arise.  The  generation  of  electricity  by  water 
power,  to  be  used  for  the  purpose  of  lighting  towns  and  cities,  and 
supplying  light,  heat  and  power  to  the  public,  is  a  public  use;^* 
and  where  a  public  service  corporation  is  organized  to  carry  on  a 
business  of  this  nature,  it  may  also  be  impowered  to  construct 
power  plants,^'  canals,  reservoirs,  millraces  and  dams  on  private 
property,  and  in,  upon  and  along  navigable  and  nonnavigable 
streams,  and  condemn  the  same  for  such  purposes. ^^  So  also  the 
riparian  rights  in  a  stream  are  subject  to  condemnation  by  an  elec- 
tric power  company,^^  but,  in  the  exercise  of  this  power,  the  ripa- 
rian rights  must  be  respected.^"    But  where  an  electric  company  is 

34  De  Castro  v.  Compagnie,  etc.,  85  Hun,  231,  32  N.  Y.  Supp.  960,  af- 
firmed 155  N.  Y.  688,  50  N.  E.  1116. 

35  U.  S.  V.  La  Compagnie,  etc.,  Tel.  (C.  C.)  77  Fed.  495. 

36  Nolan  V.  Central  Georgia  Power  Co.,  184  Ga.  201,  67  S.  E.  656. 

37  The  condemnation  of  land  necessary  for  the  purpose  of  an  electric 
plant,  generating  and  furnishing  light  and  power,  is  proper  for  a  public  use. 
Washington  Water  Power  Co.  v.  Waters,  19  Idaho,  595,  115  Pac.  682;  Web- 
ster V.  Susquehanna  Pole  Line  Co.,  112  Md.  416,  76  Atl.  254,  21  Ann.  Cas.  357 ; 
Tuttle  V.  Jefferson  Power,  etc.,  Co.,  31  Okl.  710,  122  Pac.  1102 ;  Great  Falls 
Power  Co.  v.  Webb,  123  Tenn.  584,  133  S.  W.  1105;  Deerfield  River  Co.  v. 
Wilmington  Power,  etc.,  Co.,  83  Vt.  548,  77  Atl.  862;  Tacoma  v.  Nisqually 
Power  Co.,  57  Wash.  420,  107  Pac.  199 ;  Electric  Co.  v.  Liston,  70  W.  Va.  83, 
73  S.  E.  86,  40  L.  R.  A.  (N.  S.)  602. 

Poles. — Lands  may  l^e  condenmed  for  electric  poles  across  private  property. 
Wissler  v.  Yadkin   River  Power  Co.,  158  N.  C.  465,  74  S.  E.  460. 

3  8  Minnesota  Canal,  etc..  Power  Co.  v.  Pratt,  101  Minn.  197,  112  N.  W. 
395,  11  L.  R.  A.  (N.  S.)  105. 

88  Northern  Light,  etc.,  Co.  v.  Stacher,  13  Cal.  App.  404,  109  Pac.  896. 

40  Mentone  Irrigation  Co.  v.  Electric,  etc..  Power  Co.,  155  Cal.  323,  100  Pac. 
1082,  22  L.  R.  A.  (N.  S.)  382,  17  Ann.  Cas.  1222 ;  Central,  etc.,  P.  Co.  v.  Pope, 
141  Ga.  186,  SO  S.  E.  642,  L.  R.  A.  1916D,  358,  when  dam  may  be  a  nuisance, 
creating  sickness. 

Jones  Tel. (2d  Ed.) — 14 


210  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  192a 

authorized  to  condemn  private  property  for  the  construction  of 
canals  and  reservoirs,  and  for  the  erection  of  structures  and  dams 
in  navigable  waters  for  the  generation  of  electric  power,  it  cannot 
exercise  such  power  when  the  particular  enterprise  contemplates 
an  interference  with  the  navigable  capacity  or  navigation  of  the 
navigable  waters  of  the  state,  unless  such  interference  is  expressly 
authorized  by  statute.*^  The  source  or  sources  from  which  the 
power  emanates  for  condemning  water  courses  for  purposes  of  aid- 
ing in  the  generation  of  electricity  for  distribution  to  the  public 
depends  upon  the  nature  of  the  water  course  to  be  so  used.  If  the 
water  course  is  nonnavigable,  or  is  navigable  but  is  entirely  within 
the  limits  of  a  state  and  is  not  united  with  others  so  as  to  form  high- 
ways over  which  commerce  is,  or  may  be,  carried  on  with  other 
states  or  foreign  countries,  it  is  within  the  control  and  jurisdiction 
of  the  state  ;*^  otherwise  it  would  be  under  the  jurisdiction  of  the 
federal  government.*-^  However,  if  the  water  course  sought  to  be 
condemned  for  electric  generating  purposes  is  navigable  and  is  en- 
tirely within  the  limits  of  a  state,  but  is  united  with  others  as  stated 
above,  and  therefore  becomes  a  navigable  stream  of  the  United 
States,  the  state  does  not  therefore  transfer  exclusive  control  to  the 
federal  authorities,  but  the  right  of  private  persons  or  corporations 
to  erect  structures  in  such  waters  is  dependent  upon  the  concurrent 
or  joint  consent  of  both  the  state  and  federal  government.** 

41  Minnesota  Canal,  etc.,  Power  Co.  v.  Pratt,  101  Minn.  197,  112  X.  W,  395, 
11  L.  R.  A.  (N.  S.)  105. 

4  2  Minnesota  Canal,  etc.,  Power  Co.  v.  Pratt,  101  Minn.  197,  112  N.  W.  395, 
11  L.  R.  A.  (N.  S.)  105,  holding  that  in  the  absence  of  the  exercise  of  power 
conferred  by  the  federal  government  over  navigable  streams  within  the  state, 
incident  to  its  power  to  regulate  commerce,  the  states  have  full  power  over 
such  waters  within  their  jurisdiction. 

4  3  See  The  Daniel  Ball,  10  Wall.  557,  19  L.  Ed.  999;  United  States  v. 
The  Montello,  11  Wall.  411,  20  L.  Ed.  191 ;  Ex  parte  Boyer,  109  U.  S.  629,  3 
Sup.  Ct.  434,  27  L.  Ed.  1056 ;  Hodges  v.  Williams,  95  N.  C.  331,  59  Am.  Rep. 
242.  These  cases  modify  as  may  be  seen,  to  a  certain  extent,  Minnesota  Canal, 
etc..  Power  Co.  v.  Pratt,  101  Minn.  197,  112  X.  W.  395,  11  L.  R.  A.  (N.  S.)  105. 

4  4  Minnesota  Canal,  etc..  Power  Co.  v.  Pratt,  101  Minn.  197,  112  N.  W.  395, 
11  L.  R.  A.  (N.  S.)  105,  citing  Act  Cong.  March  3,  1S99,  c.  425,  §§  9,  10,  30  Stat. 
1151,  V.  S.  Comp.  St.  1913,  §§  9971,  9910,  6  Fed.  St.  Ann.  p.  805,  where  the 
federal  requirements  may  be  found. 


193)  LIABILITY   FOR   INJURIES  211 


CHAPTER  IX 

LIABILITY  FOR  INJURIES  CAUSED  BY  IMPROPER  LOCATION,  CON- 
STRUCTION  AND    MAINTENANCE 

§  193.  Injuries  to  persons  on  highways — in  general. 

194.  Same  continued — injury  on  highways. 

195.  Same  continued — abandonment,  no  defense. 

196.  Poles  improperly  constructed. 

196a.  Destruction  of  property  by  lightning. 

197.  Same  continued— strength  and  stability  of  poles. 

198.  Duty  to  provide  safeguards  on  premises  for  patrons— res  ipsa  loquitur 

applicable. 

198a.  Brush  discharge. 

198b.  Not  insurers — degree  of  care. 

199.  Fallen  lines — duty  to  restore. 

200.  Insulation  of  wires — inspection  of  line. 
200a.  Duty  to  guard  against  danger  to  children. 

201.  Parallel  and  intersecting  wires. 

202.  Duty  to  place  guards  over  wires. 

203.  Duty  and  liability  of  railway  companies. 

204.  Same  continued- crossing  highways  and  railroads. 

205.  Negligence,  basis  of  action. 

206.  Negligence,  what  constitutes— duty  to  perform. 

207.  Same  continued— failure  to  perform  duty— presumption  of  negligence. 

208.  Same  continued— an  injury  sustained— proximate  cause. 

209.  Evidence  of  negligence. 

210.  Contributory  and  imputed  negligence. 

211.  Injuries  to  servants — under  common  law. 

212.  Must  furnish  suitable  appliances  and  safe  place  to  work. 

213.  Fellow  servant  doctrine — where  vice  principal  not  involved. 

214.  Same — where  vice  principal  is  involved. 

215.  Same — employes  in  control  of  current. 

216.  Under  employers'  liability  act. 

217.  Joint  liability  of  companies— settlement. 

218.  Duty  and  liability  to  trespassers  and  licensees. 

219.  What  companies  liable  for  negligence— vendor,  vendee. 

220.  Injuries  to  or  interference  with  companies. 

221.  Same — induction — conduction. 

221a.  "Inductive"  electricity — meaning  of — effect. 

221b.  Same  continued — actions — causes  thereof. 

221c.  Same  continued — reasons  for  injunction. 

221d.  Same  continued — distinction  between  induction  and  conduction. 

221e.  Same  continued— priority  of  time — induction. 

221f.  Same  continued — priority  of  time — conduction. 

221g.  Same  continued— causes  of  interference — electrolysis— effect  of. 

§  193.     Injuries  to  persons  on  highways — in  general. — We  have, 
with  a  good  deal  of  pleasure,  discussed  at  some  length  the  defini- 


212  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  194 

tion  of  telegraph,  telephone,  and  electric  companies,  their  legal 
status,  with  respect  to  the  rights  of  exercising  the  powers  of  emi- 
nent domain ;  whether  or  not  they  were  common  carriers ;  the 
power  of  alienating  their  franchises ;  and  the  character  of  their 
property.  We  have  also  commented  upon  the  rights  of  way  ac- 
quired by  such  companies,  giving  thereunder  the  sources  from 
which  such  rights  were  acquired,  as  from  the  federal  and  state  gov- 
ernment, and  from  municipalities,  where  the  same  could  be  ex- 
ercised, under  what  manner  and  conditions  the  same  could  be 
had,  the  effect  they  would  produce  upon  the  property  acquired, 
and  then  the  interest  acquired — whether  or  not  it  was  or  could 
be  exclusive  and  vested.  Presuming  that  all  telegraph,  telephone, 
and  electric  companies  are  comprehended  under  such  definition, 
that  they  have  thus  far  acquired  all  the  rights  and  powers  neces- 
sary to  carry  on  their  business  as  public  institutions,  and  that  they 
have  complied  with  all  the  requirements  necessary  to  be  classed 
as  corporations,  we  shall  now  comment  upon  their  liability  for  in- 
juries caused  by  improper  location,  construction  and  maintenance 
of  their  lines  along  the  highways,  to  persons  using  them.  After 
this  we  shall  say  something  of  injuries  suffered  by  their  employes. 
§  194.  Same  continued — injury  on  highways. — Telegraph,  tel- 
ephone, and  electric  companies  must  exercise  reasonable  care  not 
only  in  the  original  location  and  construction  of  their  lines,^  but 
must  maintain  them  in  such  a  manner  as  to  prevent  injuries  to 
persons  using  the  streets  and  highways;  ^  and  on  a  failure  so  to  do, 
whereby  injury  arises,  they  will  be  liable  for  all  injuries  resulting 

1  Bevis  V.  Yanceburg  Tel.  Co.,  121  Ky.  177,  89  S.  W.  126,  2S  Ky.  Law  Rep. 
142 ;  Politowitz  v.  Citizens'  Tel.  Co.,  123  Mo.  App.  77,  99  S.  W.  756 ;  Sinunons 
V.  Shreveport  Gas,  etc.,  Co.,  116  La.  103.3,  41  South.  248;  Ela  v.  Postal  Tel. 
Cable  Co.,  71  N.  H.  1,  51  Atl.  281 ;  Harton  v.  Forest  City  Tel.  Co.,  146  N.  C. 
429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 ;  Ensign  v.  Central 
New  lork  Tel.  Co.,  79  App.  Div.  244,  79  N.  Y.  Supp.  799,  affirmed  m  179 
N.  Y.  539,  71  X.  E.  1130;  Davidson  v.  Utah  Indeix?ndent  Tel.  Co.,  34  Utah, 
249,  97  Pac.  124;  Fisher  v.  New  Bern,  140  N.  C.  506,  53  S.  E,  342,  111  Am. 
St.  Rep.  857,  5  L.  R.  A.  (N.  S.)  543,  must  keep  them  at  proper  elevation ; 
Fairbairn  v.  American  R.  Elec.  Co.,  170  Cal.  115,  148  Pac.  788,  highest  degree 
of  care  of  electric  line  along  highway. 

2  Crawford  v.  Standard  Tel.  Co.,  139  Iowa,  331,  115  N.  W.  878 ;  Postal  Tel 
Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500;  Harton  v.  Forest  City  Tel 
Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 
Walther  v.  American  Dist.  Tel.  Co.,  11  Misc.  Rep.  71,  32  N.  Y.  Supp 
751 ;  West  Kentucky  Tel.  Co.  v.  Pharis,  78  S.  W.  917,  25  Ky.  Law  Rep.  1838 
Eastern  Kentucky  Tel.,  etc.,  Co.  v.  Hardwick,  106  S.  W.  307,  32  Ky.  Law  Rep.  582 
holding  that  a  telephone  company  must  exercise  ordinary  care  to  maintain 


I    194)  LIABILITY   FOR   INJURIES  213 

from  such  breach  of  duty.^  In  the  first  place,  these  companies  must 
exercise  reasonable  care  in  selecting  a  proper  location  on  which 

its  line  in  good  working  order  but  is  not  liable  for  interruptions  in  the  serv- 
ice not  preventable  by  ordinary  care. 

Unguarded  excavations,  manholes,  trenches  or  post  holes,  liable  for  injuries 
arising  from.  Kent  v.  Southern  Bell  Tel.,  etc.,  Co.,  120  Ga.  980,  48  S.  E.  399 ; 
Merritt  v,  Kinloch  Tel.  Co.,  21.5  Mo.  299,  115  S.  W.  19,  hole  not  properly  filled 
up  after  moving  pole ;  Van  Vehten  v.  New  York,  etc.,  Tel.,  etc.,  Co.,  71  N.  J. 
Law,  45,  58  Atl.  1096,  manhole ;  "White  v.  Keystone  Tel.  Co.,  211  Pa.  455,  60 
Atl.  998.  See  Hill  v.  Chesapeake,  etc.,  Tel.  Co.,  42  App.  D.  C.  170,  51  L.  R.  A. 
(N.  S.)  1072,  Ann.  Cas.  1915D,  1085,  passageway  in  store  at  slot  apparatus  or 
public  pay  station  of  telephone;  Ruehl  v.  Lidgerwood  Rural  Tel.  Co.,  23 
N.  D.  6,  135  N.  W.  793,  Ann.  Cas.  1914C,  6S0,  post  holes  in  yard  left  opened, 
injuring  child.  See  Sullivan  v.  New  York  Tel.  Co.,  157  App.  Div.  642,  142 
N.  Y.  Supp.  735. 

&  Alahama.—Fostal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500. 

Arlcamas.— City  Elec.  St.  Ry.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426,  54 
Am.  St.  Rep.  262,  31  L.  R.  A.  570. 

Coit/omia.— Diller  v.  Northern  California  P.  Co.,  162  Cal.  531,  123  Pac.  359, 
Ann.  Cas.  1913D,  908,  and  note  collating  authorities. 

Colorado. — West.  IT.  Tel.  Co.  v.  Eyser,  2  Colo.  141;  Denver  Cons.  Elec.  Co. 
V.  Simpson,  21  Colo.  371,  41  Pac.  499,  31  L.  R.  A.  566. 

District  of  ColumMa. — District  of  Columbia  v.  Dempsey,  13  App.  D,  C.  533. 

Georf7ia.— Southern  Bell  Tel.,  etc.,  Co.  v.  Howell,  124  Ga.  1050,  53  S.  E.  577,  4 
Ann.  Cas.  707. 

Illinois.— Cumberland  Tel.,  etc.,  Co.  v.  Coats,  100  111.  App.  519,  no  negli- 
gence shown ;  Palestine  v.  Siler,  225  111.  630,  80  N.  E.  345,  8  L.  R.  A.  (N.  S.) 
205. 

Indiana. — West.  U.  Tel.  Co.  v.  Levi,  47  Ind.  552 ;  Brush  Elec.  Lighting 
Co.  V.  Kelley,  126  Ind.  220,  25  N.  E.  812,  10  L.  R.  A.  250 ;  Aiken  v.  Columbus, 
167  Ind.  1.39,  78  N.  E.  657,  12  L.  R.  A.  (N.  S.)  416. 

Kansas.— Winegarner  v.  Edison  Lt.,  etc.,  Co.,  83  Kan.  67,  109  Pac.  778,  28 
L.  R.  A.  (N.  S.)  677. 

Kentucly. -Bexis  v.  Vanceburg  Tel.  Co.,  121  Ky.  177,  89  S.  W.  126,  28  Ky. 
Law  Rep.  142;  Louisville  Home  Tel.  Co.  v.  Gasper,  123  Ky.  128,  93  S.  W. 
1057,  9  L.  R.  A.  (N.  S.)  548. 

Louisiana. — Wilson  v.  Great  Tel.,  etc.,  Co.,  41  La.  Ann.  1041,  6  South,  781. 

Maine. — Dickey  v.  Maine  Tel.  Co.,  46  Me.  483.  See  Shackford  v.  New  Eng- 
land Tel.,  etc.,  Co.,  112  Me.  204.  91  Atl.  931. 

Manjland.—I^e  v.  Maryland  Tel.,  etc.,  Co.,  97  Md.  692,  55  Atl.  680;  West.  U. 
Tel.  Co.  V.  State,  82  Md.  293,  33  Atl.  763,  51  Am.  St.  Rep.  464,  31  L.  R.  A.  572 ; 
Walter  v.  Baltimore  Elec.  Co.,  109  Md.  513,  71  Atl.  953,  22  L.  R.  A.  (N.  S.)  1178. 

Massachusetts. — Thomas  v.  West.  U.  Tel.  Co.,  100  Mass.  156 ;  Sias  v.  Lowell, 
etc.,  St.  R.  Co.,  179  Mass.  343,  60  N.  E.  974. 

Michigan.— Hovej  v.  ilichigan  Tel.  Co.,  124  Mich.  607,  83  N.  W.  600;  Kyes 
V.  Valley  Tel.  Co.,  132  Mich.  281,  93  N.  W.  623 ;  Friesenhan  v.  Michigan  Tel. 
Co.,  134  Mich.  292,  96  N.  W.  501 ;  Chaffee  v.  Tel.,  etc.,  Constr.  Co.,  77  Mich. 
625,  43  N.  W.  1064.  18  Am.  St.  Rep.  424,  6  L.  R.  A.  45.5. 

3/isso«ri.— Larkin  v.   West.   U.  Tel.   Co.,  82  Mo.   App.   155;    Politowitz  v. 


214  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  194 

to  construct  their  lines,*  and  should  they  carelessly  place  them 
upon  property  for  which  they  have  no  authority,  or  if  they  once 
had  the  authority  to  place  them  on  said  property  but  have  since 
lost  it,  they  become  a  nuisance  with  respect  to  such  property,  and 

Citizens'  Tel.  Co.,  123  Mo.  App.  77,  99  S.  W.  756 ;  Gaunon  v.  Laclede  Gas  Lt. 
Co.,  145  Mo.  502,  46  S.  W.  968,  47  S.  W.  907,  43  L.  R.  A.  505. 

islew  Hampshire.— ma.  v.  Postal  Tel.  Cable  Co.,  71  N.  H.  1,  51  Atl.  281, 
failure  to  provide  proper  guards  and  brackets  on  curve. 

Xew  Jersey.— yew  York,  etc.,  Tel.  Co.  v.  Bennett,  62  N.  J.  Law,  742,  42 
Atl.  759;  Chalmers  v.  Paterson,  etc.,  Tel.  Co.,  66  N.  J.  Law,  41,  48  Atl.  993; 
Suburban  Elec.  Co.  v.  Nugent,  58  N.  J.  Law,  658,  34  Atl.  1069,  32  L.  R.  A. 
700;  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  111 
Am.  St.  Rep.  668,  3  L.  R.  A.  (N.  S.)  9S8. 

New  York. — Ensign  v.  Central  New  York  Tel.,  etc.,  Co.,  79  App.  Div.  244,  79 
N.  Y.  Supp.  799,  affirmed  in  179  N.  Y.  539,  71  N.  E.  1130 ;  Flood  v.  West.  U. 
Tel.  Co.,  €1  Hun,  619.  15  N.  Y.  Supp.  400;  Gordon  v.  Ashley,  34  Misc.  Rep. 
743,  70  N.  Y.  Supp.  1038;  Leeds  v.  New  York  Tel.  Co.,  64  App.  Div.  484,  72 
N.  Y.  Supp.  250 ;  Sheldon  v.  West.  U.  Tel.  Co.,  51  Hun,  591,  4  N.  Y.  Supp.  526. 
See,  also,  \\'ard  v.  Atlantic,  etc.,  Tel.  Co.,  71  N.  Y.  81.  27  Am.  Rep.  10 ;  Leeds 
V.  New  York  Tel.  Co.,  32  Misc.  Rep.  671,  66  N.  Y.  Supp.  457;  Id.,  79  App. 
Div.  121,  80  N.  Y.  Supp.  114. 

North  Carolina.— Uaynes  v.  Raleigh  Gas  Co.,  114  N,  C.  203,  19  S.  E.  344, 
41  Am.  St.  Rep.  786,  26  L.  R.  A.  810. 

Ore(70H.— Ahern  v.  Oregon  Tel.,  etc.,  Co.,  24  Or.  276,  33  Pac.  403,  35  Pac. 
549,  22  L.  R.  A.  635;  Boyd  v.  Portland  Gen.  Elec.  Co.,  37  Or.  567,  62  Pac. 
378.  52  L.  R.  A.  509 ;   Chaperon  v.  Portland  Elec.  Co.,  41  Or.  39,  67  Pac.  928. 

PenHsylvania.— Utile  v.  Central  Dist.,  etc.,  Tel.  Co.,  213  Pa.  229,  62  Atl.  848; 
Pennsylvania  Tel.  Co.  v.  Yarnau  (Pa.)  15  Atl.  €24 ;  Central  Pennsylvania,  etc., 
Co.  V.  Wilkes-Barre,  etc.,  R.  Co.,  11  Pa.  Co.  Ct.  R.  417. 

Rhode  Island.— McDonald  v.  Postal  Tel.  Co.,  22  R.  I,  131,  46  Atl.  407. 

South  Carolina.— Miles  v.  Postal  Tel.  Cable  Co.,  55  S.  C.  403,  33  S.  E.  493 ; 
Irvine  v.  Greenwood,  89  S.  C.  511,  72  S.  E.  228,  36  L.  R.  A.  (N.  S.)  363. 

Tejinessee.— Postal  Tel.  Cable  Co.  v.  Zopfi,  93  Tenn.  369,  24  S.  W.  633; 
Cumberland  Tel.,  etc.,  Co.  v.  Cook,  103  Tenn.  730,  55  S.  W.  152 ;    Cumberland 

4  Ensign  v.  Central  New  York  Tel.,  etc.,  Co.,  79  App.  Div.  244,  79  N.  Y. 
Supp.  799,  affirmed  in  179  N.  Y.  539,  71  N.  E.  1130,  wire  strung  so  near  de- 
cayed tree  as  to  be  broken  down  by  a  falling  limb. 

Proximity  to  other  ohjccts. — In  the  construction  of  its  lines  telephone  com- 
pany should  be  regardful  of  their  being  constructed  in  proximity  to  fire  es- 
capes, tree,  or  other  objects  through  which  the  electrical  current  might  likely 
be  conducted,  so  as  to  injure  persons  or  property.  Asher  v.  City  of  Inde- 
pendence, 177  aio.  App.  1,  163  S.  W.  574,  fire  escape ;  Estabrook  v.  Newburgh, 
etc.,  P.  Co.,  141  App.  Div.  683,  125  N.  Y.  Supp.  944,  near  a  tree;  Johnson  v. 
Bay  City,  164  :Mich.  251,  129  N.  W.  29,  Ann.  Cas.  1912B,  866,  near  trees,  ques- 
tion for  jury;  Dwyer  v.  Electric  Co.,  20  App.  Div.  124,  46  N.  Y,  Supp.  874, 
iron  brace  supporting  a  cross-arm  of  the  pole.  See,  also,  Morgan  v.  West- 
moreland Elec.  Co.,  213  Pa.  151,  62  Atl.  638 ;  Roche  v.  New  York  Edison  Co.» 
84  :Misc.  Rep.  427,  146  N.  Y.  Supp.  294. 


I 


§    194)  LIABILITY   FOR  INJURIES  215 

if  an  injury  is  caused  thereby,  the  company  will  undoubtedly  be 
liable  for  such  injury. ''"  When  the  location  has  been  properly 
made,  then  it  devolves  upon  them  to  use  due  care  in  the  construc- 
tion of  their  lines,  so  as  not  to  endanger  the  public  with  any  faulty 
material  or  structure,  or  the  manner  in  which  they  are  constructed." 
Not  only  is  it  the  duty  of  these  companies  to  properly  locate  and 
construct  their  lines,  but  they  must  also  use  the  same  degree  of 
care  to  maintain  them  as  long  as  they  are  used  as  was  exercised  In 
their  construction.  In  other  words,  the  location  of  these  lines  must 
be  kept  properly  maintained.  Should  the  location  once  have  been 
properly  selected  and  for  any  reason  has  since  been  neglected  ^  or 

Tel.,  etc.,  Co.  v.  Hunt,  108  Tenn.  697,  69  S.  W.  729;  United  Electric  R.  Co. 
V.  Shelton,  89  Tenn.  423,  14  S.  W.  863,  24  Am.  St.  Rep.  614. 

Texas.— Postal  Tel.  Cable  Co.  v.  Coote  (Civ.  App.)  57  S.  W.  912 ;  Weliner  v. 
Lagerfelt,  27  Tex.  Civ.  App.  520,  66  S.  W.  221 ;  Southwestern  Tel.,  etc.,  Co.  v. 
Ingrando,  27  Tex.  Civ.  App.  400,  65  S.  W.  1085 ;  San  Antonio,  etc.,  Elec.  Co. 
V.  Ocon,  105  Tex.  139,  146  S.  W.  162,  39  L.  R.  A.  (N.  S.)  1046. 

Utah.— Ba-vidson  v.  Utah  Independent  Tel.  Co.,  34  JStah,  249,  97  Pac.  124, 

Virginia.— Watts  v.  Southern  Bell  Tel.,  etc.,  Co.,  100  Va.  45,  3  Va.  Sup.  Ct. 
R.  577,  40  S.  E.  107. 

West  Virginia.— Uammm  v.  Hill,  52  W.  Va.  166,  43  S.  E.  223. 

TFtscwism.— Roberts  v.  Wisconsin  Tel.  Co.,  77  Wis.  589,  46  N.  W.  800,  20 
Am.  St.  Rep.  143 ;  Block  v.  Milwaukee  St.  Ry.  Co.,  89  Wis.  371,  61  N.  W.  1101, 
46  Am.  St.  Rep.  849,  27  L.  R.  A.  365. 

United  Sfaies.— Sheffield  v.  Central  U.  Tel.  Co.  (C.  C.)  36  Fed.  164 ;  Wolfe  v. 
Erie  Tel.  Co.  (C.  C.)  33  Fed.  320;  Henning  v.  West.  U.  Tel.  Co.  (C.  C.)  43 
Fed.  131;  Southwestern  Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810,  1  C.  C.  A. 
684,  16  L.  R.  A.  545. 

England.— HoUiday  v.  National  Tel.  Co.,  2  Q.  B.  302;  Gloster  v.  Toronto 
Elec.  Lt.  Co.,  38  C.  S.  Ct.  27,  6  Ann.  Cas.  529,  1  B.  R.  C.  786. 

5  Broome  v.  New  York,  etc.,  Tel.  Co.,  42  N.  J.  Eq.  141,  7  Atl.  851,  approved 
in  Chesapeake,  etc.,  Tel.  Co.  v.  Mackenzie,  74  Md.  36,  21  Atl.  690,  28  Am. 
St.  Rep.  219,  approved  in  Maryland  Tel.,  etc.,  Co.  v.  Ruth,  106  Md.  644,  68 
Atl.  358,  14  Lr,  R.  A.  (N.  S.)  427,  124  Am.  St.  Rep.  506,  14  Ann.  Cas.  576,  hold- 
ing that  the  planting  of  a  telephone  pole  in  a  private  alley  is  an  appropriation 
of  private  property,  and  is  unlawful,  unless  the  right  to  do  has  been  ac- 
quired by  contract  or  condemnation  and  the  owner  of  the  alley  was  legally 
authorized  to  abate  dt,  provided  he  did  so  in  such  a  manner  as  not  to  disturb 
the  public  peace  or  put  in  peril  innocent  third  persons  or  their  property. 

c  See  §  196  et  seq. ;  Ela  v.  Postal  Tel.  Co.,  71  N.  H.  1,  51  Atl.  281 ;  Temple 
Elec.  Light  Co.  v.  Halliburton  (Tex.  Civ.  App.)  136  S.  W.  584;  question  for 
the  jury.  Jacks  v.  Reeves,  78  Ark.  426,  95  S.  W.  781 ;  Citizens'  St.  Ry.  Co.  v. 
Batley,  159  Ind.  368,  65  N.  E.  2;  Jones  v.  Union  Ry,  Co.,  18  App.  Dlv.  267, 
46  N.  Y.  Supp.  321 ;  United  Elec.  Ry.  Co,  v.  Shelton,  89  Tenn.  423,  14  S.  W. 
863,  24  Am,  St.  Rep.  614 ;  West.  U.  Tel.  Co.  v.  Thorn,  64  Fed.  287,  12  C.  C.  A. 
104.  But  see  Baltimore,  etc.,  Ry,  Co.  v.  Nugent,  86  Md,  349,  38  Atl.  779,  39 
L,  R,  A.  161. 
T  See  §  195. 


216  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  195 

destroyed,^  another  must  be  made;  and  should  the  material  out 
of  which  the  lines  are  constructed  become  old,  worn,  decayed  or 
cumbersome,  it  should  be  removed  and  the  best  and  most  up-to-date 
structures  erected  and  used  in  lieu  of  these.'*  To  be  more  explicit, 
the  streets  and  highways  should  be  substantially  as  safe  after  they 
are  occupied  by  these  companies  as  they  were  before  these  lines 
were  constructed  thereon. ^°  They  are  not  absolutely  bound  to 
make  their  lines  safe  to  the  public,  to  have  their  posts  in  the  streets 
so  strong  and  secure  that  they  cannot  be  blown  down  or  broken 
by  any  storm.  They  are  bound  to  use  proper  care  in  the  construc- 
tion and  maintenance  of  their  lines,  so  that  no  traveler  shall  be 
injured  by  them,  and  the  amount  of  care  must  be  proportioned 
to  the  amount  of  danger  and  the  liability  to  accident.^^  And  where 
it  is  shown  that  the  company  transmits  a  high  current  of  electric- 
ity by  means  of  overhead  wires  along  the  street  or  highway,  and 
that  a  traveler,  without  fault  on  his  part,  comes  into  contact  with 
one  of  its  wires  hanging  in,  or  lying  on,  the  street  or  highway,  and 
is  injured  by  the  electric  current  therefrom,  a  prima  facie  case  of 
negligence  is  established.^^ 

§  195.  Same  continued — abandonment,  no  defense. — It  is  no  de- 
fense for  a  company  to  say  that  the  property  which  caused  the  in- 
jury has  been  abandoned  or  is  not  in  use.  For  instance,  where  a 
person  was  injured  by  pieces  of  cut  wire  left  in  the  street ;^^    or 

8  See  §  197.  o  See  §§  196,  199. 

10  West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  33  Atl.  763,  51  Am.  St.  Rep.  464, 
31  L.  R.  A.  512n. 

Moving  duildings. — Wires  should  be  high  enough  and  sufficiently  insulated 
so  as  to  permit  the  moving  of  houses  or  buildings  along  the  street.  Wine- 
garner  V.  Edison  L.,  etc.,  Co.,  83  Kan.  67,  109  Pac.  778,  28  L.  R.  A.  (N.  S.)  677 ; 
Collar  V.  Tel.  Co.  (Minn.)  155  N.  W.  1075,  L.  R.  A.  1916C,  1249. 

11  See  §  19Sb. 

12  Diller  v.  Northern  Cal.  Power  Co.,  162  Cal.  531,  123  Pac.  359,  Ann.  Cas. 
1913D,  90S ;  Lewis  v.  Bowling  Green  Gas  Lt.  Co.,  135  Ky.  611,  117  S.  W.  278, 
22  L.  R.  A.  (N.  S.)  1169 ;  Walter  v.  Baltimore  Elec.  Co.,  109  Md.  513,  71  Atl. 
953,  22  L.  R.  A.  (N.  S.)  1178 ;  Fickeisen  v.  Wheeling  Elec.  Co.,  67  W.  Va.  635, 
67  S.  E.  788,  27  L.  R.  A.  (N.  S.)  893 ;  Wilbert  v.  Sheboygan  Lt.,  etc.,  Co.,  129 
Wis.  1,  106  N.  W.  1058,  116  Am.  St.  Rep.  931.  See,  also,  §§  199,  207,  509,  and 
numerous  cases  cited  thereunder. 

13  The  court  in  rendering  an  opinion  on  this  subject  has  the  following  to 
say :  "The  same  rule  would  apply  when  after  erections  are  properly  made  the 
company  negligently  suffers  them  to  fall  down  or  to  be  out  of  repair  or  to 
remain  so  after  reasonable  notice.  It  was  as  much  its  duty  safely  to  main- 
tain as  it  was  safely  to  erect.  Whether  the  unsafe  condition  was  or  was 
not  in  its  inception  the  result  of  a  cause  for  which  the  company  was  responsi- 


§    195)  LIABILITY  FOR  INJURIES  217 

where  the  telephone  instruments  are  removed  from  a  building,  but 
instead  of  removing  its  wires  as  suggested  by  the  owner,  they  are 
merely  cut  loose  from  the  instrument  and  their  ends  twisted 
together  and  left  dangling  in  the  building,  so  that  atmospheric 
electricity,  striking  somewhere  along  their  course  on  the  outside, 
will  be  inducted  into  the  building  and  there  discharged  to  the  peril 
of  persons  and  property  therein ;  ^*  or  where  one  of  its  wires  be- 
comes broken  and  is  allowed  to  remain  swinging  across  a  feed  wire 
of  a  street  railway  company  for  an  unreasonable  time,  and  a  per- 
son comes  in  contact  with  it  when  charged  from  the  said  feed  wire 
and  is  injured  thereby;  ^^    or  if  its  wires  are  allowed  to  remain 

ble  is  only  material  in  determining  when  the  negligence  began  and  in  what  it 
consisted.  If  it  was  the  result  of  negligent  construction  this  would  constitute 
the  negligence.  On  the  other  hand  if,  as  in  this  case,  the  unsafe  condition 
was  the  result  of  a  cause  for  which  the  company  was  not  at  all  responsible, 
the  negligence  consists,  not  in  the  fact  that  the  wires  fell  into  the  street,  but 
in  the  fact  that  they  were  allowed  to  remain  there  after  reasonable  notice  to 
the  company  and  the  lapse  of  sufficient  time  within  which  to  remove  them. 
The  duty  of  the  company  in  such  a  case,  it  seems  to  us,  is  not  at  all  de- 
pendent upon  the  nature  of  the  cause  which  produced  the  unsafe  condition. 
So  far  as  the  duty  of  removing  the  wires  from  the  street  was  concerned  it 
was  immaterial  whether  their  fall  was  the  result  of  natural  decay,  of  a 
malicious  and  unlawful  act  of  some  third  person,  of  some  extraordinary  force 
of  nature,  or,  as  in  this  case,  of  the  freezing  of  water  thrown  upon  the  cross- 
bars by  the  fire  department.  Nor  could  the  company  which  had  placed  its 
property  on  a  public  street  under  a  license  from  the  city  relieve  itself  of  this 
duty  by  assuming  to  abandon  it,  when  from  natural  wear  or  sudden  casualty 
it  had  ceased  to  be  valuable  for  the  purpose  for  which  it  had  been  placed 
there."  Nichols  v.  City  of  Minneapolis,-  33  Minn.  430,  23  N.  W.  SGS,  53  Am. 
Rep.  56;  Staring  v.  West.  U.  Tel.  Co.,  58  Hun,  606,  11  N.  Y.  Supp.  817. 
Pedestrian  injured  by  tipping  on  an  electric  light  wire  which  crossed  and  lay 
upon  the  sidewalk.  Brush  El.  L.  Co.  v.  Kelley,  126  Ind.  220,  25  N.  E.  812,  10 
L.  R.  A.  250. 

14  Southern  Bell  Tel.,  etc.,  Co.  v.  McTyer,  137  Ala.  GOl,  34  South.  1020,  97 
Am.  St.  Rep.  62,  negligence  per  se ;  Jackson  v.  Wisconsin  Tel.  Co.,  88  Wis. 
243,  60  N.  W.  430,  26  L.  R.  A.  101 ;  Owen  v.  Portage,  etc.,  Co.,  126  Wis.  412, 
105  N.  W.  924.  See,  also,  Fitzgerald  v.  Edison  Electric,  etc.,  Co.,  200  Pa.  540, 
50  Atl.  161,  86  Am.  St.  Rep.  732 ;  Starr  v.  Southern  Bell  Tel.,  etc.,  Co.,  156 
N.  C.  435,  72  S,  E.  484.  But  see  Texas  Tel.,  etc.,  Co.  v.  Scott  (Tex,  Civ.  App.) 
127  S.  W.  587,  not  per  se  negligent;  Norfolk,  etc.,  Tr.  Co.  v.  Daily,  111  Va. 
665,  69  S.  E.  963 ;  Electric  Lt.  Co.  v.  Sullivan,  22  App.  D.  C.  115 ;  Berstein 
v.  Electric  Co.,  235  Pa.  53,  83  Atl.  612 ;  Evans  v.  Eastern  Kentucky  Tel.  Co., 
124  Ky.  620,  30  Ky.  Law  Rep.  833,  99  S.  W.  936;  E.  Tennessee  Tel.  Co.  v. 
Simms,  36  S.  W.  171,  38  S.  W.  131,  18  Ky.  Law  Rep.  761 ;  Same  v.  Sim,  20 
Ky.  Law  Rep.  1330,  38  S.  W.  131. 

15  Where  a  telephone  company  allows  a  wire  to  become  broken  and  remain 
in  a  dangerous  condition  for  five  months,  and  it  comes  in  contact  with  an 
electric  light  wire,  and  causes  death  of  a  person,  it  is  liable  although  a  re- 


218  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  196 

coiled  on  the  highway  an  unreasonable  time  after  the  company 
has  notice  of  same,  and  it  frightens  teams  and  causes  them  to 
run  away  and  injure  any  person  or  property,^''  or  if  they  should 
become  entangled  therein  to  their  injury;  or  if  their  abandoned 
property  in  any  way  causes  an  injury  to  persons  or  property,  the 
fact  of  the  abandonment  of  such  property  cannot  be  set  up  as  a  de- 
fense.^'^ 

§  196.  Poles  improperly  constructed. — Telegraph,  telephone,  or 
electrical  companies  will  be  liable  for  injuries  to  persons  caused 
by  the  negligent  or  improper  manner  of  constructing  their  poles, 
and  supporters  therefor.  They  must  construct  and  maintain  their 
poles  so  as  not  to  endanger  the  public  generally,  or  other  public 

cent  storm  was  the  cause  of  the  contact.  Central  U.  Tel.  Co.  v.  Sokola,  34 
Ind.  App.  429,  73  N.  E.  143.  Where  for  three  days  a  broken  telephone  wire 
hangs  on  property  adjacent  to  a  street  and  an  electric  street  railway  current 
is  conducted  by  it  and  injures  a  person,  the  company  is  liable.  Lynchburg, 
etc.,  Co.  V.  Booker,  103  Va.  594,  50  S.  E.  148;  Brown  v.  Consolidated,  etc.,. 
Co.,  137  Mo.  App.  718,  109  S.  W.  1032,  where  electric  light  company  and  tele- 
phone wires  were  in  first-class  condition  before  a  violent  storm,  and  wires 
were  not  tested  until  next  morning,  may  be  liable.  See,  also,  West.  U.  Tel. 
Co.  V.  State,  82  Md.  293,  33  Atl.  763,  31  L.  R.  A.  572,  51  Am.  Rep.  464 ;  Haynes 
V.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  26  L.  R.  A.  810,  41  Am.  St. 
Rep.  786. 

16  Thomas  v.  West.  U.  Tel.  Co.,  100  Mass.  156.  The  company  may  be  liable 
for  a  horse  being  frightened  by  construction  material  on  the  street.  Southwest- 
ern Tel.,  etc.,  Co.  v.  Doolittle  (Tex.  Civ.  App.)  138  S.  W.  415 ;  Simonds  v.  Maine, 
etc.,  Co.,  104  Me.  440,  72  Atl.  175,  28  L.  R.  A.  (N.  S.)  912.  See,  also,  South- 
western Tel.,  etc.,  Co.  v.  Robinson,  50  E'ed.  810,  1  C.  C.  A.  684,  16  L.  R.  A. 
545 ;  West.  U.  Tel.  Co.  v.  Engler,  75  Fed.  102,  21  C.  C.  A.  246 ;  West.  U.  Tel. 
Co.  V.  Eyser,  2  Colo.  141 ;  Brush  Electric  Lt.  Co.  v.  Kelley,  126  Ind.  220,  25 
N.  E.  812,  10  L.  R.  A.  250;  Cynthiana  Tel.  Co.  v.  Asbury,  147  Ky.  307,  143 
S.  W.  1050 ;  West  Ky.  Tel.  Co.  v.  Pharis,  25  Ky.  Law  Rep.  1838,  78  S.  W.  917 ; 
Claussen  v.  Cumberland  Tel.,  etc.,  Co.,  126  La.  1087,  53  South.  357 ;  Hovey  v. 
Michigan  Tel.  Co.,  124  Mich.  607,  83  N.  W.  600;  Nichols  v.  Minneapolis,  33 
Minn.  430,  23  N.  W.  868,  53  Am.  Rep.  56;  Heiberger  v.  Missouri,  etc.,  Tel. 
Co.,  133  Mo.  App.  452,  113  S.  W.  730 ;  Walther  v.  American  District  Tel.  Co., 
11  Misc.  Rep.  71,  32  N.  Y.  Supp.  751;  Snee  v.  Clear  Lake  Tel.  Co.,  24  S.  D. 
361,  123  N.  W.  729 ;  Bishop  v.  Rocky  Mountain  Bell  Tel.  Co.,  33  Utah,  4&4, 
94  rac.  976 ;  Herlitzke  v.  La  Cross,  etc.,  Tel.  Co.,  145  Wis.  185,  130  N.  W.  59 ; 
East  Tennessee  Tel.  Co.  v.  Parsons,  154  Ky.  801,  159  S.  W.  584,  47  L.  R.  A. 
(N.  S.)  1021;  falling  of  a  wire,  Memphis  Street  Ry.  Co.  v.  Kartright,  110 
Tenn.  277,  75  S.  W.  719,  100  Am.  St.  Rep.  807 ;  Jones  v.  Union  Ry.  Co.,  18 
App.  Div.  267,  46  N.  Y.  Supp.  321 ;  Schenkel  v.  Pittsburg,  etc.,  Tr.  Co.,  194 
Pa.  182,  44  Atl.  1072,  or  frightens  the  horse  so  that  injury  ensues ;  Postal  Tel. 
Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500. 

17  Home  Tel.  Co.  v.  Fields,  150  Ala.  306,  43  South.  711;  Nichols  v.  Min- 
neapolis, 33  Minn.  430,  23  N.  W.  868,  53  Am.  Rep.  56. 


g    196)  LIABILITY   FOR   INJURIES  219 

enterprises.^^  In  the  first  place,  they  must  be  located  so  as  not' to 
incommode  the  public  unnecessarily/^  by  placing  them  in  the  trav- 
eled part  of  a  street  or  highway.-^'  If  the  company  has  a  license 
from  a  city  to  construct  its  poles  on  the  streets,  they  will  not  be 
declared  a  nuisance,"^  but  if  they  clearly  appear  to  be  improperly 
located  thereon,"  and  injury  results  therefrom,  the  company  will 
be  liable  notwithstanding  that  it  has  a  license  from  the  city  to  con- 
struct its  poles  at  such  places ;  "  and  in  the  latter  case,  as  it  has 
been  held,  it  would  be  jointly  liable  with  the  city.'*  A  pole  may 
be  lawfully  constructed,  yet  it  may  be  a  question  of  fact  whether 
the  location  of  the  pole  was  dangerous  to  the  public. -•'  The  loca- 
tion may  be  properly  made,  but  if  its  supporters  or  guy  wires  are 
in  such  a  manner  as  to  cause  injury,   the  company  will   still   be 

18  See  §  86  et  seq.  See,  also,  §  194.  See,  also,  Murray  v.  Cowherd,  148 
Ky.  591,  147  S.  "W.  6,  40  L.  R.  A.  (N.  S.)  617,  not  excused  on  theory  of  non- 
feasance. 

19  Sheffield  v.  Central  U.  Tel.  Co.  (C.  C.)  36  Fed.  164. 

20  Bevis  V.  Vanceburg  Tel.  Co.,  121  Ky.  177,  89  S.  W.  126,  28  Ky.  Law  Rep. 
142 ;  Nebraska  Tel.  Co.  v.  Jones,  60  Neb.  390,  83  N.  W.  197,  where  stump  of 
pole  is  in  middle  of  road;  Illinois  Terminal  R.  Co.  v.  Thompson,  210  111. 
226,  71  N.  E.  328,  where  brakeman  on  car  collides  with  pole  located  too  near 
track;  Little  v.  Central,  etc.,  Co.,  213  Pa.  229,  62  Atl.  848,  where  poles  are 
so  near  the  traveled  portion  of  the  highway  that  a  person  seated  on  a  wagon 
with  his  feet  extending  about  one  foot  from  side  of  wagon ;  Alice,  etc.,  Tel. 
Co.  V.  Billingsley,  33  Tex.  Civ.  App.  452,  77  S.  W.  255;  Watts  v.  Southern 
Bell  Tel.,  etc.,  Co.,  100  Va.  45,  40  S.  E.  107.  See  Earp  v.  Phelps,  120  Md.  282, 
87  Atl.  806 ;  Moore  v.  East  Tennessee  Tel.  Co.,  142  Fed.  965,  74  C.  C.  A.  227 ; 
Wells  V.  West.  U.  Tel.  Co.,  40  Nova  Scotia,  81;  Bonn  v.  Bell  Tel.  Co.,  30 
Ont.  696.  Riley  v.  New  England  Tel.,  etc.,  Co.,  184  Mass.  150,  68  N.  E.  17,  ir- 
respective of  negligence  under  Massachusetts  statute. 

21  See  §  86  et  seq. 

22  Wolf  V.  Erie  Tel.,  etc.,  Co.  (C.  C.)  33  Fed.  320;  Bonn  v.  Bell  Tel.  Co.,  30 
Ont.  696 ;  Nebraska  Tel.  Co.  v.  Jones,  GO  Neb.  396,  83  N.  W.  197 ;  Kowalski 
V.  Newark  Passenger  R.  Co.,  15  N.  J.  Law  J.  50 ;  West.  U.  Tel.  Co.  v.  Eyser, 
2  Colo.  141. 

23Keasby  on  Electric  Wires,  p.  154;  Kowalski  v.  Newark  Passenger  R. 
Co.,  15  N.  J.  Law  J.  50 ;  Wolfe  v.  Erie  Tel.,  etc.,  Co.  (C.  C.)  33  Fed.  320. 

24  Atkinson  v.  Cheatham,  26  Ont.  App.  521;  Geneva  v.  Brush  Electric  Co., 
50  Hun,  581,  3  N.  Y.  Supp.  595.  See,  also,  Nichols  v.  Minneapolis,  33  Minn. 
430,  23  N.  W.  868,  53  Am.  Rep.  56 ;  Denver  v.  Sherrett,  88  Fed.  226,  31  C.  C.  A. 
499 ;  West  Kentucky  Tel.  Co.  v.  Pharis,  78  S.  W.  917,  25  Ky.  Law  Rep.  1838 ; 
Mooney  v.  Luzerne,  186  Pa.  161,  40  Atl.  311,  40  L.  R.  A.  811;  Kost  v.  Ash- 
land, 2.36  Pa.  164,  84  Atl.  G91 ;  Colbourn  v.  Wilmington,  4  Pennewill  (Del.) 
443,  56  Atl.  605 ;  American  Dist.  Tel.  Co.  v.  Oldham,  148  Ky.  320,  146  S.  W. 
764,  Ann.  Cas.  1913E,  376. 

25  Wolfe  V.  Erie  Tel.,  etc.,  Co.  (C.  C.)  33  Fed.  320;  Sheffield  v.  Central  U. 
Tel.  Co.  (C.  C.)  36  Fed.  164. 


220  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  196 

liable.^"     Thus,  where  the  guy  wire  which  supports  the  pole  is 
swinging  so  low  as  not  to  permit  a  fire  engine  with  its  crew,  which 

20  Louisville  Home  Tel.  Co.  v.  Gasper,  123  Ky.  128,  93  S.  W.  1059,  9  L.  R. 
A.  (N.  S.)  548,  29  Ky.  Law  Rep.  578,  person  injured  by  guy  wire  in  a  public 
alley  so  placed  as  to  be  indiscernible  and  dangerous  to  vehicles ;  Grant  v. 
Sunset,  etc.,  Co.,  7  Cal.  App.  267,  94  Pac.  368,  guy  wire  25  feet  from  pole  and 
at  a  point  where  a  person  in  the  dark  going  to  the  depot  runs  into  it; 
Sheldon  v.  West.  U.  Tel.  Co.,  51  Hun,  591,  4  N.  Y.  Supp.  526,  affirmed  in  121 
N.  Y.  697,  24  N.  E.  1099,  guy  running  from  top  of  pole  near  fence  to  peg  near 
edge  of  road,  and  being  concealed  by  two  trees ;  Wilson  v.  Great  Southern 
Tel.,  etc.,  Co.,  41  La.  Ann.  1041,  6  South.  781,  fire  engine  running  against  guy 
which  is  about  6  feet  from  gi-ound,  although  pole  and  wire  were  on  ground 
where  vehicles  were  forbidden  to  go  on,  fire  engine  being  an  exception;  Da- 
vidson V.  Utah  Independent  Tel.  Co.,  34  Utah,  249,  97  Pac.  124,  guy  wire  run- 
ning from  pole  to  edge  of  highway  and  causes  injury  to  a  person  driving  on 
that  side  of  highway  on  a  dark  night,  there  being  no  sidewalk  and  vehicles 
travel  entire  width  of  street;  Ft.  Worth  v.  Williams,  55  Tex.  Civ.  App.  2S9, 
119  S.  W.  137,  an  unincased  wire  running  to  edge  of  sidewalk  where  people 
are  liable  to  stumble  over  same ;  Williams  v.  City  of  Parsons,  87  Kan.  649, 
125  Pac.  60,  city  may  be  liable  where  woman  stumbles  over  wire  running 
across  path ;  Poumeroule  v.  Postal  Cable  Tel.  Co.,  167  Mo.  App.  533,  152  S.  W. 
114;  Raines  v.  East  Tennessee  Tel.  Co.,  152  Ky.  205,  153  S.  W,  224,  tele- 
phone company  must  exercise  reasonable  care  to  place  guy  wire  so  as  not 
to  be  susceptible  to  danger;  Mogk  v.  New  York,  etc.,  Co.,  78  App.  Div.  560, 
79  N.  Y.  Supp.  685,  party  driving  into  wire  not  necessarily  guilty  of  negli- 
gence; Raines  v.  East  Tennessee  Tel.  Co..  150  Ky.  670,  150  S.  W.  830,  street 
not  yet  accepted  by  city ;  Bentley  v.  INIissouri,  etc.,  Co.,  142  Mo.  App.  215,  125 
S.  W.  533,  where  night  so  dark  a  telephone  pole  cannot  be  seen  two  feet 
away,  and  a  guy  wire  between  sidewalk  and  curb,  company  not  liable.  But 
see  IMayfield  Water,  etc.,  Co.  v.  Webb,  111  S.  W.  712,  .33  Ky.  Law  Rep.  909, 
18  L.  R.  A.  (N.  S.)  179,  not  liable  for  injury  to  child  climbing  wire. 

Electrical  guy  wires. — New  Omaha,  etc..  Light  Co.  v.  Johnson,  67  Neb.  393, 
93  N.  W.  778,  holding  that  an  electric  company  is  under  the  duty  to  exercise 
all  reasonable  precaution  against  passing  a  dangerous  current  through  a 
guy  wire  attached  to  a  pole  on  a  vacant,  uninclosed  lot  in  a  densely  popu- 
lated portion  of  the  city ;  Neal  v.  Wilmington,  etc.,  Ry.  Co.,  3  Pennewill 
(Del.)  467,  53  Atl.  338,  guy  wire  supporting  trolley  wire  falls  and  becomes 
charged  with  electricity,  is  liable,  after  notice,  for  not  protecting  the  public 
against  it ;  Chattanooga  Elect.  Ry.  Co.  v.  Mingle,  103  Tenn.  667,  56  S.  W.  23, 
76  Am.  St.  Rep.  703,  although  the  fall  is  caused  by  the  stroke  of  the  trolley, 
a  presumption  of  negligence  arises  against  the  company ;  South  Omaha 
Waterworks  Co.  v.  Vocasek,  62  Neb.  710,  87  N.  W.  536,  evidence  that  a  boy  17 
years  old  knew  that  the  guy  wire  of  an  electric  light  post  carried  a  current 
of  electricity,  and  that  he  placed  his  hand  on  it  after  being  warned  by  a 
younger  companion,  does  not  conclusively  establish  contributory  negligence, 
where  it  appears  that  the  wire  had  been  charged  with  electricity  for  several 
days,  with  notice  to  the  owner,  and  that  it  had  been  handled  frequently  by 
various  persons  during  that  time,  and  a  few  minutes  before  by  the  boy,  with- 
out harm;  Campbell  v.  United  Ry.  Co.,  243  Mo.  141,  147  S.  W.  788,  where 
current  of  electricity  runs  through  one  of  trolley  company's  guy  wires  on  to 


§    196)  LIABILITY  FOR  INJURIES  221 

is  rushing  to  the  scene  of  a  fire,  to  pass  thereunder,  the  company 
will  be  liable,  even  though  this  wire  is  attached  to  a  pole  erected  on 
neutral  ground.-^     So  also  the  poles  should  be  sufficiently  strong 

a  private  wire ;  Friesenhan  v.  Miclilgan  Tel.  Co.,  134  Mich.  292,  96  N.  W.  501 ; 
South  Texas  Tel.  Co.  v.  Tabb,  52  Tex.  Civ.  App.  213,  114  S.  W.  448 ;  Johnson 
V.  Northwestern  Tel.  Co.,  48  Minn.  433,  57  N.  W.  225;  Id.,  54  Minn.  37,  55 
N.  W.  829.  See  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl. 
412,  3  L.  R.  A.  (N.  S.)  988,  111  Am.  St.  Rep.  668.  See,  also,  duty  to  take  no- 
tice of  danger  of  wire  passing  through  limbs  of  tree  that  children  will  likely 
climb  tree,  Temple  v.  McComb,  etc..  Light  Co.,  89  Miss.  1,  42  South.  874, 
11  L.  R.  A.  (N.  S.)  449,  119  Am.  St.  Rep.  698,  10  Ann.  Cas.  924.  See,  also, 
Cumberland  Tel.,  etc.,  Co.  v.  Coats,  100  111.  App.  519;  Delaware,  etc.,  Tel. 
Co.  V.  Fleming,  53  Ind.  App.  555,  102  N.  E.  163;  Lundeen  v.  Livingston  Elec. 
Lt.  Co.,  17  Mont.  32,  41  Pac.  995;  Davidson  v.  Telephone  Co.,  34  Utah,  249, 
97  Pac.  124. 

Guy  wires  in  proximity  to  charged  wires. — If  it  is  shown  that  a  guy  wire 
was  maintained  in  such  proximity  to  a  dangerous  electric  wire,  with  which 
it  came  in  contact,  and  as  a  result  of  which  a  person  was  injured  by  touching 
the  guy,  negligence  may  be  properly  inferred.  Graves  v.  City,  etc.,  Tel. 
Ass'n  (C.  C.)  132  Fed.  387;  Valparaiso  Ltg.  Co.  v.  Tyler,  177  Ind.  278,  96 
N.  E.  768 ;  Michigan  City,  etc.,  Elec.  Co.  v.  Dibka,  54  Ind.  App.  248,  100  N.  E. 
877;  Snyder  v.  Mutual  Tel.  Co.,  135  Iowa,  215,  112  N.  W.  776,  14  L.  R.  A. 
(N.  S.)  321 ;  Macon  v.  Paducah  St.  Ry.  Co.,  110  Ky.  680,  62  S.  W.  496,  23  Ky. 
Law  Rep.  46;  Citizens'  Tel.  Co.  v.  Wakefield  (Ky.)  126  S.  W.  127;  Electric 
Lt.  Co.  V.  Johnson,  67  Neb.  393,  93  N.  W.  778;  Haynes  v.  Raleigh  Gas  Co., 
114  N.  C.  203,  19  S.  E.  344,  26  L.  R.  A.  810,  41  Am.  St.  Rep.  786 ;  Shawnee, 
etc.,  P.  Co.  v.  Sears,  21  Okl.  13,  95  Pac.  449 ;  Turton  v.  Powelton  Elec.  Co., 
185  Pa.  406,  39  Atl.  1053;  Garretson  v.  Tacoma,  etc.,  P.  Co.,  50  Wash.  24. 
91  Pac.  511 ;  Lomoe  v.  Superior,  etc.,  P.  Co.,  147  Wis.  5,  132  N.  W.  623 ;  Ryan 
V.  Oshkosh  Gas  Lt.  Co.,  138  Wis.  466,  120  N.  W.  264;  where  service  wire 
falls  and  sags  upon  guy  wire.  Village  v.  Siler,  225  111.  630,  80  N.  E.  345.  8 
L.  R.  A.  (N.  S.)  205;  Freeman  v.  Missouri,  etc.,  Tel.  Co.,  160  Mo.  App.  271, 
142  S.  W.  733;  Ryan  v.  Oshkosh  Gas  Lt.  Co.,  supra;  due  care  requires  in- 
stallation of  circuit  breaker.  Hoover  v.  Kansas  City  Elevated  R.  Co.,  159 
Mo.  App.  416,  140  S.  W.  321. 

Guy  ivires,  incasement. — Guy  wires  extending  to  the  ground  where  people 
are  liable  to  trip  over  them  should  be  incased  so  as  to  be  visible.  Grant  v. 
Sunset  Tel.,  etc.,  Co.,  supra ;  Poumeroule  v.  Postal  Tel.  Cable  Co.,  supra ;  Ft. 
Worth  V.  Williams,  supra ;   Bentley  v.  Missouri,  etc.,  Tel.  Co.,  supra. 

Span  toires. — If  railway  company  negligently  permits  a  span  wire  to  be- 
come a  carrier  of  deadly  current  of  electricity,  it  will  generally  be  liable  in 
damages  for  injuries  to  persons  who,  not  knowing  of  its  dangerous  condition, 
touch  it  or  touch  some  wire  or  appliance  connected  with  it,  which  becomes 
dangerous  when  the  span  wire  is  charged.  Potts  v.  Shreveport,  etc.,  R.  Co., 
110  La.  1,  34  South.  103,  98  Am.  St.  Rep.  452 ;  Campbell  v.  Rys.  Co.,  243  Mo. 
141,  147  S.  W.  788 ;    Jones  v.  Ry.  Co.,  18  App.  Div.  267,  46  N.  Y.  Supp.  321. 

27  Wilson  v.  Great  Southern  Tel.,  etc.,  Co.,  41  La.  Ann.  1041,  6  South.  781. 
See  Pennebaker  v.  San  Joaquin,  etc..  Power  Co.,  158  Cal.  579,  112  Pac.  459, 
31  L.  R.  A.  (N.  S.)  1099,  139  Am.  St.  Rep.  202,  not  charged  with  a  duty  to 


222  TELEGRAPH   AND   TELEPHONE   COMPANIES  (§    196a 

within  themselves  to  sustain  the  weight  of  the  wires.^®  For  in- 
stance, a  telephone  company  is  not  relieved  from  liability  for  in- 
jury to  a  person  owing  to  the  falling  of  one  of  its  poles  of  insuffi- 
cient strength  by  the  fact  that  the  cutting  of  guy  wires  attached 
to  a  building  by  the  owner  thereof,  after  he  had  revoked  his  license, 
contributed  to  the  falling  of  the  pole.^^  And  they  will  continue  to 
be  responsible  for  injuries  arising  from  an  improper  maintenance 
of  the  line,  although  the  system  is  to  be  maintained  by  another.^" 
§  196a.  Destruction  of  property  by  lightning. — Electrical  com- 
panies will  not  only  be  liable  for  personal  injuries,  but  where  their 

cut  off  at  its  own  instance  the  current  from  some  certain  district  merely  upon 
knowledge  being  brought  to  it  that  a  building  within  that  district  is  on  fire. 

2  8  American  Dist.  Tel.  Co.  v.  Oldham,  148  Ky.  320,  146  S.  W.  764,  Ann. 
Cas.  1913E,  376.     See  §  197. 

2  9  Johnson  v.  Northwestern  Tel.  Exch.  Co.,  48  Minn.  433,  51  N.  W.  225;  Id., 
54  Minn.  37,  55  N.  W.  829.  In  this  case  it  was  said  that  undoubtedly  the 
defendant  was  bound  to  foresee  that  Shadwell,  the  private  owner,  might  re- 
move those  guys,  but  it  could  not  anticipate  that  he  would  do  it  negligently 
so  as  to  allow  the  pole  to  fall  into  the  street  without  warning  to  passers-by. 
Negligence,  not  wanton,  cannot  ordinarily  be  said  to  he  the  proximate  cause 
of  an  injury  when  the  negligence,  which  could  not  have  been  reasonably 
anticipated,  of  another  independent  human  agency,  has  intervened  and  di- 
rectly caused  the  injury.  Hence  it  was  not  clear  but  that  on  the  state  of 
facts  the  negligence  of  Shadwell  was  the  sole  proximate  cause  of  injury. 
But,  however  that  may  be,  the  question  was  settled  on  the  former  appeal. 
See,  also,  American  Dist.  Tel.  Co.  v.  Oldham,  148  Ky.  320,  146  S.  W.  764,  Ann. 
Cas.  1913E,  376. 

30  Aaron  v.  Missouri,  etc.,  Tel.  Co.,  89  Kan.  186,  131  Pac.  582,  45  L.  R.  A. 
(N.  S.)  309,  where  a  telephone  company  leased  to  another  telephone  company 
the  right  to  string  wires  on  the  former's  poles,  held  liable  to  the  estate  of  an 
employe  of  the  latter  who  is  killed  by  a  pole  falling  while  he  was  removing 
his  company's  wire  in  connection  wth  the  rebuilding  of  the  pole  line,  a  defect 
in  the  pole  not  being  apparent,  and  the  lineman  not  being  bound  to  ascertain 
the  condition  of  the  pole.  A  general  warning  to  a  lineman  was  no  defense  in 
the  case. 

But  a  telephone  company  which  owns  a  telephone  pole  is  not  responsible 
for  an  injury  .from  an  insulator  falling  from  a  cross-arm  on  such  pole,  the 
cross-arm  and  insulator  being  the  property  of  a  telegraph  company  and  being 
in  the  exclusive  possession  of  the  latter  company.  Quill  v.  Empire  State,  etc., 
Co.,  159  N.  Y.  1,  53  N.  E.  679.  And  a  lineman  of  an  electric  light  company 
who  climbs  a  pole  owned  by  a  telephone  company  on  which  there  are  electric 
light  cross-arms  and  wires  cannot  hold  either  company  liable  for  the  breaking 
of  a  cross-arm  belonging  to  the  telephone  company  when  he  had  no  reason  to 
suppose  that  the  cross-arm  had  been  inspected  and  he  did  not  inspect  the 
cross-arm  himself  and  there  was  no  proof  that  the  cross-arm  when  originally 
erected  was  defective  or  that  the  electric  light  company  knew  of  the  defect. 
Consolidated,  etc.,  Co.  v.  Chambers,  112  Md.  324,  75  Atl.  241,  26  L.  R.  A. 
<N.  S.)  509. 


§    196a)  LIABILITY  FOR  INJURIES  225 

lines  have  been  improperly  and  negligently  constructed  and  main- 
tained, and  as  a  result  of  which  there  is  a  loss  or  injury  to  prop- 
erty, they  will  be  liable  therefor. ^^  Such  companies  are  bound  to 
anticipate  that  lightning  may  pass  along  their  wires,  and  are  also 
bound  to  exercise  due  care  for  the  protection  of  the  public  and 
their  customers  from  such  current.  So  it  has  been  held  that  they 
are  liable  for  negligence  in  failing  to  provide  the  usual  safeguards 
to  prevent  electricity  from  lightning  from  being  transmitted  over 
their  wires  and  causing  a  destruction  of  property  or  a  damage  by 
fire.^^     However,  there  is  authority  to  the  contrary. ^^     Every  per- 

31  Merchants'  Mut.  Tel.  Co.  v.  Hirschman,  43  Ind.  App.  283,  87  N.  E.  238, 
obstructing  access  to  property  by  improper  location  of  telephone;  McKay  v. 
Southern  Bell  Tel.,  etc.,  Co.,  Ill  Ala.  337,  19  South.  695,  56  Am.  St.  Rep.  59, 
31  L.  R.  A.  5S9,  injury  to  horse ;  Hovey  v.  Michigan  Tel.  Co.,  124  Mich.  607, 
83  N.  W.  600,  injury  to  horse;  Richmond,  etc.,  R.  Co.  v.  Rubin,  102  Va.  809, 
47  S.  E.  834,  burning  of  store;  Jackson  v.  Wisconsin  Tel.  Co.,  88  Wis.  243, 
60  N.  W.  430,  20  L.  R.  A.  101,  destruction  of  barn ;  Blanchard  v.  West.  U.  Tel. 
Co.,  60  N.  Y.  510,  Injury  to  vessel ;  Stephens,  etc.,  Transp.  Co.  v.  West.  U. 
Tel.  Co.,  22  Fed.  Cas.  1301,  No,  13,371,  8  Ben.  502,  injury  to  vessel.  See  chap- 
ter 8,  improper  construction  of  cables.  See,  also.  Wells  v.  Northeastern  Tel. 
Co.,  101  Me.  371,  64  Atl.  648 ;  Wood  v.  Cumberland  Tel.,  etc.,  Co.,  151  Ky.  77, 
151  S.  W.  29;  Miles  v.  Postal,  etc.,  Co.,  55  S.  C.  403,  33  S.  E.  493,  as  to 
property  destroyed  by  fire  caused  by  current.  But  see  National,  etc.,  Co.  v. 
Denver,  16  Colo.  App.  86,  03  Pac.  949;  Chaffee  v.  Telephone,  etc.,  Co.,  77 
Mich.  625,  43  N.  W.  1064,  6  L.  R.  A.  455,  18  Am.  St.  Rep.  424. 

32  Peninsula  Tel.  Co.  v.  McCasldll,  64  Fla.  420,  60  South.  338,  Ann,  Cas. 
1914B,  1029;  Jackson  v.  Wisconsin  Tel.  Co.,  88  Wis.  243,  60  N,  W.  430,  26 
L.  R.  A.  101.  In  the  first  case  lightning  struck  a  pine  tree,  then  glanced  off: 
or  threw  its  static  force  upon  a  telephone  wire  about  6  feet  away,  and  was 
thence  transmitted  to  a  store  building  about  one-fourth  mile  distance  where 
the  wires  were  installed  without  insulators  or  a  ground  wire,  a  precaution  uni- 
versally used  by  the  telephone  companies  operating  overhead  wires.  It  fur- 
ther appeared  that  no  damage  was  done  to  other  houses  entered  by  the  same 
wire  which  were  there  insulated  and  grounded.  The  courts  said :  "It  is  a 
matter  of  common  knowledge  that  lightning  frequently  plays  along  or  near  tele- 
phone lines  and  that  our  houses  are  secure  though  telephones  are  placed  in 
them ;  rather  than  a  menace  a  well  installed  telephone  has  come  to  be  re- 
garded a  protection  against  the  lightning's  stroke.  It  may  be  true  that  there 
is  no  protection  against  the  destructive  effect  of  a  direct  bolt  of  lightning 
of  high  voltage,  but  we  must  be  wiser  than  we  are,  even  after  reading  care- 
fully the  testimony  of  the  experts  of  the  plaintiff  in  error,  to  hold  that  the 
indirect  effect  of  the  indirect  forces  of  a  stroke  of  lightning  may  not  be 
minimized  and  rendered  harmless  by  those  safeguards  in  such  common  use, 
and  in  so  far  as  the  evidence  before  us  discloses  such  safeguards  as  have 
never  failed  to  accomplish  the  uses  for  which  they  were  designed.  In  holding 
that  it  is  actionable  negligence  to  fail  to  provide  any  safeguards,  we  are  in 

S3  Phcenix  Lt.,  etc.,  Co.  v.  Bennett,  8  Ariz.  314,  74  Pac.  48,  63  L.  R.  A.  219. 


224  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  197 

son  must  answer  for  the  consequences  of  his  own  negligence ;  and 
while,  generally  speaking,  there  can  be  no  liability  for  an  act  of 
God,  yet  if  this,  in  connection  with  the  negligence  of  the  person, 
results  directly  in  producing  a  loss  or  injury,  a  recovery  therefor 
may  be  had.  Consequently,  if  lightning  is  conducted  to,  or  into 
a  building,  through  the  negligence  of  the  company  in  the  con- 
struction and  maintenance  of  its  wires,  it  will  be  liable,  althougu 
the  lightning  may  be  considered  an  act  of  God.^*  The  owner  of 
the  property  will  not  be  denied  damages  for  the  loss  or  injury  to  his 
property  because  of  the  fact  that  the  wires  were  erected  before  the 
building  or  property  destroyed,  where  the  same  is  entirely  upon 
his  own  premises.'^ 

§  197.  Same  continued — strength  and  stability  of  poles. — The 
strength  and  stability  which  poles  for  telegraph,  telephone,  or  elec- 
tric companies  should  have  depends  somewhat  upon  the  locality 
in  which  they  are  erected,  and  the  number  of  wires  they  are  sup- 
posed to  hold.  For  instance,  if  there  are  a  great  number  of  wires 
to  be  supported,  as  is  generally  the  case  in  towns  and  cities,  the 
poles  should  be  much  stronger  and  more  firmly  planted  in  the 
ground  than  they  otherwise  would  have  to  be.^*^  The  conditions  of 
the  country  through  which  they  are  constructed,  with  respect  to 
winds  and  storms,  should  be  considered  since  a  pole  which  might 
be  very  substantial  in  a  country  where  there  are  few,  if  any,  storms, 
would  not  be  suitable  in  a  country  subject  to  such  climatic  chang- 
es.^^  While  these  companies  are  duty  bound  to  the  public  to  have 
poles  with  sufficient  strength  to  withstand  the  changes  of  the  cli- 
mate which  are  reasonably  expected  to  be  suffered  in  that  particular 
region,  yet  they  are  not  bound  to  construct  or  maintain  the  lines 

line  with  wliat  we  consider  the  great  weight  of  authority.  Southern  Bell  Tel. 
&  Tel.  Co.  V.  McTyer,  137  Ala.  601,  34  South.  1020,  97  Am.  St.  Rep.  62; 
Southwestern  Tel.  &  Tel.  Co.  v.  Abeles,  94  Ark.  254,  126  S.  W.  724,  21  Ann. 
Cas.  1006,  140  Am.  St.  Rep.  115;  Southwestern  Tel.  &  Tel.  Co.  v.  Bruce,  89 
Ark.  581,  117  S.  W.  564 ;  Griffith  v.  New  England  Tel.  &  Tel.  Co.,  72  Vt.  441, 
48  Atl.  643,  52  L.  R.  A.  919 ;  Southern  Tel.  &  Tel.  Co.  v.  Evans,  54  Tex.  Civ. 
App.  63,  116  S.  W.  418." 

34  Evans  v.  Eastern  Ky,  Tel.,  etc.,  Co.,  124  Ky.  620,  30  Ky.  L.  Rep.  833, 
99  S.  W.  936 ;  Jackson  v.  Wisconsin  Tel.  Co.,  88  Wis.  243,  60  N.  W.  430,  26 
L.  R.  A.  101.  See,  also,  Brown  v.  West  Riverside  Coal  Co.,  143  Iowa,  662,  120 
N.  W.  732,  28  L.  R.  A.  (N.  S.)  1260 ;  Hebert  v.  Lake  Charles  Ice,  etc.,  Co.,  Ill 
La.  522,  35  South.  731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101. 

3  5  Miles  V.  Postal  Tel.  Cable  Co.,  55  S.  C.  403.  33  S.  E.  49.3. 

3  6  See  §  SS.  See  American  Dist.  Tel.  Co.  v.  Oldham,  148  Ky.  320,  146  S.  W. 
764,  Ann.  Cas.  1913E,  376. 

87  See  §  198  et  seq. 


§    198)  LIABILITY   FOR   INJURIES  225 

SO  as  to  guard  against  storms  of  unusual  severity,  the  occurrence 
of  which  could  not  be  reasonably  expected.^"^  They  must,  however, 
be  strong  enough  to  withstand  such  violent  storms  as  may  be 
reasonably  expected  or  such  as  reasonable  foresight  and  prudence 
could  anticipate. ^°  Not  only  should  the  poles  be  sufficiently  strong 
— and  speaking  on  this  subject,  the  same  rule  is  applied  to  the 
cross-arms  ^^ — at  the  time  they  are  erected  to  hold  up  the  wires  and 
endure  and  withstand  anticipated  and  reasonable  climatic  changes, 
but  they  must  also  be  durable,  or  made  to  be  such;  since,  as  is 
well  known,  the  life  of  these  poles  is  short,  if  these  companies  were 
permitted  to  allow  their  poles  to  become  weakened  by  decay,  or, 
in  other  words,  if  they  were  not  duty  bound  to  maintain  their  lines, 
they  would  avoid  many  responsibilities.*^ 

§  198.  Duty  to  provide  safeguards  on  premises  for  patrons — 
res  ipsa  loquitur  applicable. — Telephone  companies  should  equip 

3  8  See  §  198  et  seq.  See  American  Dist.  Tel.  Co.  v.  Oldham,  148  Ky.  320, 
146  S.  W.  764,  Ann.  Cas.  1913E,  376. 

3  9  Ward  V.  Atlantic,  etc.,  Tel.  Co.,  71  N.  Y.  81,  27  Am.  Rep.  10;  Bellinger 
V.  New  York,  etc.,  R.  Co.,  23  N.  Y.  42 ;  Mayor  v.  Bailey,  2  Denio  (N.  Y.)  433 ; 
Riker  v.  New  York,  etc.,  R.  Co.,  64  App.  Div.  357,  72  N.  Y.  Supp.  168 ;  South- 
western Tel.,  etc.,  Co.  v.  Ingrando,  27  Tex.  Civ.  App.  400,  65  S.  W.  1085; 
Southwestern  Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810,  1  C.  C.  A.  684,  16  L. 
R.  A.  545 ;  West.  U.  Tel.  Co.  v.  Harris,  6  Ga.  App.  260,  64  S.  E.  1123 ;  Anthony 
V.  Cass  Co.  Home  Tel.  Co.,  105  Mich.  388,  130  N.  W.  659 ;  Harrington  v. 
Com'rs,  153  N.  C.  437,  69  S.  E.  399.  But  see  Southwestern  Tel.,  etc.,  Co.  v. 
Keys,  50  Tex.  Civ.  App.  648,  110  S.  W.  767,  where  a  horse  was  struck  by 
lightning  passing  from  wire  before  company  had  opportunity  to  repair  after 
notice. 

4  0  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500;  Dwyer  v. 
Electric  Co.,  20  App.  Div.  124,  46  N.  Y.  Supp.  874,  injury  from  a  metallic 
brace  supporting  a  cross-arm. 

41  See  §  198  et  seq.  See  American  Dist.  Tel.  Co.  v.  Oldham,  148  Ky.  320, 
146  S.  W.  764,  Ann.  Cas.  1913E,  376;  Burton  v.  Cumberland  Tel.,  etc.,  Co. 
(Ky.)  118  S.  W.  287;  Evansville,  etc.,  Tr.  Co.  v.  Montgomery,  50  Ind.  App. 
528,  98  N.  E.  731 ;  Harton  v.  Forest  City  Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022, 
14  Ann.  Cas.  390,  14  L.  R.  A.  (N.  S.)  956 ;  Joseph  v.  Edison  Elec.  Co.,  104  La. 
634,  29  South.  223.  Must  inspect  as  often  as  is  reasonably  necessary  to  as- 
certain any  defect.  Pacific  Tel.,  etc.,  Co.  v.  Parmenter,  170  Fed.  140,  95  C.  C. 
A.  382 ;  Evansville,  etc.,  Tr.  Co.  v.  Montgomery,  supra ;  Postal  Tel.  Cable  Co. 
V.  Kelly,  134  Ga.  218,  67  S.  E.  803 ;  Murray  v.  Cowherd,  148  Ky.  591,  147  S. 
W.  6,  40  L.  R.  A.  (N.  S.)  617;  Cumberland  Tel.,  etc.,  Co.  v.  Warner,  25  Ky. 
Law  Rep.  1843,  79  S.  W.  199 ;  Ward  v.  Atlantic,  etc.,  Tel.  Co.,  71  N.  Y.  81,  27 
Am.  Rep.  10;  Terrell  v.  Washington,  158  N.  C.  281,  73  S.  E.  888;  Harton  v. 
Forest  City  Tel.  Co.,  supra. 

Abandoned  Poles. — Where  poles  have  been  abandoned  the  company  should 
exercise  proper  diligence  in  seeing  that  they  do  not  endanger  the  public  until 
Jones  Tel.(2d  Ed.)— 15 


226  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  198 

their  telephones  which  they  have  installed  in  buildings  with  known 
and  approved  devices  so  as  to  prevent  their  wires  from  conduct- 
ing lightning  or  excessive  currents  of  electricity  to  or  into  said 
buildings;  *-  and,  in  the  discharge  of  such  duty,  they  must  exercise 
the  care  of  a  prudent  person  under  like  circumstances,  otherwise 
they  will  be  liable  to  any  one  injured  thereby.*^    Consequently  they 

removed.  Dobbins  v.  West.  U.  Tel.  Co.,  163  Ala.  222,  50  South.  919,  136  Am. 
St.  Rep.  69;  Powers  v.  Independent  Long  Dist.  Tel.  Co.,  19  Idaho,  577,  114 
Pac.  666. 

4  2  Southwestern  Tel.,  etc.,  Co.  v.  Abeles,  94  Ark.  254,  126  S.  W.  724,  140  Am. 
St.  Rep.  115,  21  Ann.  Cas.  1006 ;  Griffith  v.  New  England  Tel.,  etc.,  Co.,  72  Vt. 
441,  48  Atl.  643,  52  L.  R.  A.  919 ;  Southern  Bell  Tel.,  etc.,  Co.  v.  McTyer,  137 
Ala.  601,  34  South.  1020,  97  Am.  St.  Rep.  62,  abandoned  telephone  wires; 
Brucker  v.  Gainesboro  Tel.  Co.,  125  Ky.  92,  100  S.  W.  240,  30  Ky.  Law  Rep. 
1162 ;  Evans  v.  Eastern  Kentucky  Tel.,  etc.,  Co.,  124  Ky.  620,  99  S.  W.  936,  30 
Ky.  Law  Rep.  833;  Southern  Bell  Tel.,  etc.,  Co.  v.  Parker,  119  Ga.  721,  47 
S.  E.  194,  shock  at  the  telephone ;  Wells  v.  Northeastern  Tel.  Co.,  101  Me.  371, 
64  Atl.  648 ;  Delahunt  v.  United  Tel.,  etc.,  Co.,  215  Pa.  241,  64  Atl.  515,  114 
Am.  St.  Rep.  958 ;  Bardon  v.  Northwestern  Tel.  Exch.  Co.,  93  Minn.  421,  101 
N.  W.  1132 ;  Southern  Tel.,  etc.,  Co.  v.  Evans,  54  Tex.  Civ.  App.  63,  116  S.  W. 
418 ;  Owen  v.  Portage  Tel.  Co.,  126  Wis.  412,  105  N.  W.  924.  See  Rural  Home 
Tel.  Co.  V.  Arnold  (Ky.)  119  S.  W\  811 ;  Southwestern  Tel.,  etc.,  Co.  v.  Bruce, 
89  Ark.  581,  117  S.  W.  564.  See  Richmond,  etc.,  R.  Co.  v.  Rubin,  102  Va.  809, 
47  S.  E.  834 ;  Jackson  v.  Wisconsin  Tel.  Co.,  88  Wis.  243,  60  N.  W.  430,  26  L. 
R.  A.  101.  See,  also,  Minneapolis  General  Elec.  Co.  v.  Cronon,  166  Fed.  657, 
92  C.  C.  A.  345,  20  L.  R.  A.  (N.  S.)  816 ;  Fish  v.  Waverly  Elec.  Lt.  Co.,  189 
X.  Y.  336,  82  N.  E.  150,  13  L.  R.  A.  (N.  S.)  226,  liable  to  family  and  servants ; 
Peninsular  Tel.  Co.  v.  ^NlcCaskill,  64  Fla.  420,  60  South.  338,  Ann.  Cas.  1914B, 
1029.  See  §  196.  But  see  Phoenix  Lt.,  etc.,  Co.  v.  Bennett,  8  Ariz.  314,  74  Pac. 
48,  63  L.  R.  A.  219. 

4  3  Southwestern  Tel.,  etc.,  Co.  v.  Abeles,  94  Ark.  254,  126  S.  W.  724,  140  Am. 
St.  Rep.  115,  21  Ann.  Cas.  1006;  Delahunt  v.  United  Tel.,  etc.,  Co.,  215  Pa. 
241,  64  Atl.  515,  114  Am.  St.  Rep.  958 ;  Southern  Tel.,  etc.,  Co.  v.  Evans,  54 
Tex.  Civ.  App.  63,  116  S.  W.  418;  Griffith  v.  New  England  Tel.,  etc.,  Co.,  72 
Vt.  441,  48  Atl.  643,  52  L.  R.  A.  919 ;  Southern  Bell  Tel.,  etc.,  Co.  v.  McTyer, 
137  Ala.  601,  34  South.  1020,  97  Am.  St.  Rep.  62.  See,  also,  cases  cited  in  note 
42. 

Lightning  conducted  into  building. — Telephone  companies  should  use  light- 
ning arresters,  or  other  devices,  for  preventing  lightning  from  being  conduct- 
ed into  the  building  of  one  of  its  patrons,  and  will  be  liable  for  damages  for 
the  failure  So  to  do,  or  the  negligent  construction  of  such  which  it  may  place 
therein.  Southern  Bell  Tel.,  etc.,  Co.  v.  McTyer,  supra ;  Southwestern  Tel. 
Co.  v.  Abeles,  supra ;  Peninsular  Tel.  Co.  v.  McCaskill,  64  Fla.  420,  60  South. 
338,  Ann.  Cas.  1914B,  1029 ;  Southern  Bell  Tel.,  etc.,  Co.  v.  Parker,  119  Ga. 
721,  47  S.  E.  194 ;  Southern  Tel.,  etc.,  Co.  v.  Evans,  supra ;  Southwestern  Tel., 
etc.,  Co.  V.  Davis  (Tex.  Civ.  App.)  156  S.  W.  1146 ;  subject  for  the  jury,  Evans 
V.  Eastern  Kentucky  Tel.,  etc.,  Co.,  124  Ky.  620,  30  Ky.  Law  Rep.  S33,  99  S. 
W.  936 ;  Southwestern  Tel.,  etc.,  Co.  v.  Abeles,  supra ;  Griffith  v.  New  England 
Tel.,  etc.,  Co.,  supra ;  negligence  may  be  inferred.  Southern  Bell  Tel.,  etc.,  Co. 


§    198)  LIABILITY   FOR   INJURIES  227 

will  be  liable  for  personal  injuries  to  one  using-  their  instruments 
in  the  ordinary  manner  during  an  ordinary  electrical  disturb- 
ance/* or  from  a  discharge  of  electricity  from  wires  to  persons 
not  actually  coming  in  contact  therewith/^  Furthermore,  where 
so  dangerous  an  agency  as  electricity  is  undertaken  to  be  deliv- 
ered into  houses  by  electrical  companies  for  daily  use,  very 
great  care  and  caution  should  be  observed,  and  such  a  degree 
thereof  as  is  commensurate  with  the  danger  involved,  and 
which  is  enhanced  by  the  lack  of  the  consumer's  knowledge  of  the 
safety  of  the  means  and  appliances  employed  to  effect  the  deliv- 

V.  McTyer,  supra;  Evans  v.  Eastern  Kentucky  Tel.,  etc.,  Co.,  supra;  Byron 
Tel.  Co.  T.  Sheets,  122  111.  App.  6. 

Warning  not  to  use  telephone  during  storm. — Action  cannot  be  based  on 
failure  of  company  to  place  a  warning  on  telephone  against  its  use  during  the 
continuance  of  an  electrical  storm,  Rocap  v.  Bell  Tel.  Co.,  2.30  Pa.  597,  79  Atl. 
769,  .36  L.  R.  A.  (N.  S.)  279. 

4  4  Southwestern  Tel.,  etc.,  Co.  v.  Abeles,  94  Ark.  254,  126  S.  W.  724,  140  Am. 
St.  Rep.  115,  21  Ann.  Cas.  1006;  Southern  Bell,  etc.,  Co.  v.  Parker,  119  Ga. 
721,  47  S.  E,  194 ;  Delahunt  v.  United  Tel.,  etc.,  Co.,  215  Pa.  241,  64  Atl.  515, 
114  Am.  St.  Rep.  958.  But  see  Rocap  v.  Bell  Tel.  Co.,  230  Pa.  597,  79  Atl.  769, 
36  L.  R.  A.  (N.  S.)  279,  extraordinary  storm.  See,  also.  Southwestern  Tel., 
etc.,  Co.  V.  Robinson,  50  Fed.  810,  1  C.  C.  A.  684,  16  L.  R.  A.  545 ;  Southern 
Bell  Tel.,  etc.,  Co.  v.  McTyer,  137  Ala.  601,  84  South.  1020,  97  Am.  St.  Rep. 
62;  Columbus  R.  Co.  v.  Kitchens,  142  Ga.  677,  S3  S.  E.  529,  L.  R.  A.  1915C, 
570;  Griffith  v.  New  England  Tel.,  etc.,  Co.,  72  Vt.  441,  48  Atl.  643,  52  L.  R.  A. 
919 ;  Jackson  v.  Wisconsin  Tel.  Co.,  88  Wis.  248,  60  N.  W.  430,  26  L.  R.  A.  101. 

Turning  on  eleetric  light. — Denver  Consol.  Elec.  Co.  v.  Lawrence,  31  Colo. 
301,  73  Pac.  39 ;  Alabama,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  824,  54  South.  638, 
Ann.  Cas.  1913A,  1181,  holding  doctrines  res  ipsa  loquitur  applies.  Turner  v. 
Southern  Power  Co.,  154  N.  C.  181,  69  S.  E.  767,  32  L.  R.  A.  (N.  S.)  848. 

4  5  Where  the  services  on  the  premises  have  been  discontinued  and  the  in- 
struments removed,  if  the  wires  are  left  in  the  building  with  exposed  ends, 
no  consideration  of  public  policy  justifies  the  dangers  thus  created,  and  leav- 
ing the  wires  so  exposed  is  negligence  per  se  justifying  a  recovery  for  injuries 
to  any  person  rightfully  on  the  premises  caused  by  lightning  conveyed  on  the 
premises  by  the  wires.  Southern  Bell  Tel.,  etc.,  Co.  v.  McTyer,  137  Ala.  691, 
34  South.  1020,  97  Am.  St.  Rep.  62 ;  Starr  v.  Southern  Bell  Tel.,  etc.,  Co.,  156 
N.  C.  435,  72  S.  E.  484.  In  Texas  Tel.,  etc.,  Co.  v.  Scott  (Tex.  Civ.  App.)  127 
S.  W.  587,  held  not  to  be  negligence  per  se.  In  Griffith  v.  New  England  Tel., 
etc.,  Co.,  72  Vt.  441,  48  Atl.  643,  52  L.  R.  A.  919,  where  intestate  was  killed  by 
lightning  while  sitting  in  his  house  under  a  telephone  instrument  installed  by 
the  defendant,  the  court  said  that,  when  the  jury  had  found  what  the  force 
was  and  its  extent,  it  was  for  them  to  say  whether  there  were  known  and  ap- 
proved appliances  for  arresting,  diverting,  and  controlling  such  force  so  as  to 
prevent  injury,  and  whether  the  defendant  was  negligent  in  not  providing  such 
appliances,  and  whether  the  deceased  came  to  his  death  by  reason  of  such  neg- 
lect 


228  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  198 

ery.*"  It  is  generally  held  that  in  case  of  injuries  sustained  from 
electric  appliances  on  private  property  the  doctrine  of  res  ipsa  loqui- 
tur applies  where  it  is  shown  that  all  the  appliances  for  generating 
and  delivering  the  electric  current  are  under  the  control  of  the  per- 
son or  company  furnishing  the  same.*^     So  also  the  company  will 

4  6  Alton  Illuminating  Co.  v.  Foukls,  190  111.  367,  60  N.  E.  537.  Denver  Con- 
sol.  Elec.  Co.  V.  Lawrence,  31  Colo.  301,  73  Pac.  39,  quoting  Thompson,  in  his 
work  on  the  law  of  Negligence,  says,  "It  may  be  floubtecl  whether  persons  or 
corporations  employing,  for  their  own  private  advantage,  so  dangerous  an 
agency  as  electricity,  ought  not  to  be  regarded  as  quasi-insurers,  as  toward 
third  persons,  against  any  injurious  consequences  which  may  flow  from  it." 
In  this  case  the  party  was  injured  from  a  shock  by  turning  on  a  light.  An 
attempt  was  made  to  be  relieved  from  liability  by  a  contract  stipulating 
against  liability,  but  the  court  held  that  such  a  contract  was  against  public 
policy.  See  Minneapolis  General  Elec.  Co.  v.  Cronon,  166  Fed.  657,  92  C.  C.  A. 
315,  20  L.  R.  A.  (N.  S.)  816 ;  Fish  v.  Waverly  Elec.  Lt.  Co.,  1S9  N.  Y.  336,  82  N. 
E.  150,  13  L.  R.  A.  (N.  S.)  226,  liable  to  family  and  servants ;  Peninsular  Tel. 
Co.  v.  McCaskill,  64  Fla.  420,  60  South.  338,  Ann.  Cas.  1914B,  1029.  But  see 
PhcenLx  Lt.,  etc.,  Co.  v.  Bennett,  8  Ariz.  314,  74  Pac.  48,  63  L.  R.  A.  219.  See, 
also,  Alabama  City,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324,  54  South.  638,  Ann. 
Cas.  1913A,  1181 ;  Abrams  v.  Seattle,  60  Wash.  356,  111  Pac.  168,  140  Am.  St. 
Rep.  916 ;  Griffith  v.  New  England  Tel.  Co.,  72  Vt.  441,  48  Atl.  643,  52  C.  C.  A. 
919 ;  Turner  v.  Southern  P.  Co.,  154  N.  C.  131,  69  S.  E.  767,  32  L.  R.  A.  (N.  S.) 
848 ;  Columbus  R.  Co.  v.  Kitchens,  142  Ga.  677,  83  S.  E.  529,  L.  R.  A.  1915C, 
570 ;  Denson  v.  Electric  Co.,  135  Ga.  132,  68  S.  E.  1113 ;  Younie  v.  Blackfoot 
L.,  etc.,  Co.,  15  Idaho,  56,  96  Pac.  193 ;  Webster  v.  Light,  etc.,  R.  Co.,  158  App. 
Div.  210,  143  N.  Y.  Supp.  57 ;  Electric  L.,  etc.,  Co.  v.  Sutherland,  61  Fla.  167, 
55  South.  83 ;  Norfolk,  etc.,  Tr.  Co.  v.  Daily,  111  Va.  665,  69  S.  E.  963 ;  White 
V.  Elec.  Co.,  75  Wash.  139,  134  Pac.  807 ;  Houston  v.  Traction  Co.,  155  N,  C. 
4,  71  S.  E.  21 ;  Light,  etc.,  P.  Co.  v.  Lakeraan,  156  Ky.  33,  160  S.  W.  723 ;  Hill 
V.  Elec.  Co.,  22  Cal.  App.  788,  136  Pac.  492 ;  Hanton  v.  Light,  etc.,  P.  Co.,  124 
La.  562,  50  South.  544 ;  Ohrstrom  v.  Tacoma,  57  Wash.  121,  106  Pac.  629 ;  Ber- 
stein  V.  Elec.  Co.,  235   Pa.  53,  83  Atl.  612. 

47  Hebert  v.  Hudson  River  Elec.  Co.,  136  App.  Div.  107,  120  N.  Y.  Supp.  672; 
Alexander  v.  Nanticoke  Light  Co.,  209  Pa.  571,  58  Atl.  1068,  67  L.  R.  A.  475 ; 
Turner  v.  Southern  P.  Co.,  154  N.  C.  131,  69  S.  E.  767,  32  L.  R.  A.  (N.  S.)  848 : 
Crowe  v.  Nanticoke  Lt.  Co.,  209  Pa.  580,  58  Atl.  1071 ;  Bice  v.  Wheeling  Elec. 
Co.,  62  W.  Va.  685,  59  S.  E.  626 ;  Giraudi  v.  San  Jose  Elec.  Imp.  Co.,  107  Cal. 
320,  40  Pac.  108,  48  Am.  St,  Rep.  114,  28  L.  R.  A.  596;  Wheeler  v.  Northern 
Ohio  Tr.  Co.,  27  Ohio  Cir.  Ct.  R.  517,  prima  facie  negligence ;  Houston  v.  Dur- 
ham Tr.  Co.,  155  N.  C.  4,  71  S.  E.  21,  prima  facie  negligence ;  Walters  v.  Den- 
ver Consol.  Elec.  Lt.  Co.,  17  Colo.  App.  192,  68  Pac.  117;  Memphis  Consol. 
Gas,  etc.,  Co.  v.  Letson,  135  Fed.  969,  68  C.  C.  A.  453,  inference  of  negligence ; 
Thomas  v.  Wheeling  Elec.  Co.,  54  W.  Va.  395,  46  S.  E.  217 ;  Runyan  v.  Kana- 
wha Water,  etc.,  Co.,  68  W.  Va.  609,  71  S.  E.  259,  35  L.  R.  A.  (N.  S.)  430 ;  Dil- 
ler  V.  Northern  California  P.  Co.,  162  Cal.  531,  123  Pac.  359,  Ann.  Cas.  1913D, 
908 ;  Geismann  v.  Missouri-Edison  Elec.  Co.,  173  Mo.  654,  73  S.  W.  654 ;  Win- 
kelman  v.  Kansas  City  Elec.  Lt.  Co.,  110  Mo.  App.  184,  85  S.  W.  99 ;  Von  Tre- 
bra  V.  Laclede  Gaslight  Co.,  209  Mo.  648,  308  S.  W.  559;  Alabama,  etc.,  R.  Co. 


i 


§    198)  LIABILITY   FOR   INJURIES  229 

be  liable  if  the  injury  results,  not  from  a  shock  received  from  an 
excessive  current  of  electricity,  but  because  of  the  negligence  of 
the  electric  company  in  not  properly  attaching  its  fixtures.*®  But, 
on  the  other  hand,  when  an  an  injury  to  property,  or  to  a  person, 
results  because  of  some  defect  in  the  wiring  of  a  building,  or  the 
installing  of  fixtures,  and  such  wiring  is  not  done  nor  fixtures  in- 
stalled by  the  company,  its  only  duty  being  to  furnish  electricity 
for  lighting,  the  company  will  not  be  liable  in  damages  for  such 
injury.**^  However,  it  has  been  held  that  an  electric  company,  be- 
fore sending  its  currents  for  lighting  purposes  through  apparatus 
installed  in  a  building  by  other  parties,  is  bound,  on  its  own  re- 

V.  Appleton,  171  Ala.  324,  54  South.  G3S,  Ann.  Cas.  1913A,  llSl,  and  note; 
Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  111  Am.  St. 
Rep.  668,  3  L.  R.  A.  (N.  S.)  988.  But  for  holding  that  doctrine  does  not  ap- 
ply, see,  Western  Coal,  etc.,  Co.  v.  Garner,  87  Ark.  190,  112  S.  W.  .392,  22  L. 
R.  A.  (N.  S.)  1183 ;  Toledo  R.,  etc.,  Co.  v.  Rippon,  28  Ohio  Cir.  Ct.  R.  561,  af- 
firmed in  75  Ohio  St.  609,  80  N.  E.  1133 ;  Denver  Consol.  Elec.  Co.  v.  Walters, 
89  Colo.  301,  89  Pac.  815. 

Applicahle  to  telephone. — It  has  been  held  that  this  doctrine  is  applicable 
in  the  case  of  an  Injury  to  one  while  using  a  telephone,  although  the  current 
doing  the  injury  is  produced  by  a  company  other  than  the  telephone  company, 
if  the  latter  is  shown  to  have  had  knowledge  of  trouble  on  its  line  from  the 
electric  current.  Delahunt  v.  United  Tel.,  etc.,  Co.,  215  Pa.  241,  64  Atl.  515, 
114  Am.  St.  Rep.  958 ;  Alabama  City,  etc.,  R.  Co.  v.  Appleton,  supra.  How- 
ever, it  does  not  apply  in  the  case  of  an  injury  sustained  while  using  a  tele- 
phone during  a  violent  electrical  storm,  where  the  plaintiff  goes  further  than 
the  proof  of  the  accident  and  the  consequent  injuries  and  shows  the  cause  of 
it  to  have  been  atmospheric  electricity  and  not  an  electric  current  within  the 
control  of  man.  Rocap  v.  Bell  Tel.  Co.,  230  Pa.  597,  79  Atl.  769,  36  L.  R.  A. 
(N.  S.)  279.  See  Southwestern  Tel.,  etc.,  Co.  v.  Bruce,  89  Ark.  581,  117  S.  W. 
564.  Application  of  res  ipsa  loquitur  to  accidents  on  streets  and  highways, 
see  cases  in  note  12. 

4s  Fish  V.  Waverly  Elec,  etc.,  Co.,  189  N.  Y.  336,  82  N.  E.  150,  13  L.  R.  A. 
(N.  S.)  226,  arc  light  insecurely  attached  to  ceiling;  to  same  effect.  Fish  v. 
Kirlin-Gray  Elec.  Co.,  18  S.  D.  122,  99  N.  W.  1092,  112  Am.  St.  Rep.  782 ;  Tur- 
ner V.  Southern  Power  Co.,  154  N.  C.  131,  69  S.  E.  767,  32  L.  R.  A.  (N.  S.)  848. 

*9  National,  etc.,  Ins.  Co.  v.  Denver  Consol.  Elec.  Co.,  16  Colo.  App.  86,  63 
Pac.  949 ;  Harter  v.  Colfax  Elec,  etc.,  Co.,  124  Iowa,  500,  100  N.  W.  508 ; 
Memphis  Consol.,  etc,  Elec.  Co.  v.  Speers,  113  Tenn.  S3,  81  S.  W.  595,  illumina- 
tion of  sign  owned  by  another;  Brunelle  v.  Lowell  Elec  L.  Corp.,  188  Mass. 
493,  74  N.  E.  676;  Minneapolis  Gen.  Elec  Co.  v.  Crouon,  166  Fed.  651,  92  C. 
C.  A.  345,  20  L.  R.  A.  (N.  S.)  816,  doctrine  of  res  ipsa  loquitur  does  not  apply ; 
Peters  v.  Lynchburg  Light,  etc,  Co.,  108  Va.  333,  61  S.  E.  745,  22  L.  R.  A.  (N. 
S.)  1188.  However,  see  Reynolds  v.  Narragansett  Elec,  etc.,  Co.,  26  R.  I.  457, 
59  Atl.  393,  and  Royal  Elec  Co.  v.  Heve,  11  Quebec  K.  B.  436,  where  this  dis- 
tinction was  not  made. 


230  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  198a 

sponsibility,  to  make  reasonable  inspection  of  the  apparatus  to  see 
whether  it  is  fit  for  use.^" 

§  198a.  Brush  discharge. — It  is  the  duty  of  electrical  companies 
to  exercise  proper  care  in  insulating  and  otherwise  protecting  their 
wires  so  that  danger  will  be  avoided  by  coming  in  contact  with 
them.  So,  if  there  is  an  injury  caused  by  a  "brush"  or  "disruptive" 
discharge  of  electricity  as  a  result  of  the  negligence  of  the  owner 
of  such  line,  it  will  be  liable  therefor.  This  question  may  arise 
either  where  the  injury  is  to  a  servant  of  the  owner  of  the  line,  or 
where  it  is  to  a  person  lawfully  traveling  upon  the  highway  or  a 
person  upon  the  owner's  premises  by  invitation.  While  the  rela- 
tionship existing  between  an  electrical  company  and  its  servants 
and  such  persons  will  effect  the  nature  of  the  liability  as  to  each  as 
a  result  of  its  negligence  in  the  manner  and  way  discussed,  yet  it 
owes  a  duty  to  each  of  these  to  safeguard  its  wires  so  as  not  to  neg- 
ligently permit  an  escape  of  electricity  therefrom. ^^ 

§  198b.  Not  insurers — degree  of  care. — iVn  electrical  company 
furnishing  electricity  for  lighting,  heating,  motive  power,  or  for 
other  purposes,  is  not  an  insurer  against  injury  to  property  or  per- 
sons whose  duties  require  them  to  be  near  the  wires ;  yet  it  must 
exercise    a   very    high    degree    of   care   to   prevent    such    injury.^^ 

5  0  Hoboken  Land,  etc.,  Co.  v.  United  Elec.  Co.,  71  N.  J.  Law,  430,  58  Atl. 
1082 ;  Tismer  v.  New  York  Edison  Co.,  170  App.  Div.  647,  156  N.  Y.  Supp.  28, 
P.  U.  R.  1916A,  949. 

51  Jewell  V.  Excelsior  Powder  Mfg.  Co.,  143  Mo.  App.  200,  127  S.  W.  598; 
Dunn  V.  Cavanaugh,  185  Fed.  451,  107  C.  C.  A.  521;  Hoppe  v.  Winona,  113 
Minn.  252,  129  N.  W.  577,  33  L.  R.  A.  (N.  S.)  449,  Ann.  Cas.  1912A,  247.  See, 
also,  §  212  et  seq.,  as  to  third  persons  or  customers  of  the  line.  See  Lutolf  v. 
United  Elec,  etc.,  Co.,  184  Mass.  53,  67  N.  E.  1025 ;  O'Flaherty  v.  Nassau  Elec. 
R.  Co.,  34  App.  Div.  74,  54  N.  Y.  Supp.  96,  affirmed  165  N.  Y.  624,  59  N.  B. 
1128 ;  Shade  v.  Bay  Counties  Power  Co.,  152  Cal.  10,  92  Pac.  62,  parties  walk- 
ing the  street  and  being  injured  by  electrical  discharge  from  wires ;  Chittick 
V.  Philadelphia,  etc..  Transit  Co.,  224  Pa.  13,  73  Atl.  4,  22  L.  R.  A.  (N.  S.)  1073, 
plaintiff  sitting  in  a  window  two  or  three  hundred  feet  from  an  explosion,  due 
to  a  trolley  pole  of  a  street  car  coming  in  contact  with  a  steel  brace  being 
hoisted  into  position  in  constructing  an  elevated  railway,  and  while  receiving 
no  electrical  shock  the  explosion  caused  an  impairment  of  plaintiffs  eyesight 
due  to  the  blinding  flash,  recovery  was  not  allowed,  but  fright  brought  about 
by  wilful  tort,  recovery  may  be  had.    See  note  to  8  L.  R.  A.  (N.  S.)  49. 

5  2  Alabama  City,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324,  54  South.  638,  Ann, 
Cas.  1913A,  1181 ;  Denver  Consol.  Elec.  Co.  v.  Lawrence,  31  Colo.  301,  73  Pac. 
39,  injured  while  turning  on  an  electric  light ;  Bice  v.  Wheeling  Elec.  Co.,  62 
W.  Va.  685,  59  S.  E.  626,  defective  transformer ;  same  effect,  Mangan  v.  Louis- 
ville, etc.,  Light  Co.,  122  Ky.  476,  29  Ky.  Law  Rep.  38,  91  S.  W.  703,  6  L.  R.  A. 
(N.  S.)  459 ;  Morhard  v.  Richmond  Elec,  etc.,  R.  Co.,  Ill  App.  Div.  353,  98  N. 
Y.  Supp.  124;  Reynolds  v.  Narragansett  Elec,  etc.,  Co.,  26  R.  I.  457,  59  Atl. 


§    198b)  LIABILITY   FOR   INJURIES  231 

While  the  various  courts  have  different  expressions  as  to  the  meas- 
ure of  damages  in  such  cases,  their  forms  of  expressing  same  rang- 
ing from  "reasonable"  '^  or  "ordinary  care  and  diligence"  ^*  to  a 
degree  of  care  closely  approximating  that  of  an  insurer,  the  general 
rule  is,  however,  that  they  must  use  reasonable  care  in  the  construc- 
tion and  maintenance  of  their  lines  and  apparatus,  and  such  as  a 
reasonable  and  prudent  person  would  use  under  similar  circum- 
stances. The  degree  of  care  required  of  these  companies  varies  with 
the  danger  which  will  be  incurred  by  their  negligence,^^  and  must 

393 ;  McCabe  v.  Narragansett  Elec,  etc.,  Ck).,  2G  R.  I.  427,  59  All.  112 ;  Alton, 
etc.,  111.  Co.  V.  Foulds,  81  111.  App.  322,  affirmed  in  190  111.  367,  60  N.  E.  537 ; 
Yates  V.  Southwestern  Brush  Elec,  etc.,  Co.,  40  La.  Ann.  467,  4  South.  250,  im- 
proper fuse  catches  causing  escape  of  current  over  brass  pipe ;  Gilbert  v.  Du- 
luth  Gen.  Elec.  Co.,  93  Miim.  99,  100  N.  W.  653,  106  Am.  St.  Rep.  430,  installa- 
tion of  defective  electric  socket  by  injured  party  at  his  residence,  when  wires 
are  crossed  sending  excessive  current,  not  negligence  to  preclude  recovery ;  to 
same  effect  Memphis  Consol.,  etc.,  Elec.  Co.  v.  Letson,  135  Fed.  969,  68  C.  C. 
A.  453 ;  Royal  Elec.  Co.  v.  Heve,  Rap.  Jud.  Quebec,  11  B.  R.  436,  for  purpose  of 
turning  on  light,  takes  hold  of  an  ordinary  incandescent  light  in  house  and  is 
shocked,  presumption  that  excessive  current  came  over  same  system  and  from 
same  source  as  that  from  which  the  ordinary  supply  was  delivered ;  Miller  v. 
Ouray  Elec,  etc.,  Co.,  IS  Colo.  App.  131,  70  Pac  447,  complaint  stating  a  cause 
of  action ;  Witmer  v.  Buffalo,  etc,  Elec,  etc,  Co.,  112  App.  Div.  69S,  98  N.  Y. 
Supp.  781,  question  for  jury  as  to  which  of  two  lines  current  came  over; 
Caglione  v.  Mt.  Morris  Elec,  etc.,  Co.,  56  App.  Div.  191,  67  N.  Y.  Supp.  660, 
injury  from  current  over  abandoned  fixture.  See  Herzog  v.  Municipal  Elec, 
etc,  Co.,  89  App.  Div.  569,  85  N.  Y.  Supp.  712,  affirmed  in  180  N.  Y.  518,  72 
N.  E.  1142,  not  liable  for  loss  of  building  where  it  used  single,  instead  of  dou- 
ble, cap  molding  to  sustain  the  wires  on  the  ceiling  of  the  upper  story,  where 
the  wires  were  liable  to  be  affected  by  moisture ;  Katafiasz  v.  Toledo  Consol. 
Elec  Co.,  24  Ohio  Cir.  Ct.  R.  127,  not  liable  where  plaintiff  had  knowledge  of  de- 
fect ;  to  same  effect,  McMullan  v.  Edison  Elec.  111.  Co.,  13  Misc.  Rep.  392,  34  N. 
Y.  Supp.  248.  See  Harrison  v.  Kansas  City  Elec  L..  Co.,  195  Mo.  606,  93  S.  W. 
951,  7  L.  R.  A.  (N.  S.)  293 ;  Turner  v.  Southern  Power  Co.,  154  N.  C.  131,  69 
S.  E.  767,  32  L.  R.  A.  (N.  S.)  848 ;  Rocap  v.  Bell  Tel.  Co.,  230  Pa.  597,  79  Atl. 
769,  36  L.  R.  A.  (N.  S.)  279 ;  Columbus  R.  Co.  v.  Kitchens,  142  Ga.  677,  83  S. 
E.  529,  L.  R.  A.  1915C,  570. 

5  3  Griffin  v.  United  Elec  Lt.  Co.,  164  Mass.  492,  41  N.  E.  675,  49  Am.  St.  Rep. 
477,  32  L.  R.  A.  400;  Block  v.  Milwaukee  St.  Ry.  Co.,  89  Wis.  371,  61  N.  W. 
1101,  46  Am.  St.  Rep.  849,  27  L.  R.  A.  365;  Illingsworth  v.  Boston  Elec  Lt.  Co.', 
161  Mass.  583,  37  N.  E.  778,  25  L.  R.  A.  552 ;  Huber  v.  La  Crosse  City  R  Co  ' 
92  Wis.  636,  66  N.  W.  708,  53  Am.  St.  Rep.  940,  31  L.  R.  A.  583 ;  Wilbert  v.' 
Sheboygan  Lt.,  etc,  Co.,  129  Wis.  1,  106  N.  W.  1058,  116  Am.  St.  Rep.  931. 

5  4  Atlanta  Consol.  St.  Ry.  Co.  v.  O wings,  97  Ga.  663,  25  S.  E.  377  33  L   R 
A.  798.  ■      ■ 

6  5  City  Elec.  St.  Ry.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426,  54  Am.  St  Rep. 
262,  31  L.  R.  A.  570. 


232  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  198b 

be  commensurate  with  the  danger  involved;^®  and,  according  to 
many  decisions,  where  so  dangerous  an  agency  as  electricity  is 
undertaken  to  be  delivered  into  houses  for  daily  use,  and  where 
persons  coming  in  contact  therewith  are  certain  to  be  seriously 
injured,  if  not  killed,  the  law  imposes  upon  the  person  or  company 
making  such  delivery  the  duty  of  exercising  the  utmost  care  and 
prudence  consistent  with  the  practical  operation  of  its  plant  and 
system  to  prevent  such  injury. ^^  In  determining  the  question  of 
the  degree  of  care  to  be  exercised  by  electrical  companies  in  the  con- 
struction and  maintenance  of  their  lines,  the  location  of  which,  the 

5  6  Barto  V.  Iowa  Tel.  Co.,  126  Iowa,  241,  101  N.  W.  876,  106  Am.  St.  Rep. 
347;  Walter  v.  Baltimore  Elec.  Co.,  109  Md.  513,  71  Atl.  953,  22  L.  R.  A.  (N. 
S.)  1178 ;  Eaton  v.  Weiser,  12  Idaho,  544,  86  Pac.  541,  118  Am.  St.  Rep.  225 ; 
Palestine  v.  Siler,  225  111.  630,  80  N.  E.  345,  8  L.  R.  A.  (N.  S.)  205 ;  Gilbert  v. 
Duluth  Gen.  Elec.  Co.,  93  Minn.  99,  100  >\  W.  653,  108  Am.  St.  Rep.  430 ;  Mu- 
solf  V.  Duluth  Edison  Elec.  Co.,  108  Minn.  369,  122  X.  W.  499,  22  L.  R.  A.  (N. 
S.)  451 ;  Peiham  v.  Portland  Gen.  Elec.  Co.,  33  Or.  451,  53  Pac.  14,  72  Am.  St. 
Rep.  730,  40  L.  R.  A.  799 ;  Hoppe  v.  Winona,  113  Minn.  252,  129  X.  W.  577, 
Ann.  Cas.  1912A,  247,  33  L.  R.  A.  (N,  S.)  449;  Herron  v.  Pittsburg,  204  Pa. 
509,  54  Atl.  311,  93  Am.  St.  Rep.  798 ;  Moran  v.  Corliss  Steam  Elnglne  Co.,  21 
R.  I.  386,  43  Atl.  874,  45  L.  R.  A.  267 ;  Parsons  v.  Charleston  Cons.  R.,  etc., 
Co.,  69  S.  C.  305,  48  S.  E.  284,  104  Am.  St.  Rep.  800 ;  Anderson  v.  Seattle,  etc., 
R.  Co.,  36  Wash.  387,  78  Pac.  1013,  104  Am.  St.  Rep.  962 ;  Kempf  v.  Spokane, 
etc.,  R.  Co.,  82  Wash.  263,  144  Pac.  77,  L.  R.  A.  1915C,  405. 

5  7  City  Elec.  St.  Ry.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426,  54  Am.  St. 
Rep.  262,  31  L.  R.  A.  570 ;  Phoenix  Lt.,  etc.,  Co.  v.  Bennett,  8  Ariz.  314,  74  Pac. 
48,  63  L.  R.  A.  219;  Giraudi  v.  Elec.  Imp.  Co.,  107  Cal.  120,  40  Pac.  108,  48 
Am.  St.  Rep.  114,  28  L.  R.  A.  596 ;  Winegarner  v.  Edison  Lt,  etc.,  Co.,  83  Kan. 
67,  109  Pac.  778,  28  L.  R.  A.  (N.  S.)  677 ;  Denver  Consol.  Elec.  Co.  v.  Simpson, 
21  Colo.  371,  41  Pac.  499,  31  L.  R.  A.  566 ;  McLaughlin  v.  Louisville  Elec.  Lt. 
Co.,  100  Ky.  173,  37  S.  W.  851,  34  L.  R.  A.  812 ;  Lewis  v.  Bowling  Green  Gas 
Lt.  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.)  1169 ;  Maugan  v.  Louis- 
ville Elec.  Lt.  Co.,  122  Ky.  476,  91  S.  W.  703,  6  L.  R.  A.  (N.  S.)  459 ;  Paducah 
Lt,  etc.,  Co.  V.  Parkman,  156  Ky.  197,  160  S.  W.  931,  52  L.  R.  A.  (N.  S.)  586 ; 
Potts  V.  Shreveport  Belt  R.  Co.,  110  La.  1,  34  South.  103,  98  Am.  St  Rep.  452 ; 
Hebert  v.  Lake  Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35  South.  731,  100  Am."  St. 
Rep.  505,  64  L.  R.  A.  101 :  Gilbert  v.  Duluth  Gen.  Elec.  Co.,  93  Minn.  99,  100 
N.  W.  653,  106  Am.  St.  Rep.  430 ;  Musolf  v.  Duluth  Edison  Elec.  Co.,  108  Minn. 
369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451 ;  Temple  v.  McComb  City  Elec.  Lt., 
etc.,  Co.,  89  Miss.  1,  42  South.  874,  119  Am.  St.  Rep.  698,  10  Ann.  Cas.  924,  11 
L.  R.  A.  (N.  S.)  449 ;  Gannon  v.  Laclede  Gas  Lt.  Co.,  145  Mo.  502,  46  S.  W.  968, 
47  S.  W.  907,  43  L.  R.  A.  505 ;  Braun  v.  Buffalo  Gen.  Elec.  Co.,  200  N.  Y.  484, 
94  N.  E.  206,  140  Am.  St.  Rep.  645,  21  Ann.  Cas.  370,  34  L.  R.  A.  (N.  S.)  1089 ; 
Haynes  v.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  41  Am.  St.  Rep.  786, 
26  L.  R.  A.  810 ;  Turner  v.  So.  Power  Co.,  154  N.  C.  131,  69  S.  E.  767,  32  L.  R. 
A.  (N.  S.)  849 ;  Ferrell  v.  DLxie  Cotton  Mills,  157  N.  C.  528,  73  S.  E.  142,  37 
L.  R.  A.  (N.  S.)  64 ;  Ahern  v.  Oregon  Tel.,  etc.,  Co.,  24  Or.  276,  33  Pac.  403,  35 
Pac.  549,  22  L.  R.  A.  635;  Perham  v.  Portland  Gen.  Elec.  Co.,  33  Or.  451,  53 


§    199)  LIABILITY   FOR   INJURIES  233 

use  to  which  they  are  put,  their  remoteness  or  proximity  to  trav- 
elers on  the  highway,  and  any  other  circumstances  affecting  the 
case,  should  be  considered. °^ 

§  199.  Fallen  lines — duty  to  restore. — It  is  incumbent  upon  tele- 
graph, telephone  and  other  electric  companies  to  restore  and  re- 
pair their  lines  within  a  reasonable  time  after  a  violent  storm,  and 
on  failure  to  do  so,  whereby  injury  results,  the  company  will  be- 
come liable. ^'^  Broken  and  hanging  wires  are  dangerous  at  any 
time,  and  more  especially  during  thunderstorms.*"'  Science  and 
common  experience  show  that  wires  suspended  in  the  atmosphere 
attract  electricity  during  "storms,  and  when  so  suspended  and  not 
insulated   are   dangerous   to   persons   who  may   at   such   times   be 

Pac.  14,  24,  72  Am.  St.  Rep.  730,  40  L.  R.  A.  799 ;  Boyd  v.  Portland  Gen.  Blec. 
Co.,  37  Or.  567,  62  Pac.  378,  52  L.  R.  A.  509 ;  Gentzkow  v.  Portland  R  Co.,  54 
Or.  114,  102  Pac.  614,  135  Am.  St.  Rep.  821 ;  Mooney  v.  Luzerne  Borough,  186 
Pa.  161,  40  Atl.  311,  40  L.  R.  A.  811 ;  Fitzgerald  v.  Edison  Elec.  111.  Co.,  200 
Pa.  540,  50  Atl.  161,  86  Am.  St.  Rep.  732  ;  Herron  v.  Pittsburg,  204  Pa.  509,  54 
Atl.  311,  93  Am.  St.  Rep.  798 ;  Alexander  v.  Nanticoke  Lt.  Co.,  209  Pa.  571,  58 
Atl.  1068,  67  L.  R.  A.  475 ;  Delahunt  v.  United  Tel.,  etc.,  Co.,  215  Pa.  241,  64 
Atl.  515,  114  Am.  St.  Rep.  958 ;  Snyder  v.  Wheeling  Elec.  Co.,  43  W.  Va.  661, 
28  S.  E.  733,  64  Am.  St.  Rep.  922,  39  L.  R.  A.  499 ;  Runyan  v.  Kanawha  Water, 
etc.,  Co.,  68  W.  Va.  609,  71  S.  B.  259,  35  L.  R.  A.  (N.  S.)  430 ;  Gloster  v.  Tor- 
onto Elec.  Lt.  Co.,  38  C.  S.  Ct.  27,  6  Ann.  Cas.  529,  1  B.  R.  C.  786;  British 
Columbia  Elec.  Ry.  Co.  v.  Crumpton,  43  C.  S.  Ct.  1,  17  Ann.  Cas.  1038 ;  Green 
V.  West.  Penn.  R.  Co.,  240  Pa.  340,  92  Atl.  341,  L.  R.  A.  1915C,  151. 

5»*  Boyd  V.  Portland  Gen.  Elec.  Co.,  37  Or.  567,  62  Pac.  378,  52  L.  R.  A.  509. 

5  9  Southwestern  Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810,  1  C.  C.  A.  684,  16  L. 
R.  A.  545 ;  Cuml)erland  Tel.,  etc.,  Co.  v.  Hunt,  108  Tenn.  697,  69  S.  W.  729 ; 
West  Kentucky  Tel.  Co.  v.  Pharis,  78  S.  W.  917,  25  Ky.  Law  Rep.  1838 ;  Sim- 
mons V.  Shreveport  Gas,  etc.,  Co.,  116  La.  1033,  41  South.  248 ;  Harton  v.  For- 
est City  Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann. 
Cas.  390.  See  Fitch  v.  Central  New  York  Tel.,  etc.,  Co.,  42  App.  Div.  321,  59 
N.  Y.  Supp.  140;  Brown  v.  Consol.  Lt.,  etc.,  Co.,  137  Mo.  App.  718,  109  S.  W. 
1032;  Hebert  v.  Lake  Charles,  etc.,  Co.,  Ill  La.  522,  35  South.  731,  100  Am. 
St.  Rep.  505,  64  L.  R.  A.  101 ;  Gilbert  v.  Duluth,  etc.,  Elec.  Co.,  93  Minn.  99, 
100  N.  W.  653,  106  Am.  St.  Rep.  430 ;  Goodwin  v.  Columbia  Tel.  Co.,  157  Mo. 
App.  596,  138  S.  W.  940 ;  Anthony  v.  Cass  County,  etc.,  Tel.  Co.,  165  Mich.  388, 
130  N.  W.  659 ;  Foley  v.  Northern  Cal.  P.  Co.,  14  Cal.  App.  401,  112  Pac.  467 ; 
Wagner  v.  People's  Ry.  Co.,  7  Pennewill  (Del.)  393,  75  Atl.  610 ;  District  of  Co- 
lumbia V.  Dempsey,  13  App.  D.  C.  533 ;  Economy,  etc.,  P.  Co.  v.  Ililler.  203  111. 
518,  68  N.  E.  72 ;  Godfrey  v.  R.  Co.,  56  111.  App.  378 ;  Leavenworth  Coal  Co.  v. 
Eatchford,  5  Kan.  App.  1.50,  48  Pac.  027;  Claussen  v.  Cumberland  Tel.,  etc., 
Co.,  126  La.  1087,  53  South.  357 ;  Strack  v.  Missouri,  etc.,  Tel.  Co.,  216  Mo.  601, 
116  S.  W.  526 ;  Wilhite  v.  Huntsville,  167  Mo.  App.  155,  151  S.  W.  2.32 ;  Chap- 
eron V.  Portland,  etc.,  Elec.  Co.,  41  Or.  39,  67  Pac.  928;  Boyd  v.  Porthuid  Elec. 
Co.,  37  Or.  507,  62  Pac.  378,  52  L.  R.  A.  509 :  Borell  v.  Cumberland  Tel.,  etc., 
Co.,  1.33  La.  630,  63  South.  247,  L.  R.  A.  1916D,  1064. 

80  Henning  v.  West.  U.  Tel.  Co.  (C.  C.)  43  Fed.  13L 


234  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  199 

brought  in  contact  with  them.''^  True,  this  may  be  considered  to  be 
a  new  force  of  power  which  interfered,  with  the  production  of  which 
the  company  had  nothing  to  do,  but  the  new  force  of  power  here 
would  have  been  harmless  but  for  the  displaced  wires ;  and  the  fact 
that  the  wire  took  on  a  new  force,  with  the  creation  of  which  the 
company  was  not  responsible,  contributed  no  less  directly  to  the 
injury  on  that  account.**-  This  proposition  should  be  modified, 
however,  by  the  statement  that,  where  the  poles  and  wires  of  the 
company  are  properly  erected  and  maintained,  the  company  will 
not  be  liable  for  damages  due  to  a  wire  breaking  during  an  extraor- 
dinary storm  and  injuring  a  person,  unless  the  company  fails  to 
discover  and  remedy  it  within  a  reasonable  time ;  but  where  the 
storm  is  an  ordinary  storm  the  company  will  be  liable  anyway.'''* 
In  addition  to  the  danger  arising  particularly  from  storms,  there 
may  arise  other  dangerous  conditions  to  the  line  due  to  other 
causes, ***  such  as  sagging  wires, ''^  fallen  poles,""*  or  wires®^  which 

61  Southwestern  Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810,  1  C.  C.  A.  684,  16  L. 
R.  A.  545.  See  Peninsular  Tel.  Co.  v.  McCaskill,  64  Fla.  420,  60  South.  338, 
Ann.  Cas.  1914B,  1029,  and  note. 

6  2  Southwestern  Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810,  1  C.  C.  A.  684,  16  L. 
R.  A.  545.  See  Gleeson  v.  Virginia,  etc.  R.  Co.,  140  U.  S.  435,  11  Sup.  Ct.  859, 
35  L.  Ed.  459. 

6  3  Boyd  V.  Portland,  etc.,  Co.,  40  Or.  126,  66  Pac.  576,  57  L.  R.  A.  619 ;  Boyd 
V.  Portland,  etc.,  Co.,  37  Or.  567,  62  Pac.  378,  52  L.  R.  A.  509 ;  Warren  v.  City 
Elec,  etc.,  Co.,  141  Mich.  298,  104  N.  W.  613 ;  Heidt  v.  Southern,  etc.,  Tel.  Co., 
122  Ga.  474,  50  S.  E.  361 ;  Strack  v.  Missouri,  etc.,  Tel.  Co.,  216  Mo.  601,  116 
S.  W.  526. 

64  Simmons  v.  Shreveport  Gas,  etc.,  Co.,  116  La.  1033,  41  South.  248;  West 
Kentucky  Tel.  Co.  v.  Pharis,  78  S.  W.  917,  25  Ky.  Law  Rep.  1838 ;  Harton  v. 
Forest  City  Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14 
Ann.  Cas.  390;  Hovey  v.  Michigan  Tel.  Co.,  124  Mich.  607,  83  N.  W.  600;  Mil- 
ler V.  Lewistown  Elec,  etc.,  Co.,  212  Pa.  593,  62  Atl.  32 ;  Warren  v.  City  Elec. 
R.  Co.,  141  Mich.  29S,  104  N.  W.  613 ;  Anthony  v.  Cass  County,  etc.,  Tel.  Co., 
165  Mich.  388,  130  N.  W.  659 ;  Wilhite  v.  Huntsville,  167  Mo.  App.  155,  151  S. 
W.  232. 

65  Southern  Bell  Tel.,  etc.,  Co.  v.  Howell,  124  Ga.  1050,  53  S.  E.  577,  4  Ann. 
Cas.  707;  Jacks  v.  Reeves,  78  Ark.  426,  95  S.  W.  781;  Crawford  v.  Standard 
Tel.  Co.,  139  Iowa,  331,  115  N.  W.  878 ;  Weaver  v.  Dawson  County  Mut.  Tel. 
Co.,  82  Neb.  696,  118  N.  W.  650,  22  L.  R.  A.  (N.  S.)  1189 ;  Chant  v.  Clinton  Tel. 
Co.,  130  Wis.  533,  110  N.  W.  423.  See,  also,  Neuert  v.  Boston,  120  Mass.  338 ; 
Todd  V.  City  of  Crete,  79  Neb.  671,  113  N.  W.  172 ;  Quincy,  etc.,  Elec.  Co.  v. 
Bauman,  104  111.  App.  600,  affirmed  in  203  111.  295,  67  N.  E.  807;  Parsons  v. 
Charleston  Consol.,  etc.,  Elec.  Co.,  69  S.  C.  305,  48  S.  E.  284,  104  Am.  St.  Rep. 
800 ;  Home  Tel.  Co.  v.  Fields,  150  Ala.  306,  43  South.  711. 

66  See  §§  196,  197.  See,  also,  Burton  v.  Cumberland  Tel.,  etc.,  Co.  (Ky.)  118 
S.  W.  287;    Cumberland  Tel.,  etc.,  Co.  v.  Warner,  79  S.  W.  199,  25  Ky.  Law 

6  7  See  note  67  on  following  page. 


i 


§    199)  LIABILITY   FOR   INJURIES  235 

are  left  unrepaired  an  unreasonable  length  of  time,  thereby  subject- 
ing the  company  for  any  injuries  arising  therefrom. ^^    Thus,  where 

Rep.  1843 ;  Kyes  v.  Valley  Tel.  Co.,  132  Mich.  281,  93  N.  W.  623 ;  Johnson  v. 
Northwestern  Tel.  Exch.  Co.,  54  Minn.  37,  55  N.  W.  829  ;  Harton  v.  Forest  City 
Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 ; 
Aaron  v.  Tel.  Co.,  89  Kan.  186,  131  Pac.  582,  45  L.  R.  A.  (N.  S.)  309 ;  American 
District  Tel.  Co.  v.  Oldham,  148  Ky.  320,  146  S.  W.  764,  Ann.  Cas.  1913E,  376 
and  note,  see  liability  of  city  for  fallen  lines. 

0  7  Brush  Elec,  Lt.  Co.  v.  Kelley,  120  Ind.  220,  25  N.  E.  812,  10  L.  R.  A.  250; 
Staring  v.  West.  U.  Tel.  Co.,  58  Hun,  606,  11  N.  Y.  Supp.  817 ;  Nichols  v.  Min- 
neapolis, 33  Minn.  430,  23  N.  W.  868,  53  Am.  St.  Rep.  56 ;  Memphis  St.  R.  Co. 
V.  Kartright,  110  Tenn,  277,  75  S.  W.  719,  100  Am.  St.  Rep.  807 ;  Devine  v. 
Brooklyn,  etc.,  Co.,  1  App.  Div.  237,  37  N.  Y.  Supp.  170 ;  Politowitz  v.  Citizens', 
etc.,  Co.,  115  Mo.  App.  57,  90  S.  W.  1031 ;  Clancy  v.  N.  Y.,  etc.,  R.  R.,  82  App. 
Div.  563,  81  N.  Y.  Supp.  875.  See,  also,  the  cases  cited  in  note  73.  See,  also, 
Newark  Elec,  etc.,  Co.  v.  McGilvery,  62  N.  J.  Law,  451,  41  Atl.  955;  Metro- 
politan, etc.,  R.  Co.  V.  Gilbert,  70  Kan.  261,  78  Pac.  807,  3  Ann.  Cas.  256 ;  Ma- 
con V.  Paducah  St.  Ry.  Co.,  110  Ky.  680,  62  S.  W.  496 ;  Wehner  v.  Lagerfelt,  27 
Tex.  Civ,  App.  520,  66  S,  W,  221, 

Pulley  loirc  from  arc  lamp,  liable  for  injuries  arising  from. — Lexington  Ry. 
Co.  V.  Fain,  24  Ky.  Law  Rep.  1443,  71  S.  W.  628. 

68  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala,  217,  32  South.  500;  West.  U.  Tel. 
Co.  v.  Engler,  75  Fed.  102,  21  C.  C.  A.  246 ;  Dow  v.  Sunset  Tel.,  etc,  Co,,  157 
Cal.  182,  106  Pac.  587 ;  City,  etc.,  R.  v.  Conery,  61  Ark.  381,  33  S.  W.  426,  54 
Am.  St.  Rep.  262,  31  L.  R.  A.  570 ;  Cook  v.  Wilmington,  etc.,  Elec  Co.,  9  Houst. 
(Del.)  306,  32  Atl.  643 ;  Atlanta,  etc,  R.  Co.  v.  Owiugs,  97  Ga.  663,  25  S.  E.  377, 
33  L.  R.  A.  798 ;  West.  U.  Tel.  Co,  v.  Harris,  6  Ga.  App.  260,  64  S.  E.  1123 ; 
Central  U.  Tel.  Co,  v.  Sokola,  34  Ind.  App.  429,  73  N.  E.  143 ;  Economy,  etc., 
P,  Co.  V.  Hiller,  203  111.  518,  68  N.  E.  72 ;  Godfrey  v.  R,  Co.,  56  111.  App.  378 ; 
Emporia  v.  White,  74  Kan.  864,  86  Pac.  295 ;  Kansas  City  v.  File,  60  Kan.  157, 
55  Pac.  877 ;  Leavenworth  Coal  Co.  v.  Ratchford,  5  Kan.  App.  150,  48  Pac.  927 ; 
West.  Ky.  Tel.  Co.  v.  Pharis,  25  Ky.  Law  Rep.  1838,  78  S.  W.  917 ;  Macon  v. 
Paducah  St.  Ry.  Co.,  110  Ky.  688,  23  Ky,  Law  Rep,  46,  62  S,  W.  496 ;  Citizens' 
Tel.  Co.  v.  Wakefield  (Ky.)  126  S.  W.  127 ;  State  v.  Crisfield,  etc,  Mfg.  Co.,  118 
Md.  521,  85  Atl.  615;  Elec,  etc,  P.  Co,  v.  State,  109  Md.  186,  72  Atl.  651; 
Claussen  v.  Cumberland  Tel.,  etc.,  Co.,  126  La.  1087,  53  South.  357 ;  Hebert  v. 
Lake  Charles,  etc,  W.  Co.,  Ill  La.  522,  35  South.  731,  04  L.  R.  A.  101,  100  Am. 
St.  Rep.  505 ;  Lutolf  v.  Elec.  L.  Co.,  184  Mass.  53,  67  N.  E.  1025 ;  Nichols  v. 
Minneapolis,  33  Minn.  430,  23  N.  W.  868,  53  Am.  Rep.  56;  Freeman  v.  Mis- 
souri, etc,  Tel.  Co.,  160  Mo.  App.  271,  142  S.  W.  733 ;  Strack  v.  Missouri,  etc, 
Tel.  Co.,  216  Mo.  601,  116  S.  W.  526 ;  Hoover  v.  Kansas  City,  etc,  R.  Co.,  159 
Mo,  App.  416,  140  S.  W.  321 ;  Trout  v.  Laclede  Gas  Lt.  Co.,  151  Mo.  App.  207, 
132  S.  W.  58 ;  Wilkins  v.  Water  &  Lt.  Co.,  92  Neb.  513,  138  N.  W.  754 ;  New 
York,  etc.,  Tel.  Co.  v.  Bennett,  62  N.  J.  Law,  742,  42  Atl.  759 ;  Goodwin  v.  Co- 
lumbia Tel.  Co.,  157  Mo.  App.  596,  138  S.  W,  940;  Brubaker  v,  Kansas  City, 
etc,  Lt.  Co.,  130  Mo.  App.  439,  110  S.  W.  12 ;  Dutcher  v.  Rockland  Elec  Co., 
123  App.  Div.  765,  108  N.  Y.  Supp.  567 ;  Id.,  195  N.  Y.  540,  88  N.  E.  1118 ;  Cag- 
lione  V.  Mt.  Morris  Elec,  etc,  Co.,  56  App.  Div,  191,  67  N.  Y.  Supp.  660;  Dan- 
nenhower  v.  West.  U.  Tel.  Co.,  218  Pa.  216,  67  Atl.  207 ;  Gentzkow  v.  Portland 
Ry.  Co.,  54  Or.  114,  102  Pac  614.  135  Am.  St.  Rop.  821 ;  Turton  v.  Powelton 
Elec  Co.,  185  Pa.  406,  39  Atl.  1053 ;    Carroll  v.  Electric  Co.,  47  Or.  429,  84  Pac. 


236  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  199 

a  wire  is  left  suspended  near  the  public  highway  where  a  person 
would  likely  come  in  contact  with  it  on  a  dark  night, ^'^  or  even 
where  it  is  left  so  as  to  interfere  with  travel  at  any  time,^"  it  would 
then  become  a  nuisance  for  which  the  company  would  be  liable  for 
any  injuries  thereby  resulting.  Of  course,  the  company  must  have 
a  reasonable  time,  after  a  displacement  of  its  wires  caused  by  storms 
or  other  causes  other  than  the  acts  of  the  company,  to  discover, 
reach,  and  repair  the  dangerous  parts  ;^^  and  it  will  not  be  liable 
for  resulting  injuries  where  the  defect  or  condition  has  not  existed 
for  a  sufficient  length  of  time  to  charge  the  company  with  negli- 
gence.^-    What  is  a  reasonable  time  depends  somewhat  upon  sur- 

389,  6  L.  R.  A.  (X.  S.)  290 ;  Fisli  v.  Electric  Co.,  IS  S.  D.  122,  99  N.  W.  1092, 
112  Am.  St.  Rep.  782 ;  Lauglin  v.  So.  Pub.  Senice  Corp.,  83  S.  C.  62,  64  S.  E. 
1010 ;  Parsons  v.  Charleston,  etc.,  Ry.  Co.,  69  S.  C.  305,  48  S.  E.  284,  104  Am. 
St.  Rep.  800 ;  Mitchell  v.  Charleston,  etc..  Power  Co.,  45  S.  C.  146,  22  S.  E. 
767,  31  L.  R.  A.  577 ;  Metz  v.  Postal  Tel.  Cable  Co.,  72  Wash.  188,  130  Pac.  343 ; 
Garretson  v.  Tacoma  R.  Co.,  50  Wash.  24,  96  Pac.  511 ;  San  Antonio,  etc.,  Elec. 
Co.  V.  Badders,  46  Tex.  Civ.  App.  559,  103  S.  W.  229 ;  Houston  Lt.,  etc.,  Co.  v. 
Hooper,  46  Tex.  Civ.  App.  257,  102  S.  W.  133 ;  Citizens'  Tel.  Co.  v.  Thomas,  45 
Tex.  Civ.  App.  20,  99  S.  W.  879 ;  Lomoe  v.  Superior,  etc.,  Power  Co.,  147  Wis. 
5,  132  N.  W.  623 ;  Gloster  v.  Toronto  Elec.  Lt.  Co.,  38  C.  S.  Ct.  27,  6  Ann.  Cas. 
529,  26  C.  L.  T.  847 ;  Diller  v.  Northern  Cal.  P.  Co.,  162  Cal.  531,  123  Pac.  359, 
Ann.  Cas.  1913D,  908 ;  Folej^  v.  Northern  Cal.  P.  Co.,  14  Cal.  App.  401,  112  Pac. 
467 ;  So.  Bell  Tel.,  etc.,  Co.  v.  Davis,  12  Ga.  App.  28,  76  S.  E.  786 ;  Lewis  v. 
Bowling  Green  Gas  Lt.  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.) 
1169 ;  Walter  v.  Baltimore  Elec.  Co.,  109  Md.  513,  71  Atl.  953,  22  L.  R.  A.  (N. 
S.)  1178 ;  Booker  v.  Southwest.  Ry.  Co.,  144  Mo.  App.  273,  128  S.  W.  1012 ;  Lyd- 
ston  V.  Rockingham  County,  etc.,  P.  Co.,  75  N.  H.  23,  70  Atl.  385,  21  Ann.  Cas. 
1236 ;  Crosby  v.  Portland  Ry.  Co.,  53  Or.  496,  512,  100  Pac.  300,  101  Pac.  204 ; 
Miller  v.  Lewiston  Elec,  etc.,  Co:,  212  Pa.  593,  62  Atl.  32 ;  Citizens'  Tel.  Co.  v. 
Thomas,  45  Tex.  Civ.  App.  20,  99  S.  W.  879;  San  Marcos  Elec,  etc.,  Co.  v. 
Compton,  48  Tex.  Civ.  App.  586,  107  S.  W.  1151 ;  San  Antonio,  etc,  Elec.  Co. 
V.  Ocon  (Tex.  Civ.  App.)  130  S.  W.  846 ;  Wilbert  v.  Sheboygan,  etc,  R.  Co.,  129 
Wis.  1,  106  N.  W.  1058,  116  Am.  St.  Rep.  931 ;  Ryan  v.  Oshkosh  Gas  Lt.  Co., 
138  Wis.  466,  120  N.  W.  264.  See  Fickeisen  v.  WTieeling  Elec  Co.,  67  W.  Va. 
335,  67  S.  E.  788,  27  L.  R.  A.  (N.  S.)  893.    See  §  194. 

6  9  Ahern  v.  Oregon  Tel.,  etc,  Co.,  24  Or,  276,  32  Pac  403,  35  Pac  549,  22  L. 
R.  A.  635.     See  cases  in  note  67,  supra. 

7  0  See  §  196  et  seq. 

71  Cumberland  Tel.,  etc,  Co.  v.  Pierson,  170  Ind.  543,  84  N.  E.  1088;  Heidt 
V.  Southern  Tel.,  etc,  Co.,  122  Ga.  474,  50  S.  E.  361;  Harton  v.  Forest  City 
Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 ; 
San  Antonio  Gas,  etc,  Co.  v.  Ocon,  105  Tex.  139,  146  S.  W.  162,  39  L.  R.  A. 
(N.  S.)  1046;  Read  v.  City,  etc,  R.  Co.,  115  Ga.  366,  41  S.  E.  629;  Borell 
V.  Cumberland  Tel.,  etc.,  Co.,  133  La.  630,  63  South.  247,  L.  R.  A.  1916D,  1064, 
must  show  that  the  poles  were  rotten,  or  the  installation  otherwise  defective, 
or  that  the  company  was  guilty  of  laches. 

7  2  Cumberland  Tel.,  etc.,  Co.  v.  Pierson,  170  Ind.  543,  84  N.  E.  1088;  Heidt 
V.  Southern  Tel.,  etc,  Co.,  122  Ga.  474,  50  S.  E.  361;  Harton  v.  Forest  City 


I 


I    199)  LIABILITY   FOR   INJURIES  237 

rounding  circumstances.^'^  We  understand  that  these  companies 
have  instruments  in  their  offices  by  which  they  may  be  enabled  to 
make  an  approximate  calculation  of  the  place  at  which  the  line  is 
down  or  broken;  at  any  rate,  if  this  cannot  be  determined,  the 
operators  surely  can  easily  determine  that  the  wire  is  either  broken 
or  out  of  line,  by  reason  of  the  fact  that  messages  cannot  be  sent 
over  it,  and  as  soon  as  the  fact  is  ascertained  it  is  the  duty  of  the 
company  to  restore  the  line  immediately.  If  the  line  should  not  be 
broken  or  crossed,  but  only  hanging  loose  from  the  insulators, 
messages  could  still  be  sent  over  the  line  without  any  hindrance 
and  without  the  operators  knowing  anything  about  their  being 
down.  Under  such  circumstances  the  company  may  not  know  -jf 
the  danger  in  such  wires,  but  as  soon  as  it  obtains  the  information 
of  the  defect  in  the  line  it  is  the  duty  of  the  company  to  restore  it 
within  a  reasonable  time.^'*     Usually  in  any  of  these  cases  the  lia- 

Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 ; 
Ward  V.  Atlantic,  etc.,  Tel.  Co.,  71  N.  Y.  81,  27  Am.  Rep.  10 ;  Fitch  v.  Central 
New  York  Tel.,  etc.,  Co.,  42  App.  Div.  321,  59  N.  Y.  Supp.  140;  Wilbert  v.  She- 
boygan, etc.,  Ry.  Co.,  129  Wis.  1,  106  N.  W.  1058,  116  Am.  St.  Rep.  931. 

T3  For  unreasonable  length  of  time,  see  Jacks  v.  Reeves,  78  Ark.  426,  95  S. 
W.  781,  two  days ;  Central  Union  Tel.  Co.  v.  Sokola,  34  Ind.  App.  429,  73  N.  E. 
143,  five  months ;  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500, 
two  days ;  Home  Tel.  Co.  v.  Fields,  150  Ala.  306,  43  South.  711 ;  West  Ken- 
tucky Tel.  Co.  v.  Pharis,  78  S.  W.  917,  25  Ky.  Law  Rep.  1838,  fourteen  days ; 
Lynchburg  Tel.  Co.  v.  Booker,  103  Va.  594,  50  S.  E.  148,  three  days ;  Friesen- 
han  V.  Michigan  Tel.  Co.,  134  Mich.  292,  96  N.  W.  501,  four  days ;  Texas,  etc., 
Tel.  Co.  V.  Prince,  36  Tex.  Civ.  App.  402,  82  S.  W.  327 ;  Adams  v.  Weakley,  35 
Tex.  Civ.  App.  371,  80  S.  W.  411 ;  Brown  v.  Consol.,  etc.,  Co.,  137  Mo.  App.  718, 
109  S.  W.  1032,  overnight;  Potera  v.  Brookhaven,  95  Miss.  774,  49  South.  617, 
six  hours;  Southern  Bell  Tel.  Co.  v.  Lynch,  95  Ga.  529,  20  S.  E.  500,  two 
weeks.    See  Parmelee  v.  Tri-State,  etc.,  Tel.  Co.,  103  Minn.  530,  115  N.  W.  1135. 

Electrical  company  must  act  promptly.  Cook  v.  Wilmington,  etc.,  Elec.  Co., 
9  Houst.  (Del.)  306,  32  Atl.  643 ;  Boyd  v.  Portland  Elect.  Co.,  40  Or.  126,  66 
Pac.  576,  57  L.  R.  A.  619 ;  Read  v.  City,  etc.,  Ry.  Co.,  115  Ga.  366,  41  S.  E.  629, 
acting  promptly  may  exonerate  itself.  See  Fisher  v.  New  Bern,  140  N.  C.  506, 
53  S.  E.  342,  5  L.  R.  A.  (N.  S.)  542,  111  Am.  St.  Rep.  857,  two  days  without  at- 
tention, 

7  4  Notice  of  defects. — Notice  of  a  defect,  in  order  to  charge  a  company  with 
liability  therefor,  need  not  be  direct  and  express;  it  is  enough  that  the  de- 
fect has  existed  for  such  a  length  of  time  that  it  should  have  been  known. 
Fitzgerald  v.  Edison  Elec,  etc.,  Co.,  200  Pa.  540,  50  Atl.  161,  86  Am.  St.  Rep. 
732.  See,  also,  Parsons  v.  Charleston  Consol.  R.,  etc.,  Elec.  Co.,  69  S.  C.  305, 
48  S.  E.  284,  104  Am.  St.  Rep.  800;  Southern  Bell,  etc.,  Tel.  Co.  v.  Davis, 
12  Ga.  App.  28,  76  S.  E.  786 ;  Twist  v.  Rochester,  37  App.  Div.  307,  55  N.  Y. 
Supp.  850,  affirmed  in  165  N.  Y.  619,  59  N.  E.  1131;  New  England  Tel.,  etc., 
Co.  V.  Moore,  179  Fed.  364,  102  C.  C.  A.  642,  31  L,  R.  A.  (X.  S.)  617 ;  Hoxsoy 
V.  St.  Louis,  etc.,  R.  Co.,  171  111.  App.  109.    Where  there  has  been  an  abrasion 


238  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  200 

bility  of  the  company  is  a  question  of  fact  to  be  determined  by  a 
jury/= 

§  200.  Insulation  of  wires — inspection  of  line. — Electrical  com- 
panies over  whose  lines  dangerous  currents  of  electricity  are  pass- 
ing must  exercise  the  greatest  degree  of  care  and  prudence  in  the 
protection  of  their  wires  to  prevent  injury  at  such  places  where  peo- 

in  an  insulated  wire  for  a  considerable  period  of  time,  the  company  will  be 
presumed  to  know  its  condition.  Griffin  v.  United  Elec,  etc.,  Co.,  164  Mass. 
492,  41  N.  E.  675,  32  L.  R.  A.  400,  49  Am.  St.  Rep.  477 ;  Mitchell  v,  Raleigh 
Elec.  Co.,  129  N.  C.  166,  39  S.  E.  801,  55  L.  R.  A.  39S,  85  Am.  St.  Rep.  735. 
As  to  constructive  notice,  see  Central  U.  Tel.  Co.  v.  Sokola,  34  Ind.  App.  429, 
73  N.  E.  143 ;  Lomoe  v.  Superior  Water,  etc.,  Co.,  147  Wis.  5,  132  N.  W.  623 ; 
Logansport  v.  Smith,  47  Ind.  App.  64,  93  N.  E.  883;  Caron  v.  La  Cite  de 
St.  Henri,  Rap.  Jud.  Quebec,  9  C.  S.  490;  Strack  v.  Missouri,  etc.,  Tel.  Co., 
216  Mo.  601,  116  S.  W,  526.  Must  exercise  due  diligence  to  receive  informa- 
tion of  the  condition  of  its  wires,  Mitchell  v.  Charleston  Light,  etc.,  Co.,  45 
S.  C.  146,  22  S.  E.  767,  31  L.  R.  A.  577;  and  not  liable  if  it  does,  Smith  v. 
East  End  Elec.  Light  Co.,  198  Pa.  19,  47  Atl.  1123.  See,  also,  Politowitz  v. 
Citizens'  Tel.  Co..  115  Mo.  App.  57,  90  S.  W.  1031 ;  United  Elec.,  etc.,  Co.  v. 
State,  100  Md.  634,  60  Atl.  248;  Madison  v.  Thomas,  130  Ga.  153,  60  S.  E. 
461;  Eaton  v.  Weiser,  12  Idaho,  544,  86  Pac.  541,  118  Am.  St.  Rep.  225; 
Brubaker  v.  Kansas  City  Elec.,  etc.,  Co.,  130  Mo.  App.  439.  110  S.  W.  12. 
To  whom  notice  should  be  given,  see  Decatur  v.  Hamilton,  89  111.  App.  561 ; 
Aument  v.  Pennsylvania  Tel.  Co.,  28  Pa.  Super.  Ct.  610;  Goodwin  v.  Co- 
lumbia Tel.  Co.,  157  Mo.  App.  596,  138  S.  W.  940;  Strack  v.  Missouri,  etc., 
Tel.  Co.,  supra. 

'5Friesenhan  v.  Michigan,  etc.,  Co.,  134  Mich.  292,  96  N.  W.  501;  Warren 
v.  City,  etc.,  R.,  141  Mich.  298,  104  N.  W.  613 ;  Wolpers  v.  New  York,  etc.,  Co., 
91  App.  Div.  424,  86  N.  Y.  Supp.  845 ;  Boyd  v.  Portland,  etc.,  Co.,  37  Or.  567, 
62  Pac.  378,  52  L.  R.  A.  509 ;  Ensign  v.  Central,  etc.,  Co.,  79  App.  Div.  244, 
79  N.  Y.  Supp.  799,  affirmed  179  N,  Y.  539,  71  N.  E.  1130;  Burns  v.  City  of 
Emporia,  63  Kan.  285,  65  Pac.  260;  Ela  v.  Postal,  etc.,  Co.,  71  N.  H.  1,  51 
Atl.  281 ;  Hovey  v.  Michigan,  etc.,  Co.,  124  Mich.  607,  83  N.  W.  600 ;  Fox  v. 
Manchester,  183  N.  Y.  141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474;  Lewis  v. 
Bowling  Green  Gaslight  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (X.  S.) 
1169,  tampering  with  wires.  See  Augusta,  etc.,  Elec.  Co.  v.  Weekly,  124  Ga. 
384,  52  S.  E.  444;  Annapolis,  etc.,  L.  Co.  v.  Fredericks,  109  Md.  595,  72  Atl. 
534;  New  York,  etc.,  Tel.  Co.  v.  Bennett,  62  N.  J.  Law,  742,  42  Atl.  759; 
Burton  Tel.  Co.  v.  Gordon,  25  Ohio  Cir.  Ct.  R.  642;  Richmond,  etc.,  Elec. 
R.  Co.  V.  Rubin,  102  Ya.  809,  47  S.  E.  834;  Block  v.  Milwaukee  St.  R.  Co.. 
89  Wis.  371,  61  N.  W.  1101,  27  L.  R.  A.  365,  46  Am.  St.  Rep.  849 ;  Harrison 
V.  Electric  L.  Co.,  195  Mo.  606,  93  S.  W.  951,  7  L.  R.  A.  (N.  S.)  293 ;  Heidt  v. 
Southern  Tel.,  etc.,  Co.,  122  Ga.  474,  50  S.  E.  361;  Southwestern  Tel.,  etc., 
Co.  V.  Myane,  86  Ark.  548,  111  S.  W.  987;  Mooney  v.  Luzerne,  186  Pa.  161, 
40  Atl.  311,  40  L.  R.  A.  811 ;  Horning  v.  Hudson  R.  Tel.  Co.,  Ill  App.  Div. 
122,  97  N.  Y.  Supp.  625,  affirmed  in  186  N.  Y.  552,  79  N.  E.  1107 ;  Decatur  v. 
Hamilton,  89  111.  App.  561;  Pierce  v.  United,  etc.,  Elec,  Co.,  161  Cal.  176, 
118  Pac.  700 ;  Lundy  v.  Southern  Bell  Tel.,  etc.,  Co.,  90  S.  C.  25,  72  S.  E.  558 ; 
Dugan  V.  Erie  County  Elec.  Co..  241  Pa.  259,  88  Atl.  437;    Mahan  v.  Newton, 


§    200)  LIABILITY   FOR  INJURIES  239 

pie  have  the  right  to  go,  either  for  work,  business,  or  pleasure.'® 
It  is  the  duty  of  these  companies  to  properly  and  safely  insulate 
or  guard  their  wires  at  such  places,  and  to  use  the  highest  and  ut- 
most care  and  prudence,  which  may  be  consistent  with  the  practical 
operation  of  their  system,  and  by  constant  oversight,  inspection, 
and  repair  to  keep  them  in  such  condition  at  such  places ;  and  fail- 
ing to  furnish  perfect  protection  at  such  points  where  people  will 
likely  come  in  contact  with  their  wires  subjects  them  to  any  lia- 
bility arising  therefrom. ^^    So,  under  ordinary  circumstances,  a  per- 

etc,  R.  Co.,  189  Mass.  1,  75  N.  E.  59;  West.  U.  Tel.  Co.  v.  Thorn,  64  Fed. 
2S7,  12  C.  C.  A.  104 ;  Boyd  v.  Portland  Gen.  Elec.  Co.,  41  Or.  336,  68  Pac.  810 ; 
Alabama  City,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324,  54  South.  638,  Ann.  Cas. 
1913A,  1181. 

7  6  See  §  194,  travelers  on  streets  and  highways.  As  to  individuals  engaged 
In  lawful  occupation  in  a  place  where  he  is  entitled  to  be,  see  Clements  v. 
Louisiana  Elec.  Lt.  Co.,  44  La.  Ann.  692,  11  South.  51,  32  Am.  St.  Rep.  348, 
16  L.  R.  A.  43;  Potts  v.  Shreveport  Belt  R.  Co.,  110  La.  1,  34  South.  103, 
98  Am.  St.  Rep.  452;  Hebert  v.  Lake  Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35 
South.  731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101 ;  Brown  v.  Edison  Elec.  111. 
Co.,  90  Md.  400,  45  Atl.  182,  78  Am.  St.  Rep.  442,  46  L.  R.  A.  745;  Illings- 
worth  V.  Boston  Elec.  Lt.  Co.,  161  Mass.  583,  37  N.  E.  778,  25  L.  R.  A.  552 ; 
Hoppe  V.  Winona,  113  Minn.  252,  129  N.  W.  577,  Ann.  Cas.  1912A,  247,  33 
L.  R.  A.  (N.  S.)  449 ;  Braun  v.  General  Elec.  Co.,  200  N.  Y.  484,  94  N.  E.  206, 
140  Am.  St.  Rep.  645,  21  Ann.  Cas.  370,  34  L.  R.  A.  (X.  S.)  1089 ;  Perham  v. 
Portland  Gen.  Elec.  Co.,  33  Or.  451,  53  Pac.  14,  24,  72  Am.  St,  Rep.  730,  40 
L.  R.  A.  799;  Fitzgerald  v.  Edison  Elec.  IlL  Co.,  200  Pa.  540,  50  Atl.  161, 
86  Am.  St.  Rep.  732 ;  Greenville  v.  Pitts,  102  Tex.  1,  107  S.  W.  50,  132  Am. 
St.  Rep.  843,  14  L.  R.  A.  (N.  S.)  979 ;  Runyan  v.  Kanawha,  etc.,  Co.,  68  W. 
Va.  609,  71  S.  E.  259,  35  L.  R.  A.  (N.  S.)  430. 

7  7  Newark,  Elec.,  etc.,  Co.  v.  Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37  L.  R.  A. 
725 ;  Minneapolis,  etc.,  Elec.  Co.  v.  Cronon,  106  Fed.  651,  92  C.  C.  A.  345,  20 
L.  R.  A.  (N.  S.)  816;  New  England  Tel.,  etc.,  Co.  v.  Moore,  179  Fed.  364, 
102  C.  C.  A.  642,  31  L.  R.  A.  (N.  S.)  617 ;  Pha?nix  Lt.,  etc.,  Co.  v.  Bennett,  8 
Ariz.  314,  74  Pac.  48,  63  L.  R.  A.  219;  Palestine  v.  Siler,  225  111.  630.  80 
N.  E.  345,  8  L.  R.  A.  (N.  S.)  205 ;  Winegarner  v.  Edison  Lt.,  etc.,  Co.,  83  Kan. 
67,  109  Pac.  778,  28  L.  R.  A.  (N.  S.)  677;  McLaughlin  v.  Louisville  Elec.  Lt. 
Co.,  100  Ky.  173,  37  S.  W.  851,  34  L.  R.  A.  812 ;  Thomas  v.  Maysville  Gas 
Co.,  108  Ky.  224,  56  S.  W.  153,  53  L.  R.  A.  147 ;  Lewis  v.  Bowling  Green  Gas 
Lt.  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.)  1169;  Thomas  v. 
Somerset,  30  Ky.  Law  Rep.  131,  97  S.  W.  420,  7  L.  R.  A.  (N.  S.)  963  ;  Potts 
T.  Shreveport  Belt  R.  Co.,  110  La.  1,  34  South.  103,  98  Am.  St.  Rep.  452; 
Hebert  v.  Lake  Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35  South.  731,  100  Am. 
St.  Rep.  505,  64  L.  R.  A.  101;  Brown  v.  Edison  Elec.  111.  Co.,  90  Md.  400, 
45  Atl.  182,  78  Am.  St.  Rep.  442,  46  L.  R.  A.  745 ;  Griffin  v.  United  Elec.  Lt. 
Co.,  164  Mass.  492,  41  N.  E.  675,  49  Am.  St.  Rep.  477,  32  L.  R.  A.  400 ;  Ilodgins 
V.  Bay  City,  156  Mich.  687,  121  N.  W.  274,  132  Am.  St.  Rep.  546;  Musolf  v. 
Duluth,  etc.,  Elec.  Co.,  108  Minn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451 ; 
Temple  v.  McComb  City  Elec,  etc.,  Co.,  89  Miss.  1,  42  South.  874,  119  Am. 


240  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  200 

son  has. a  right,  without  being  open  to  the  charge  of  contributory 
negligence,  to  assume  that  this  duty  of  the  company  has  been  dis- 
charged;'^^  however,  the  right  to  this  assumption  does  not  relieve 

St.  Kep.  698,  10  Ann.  Cas.  924,  11  L.  R.  A.  (N.  S.)  449 ;  Ryan  v.  St.  Louis  Tr. 
Co.,  190  Mo.  621,  89  S.  W.  865,  2  L.  R.  A.  (N.  S.)  777;  Fox  v.  Manchester, 
183  N.  Y.  141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474 ;  Braun  v.  Buffalo,  etc., 
Elec.  Co.,  200  N.  Y.  484,  94  N.  E.  206,  140  Am.  St.  Rep.  645,  21  Ann.  Cas. 
370,  35  L.  R.  A.  (N.  S.)  1089 ;  Fitzgerald  v.  Edison  Elec.  111.  Co.,  200  Pa.  540, 
50  Atl.  161,  86  Am.  St.  Rep.  732;  Alexander  v.  Nauticoke  Lt.  Co.,  209  Pa. 
571,  58  Atl.  1068,  67  L.  R.  A.  475;  Parsons  v.  Charleston,  etc.,  R.  Co.,  69 
S.  C.  305,  48  S.  E.  284,  104  Am.  St.  Rep.  800;  Fish  v.  Electric  Co.,  18  S.  D. 
122,  99  N.  W.  1092,  112  Am.  St.  Rep.  782 ;  Wetherby  v.  Twin  State  Gas  Co., 
83  Vt.  189,  75  Atl.  8,  21  Ann.  Cas.  1092,  25  L.  R.  A.  (N.  S.)  1220;  Miner  v. 
Franklin  Co.  Tel.  Co.,  83  Vt.  311,  75  Atl.  653,  26  L.  R.  A.  (N.  S.)  1195 ;  Runyan 
V.  Kanawha,  etc.,  Co.,  68  W.  Va.  609,  71  S.  E.  259,  35  L.  R.  A.  (N.  S.)  430; 
Gloster  v.  Toronto  Elec.  Lt.  Co.,  38  C.  S.  Ct.  27,  6  Ann.  Cas.  529,  1  B.  R.  C. 
786 ;  Alabama,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324,  54  South.  638,  Ann.  Cas. 
1913A,  1181 ;  Knowlton  v.  Des  Moines  Edison  Lt.  Co.,  117  Iowa,  451,  90  N.  W. 
818;  Connell  v.  Keokuk  Elec.  Ry.,  etc.,  Co.,  131  Iowa,  622,  109  N.  W.  177; 
Hoppe  V.  Winona,  113  Minn.  252,  129  N.  W.  577,  Ann.  Cas.  1912A,  247,  33 
L.  R.  A.  (N.  S.)  449;  Fisher  v.  New  Bern,  140  N.  C.  506,  53  S.  E.  342,  111 
Am.  St.  Rep.  857,  5  L.  R.  A.  (N.  S.)  542 ;  Mitchell  v.  Raleigh  Elec.  Co.,  129 
N.  C.  166,  39  S.  E.  801,  85  Am.  St.  Rep.  735,  55  L.  R.  A.  398 ;  Ladow  v.  Okla- 
homa, etc.,  Elec.  Co.,  28  Okl.  15,  119  Pac.  250 ;  Perham  v.  Portland  Gen.  Elec. 
Co.,  33  Or.  451,  53  Pac.  14,  24,  72  Am.  St.  Rep.  730,  40  L.  R.  A.  799 ;  Graves  v. 
Washington  P.  Co.,  44  Wash.  675,  87  Pac.  956,  11  L.  R.  A.  (N.  S.)  452. 

Through  Trees. — Wires  through  or  near  trees,  bound  to  anticipate  persons 
may  lawfully  climb.  See  McCrea  v.  Beverly,  etc.,  Elec.  Co.,  216  Mass.  495, 
104  N.  E.  365;  Philbin  v.  Marlborough  Elec.  Co.,  218  Mass.  394,  105  N.  E. 
893 ;    Brubaker  v.  Kansas  City  Elec.  Lt.  Co.,  130  Mo.  App.  439,  110  S.  W.  12, 

7  8  Perham  v.  Portland  Elec.  Co.,  33  Or.  451,  53  Pac.  14,  24,  72  Am.  St.  Rep. 
730,  40  L.  R.  A.  799;  Mitchell  v.  Raleigh  Elec.  Co.,  129  N.  C.  166,  39  S.  E.  801, 
85  Am.  St.  Rep.  735,  55  L.  R.  A.'  398 ;  Fitzgerald  v.  Edison  Elec,  etc.,  Co.,  200 
Pa.  540,  50  Atl.  161,  86  Am.  St.  Rep.  732 ;  Thomas  v.  Wheeling  Elec.  Co.,  54  W. 
Va.  395,  46  S.  E.  217 ;  Clements  v.  Louisiana  Elec.  Lt.  Co.,  44  La.  Ann.  692,  11 
South.  51,  32  Am.  St.  Rep.  348,  16  L.  R.  A.  43 ;  Hodgins  v.  Bay  City,  156  Mich. 
687,  121  N.  W.  274,  132  Am.  St.  Rep.  546 ;  Suburban  Elec.  Co.  v.  Nugent,  58  N. 
J.  Law,  658,  34  Atl.  1069,  32  L.  R.  A.  700 ;  Gentzkow  v.  Portland  Ry.  Co.,  54 
Or.  114,  102  Pac.  614,  135  Am.  St.  Rep.  821 ;  Runyan  v.  Kanawha  Water,  etc., 
Co.,  68  W.  Va.  609,  71  S.  E.  259,  35  L.  R.  A.  (N.  S.)  430. 

Invitation  to  risk  consequences. — It  has  been  held  that  where  the  insulation 
of  wires  is  imperfect  it  acts  as  an  invitation  to  persons  working  in  proximity 
to  them  to  risk  the  consequences  of  contact  with  them.  Newark  Elec.  Lt., 
etc.,  Co.  V.  Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37  L.  R.  A.  725 ;  McLaughlin  v. 
Louisville  Elec.  Lt.  Co.,  100  Ky.  173,  37  S.  W.  851,  34  L.  R.  A.  812 ;  Mitchell  v. 
Raleigh  Elec.  Co.,  supra ;  Perham  v.  Portland,  etc.,  Elec.  Co.,  supra.  But 
where  the  person  knows  the  wire  to  be  otherwise  the  rule  would  be  different, 
Graves  v.  Washington,  etc.,  P.  Co.,  44  Wash.  675,  87  Pac.  956,  11  L.  R.  A.  (N. 
S.)  452. 


§    200)  LIABILITY   FOR   INJURIES  241 

a  lineman  from  the  obligation  of  exercising  active  diligence  for 
his  own  safety/^    Furthermore,  this  duty  does  not  extend  to  places 

swaying  of  limbs  is  liable  to  abrade  the  insulation ;  children  climbing  trees, 
Clements  v.  Potomac  Elec.  P.  Co.,  26  App.  D.  C.  482;  Temple  v.  McComb 
City  Elec,  etc.,  P.  Co.,  89  Miss.  1,  42  South.  874,  11  L.  R.  A.  (N.  S.)  449,  119 
Am.  St.  Rep.  698,  10  Ann.  Cas.  924;  Benton  v.  North  CaroUna  Public  Ser. 
Corp.,  165  N.  C.  354,  81  S.  E.  448;  Mullen  v.  Willies-Barre,  etc.,  Elec.  Co., 
229  Pa.  54,  77  Atl.  1108,  child  not  trespasser  while  upon  other's  premises. 

Side  of  buildings. — Parties  working  or  being  near  the  wall  of  a  building. 
See  Wales  v.  Pacific  Elec.  Motor  Co.,  130  Cal.  521,  62  Pac.  932,  1120;  Mc- 
Laughlin V.  Louisville  Elec.  Lt.  Co.,  100  Ky.  173,  37  S.  W.  851,  34  L.  R.  A. 
812,  18  Ky.  Law  Rep.  693;  Brown  v.  Edison,  etc.,  Co.,  90  Md.  400,  45  Atl. 
182,  78  Am.  St.  Rep.  442,  46  L.  R,  A.  745;  Griffin  v.  United  Elec.  Lt.  Co., 
164  :Mass.  492,  41  N.  E.  675,  49  Am.  St.  Rep.  477,  32  L.  R.  A.  400 ;  Geismann 
V.  Missouri,  etc.,  Elec.  Co.,  173  Mo.  654,  73  S.  W.  654 ;  Winkelman  v.  Kansas 
City  Elec.  Lt.  Co.,  110  Mo.  App.  184,  85  S.  W.  99;  Williams  v.  Fulton,  177 
Mo.  App.  177,  164  S.  W.  247 ;  Birsch  v.  Citizens'  Elec.  Co.,  36  Mont.  574,  9a 
Pac.  940;  Consol.  Gas  Co.  v.  Brooks  (N.  J.  Sup.)  53  Atl.  296;  Yeager  v.  Edi- 
son Elec.  Co.,  242  Pa.  101.  88  Atl.  872;  Fitzgerald  v.  Edison,  etc.,  Co.,  207 
Pa.  118,  56  Atl.  350 ;  window  roof.  Brown  v.  Edison,  etc.,  Co.,  supra ;  bal- 
cony, wires  in  proximity  to  balcony  should  be  carefully  guarded,  Brooks  v. 
Consol.  Gas  Co.,  70  N.  J.  Law,  211,  57  AtL  396;  Consol.  Gas  Co.  v.  Brooks, 
supra ;   Thomas  v.  Wheeling  Elec.  Co.,  54  W.  Va.  395,  46  S.  E.  217. 

Roofs  of  huildings. — Wires  over  or  near  the  roofs  of  buildings.  See  Giraudi 
T.  Electric  Imp.  Co.,  107  Cal.  120,  40  Pac.  108,  48  Am.  St.  Rep.  114,  28  L.  R.  A. 
596;  Gremnis  v.  Louisville  Elec.  Co.,  20  Ky.  Law  Rep.  1293,  49  S.  W.  184; 
Clements  v.  Louisiana  Elec.  L.  Co.,  44  La.  Ann.  692,  11  South.  51,  32  Am. 
St.  Rep.  348,  16  L.  R.  A.  43 ;  Colusa  Parrot,  etc.,  Co.,  162  Fed.  276,  89  C.  C.  A. 
256;  Reagan  v.  Boston  Elec.  Lt.  Co.,  167  Mass.  406,  45  N.  E.  743;  Stein- 
dorff  V.  St.  Paul  Gas  Lt.  Co.,  92  Minn.  496,  100  N.  W.  221 ;  Williams  v.  Ful- 
ton, 177  Mo.  App.  177,  164  S.  W.  247;  Sommer  v.  Public  Service  Corp.,  79' 
N.  J.  Law,  349,  75  Atl.  892 ;  Ennis  v.  Gray,  87  Hun,  355,  34  N.  Y.  Supp.  379, 
68  N.  Y.  St.  Rep.  312;  Fitzgerald  v.  Edison  Elec,  etc,  Co.,  200  Pa.  540, 
50  Atl.  161,  86  Am.  St.  Rep.  732 ;  where  roof  not  normally  used,  rule  other- 
wise, Sullivan  v.  Boston,  etc,  R.  Co.,  156  Mass.  378,  31  N.  E.  128;  Cumbei-- 
land  V.  Lottig,  95  Md.  42,  51  Atl.  841 ;  Keefe  v.  Narragansett  Elec.  Lt.  Co.,  21 
R.  I.  575,  43  Atl.  542;  Burnett  v.  Ft.  Worth,  etc,  P.  Co.,  102  Tex.  31,  112 
S.  W.  1040,  19  L.  R.  A.  (N.  S.)  504,  trespasser  or  licensee ;  Greenville  v.  Pitts, 
102  Tex.  1,  107  S.  W.  50,  14  L.  R.  A.  (N.  S.)  979,  132  Am.  St.  Rep.  843,  police- 
man on  building,  trespasser. 

Bridges. — High  tension  wires  on  bridges.  See  Hoppe  v.  Winona,  supra ; 
Bourke  v.  Butte  Elec,  etc,  Co.,  33  Mont.  267,  83  Pac  470;  Perham  v.  Port- 
land, etc.,  Elec.  Co.,  supra ;  Runyan  v.  Kanawha,  etc.,  Lt.  Co.,  supra ;  not 
usually  liable  to  children  climbing  out  on  bridge ;  Consolidated  Elec,  etc., 
Co.  V.  Healy,  65  Kan.  798,  70  Pac  884;  Thornburg  v.  City,  etc,  R.  Co.,  65- 
W.  Va.  379,  64  S.  E.  358 ;  Gloster  v.  Toronto  Elec.  Lt.  Co.,  supra ;  Nelson  v. 
Branford,  etc,  Co.,  75  Conn.  548,  54  Atl.  303 ;   but  see,  to  the  contrary,  Wetb- 

7  9  Jackson,  etc.,  St.  R.  R.  v.  Simmons,  107  Tenn.  392,  64  S.  W.  705. 
Jones  Tel.(2d  Ed.) — 16 


242  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  200 

where  no  one  can  reasonably  be  expected  to  go.^°  These  com- 
panies are  bound  to  exercise  due  care  in  the  inspection  of  their 

erby's  Adm'r  v.  T^vin  State,  etc.,  Co.,  83  Vt.  1S9,  75  Atl.  8,  21  Ann.  Cas.  1092, 
25  L.  R.  A.  (N.  S.)  1220 ;   Graves  v.  Washington,  etc.,  P.  Co.,  supra. 

Elevated  railroads. — Electric  wires  along  an  elevated  railway  structure 
near  where  passengers  travel  and  are  likely  to  come  in  contact  with.  See 
Wittleder  v.  Citizens'  Elec.  111.  Co.,  47  App.  Div.  410,  62  N,  Y.  Supp.  297; 
Wagner  v.  Brooklyn  Hgts.  R.  Co.,  69  App.  Div.  349,  74  N.  Y.  Supp.  809, 
affirmed  in  174  N.  Y.  520,  66  N.  E.  1117. 

At  poles. — Electric  wires  at  poles  where  the  company's  employes,  or  those 
of  other  companies,  or  other  persons,  coming  near  thereto  would  likely  come 
in  contact  with  high  tension  currents.  See  New  Omaha,  etc.,  Lt.  Co.  v.  Dent, 
68  Neb.  668,  94  N.  W.  819,  103  N.  W.  1091 ;  Smith  v.  Twin  City,  etc.,  Tr.  Co., 
102  Minn.  4,  112  N.  W.  1001;  Memphis  Consol.,  etc.,  Elec.  Co.  v.  Bell,  152 
Fed.  677,  82  C.  C.  A.  25;  Knowlton  v.  Des  Moines,  etc.,  Lt.  Co.,  supra; 
Eambo  v.  Empire,  etc.,  Elec.  Co.,  90  Kan.  390,  133  Pac.  553 ;  Bowling  Green 
Gas  Lt.  Co.  V.  Than,  142  Ky.  678,  134  S.  W.  1115 ;  Anglea  v.  E.  Tenn.  Tol.  Co., 
142  Ky.  539,  134  S.  W.  1119;  Consolidated  Gas  Elec,  etc.,  Co.  v.  State,  109 
Md.  186,  72  Atl.  851 ;  Illingsworth  v.  Boston  Elec,  etc,  Co.,  161  Jlass.  583, 
37  N.  E.  778,  25  L.  R.  A.  552 ;  Hodgins  v.  Bay  City,  156  Mich.  687,  121  N.  W. 
274,  132  Am.  St.  Rep.  546 ;  Yon  Trebra  v.  Laclede  Gas  Lt.  Co.,  209  Mo.  648, 
108  S.  W.  559 ;  Trout  v.  Laclede  Gas  Lt.  Co.,  151  Mo.  App.  207,  132  S.  W.  58 ; 
Cincinnati,  etc.,  Elec.  Co.  v.  Archdeacon,  80  Ohio  St.  27,  88  N.  E.  125 ;  Hippie 
V.  Edison  Elec,  etc.,  Co.,  240  Pa.  91,  87  Atl.  297;  Morgan  v.  Westmoreland, 
213  Pa.  151,  62  Atl.  638 ;  San  Antonio,  etc,  Elec.  Co.  v.  Badders,  46  Tex.  Civ. 
App.  ,559,  103  S.  W.  229 ;    Danville  v.  Thornton,  110  Va.  541,  66  S.  E.  839. 

Beticeen  poles. — Wires  at  points  between  poles  where  parties  will  likely 
come  in  contact  with  them,  Staab  v.  Rocky  Mountain,  etc.,  Tel.  Co.,  23  Idaho, 
314,  129  Pac.  1078 ;  Wilkins  v.  Water,  etc.,  Co.,  92  Neb.  513,  138  N.  W.  754 ; 
Hippie  V.  Edison,  etc..  111.  Co.,  supra ;  Denison,  etc.,  Power  Co.  v.  Patton 
(Tex.  Civ.  App.)  135  S.  W.  1040;  Winegamer  v.  Edison,  etc.,  P.  Co.,  83 
Kan.  67,  109  Pac  778,  28  L.  R.  A.  (N.  S.)  677;  specially  where  there  is  a 
municipal  ordinance  requiring  the  insulation  of  wires  at  such  place,  Hausler 
V.  Com.  Elec.  Co.,  240  111.  201,  88  N.  E.  561,  affirmed  in  144  111.  App.  643: 
Knowlton  v.  Des  Moines  Edison  Lt.  Co.,  supra ;  Musolf  v.  Duluth  Edison 
Elec.  Co.,  supra ;  INIitchell  v.  Raleigh  Elec.  Co.,  129  N.  C.  166,  39  S.  E.  801, 
85  Am.  St.  Rep.  735,  55  L.  R.  A.  398 ;  not  so  if  person  was  trespasser.  Stark 
V.  Muskegon,  etc,  Lt.  Co.,  141  Mich.  575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.) 
822 ;   New  Omaha,  etc,  Lt.  Co.  v.  Anderson,  73  Neb.  84,  102  N.  W.  89. 

Over  vacant  lots. — If  circumstances  and  conditions  require  the  insulation 

8  0  Hector  v.  Boston  Elec,  etc,  Co.,  174  Mass.  212,  54  N.  E.  539,  75  Am.  St. 
Rep.  300;  Calumet  Elec  St.  Ry.  Co.  v.  Groose,  70  111,  App.  381 ;  Sheffield  Co. 
V.  Morton,  161  Ala.  153,  49  South.  772 ;  Knowlton  v.  Des  Moines,  etc.,  Lt.  Co., 
117  Iowa,  451,  90  N.  W.  818 ;  Myer  v.  Union,  etc.,  P.  Co.,  151  Ky.  332,  151  S.  W. 
941,  43  L.  R.  A.  (N.  S.)  136;  Cumberland  v.  Lottig,  95  Md.  42,  51  Atl.  841; 
Keefe  v.  Narragansett  Elec.  Lt.  Co.,  21  R.  I.  575,  43  Atl.  542 ;  Brush  Elec.  Lt., 
etc.,  Co.  V.  Lefevre,  93  Tex.  004,  57  S.  W.  640,  77  Am.  St.  Rep.  898,  49  L.  R.  A. 
771 ;  Wetherby  v.  Twin  State,  etc.,  Co.,  83  Vt.  189,  75  Ati,  8,  21  Ann.  Cas.  1092, 
25  L.  R.  A.  (N.  S.)  1220, 


A 


§    200)  LIABILITY  FOR  INJURIES  243 

line,*^  and  to  keep  their  wires  properly  insulated  and  guarded  at 
such  places  as  may  be  necessary/^  and  to  anticipate  or  foresee  all 

of  wires  stretched  across  vacant  lots,  and  a  person  is  injured  as  result  of  the 
wires  not  being  insulated,  the  company  will  be  liable.  Braun  v.  Buffalo,  etc., 
Elec.  Co.,  supra ;  Byerly  v.  Consol.,  etc.,  Ice  Co.,  130  Mo.  App,  593,  109  S.  W. 
1065 ;  Meyer  v.  Menominee,  etc.,  Tr.  Co.,  151  Wis.  279,  IBS  N.  W.  1008 ;  Row- 
ley V.  Newburgh,  etc.,  P.  Co.,  151  App.  Div.  65,  135  N.  Y.  Supp.  914 ;  Shef- 
field Co.  V.  Morton,  161  Ala.  153,  49  South.  772 ;  Myer  v.  Union,  etc.,  P.  Co., 
151  Ky.  332,  151  S.  W.  941,  43  L.  R.  A.  (N.  S.)  136 ;  Davoust  v.  Alameda,  149 
Cal.  69,  84  Pac.  760,  5  L.  R.  A.  (N.  S.)  536,  9  Ann.  Cas.  847;  Pennebaker  v. 
San  Joaquin,  etc.,  P.  Co.,  158  Cal.  579,  112  Pac.  459,  31  L.  R.  A.  (N.  S.)  1099, 
139  Am.  St.  Rep.  202. 

Near  the  icires. — Where  electric  wires  are  strung  near  other  wires  and  to 
which  electricity  may  be  conducted.  See  Hebert  v.  Lake  Charles,  etc.,  W. 
Co.,  supra;  Mize  v.  Rocky  Mountain  Tel.  Co.,  38  Mont.  521,  100  Pac.  971, 
129  Am.  St.  Rep.  659,  16  Ann.  Cas,  1189;  Parsons  v.  Charleston,  etc.,  Elec. 
Co.,  supra.     See  §  201. 

Other  places. — At  such  other  places  as  are  not  heretofore  mentioned  where 
persons  are  likely  to  come  in  contact  with  electric  wires.  See  Anderson  v. 
Jersey  City,  etc.,  L.  Co.,  63  N.  J.  Law,  387,  43  Atl.  654,  air  shaft  of  a  club 
house;  Thomas  v.  Somerset,  30  Ky.  Law  Rep.  131,  97  S.  W.  420.  7  L.  R.  A. 
(N.  S.)  963,  booth  for  sale  of  confections;  Hayes  v.  Southern  P.  Co.,  95 
S.  C.  230,  78  S.  E.  956,  inside  building  near  window ;  Com.  Elec.  Co.  v.  Mel- 
ville, 210  111,  70,  70  N.  E.  1052,  place  under  sidewalk;  Ryan  v.  St.  Louis 
Tr.  Co.,  190  Mo,  621,  89  S.  W.  865,  2  L,  R,  A.  (N,  S.)  777,  basement  room  of 
street  railway  company's  power  house ;  Humphreys  v.  Raleigh,  etc..  Coke  Co., 
73  W.  Va.  495,  80  S.  E.  803,  L.  R.  A.  1910C,  1270,  wire  in  a  mine  entry. 

Awyiings. — Whether  wires  at  or  near  awnings  should  be  insulated  depends 
a  great  deal  upon  the  surroundings.  If  it  was  such  place  people  might  likely 
expect  to  be,  the  company  would  be  liable.  O'Gara  v,  Philadelphia  Elec.  Co., 
244  Pa.  156,  90  Atl.  529 ;  Rucker  v.  Sherman  Oil,  etc.,  Co.,  29  Tex.  Civ.  App. 
41S,  68  S.  W.  818.  But  see  Brush  Elec.,  etc.,  Co.  v.  Lefevre,  93  Tex.  604, 
57  S,  W.  640,  77  Am.  St,  Rep.  898,  49  L,  R,  A,  771,  where  person  not  rea- 
sonably expected  to  go. 

81  Crawford  v.  Standard  Tel.  Co.,  139  Iowa,  331,  115  N.  W.  878;  Postal  Tel. 

82  Simmons  v.  Shreveport  Gas,  etc.,  Co.,  116  La.  10.33,  41  South.  248;  Heidt 
V,  Southern  Tel.,  etc.,  Co.,  122  Ga.  474,  50  S.  E.  361;  Politowitz  v.  Citizens' 
Tel,  Co.,  123  Mo.  App.  77,  99  S.  W.  756 ;  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72 
N.  J.  Law,  276,  62  Atl.  412,  111  Am.  St.  Rep.  668,  3  L.  R.  A.  (N.  S.)  988 ;  New 
York,  etc.,  Tel.  Co.  v.  Bennett,  62  N.  J.  Law,  742.  42  Atl.  750 ;  Sheffield  Co.  v. 
Morton,  161  Ala.  153,  49  South.  772 ;  Hebert  v.  Lake  Charles,  etc.,  Co.,  Ill  La. 
522,  35  South.  731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101 ;  Thomas  v,  Mayesville 
Gas  Co.,  108  Ky.  224,  56  S.  W.  153,  53  L.  R.  A.  147:  Maysville  Gas  Co.  v, 
Thomas,  25  Ky,  Law  Rep.  403,  75  S.  W,  1129;  Memphis  Consol.,  etc.,  Elec. 
Co.,  113  Tenn.  83,  81  S.  W.  595 ;  Rowe  v.  New  York,  etc.,  Tel.  Co.,  66  N.  J. 
Law,  19,  48  Atl.  523 ;  Nelson  v.  Branford  L.,  etc.,  Co.,  75  Conn.  548,  54  Atl. 
303;  Brush  Elec,  etc,  Co.  v.  Lefevre,  93  Tex.  604,  57  S.  W.  640,  77  Am.  St. 
Rep.  898,  47  L.  R.  A.  771 ;  Lewis  v.  Bowling  Green  Gas  L.  Co.,  135  Ky.  611, 
117  S.  W.  278,  22  L.  R.  A.  (N.  S.)  1169 ;  Knowltou  v.  Des  Moines,  etc.,  Co.,  117 
Iowa,  457,  90  N,  W.  818, 


244  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  200 

probable  results  which  are  likely  to  happen  by  reason  of  their  con- 
nection or  location  with  other  wires. ^^     Not  only  does  this  duty 

Cable  Co.  v.  Jones,  13.3  Ala.  217,  32  South.  500 ;  West  Kentucky  Tel.  Co.  v. 
Pharis,  78  S.  W.  917,  25  Ky.  Law  Rep.  183S ;  Walther  v.  American  Dist.  Tel. 
Co.,  11  Misc.  Rep.  71,  32  N.  Y.  Supp.  751 ;  Harton  v.  Forest  City  Tel.  Co.,  146 
N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390.  The  duty 
of  inspection  in  regard  to  its  frequency  cannot  be  definitely  stated,  as  it  de- 
pends upon  the  condition  of  the  weather,  season  of  the  year,  character  of  the 
.soil,  and  other  conditions.  It  cannot  be  said,  however,  that  so  long  as  a  tele- 
graph or  telephone  wire  will  carry  messages  there  is  no  duty  to  inspect  it  to 
ascertain  if  it  is  hanging  loose  or  otherwise  in  a  dangerous  condition.  Craw- 
ford V.  Standard  Tel.  Co.,  supra.  See,  also,  Eastern  Kentucky  Tel.,  etc.,  Co.  v. 
Hardwick,  106  S.  W.  307,  32  Ky.  Law  Rep.  582;  Freeman  v.  Missouri,  etc., 
Tel.  Co.,  160  Mo.  App.  271,  142  S.  W.  733 ;  Miner  v.  Franklin  County  Tel.  Co., 
83  Vt.  311,  75  Atl.  653,  26  L.  R.  A.  (N.  S.)  1195. 

Electrical  company  must  inspect.  Alabama,  etc.,  R.  Co.  v.  Appleton,  171 
Ala.  324,  54  South.  638,  Ann.  Cas.  1913A,  1181;  Owensboro  v.  Knox,  116  Ky. 
451,  76  S.  W.  191 ;  Warren  v.  City  Elec.  R.  Co.,  141  Mich.  298,  104  X.  W.  613 ; 

8  3  Simmons  v.  Shreveport  Gas,  etc.,  Co.,  116  La.  1033,  41  South.  248;  Po- 
litowitz  V.  Citizens'  Tel.  Co.,  123  Mo.  App.  77,  99  S.  W.  756;  Southern  Bell 
Tel.,  etc.,  Co.  v.  Howell,  124  Ga.  1050,  53  S.  E.  577,  4  Ann.  Cas.  707 ;  West.  U. 
Tel.  Co.  V.  Griffith,  111  Ga.  551,  36  S.  E.  859 ;  New  York,  etc.,  Tel.  Co.  v.  Ben- 
nett, 62  N.  J.  Law,  742,  42  Atl.  759 ;  Fox  v.  Manchester,  183  N.  Y.  141,  75  N. 
E.  1116,  2  L.  R.  A.  (N.  S.)  474 ;  Carroll  v.  Grande  Ronde  Elec.  Co.,  47  Or.  424, 
S4  Pac.  389,  6  L.  R.  A,  (N,  S.)  290 ;  Ahem  v.  Oregon  Tel.,  etc.,  Co.,  24  Or.  276, 
33  Pac.  403,  35  Pac.  549,  22  L.  R.  A.  635 ;  Burton  Tel.  Co.  v.  Gordon,  25  Ohio 
Cir.  Ct.  R.  641 ;  Citizens"  Tel.  Co.  v.  Thomas,  45  Tex.  Civ.  App.  20,  99  S.  W. 
879 ;  Henning  v.  West.  U.  Tel.  Co.  (C.  C.)  41  Fed.  864.    See  §  194. 

"Electricity  is  the  agent  by  which  telephones  become  the  means  of  communi- 
cation from  one  point  to  another,  and  it  may  be  conceded,  as  the  appellant 
contends,  that  the  current  needed  for  their  use  is  not  a  dangerous  one.  In 
this  case  it  may  be  still  further  conceded  that  the  current  with  which  the  de- 
ceased came  in  contact  did  not  come  from  the  exchange  of  the  appellant ;  but 
at  the  same  time  it  cannot  be  questioned  that  it  came  over  one  of  its  wires 
leading  to  the  telephone  of  one  of  its  patrons.  Though  this  wire  was  intended 
to  conduct  only  a  harmless  current,  the  appellant  was  bound  to  know  that  it 
could  become  the  conductor  of  a  deadly  one,  and  that  such  a  current  would 
pass  over  it  if  it  was  not  properly  insulated  and  sliould  come  in  contact  with 
a  wire  heavily  and  dangerously  charged.  It  was  therefore  as  much  the  duty 
of  the  company  to  see  that  no  such  current  should  thus  pass  over  its  wires  as 
it  was  to  send  only  a  harmless  one  from  its  own  exchange."  Delahunt  v. 
United  Tel.,  etc.,  Co.,  215  Pa.  241,  64  Atl.  515,  114  Am.  St.  Rep.  958.  See 
Geroski  v.  Allegheny  County  L.  Co.,  247  Pa.  304,  93  Atl.  338,  L.  R.  A.  1915D, 
560,  an  accident  which  it  did  not  have  to  anticipate.  See,  also,  Alabama,  etc., 
R.  Co.  V.  Appleton,  171  Ala.  324,  54  South.  638,  Ann.  Cas.  1913A,  llSl ;  Barto 
v.  Iowa  Tel.  Co.,  126  Iowa,  241,  101  X.  W.  876,  106  Am.  St.  Rep.  347 ;  Lewis  v. 
Bowling  Green  Gaslight  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (X.  S.) 
1169 ;  Winegarner  v.  Edison  L.,  etc.,  Co.,  83  Kan.  67,  109  Pac.  778,  28  L.  R.  A. 
<X.  S.)  677 :  Humphreys  v.  Raleigh,  etc.,  Coke  Co.,  73  W.  Va.  495,  80  S.  E.  803, 
L.  R.  A.  1916C,  1270. 


§    200)  LIABILITY   FOR   INJURIES  245 

devolve  upon  telegraph,  telephone  or  electrical  companies,  but  also 
upon  a  municipality  in  which  they  have  lines,  and,  as  a  result  of 
negligence  in  this  respect,  it  will  be  liable  for  all  injuries  in  conse- 
quence thereof.^*     Most  of  the  cases  hold,  however,  that  the  mu- 

Lutolf  V.  United  Elec.  L.  Co.,  184  Mass.  53,  67  N.  E.  1025 ;  Economy  L.,  etc., 
Co.  V.  Hiller,  203  111.  518,  68  N.  E.  72 ;  O'Leary  v.  Glens  Falls,  etc.,  Elec,  etc., 
Co.,  107  App.  Div.  505,  95  N.  Y.  Supp.  2.32 ;  Brubaker  v.  Kansas  City  Elec,  etc., 
Co.,  130  Mo.  App.  4.39,  110  S.  W.  12 ;  Lewis  v.  Bowling  Green,  etc.,  Co.,  135  Ky. 
611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.)  1169 ;  Gentzkow  v.  Portland  R.  Co.,  54 
Or.  114,  102  Pac  614,  135  Am.  St.  Rep.  821 ;  Fox  v.  Manchester,  183  N.  Y.  141, 
75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474 ;  Brown  v.  Consol.  L.,  etc,  Co.,  137  Mo. 
App.  718,  109  S.  W.  10.32 ;  Columbus  R.  Co.  v.  Kitchens,  142  Ga.  677,  83  S.  E. 
529,  L.  R.  A.  1915C,  570;  Kempf  v.  Spokane,  etc,  R.  Co.,  82  Wash.  263,  144 
Pac.  77,  L.  R.  A.  1915C,  405 ;  Green  v.  West.  Penn.  R.  Co.,  246  Pa.  340,  92  Atl. 
341,  L.  R.  A.  1915C,  151 ;  Foley  v.  Northern  Cal.  P.  Co.,  14  Cal.  App.  401,  112 
Pac  467;  Tackett  v.  Henderson,  12  Cal.  App.  658,  108  Pac.  151;  Bergin  v. 
Southern  New  England  Tel.  Co.,  70  Conn.  54,  38  Atl.  888,  39  L.  R.  A.  192 ;  Den- 
ver Consol.  Elec  Co.  v.  Lawrence,  31  Colo.  301,  73  Pac  39 ;  Trammell  v.  Co- 
luml)us  R.  Co.,  9  Ga.  App.  98,  70  S.  E.  892 ;  Barto  v.  Iowa  Tel.  Co.,  126  Iowa, 
241,  101  N.  W.  876,  106  Am.  St.  Rep.  347 ;  Musolf  v.  Electric  Co.,  108  Minn.  369, 
122  X.  W.  499,  24  L.  R.  A.  (N.  S.)  451 ;  Wilhite  v.  Huntsville,  167  Mo.  App.  155, 
151  S.  W.  232 ;  Hoover  v.  Kansas  City  Elec  Ry.  Co.,  159  Mo.  App.  416,  140  S. 
W.  .321;  Luehrmann  v.  Laclede  Gas  Lt.  Co.,  127  Mo.  App.  213,  104  S.  W.  1128; 
Bourke  v.  Butte,  etc,  P.  Co.,  33  Mont.  267,  83  Pac  470 ;  Huscher  v.  Elec,  etc, 
P.  Co.,  158  App.  Div.  422,  143  N.  Y.  Supp.  639 ;  Wagner  v.  Brooklyn  Hgts.  R. 
Co.,  69  App.  Div.  349,  74  N.  Y.  Supp.  809,  affirmed  in  174  N.  Y.  520,  06  N.  E. 
1117 ;  Dwyer  v.  Buffalo,  etc,  Elec.  Co.,  20  App.  Div.  124,  46  N.  Y.  Supp.  874 ; 
Dugan  V.  Erie  Co.  Elec  Co.,  241  Pa.  259,  88  Atl.  437 ;  Berstein  v.  Electric  Co., 
235  Pa.  53,  83  Atl.  612 ;  Citizens'  Tel.  Co.  v.  Thomas,  45  Tex.  Civ.  App.  20,  99 
S.  W.  879;  Jacksonville,  etc.,  Elec.  Co.  v.  Moses  (Tex.  Civ.  App.)  134  S.  W. 
379 ;  Bice  v.  Wheeling  Elec.  Co.,  62  W.  Va.  685,  59  S.  E.  626 ;  Herlitzke  v.  La 
Crosse,  etc,  Tel.  Co.,  145  Wis.  185,  130  N.  W.  59. 

Sufficiency  of  inspection. — The  frequency  and  thoroughness  of  inspection  de- 
pends very  much  upon  the  voltage,  the  wires,  and  their  proximity  to  other 
wires,  and  objects,  and  their  age,  etc.,  Warren  v.  City  Elec  Ry.  Co.,  supra ; 
inspection  to  see  whether  lights  are  burning  not  sufficient,  Lutolf  v.  United 
Elec  Lt.  Co.,  supra ;  where  line  is  in  rural  highway,  diligence  not  the  same, 
Fitch  V.  Central,  etc,  Tel.  Co.,  42  App.  Div.  321,  59  N.  Y,  Supp.  140 ;  question 
for  jury,  Alabama  City,  etc.,  Ry.  Co.  v.  Appleton,  supra ;  Warren  v.  City  Elec. 
Ry.  Co.,  supra ;  Musolf  v.  Electric  Co.,  supra. 

Inspection  after  storm. — Company  bound  to  anticipate  that  its  lines  may  be 
out  of  order  after  a  storm.  See  Foley  v.  Northern  Cal.  P.  Co.,  suyra  ;  War- 
ren V.  City  Elec  Ry.  Co.,  supra ;  Wilhite  v.  Huntsville.  supra ;  Jacksonville, 
etc.,  Elec  Co.  v.  Moses,  supra ;  and  will  be  liable  where  it  fails  to  exercise  dili- 
gence in  its  inspection.  Brown  v.  Light,  etc.,  Co.,  137  Mo.  718,  109  S.  W. 
1032 ;  Foley  v.  Northern  Cal.  P.  Co.,  supra. 

&*  Palestine  v.  Siler,  225  111.  630,  80  N.  E.  345,  8  L.  R.  A.  (N.  S.)  205 ;  Aiken 
V.  Columbus,  167  Ind.  139,  78  N.  E.  657,  12  L.  R.  A.  (N.  S.)  416 ;  Fox  v.  Man- 
chester, 183  N.  Y.  141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474,  and  note ;  Mooney 


246  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  200' 

nicipality  is  liable  for  injury  resulting  from  defective  electric  wires 
maintained  in  the  streets  by  other  parties  only  where  it  had,  or  by 
the  exercise  of  reasonable  care  might  have  had,  notice  of  the  de- 
fective condition. ^^  The  degree  of  care,  prudence,  and  foresight 
exacted  of  a  municipality  where  it  owns  the  wires  ^^  is,  perhaps,  not 
less  than  that  exacted  of  private  companies.^"  In  many  instances 
there  are  city  ordinances  regulating  the  manner  in  which  these 
companies'  lines  shall  be  constructed  and  maintained  upon  the 
streets,  and  in  regard  to  which  the  courts  may  take  several  possible 
positions  as  to  the  effect  to  be  given  to  the  violation  of  such  ordi- 

V.  Lazurene,  186  Pa.  161,  40  Atl.  311,  40  L.  R.  A.  811 ;  McKeesport  v.  McKees- 
port,  etc.,  R.  Co.,  2  Pa.  Super.  Ct.  242 ;  Allentown  v.  West.  U.  Tel.  Co.,  148  Pa. 
117,  23  Atl.  1070,  33  Am.  St.  Rep.  820 ;  West.  U.  Tel.  Co.  v.  Philadelphia,  9  Sad- 
ler (Pa.)  300,  12  Atl.  144,  22  Wkly.  Notes  Cas.  39;  Central,  etc.,  Co.  v.  Cou- 
neaut,  167  Fed.  274,  93  C.  C.  A.  196 ;  Merrltt  v.  Kinloch  Tel.  Co.,  215  Mo.  299, 
115  S.  W.  19 ;  Young  v.  Town  of  Gravenhurst,  24  Ont.  L.  Rep.  467,  Ann.  Cas. 
1912B,  812,  and  note;  American  Dist.  Tel.  Co.  v.  Oldham,  148  Ky.  320,  146  S. 
\Y.  764,  Ann.  Cas.  1913E,  376,  and  note ;  Davoust  v.  Alameda,  149  Cal.  69,  84 
Pac.  760,  5  L.  R.  A.  (N.  S.)  536,  9  Ann.  Cas.  847. 

S5  Fox  V.  Manchester,  183  N.  Y.  141,  75  N.  E.  1116,  2  Ix  R.  A.  (N.  S.)  474; 
Decatur  v.  Hamilton,  89  111.  App.  561;  West  Kentucky  Tel.  Co.  v.  Pharis,  25 
Ky.  Law  Rep.  1838,  78  S.  W.  917 ;  Colbourn  v.  Wilmington,  4  Pennewill  (Del.) 
443,  56  Atl.  605 ;  Hayes  v.  Hyde  Park,  153  Mass.  514,  27  N.  E.  522,  12  L.  R.  A. 
249 ;  District  of  Columbia  v.  Dempsey,  13  App.  D.  C.  533 ;  Kansas  City  v.  Gil- 
l  ert,  65  Kan.  469,  70  Pac.  350 ;  Schmidt  v.  Chicago,  107  111.  App.  64 ;  Denver  v. 
Sherret,  88  Fed.  226,  31  C.  C.  A.  499,  60  U.  S.  App.  104 ;  Mayor  v.  House,  104 
Tenn.  1,  55  S.  W.  153.  See  Greenville  v.  Pitts,  102  Tex.  1,  107  S.  W.  50,  14  L. 
R.  A.  (N.  S.)  979,  132  Am.  St.  Rep.  843 ;  American  Dist.  Tel.  Co.  v.  Oldham, 
148  Ky.  320,  146  S.  W.  764,  Ann.  Cas.  1913E,  376.  And  see,  also,  cases  cited  in 
preceding  note ;  Shawnee  v.  Sears,  39  Okl.  789,  137  Pac.  107,  50  L.  R.  A.  (N. 
S.)  885.  The  city  and  company  may  both  be  liable:  Hoppe  v.  Winona,  113 
Minn.  252,  129  N.  W.  577,  Ann.  Cas.  1912A,  247,  33  L.  R.  A.  (N.  S.)  449 ;  Kan- 
sas City  v.  File,  60  Kan.  157,  55  Pac.  877. 

8G  See  §  85. 

87  Sykes  v.  Portland,  177  Mich.  290,  143  N.  W.  326;  Owensboro  v.  Knox, 
25  Ky.  Law  Rep.  680,  76  S.  W.  191;  Emery  v.  Philadelphia,  208  Pa.  492, 
57  Atl.  977;  Herron  v.  Pittsburg,  204  Pa.  509,  54  Atl.  311,  93  Am.  St.  Rep. 
798;  Twist  v.  Rochester,  37  App.  Div.  307,  55  N.  Y.  Supp.  850,  affirmed  165 
N.  Y.  619,  59  N.  E.  1131 ;  Emporia  v.  Burns,  67  Kan.  523,  73  Pac.  94 ;  Abrams 
V.  Seattle,  60  Wash.  356,  111  Pac.  168,  140  Am.  St.  Rep.  916;  Eaton  v.  City 
of  Weiser,  12  Idaho,  544,  86  Pac,  541,  118  Am.  St.  Rep.  225;  Fisher  v.  New 
Bern,  140  N.  C.  506,  53  S.  E.  342,  5  L.  R.  A.  (N.  S.)  542,  111  Am.  St.  Rep. 
857 ;  Hodgins  v.  Bay  City,  156  Mich.  687,  121  N.  W,  274,  132  Am.  St.  Rep. 
546.  See,  also,  Aiken  v.  Columbus,  167  Ind.  139,  78  N.  E.  657,  12  L.  R.  A,. 
(N.  S.)  416;  Palestine  v.  Siler,  225  111.  630,  80  N.  E.  345,  8  L.  R.  A.  (N.  S.) 
205;  Irvine  v.  Greenwood,  89  S.  C.  511,  72  S.  E.  228,  36  L.  R.  A.  (N.  S.) 
363;  Thomas  v.  Somerset,  30  Ky.  Law  Rep.  131,  97  S.  W.  420,  7  L.  R.  A. 
(N.  S.)  963.     See  §  85. 


^    200a)  LIABILITY   FOR  INJURIES  247 

nances.^*  Thus  there  are  ordinances  requiring  electric  wires  to  be 
insulated.  Where  such  ordinances  exist,  and  an  electric  company 
fails  to  keep  its  wires  insulated  as  thereby  required,  it  is  prima 
facie  evidence  of  negligence.^'' 

§  200a.  Duty  to  guard  against  danger  to  children. — No  rule  can 
be  laid  down  that  would  be  accepted  by  all  the  courts  as  to  the 
duty  of  electrical  companies  in  stringing  their  wires  so  as  to  guard 
against  danger  to  children.  The  courts  are  in  irreconcilable  con- 
flict on  questions  arising  in  cases  of  this  nature  as  they  are  in  the 
"turntable"  cases,  and  those  involving  other  "attractive  nuisances." 

88  Violation  of  ordinance  in  general. — The  general  rxile  is  that  the  violation 
of  city  ordinance  is  negligence  per  se.  Southwestern  Tel.,  etc.,  Co.  v.  Myane, 
86  Ark.  548,  111  S.  W.  987 ;  Conrad  v.  Springfield  Consol.  Ry.  Co.,  240  111. 
12,  88  N.  E.  ISO,  130  Am.  St.  Kep.  251 ;  Com.  Elec.  Co.  v.  Rose,  214  111.  545, 
73  N.  E.  780;  Hausler  v.  Electric  Co.,  144  111,  App.  643,  affirmed  in  240  111, 
201,  88  N.  E,  561 ;  Moren  v.  New  Orleans,  etc,  Lt.  Co.,  125  La.  944,  52  South. 
106,  136  Am,  St.  Rep.  344 ;  Knowlton  v.  Des  Moines,  etc.,  Lt.  Co.,  117  Iowa, 
451,  90  N.  W.  818 ;  Clements  v.  Louisiana  Elec.  Lt.  Co.,  44  La.  Ann.  692,  11 
South.  51,  32  Am.  St.  Rep.  348,  16  L.  R.  A,  43 ;  Mitchell  v.  Raleigh  Elec.  Co., 
129  N.  C.  166,  39  S.  E.  801,  85  Am.  St.  Rep.  735,  55  L.  R.  A.  398;  Mize  v. 
Rocky  Mountain  Bell  Tel.  Co.,  38  Mont.  .521,  100  Pac.  971,  129  Am.  St.  Rep. 
659,  16  Ann.  Cas.  1189;  Ladow  v.  Oklahoma,  etc.,  Elec.  Co.,  28  Okl.  15,  110 
Pac.  250;  Burnett  v.  Ft.  Worth,  etc.,  P.  Co.,  102  Tex.  31,  112  S.  W.  1040, 
19  L.  R.  A,  (N.  S,)  504 ;  San  Antonio,  etc,  Elec  Co.  v.  Badders,  46  Tex.  Civ. 
App.  559,  103  S.  W,  229.  The  inhabitants  of  the  new  municipality  may  take 
advantage  of  the  company's  failure  to  observe  the  ordinance.  Conrad  v. 
Springfield  Cons.  Ry,  Co,,  supra ;  Clements  v.  Louisiana  Elec,  Lt,  Co.,  supra. 
Violation  of  ordinance  does  not  lessen  company's  duty.  Postal  Tel.  Cable 
Co.  v.  Likes,  225  111.  249,  80  N.  E.  136 ;  Birmingham,  etc.,  P,  Co,  v.  Cockrum, 
179  Ala.  372,  60  South.  304 ;  Southwestern  Tel,,  etc,  Co,  v.  Myane,  supra  ; 
Presley  v.  Kinlock  Tel.  Co.,  158  111.  App.  220.  The  injured  person  cannot  re- 
cover without  showing  that  the  injuries  were  the  proximate  result  of  the  vio- 
lation of  such  ordinance.  Conrad  v.  Springfield  Consol.  Ry.  Co.,  supra ;  Stark 
V.  Muskegon,  etc.,  Lt.  Co.,  141  Mich.  575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.) 
822 ;  Wales  v.  Pacific  Elec.  Motor  Co.,  130  Cal.  521,  62  Pac  932,  1120.  Com- 
pany cannot  show  as  a  defense  that  the  ordinance  is  unwise  or  that  its  re- 
quirement is  not  generally  adapted.  Conrad  v.  Springfield  Consol.  Ry.  Co., 
supra.  The  violation  of  the  ordinance  by  the  person  injured  may  constitute 
contributory  negligence.  Brunelle  v.  Lowell  Elec  Lt.  Co.,  194  Mass.  407, 
SO  N.  E.  466.  But  see  Blackburn  v.  Southwest.,  etc.,  R,  Co.,  180  Mo.  548,  167 
S.  W.  457. 

89  Knowlton  v.  Des  Moines,  etc,  Lt.  Co.,  117  Iowa,  451,  90  N.  W.  818; 
mtchell  v.  Raleigh  Elec.  Co.,  129  N.  C.  166,  39  S.  E.  801,  55  L.  R.  A.  398,  85 
Am,  St.  Rep.  735 ;  Wales  v.  Pacific  Elec,  etc.,  Co.,  130  Cal.  521,  62  Pac.  932, 
1120;  Moren  v.  New  Orleans,  etc.,  Lt.  Co.,  125  La.  944,  52  South,  106,  136 
Am,  St,  Rep,  344;  Mize  v,  Tel,  Co.,  38  Mont.  521,  100  Pac  971,  129  Am.  St. 
Rep.  659,  16  Ann.  Cas.  1189 ;  Conrad  v.  Springfield  Ry.  Co.,  240  111.  12,  88 
N.  E.  180,  130  Am.  St.  Rep.  251. 


248  TELEGRAPH   AND   TELEPHONE   COMPANIES  (§    200a 

The  tendency  of  the  late  decisions  is,  however,  to  restrict  the  prin- 
ciple of  the  latter  cases  so  as  to  only  hold  the  company  liable  when 
it  knows,  or  when  in  the  exercise  of  ordinary  care  it  ought  to  know, 
that  its  structure  is  alluring  to  children  and  endangers  them.  In 
accordance  to  these  cases,  some  of  the  courts  have  held  that  dam- 
ages cannot  be  recovered  for  injuries  to  trespassing  children 
against  an  electric  company  where  the  appliance  causing  such 
injury  is  not  in  a  place  ordinarily  within  reach  of  children  and  where 
the  company  has  no  reason  to  anticipate  they  will  go.  Some  of 
the  courts  hold,  however,  and  on  good  reason,  too,  that  a  com- 
pany handling  and  controlling  such  an  extraordinarily  dangerous 
agency  as  electricity  should  be  required  to  exercise  the  very  highest 
degree  of  care  and  skill  in  the  stringing  of  its  wires  at  such  places 
where  it  is  reasonably  probable  children  will  go,  and  a  failure  of 
the  company  to  discharge  this  duty  will  subject  it  to  liability  there- 
for, even  though  the  children  may  be  trespassers.  Furthermore,  it 
is  held  that  these  companies  will  be  charged  with  notice  of  the 
immemorial  habit  of  young  children  to  be  allured  to  dangerous 
places  to  which  those  of  more  mature  minds  would  not  dare  to 
go,  and,  if  such  children  are  injured  by  coming  in  contact  with  the 
company's  wires  at  such  places,  the  latter  will  be  liable  therefor.^*' 

9  0  Temple  v.  McComb  City  Elec,  etc.,  Co.,  89  Miss.  1,  42  South.  874,  119 
Am.  St.  Rep.  698,  11  Lr.  R.  A.  (N.  S.)  449,  10  Ann.  Cas.  924,  boy  injured  while 
climbing  a  little  oak  tree  abounding  in  branches  extending  almost  to  the 
ground,  through  which  an  uninsulated  wire  was  strung,  and  in  which  the 
court  said:  "It  is  i>erfectly  idle  for  the  appellee  to  insist  that  it  was  not 
bound  to  have  reasonably  expected  the  small  boys  of  the  neighborhood  to  climb 
that  sort  of  tree.  The  fact  that  such  boy  would,  in  all  probability,  climb  that 
particular  tree,  being  the  kind  of  tree  it  was,  was  a  fact  which,  according 
to  every  sound  principle  of  law  and  common  sense,  this  corporation  must 
have  anticipated."  In  accordance  with  this  principle,  see  Consol.  Elec,  etc., 
Co.  V.  Healy,  65  Kan.  798,  70  Pac.  884,  where  defectively  uninsulated  wire 
was  laid  on  a  viaduct  of  street,  outside,  but  close  by,  the  traveled  way  where 
boys  are  in  habit  of  going :  Daltry  v.  Media  Elec,  etc.,  Co.,  208  Pa.  403,  57  Atl. 
833,  ten  j-ear  old  boy  injured  while  a  trespasser ;  Mullen  v.  Wilkes-Barre, 
etc.,  Elec.  Co.,  88  Pa.  Super.  Ct.  3 ;  Id.,  229  Pa.  54,  77  Atl.  1108 ;  Fitzgerald 
V.  Edison  111,  Co.,  200  Pa.  540,  50  Atl.  161,  80  Am.  St.  Rep.  732 ;  Meyer  v. 
Menominee,  etc,  Lt.  etc,  Co.,  151  Wis.  279,  138  N.  W.  1008;  Caruso  v.  Troy 
Gas  Co.,  153  App.  Div.  431,  138  N.  Y.  Supp.  279.  See  Walters  v.  Denver  Con- 
sol.  Elec.  Co.,  12  Colo.  App.  145,  54  Pac.  960;  Id.,  17  Colo.  App.  192,  68 
Pac  117 ;  Denver  Consol.  Elec.  Co.  v.  Walters,  39  Colo.  301,  89  Pac.  815,  the 
strict  rule  that  the  duty  to  exercise  the  highest  degree  of  care  was  to  be 
invoked,  not  where  there  was  "the  mere  possibility,  but  a  reasonable  proba- 
bility, of  accessibility  of  the  appliances  to  and  by  children"  and  that  the 
company  was  not  "obliged  to  guard  these  contrivances  from  wanton  assaults 
by  children  who  might  reach  them  from  ladders,  or  balloons" ;    McAllister  v. 


g    201)  LIABILITY   FOR   INJURIES  249 

§  201.  Parallel  and  intersecting  wires. — It  is  the  duty  of  an  elec- 
tric company  to  construct  its  wires,  over  which  dangerous  currents 
of  electricity  are  to  pass,  so  that  they  will  not  charge  or  come  in 
contact  with  parallel  or  intersecting  wires  of  others."^  And,  in 
this  respect,  it  is  as  much  a  duty  to  exercise  care  and  diligence  in 
the  maintenance  of  such  wires  as  is  required  in  the  original  con- 
struction.''- A  company  maintaining  an  uninsulated  powerfully 
charged  wire,  such  as  a  trolley  wire,  should  protect  its  wire  so  as 
not  to  come  in  contact  with  those  of  another  company  maintain- 

Jung,  112  111.  App.  138,  one  in  stringing  electric  wires  should  be  charged  with 
the  duty  of  affording  greater  protection  to  children  than  to  adults ;  Simouton 
V.  Citizens'  Elec,  etc.,  Co.,  28  Tex.  Civ.  Ap]).  376,  67  S.  W.  oMO,  poles  not  such 
unusual  attractive  structures  to  children  as  to  come  within  doctrine  of  the 
turntable  cases.  But  contrary  to  the  rule  above  laid  down,  and  where  lia- 
bility was  denied,  see  Sullivan  v.  Boston,  etc.,  Co.,  156  Mass.  378,  31  N.  E. 
128,  where  boy  went  on  ahead  of  defendant ;  Stark  v.  Muskegon,  etc.,  Lt.  Co., 
141  Mich.  575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.)  822,  boy  throwing  broken 
telephone  wire  over  electric  wire  20  feet  above  the  ground;  Freeman  v. 
Brooklyn,  etc.,  R.  Co.,  54  App.  Div.  596,  66  N.  Y.  Supp.  1052,  boy  climbing 
upon  public  bridge  where  wire  was  strung;  similar  case,  Wetherby  v.  Twin 
State,  etc.,  Co.,  83  Vt.  189,  75  Atl.  8,  25  L.  R.  A.  (N.  S.)  1220,  21  Ann.  Cas. 
1092,  defendant  not  bound  to  anticipate  one  would  go  into  such  obviou.s  dan- 
ger;  Mayfield,  etc.,  Lt.  Co.  v.  Webb,  33  Ky.  Law  Rep.  909,  111  S.  W.  712, 
18  L.  R.  A.  (N.  S.)  179,  boy  climbing  guy  wire;  Johnston  v.  New  Omaha, 
etc.,  L.  Co.,  78  Neb.  24,  27,  110  N.  W.  711,  113  N.  W.  526,  17  L.  R.  A.  (N.  S.) 
435,  bright,  intelligent  city  boy  12  years  walking  fence,  and  taking  hold  of 
wire  18  to  30  inches  from  top  of  fence;  Charette  v.  L'Anse,  154  Mich.  304, 
117  N.  W.  737;  Keefe  v.  Narragansett  Elec.  Lt.  Co.,  21  R.  I.  575,  43  Atl.  .542, 
11  year  old  girl  climbing  out  into  a  jet  of  a  house  adjoining  the  one  in  which 
she  lived;  Graves  v.  Washington,  etc.,  P.  Co.,  44  Wash.  675,  87  Pac.  9.56, 
11  L.  R.  A.  (N.  S.)  452,  not  bound  to  anticipate  children  will  be  attracted  ; 
Myer  v.  Union,  etc.,  P.  Co.,  151  Ky.  332,  151  S.  W.  941,  43  L.  R.  A.  (N.  S.) 
136,  wire  near  playground,  but  inside  a  walled  churchyard ;  Trout  v.  I'hila- 
delphia  Elec.  Co.,  236  Pa.  506,  84  Atl.  967,  42  L.  R.  A.  (N.  S.)  713 ;  Brown  v. 
Panola  L.,  etc.,  Co.,  137  Ga.  .352.  73  S.  E.  580. 

91  City  Elec.  St.  Ry.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426,  54  Am.  St. 
Rep.  262,  31  L.  R.  A.  570;  Atlanta,  etc.,  R.  Co.  v.  Owings,  97  Ga.  663,  25 
S.  E.  377,  33  L.  R.  A.  798;  Burns  v.  Delaware,  etc.,  Tel.  Co.,  70  N.  J.  Law, 
745,  59  Atl.  220,  592,  67  L.  R.  A.  956;  Parsons  v.  Charleston  Gas,  etc.,  Co., 
69  S.  C.  305,  48  S.  E.  284,  104  Am.  St.  Rep.  800;  McKay  v.  Southern  Bell 
Tel.,  etc.,  Co.,  Ill  Ala.  337,  19  South.  695,  56  Am.  St.  Rep.  59,  31  L.  R.  A.  589 ; 
Conrad  v.  Springfield,  etc.,  R.  Co.,  240  111.  12,  88  N.  E.  180,  130  Am.  St.  Rep. 
251;  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  111 
Am.  St.  Rep.  668,  3  L.  R.  A.  (N.  S.)  988 ;  Moran  v.  Corliss,  etc.,  Co.,  21  R.  I. 
386,  4.3  Atl.  874,  45  L.  R.  A.  267 ;  State  v.  Jauesville  St.  Ry.  Co.,  87  Wis.  72, 
57  N.  W.  970,  41  Am.  St.  Rep.  23,  22  L.  R.  A.  759;  Block  v.  Milwaukee  St. 
Ry.  Co.,  89  Wis.  371,  61  N.  W.  1101,  46  Am.  St.  Rep.  849,  27  L.  R.  A.  365. 

0  2  Atlanta  Consol.  St.  Ry.  Co.  v.  Owings,  97  Ga.  663,  25  S.  E.  377,  33  L.  R.  A. 


250  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  201 

ing  comparatively  harmless  electric  wires,  such  as  telegraph  and 
telephone  wires,  by  using  a  degree  of  care  commensurate  with  the 
probable  consequences  of  a  want  of  such  protection. ^^  On  the 
other  hand,  it  is  the  duty  of  such  telegraph  or  telephone  companies 

798;  Paine  v.  Electric,  etc.,  Co.,  64  App.  Div.  477,  72  N.  Y.  Supp.  279;  In- 
ternational Lcight,  etc.,  Co.  v.  Maxwell,  27  Tex.  Oiv.  App.  294,  65  S.  W.  78; 
Daltry  v.  Media  Elect.,  etc.,  Co.,  208  Pa.  403,  57  Atl.  833;  City  Elec,  etc., 
Ry.  Co.  V.  Conery,  61  Ark.  381,  33  S.  W.  426,  54  Am.  St.  Rep.  262,  31  L.  R.  A. 
570 ;  West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  33  Atl.  763,  31  L.  R.  A.  572,  51  Am. 
St.  Rep.  464 ;  Electric  Ry.  Co.  v.  Shelton,  89  Tenn.  423,  14  S.  W.  863,  24  Am.  St. 
Rep.  614  ;  Block  v.  Milwaukee,  etc.,  Ry.  Co.,  89  Wis.  371,  61  N.  W.  1101,  27  L.  R. 
A.  365,  46  Am.  St.  Rep.  849;  Kraatz  v.  Brush  Elec,  etc.,  Co.,  82  Mich.  457, 
46  N.  W.  787 ;  San  Antonio  Gas,  etc.,  Co.  v.  Speegle  (Tex.  Civ.  App.)  60  S.  W. 
884 ;  Heidt  v.  Southern,  etc.,  Tel.  Co.,  122  Ga.  474,  50  S.  E.  361 ;  Parsons  v. 
Charleston  Consol.,  etc.,  Co.,  69  S.  C.  305,  48  S.  E.  284,  104  Am.  St.  Rep.  800 ; 
Cleburne  Elec,  etc.,  Co.  v.  McCoy  (Tex.  Civ.  App.)  149  S.  W.  534;  Wehner  v. 
Lagerfelt,  27  Tex.  Civ.  App.  520,  66  S.  W.  221;  Lexington  R.  Co.  v.  Fain, 
24  Ky.  Law  Rep.  1443,  71  S.  W.  628;  Pierce  v.  United,  etc,  Elec  Co.,  161 
Cal.  176,  118  Pac  700;  Union  Light,  etc,  Co.  v.  Lakeman,  156  Ky.  33,  160 
S.  W.  723;  Gilbert  v.  Duluth,  etc.,  Elec.  Co.,  93  Minn.  99,  100  N.  W.  653, 
106  Am.  St.  Rep.  430;  Freeman  v.  Missouri,  etc,  Tel.  Co.,  160  Mo.  App.  271, 
142  S.  W.  733 ;  Economy  L.,  etc.,  Co.  v.  Hiller,  203  111.  518,  68  N.  E.  72.  See 
United  Elec,  etc.,  Co.  v.  State,  100  Md.  634,  60  Atl.  248 ;  Brown  v.  Northern 
California  P.  Co.,  14  Cal.  App.  651,  114  Pac.  54,  74 ;  Temple  Elec,  etc.,  Co.  v. 
Halliburton  (Tex.  Civ.  App.)  136  S.  W.  584 ;  Weleetka  L.,  etc.,  Co.  v.  Northrop, 
42  Okl.  561,  140  Pac  1140. 

9  3  New  York,  etc,  Tel.  Co.  v.  Bennett,  62  N.  J.  Law,  742,  42  Atl.  759; 
McKay  v.  Southern  Bell  Tel.  Co.,  Ill  Ala.  337,  19  South.  695,  56  Am.  St.  Rep. 
59,  31  L.  R.  A.  589 ;  City  Elec  St.  Ry.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W. 
426,  54  Am.  St.  Rep.  262,  31  L.  R.  A.  570,  holding  that  a  street  railway  com- 
pany may  be  held  liable  where  a  telephone  wire  stretched  above  its  trolley 
wire  falls  upon  the  trolley  and  conducts  electricity  therefrom  to  the  injury  of 
one  coming  in  contact  with  the  telephone  wire ;  ]\IcAdam  v.  Central  Ry.,  etc., 
Co.,  67  Conn.  445,  35  Atl.  341;  Kankakee  Elec.  Ry.  Co.  v.  Whittemore,  45 
111.  App.  484 ;  Jones  v.  Finch,  128  Ala.  217,  29  South.  182 ;  Hebert  v.  Lake 
Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35  South.  731,  100  Am.  St.  Rep.  505,  64 
L.  R.  A.  101 ;  Hamilton  v.  Bordentown  Elec,  etc,  Co.,  68  N.  J.  Law,  85,  52 
Atl.  290;  International  Light,  etc,  Co.  v.  Maxwell,  27  Tex.  Civ.  App.  294, 
65  S.  W.  78;  Parsons  v.  Charleston  Consol.,  etc,  Elec.  Co.,  69  S.  C.  305, 
48  S.  E.  284,  104  Am.  St.  Rep.  800;  City  Electric  St.  Ry.  Co.  v.  Conery,  61 
Ark.  381,  33  S.  W.  426,  54  Am.  St.  Rep.  262,  31  L.  R.  A.  570 ;  Paducah  Lt., 
etc,  Co.  V.  Parkman,  156  Ky.  197,  160  S.  W.  931,  52  L.  R.  A.  (N.  S.)  586; 
West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  33  Atl.  763,  51  Am.  St.  Rep.  464,  31 
L.  R.  A.  572 ;  Mize  v.  Rocky  Mountain  Bell  Tel.  Co.,  38  Mont.  521,  100  Pac 
971,  129  Am.  St,  Rep.  659,  16  Ann.  Cas.  1189 ;  Fox  v.  Manchester.  183  N.  Y. 
141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474 ;  Mooney  v.  Luzerne  Borough,  186 
Pa.  161,  40  Atl.  311,  40  L.  R.  A.  811;  Block  v.  Milwaukee  St.  Ry.  Co.,  89 
Wis.  371,  61  N.  W.  1101,  46  Am.  St.  Rep.  849,  27  L.  R.  A.  365;  Wilbert  v. 
Sheboygan  Lt.,  etc,  Co.,  129  Wis.  1,  100  N.  W.  1058,  116  Am.  St.  Rep.  931. 


§    201)  LIABILITY   FOR  INJURIES  251 

to  use  reasonable  care  to  prevent  their  lines  from  coming  in  contact 
with  defectively  insulated  or  uninsulated  wires  carrying  powerful 
electric  currents.^*  So,  where  wires  maintained  concurrently  by 
different  parties  are  so  erected  or  strung  that  one  is  likely  to  fall 
upon  or  come  in  contact  with  the  other,  thereby  producing 
possible  destructive  consequences,  either  or  both  of  them  must 
make  efforts  to  abate  such  dangerous  condition,''^  and  if  an  injury 
occurs  through  a  neglect  of  such  duty,  both  are  liable. ^^  While 
the  general  duties  of  these  companies  are  as  stated,  yet  there  is  a 

94  Hamilton  v.  Bordentown  Elec,  etc,  Co.,  68  N.  J.  Law,  85,  52  Atl.  290; 
West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  33  Atl.  763,  31  L.  R.  A.  572,  51  Am.  St. 
Rep.  464 ;  Ahem  v.  Oregon  Tel.  Co.,  24  Or.  276,  33  Pac.  403,  35  Pac.  549,  22 
L.  R.  A.  635 ;  West.  U.  Tel.  Co.  v.  Thorn,  64  Fed.  287,  12  C.  C.  A.  104.  See 
cases  cited  in  preceding  note.  See  Citizens'  Tel.  Co.  v.  Thomas,  45  Tex.  Civ. 
App.  20,  99  S.  W.  879 ;  Rowe  v.  New  York,  etc.,  Tel.  Co.,  66  N,  J.  Law,  19, 
48  Atl.  523;  Mize  v.  Rocky  Mountain  Bell  Tel.  Co.,  38  Mont.  521,  100  Pac. 
971,  129  Am.  St.  Rep.  659,  16  Ann.  Cas.  1189 ;  Hebert  v.  Lake  Charles,  etc., 
Co.,  Ill  La.  522,  35  South.  731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101 ;  Free- 
man V.  Missouri,  etc.,  Tel.  Co.,  160  Mo.  App.  271,  142  S.  W.  733;  Central 
Pennsylvania  Tel.,  etc.,  Co.  v.  Wilkes-Barre,  etc.,  Co.,  11  Pa.  Co.  Ct.  R.  417 ; 
Delahunt  v.  United  Tel.,  etc.,  Co.,  215  Pa.  241,  64  Atl.  515,  114  Am.  St.  Rep. 
958 ;  Southwestern,  etc.,  Tel.  Co.  v.  Shirley  (Tex.  Civ.  App.)  155  S.  W.  663 ; 
Goodwin  v.  Columbia  Tel.  Co.,  157  Mo.  App.  596,  138  S.  W.  940;  McKay  v. 
Southern  Bell  Tel.  Co.,  Ill  Ala.  337,  19  South.  695,  56  Am.  St.  Rep.  59,  31 
L.  R.  A.  589 ;  Southwestern,  etc.,  Tel.  Co,  v.  Myane,  86  Ark.  548,  111  S.  W. 
987;  Henning  v.  West.  U.  Tel.  Co.  (C.  C.)  41  Fed.  864;  Southern  Bell  Tel. 
Co.  V.  Davis,  12  Ga.  App.  28,  76  S.  E.  786. 

9  5  Alabama.— McKSij  v.  Southern  Bell  Tel.,  etc.,  Co.,  Ill  Ala.  .337,  19 
South.  695.  56  Am.  St.  Rep.  59,  31  L.  R.  A.  589 ;  R.,  etc.,  Co.  v.  Cockrum,  179 
Ala.  372,  60  South.  304. 

Arkansas.— City  Electric  St.  Ry.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426, 
54  Am.  St.  Rep.  262,  31  L.  R.  A.  570;  Tel.,  etc.,  Co.  v.  Bruce,  89  Ark.  581, 
117  S.  W.  564. 

Arkojm.— See  Crandall  v.  Tel.,  etc.,  Co.,  14  Ariz.  322,  127  Pac.  994. 

Califwnia.-'Dow  v.  Tel.,  etc.,  Co.,  157  Cal.  182,  106  Pac.  587. 

Georgia.— Trammell  v.  R.  Co.,  9  Ga.  App.  98,  70  S.  E.  892 ;  Augusta  R.  Co. 
V.  Andrews,  89  Ga.  653,  16  S.  E.  203. 

Illinois.— Kankakee  Electric  R.  Co.  v.  Whittemore,  45  111.  App.  484;  Gents 
V.  Coal  Co.,  155  111.  App.  628 ;  Economy  Lt.,  etc.,  Co.  v.  Hiller,  203  111.  518,  68 
N.  E.  72. 

Indiana.— Te\.,  etc.,  Co.  v.  Kranz,  48  Ind.  App.  67,  95  N.  E.  371.  See  Heat 
Co.  V.  Dolby,  47  Ind.  App.  406,  92  N.  E.  739. 

Kentucky.— VaaucRh  Light,  etc.,  Co.  v.  Parkman,  156  Ky.  197,  160  S.  W. 
931,  52  L.  R.  A.  (N.  S.)  586. 

Z/OMisiano.— Hebert  v.  Lake  Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35  South. 

9  6  See  note  96  on  following  page. 


252  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  201 

difference  of  opinion,  in  the  several  states,  as  to  their  respective  lia- 
bihties,  where,  by  reason  of  the  crossing  or  breaking  of  wires  by 
storms  or  otherwise,  electric  light,  power,  or  trolley  currents  run 

731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101;  Simmons  v.  Gas,  etc.,  Co.,  IIG 
La.  1033,  41  South.  248. 

Massachusetts.— Illingswovth  v.  Electric  Lt.  Co.,  IGl  Mass.  583,  37  N.  E. 
778,  25  L.  R.  A.  552. 

Mi)mesota.—&ee  Musolf  v.  Electric  Co.,  108  Minn.  369,  122  N.  W.  499,  24 
L.  R.  A.  (N.  S.)  451. 

Ifisstssippi.— Cumberland  Tel.,  etc.,  Co.  v.  Cosnahan,  105  Miss.  615,  62  South. 
824. 

^JssoH ;i.—Wilhite  v.  Huntsville,  167  Mo.  App.  155.  151  S.  W.  232.  See 
Goodwin  v.  Tel.  Co.,  157  Mo.  App.  596,  138  S.  W.  940.  Compare  Strack  v. 
Tel.  Co.,  216  Mo.  601,  116  S.  W.  526.  See  Freeman  v.  Missouri,  etc.,  Tel.  Co., 
160  :Mo.  App.  271,  142  S.  W.  733. 

Montana— Mize  v.  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  Rep. 
659,  16  Ann.  Cas.  1189. 

Nehraska.— Olson  v.  Tel.  Co.,  83  Neb.  735,  120  N.  W.  421,  See  Grimm  v. 
Light,  etc.,  Co.,  79  Neb.  387,  112  N.  W.  620. 

Neiv  Jersey. — Hamilton  v.  Bordentown  Electric  Lt.,  etc.,  Co.,  68  N.  J.  Law, 
85,  52  Atl.  290 ;   Rowe  v.  New  York,  etc.,  Tel.  Co.,  66  N.  J.  Law,  19,  48  Atl.  523. 

New  York.— Fame  v.  Electric  111.,  etc.,  Co.,  64  App.  Div.  477,  72  N.  Y.  Supp. 
279 ;   Fox  v.  Manchester,  183  N.  Y.  141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474. 

North  Carolina.— Haynes  v.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344, 
44  Am.  St.  Rep.  786,  26  L.  R.  A.  810;    Fisher  v.  New  Bern,  140  N.  C.  506, 

53  S.  E.  342,  5  L.  R.  A.  (N.  S.)  542,  111  Am.  St.  Rep.  857. 

Oregron.— Ahern  v.  Oregon  Tel.,  etc.,  Co.,  24  Or.  276,  33  Pac.  403,  35  Pac. 
549,  22  L.  R.  A.  635 ;  Gentzkow  v.  R.  Co.,  54  Or.  114,  102  Pac.  614,  135  Am. 
St.  Rep.  821. 

Pennsylvania.— Deylin  v.  Beacon  Light  Co.,  192  Pa.  188,  43  Atl.  962. 

Tennessee.— United-Electric  R.  Co.  v.  Shelton,  89  Tenu.  423,  14  S.  W.  863, 
24  Am.  St.  Rep.  614. 

Texas. — International  Light,  etc.,  Co.  v.  Maxwell,  27  Tex.  Civ.  App.  294, 
65  S.  W.  78;  San  Marcos  Elec,  etc.,  Co.  v.  Compton,  48  Tex.  Civ.  App.  586, 
107  S.  W.  1151;  Light,  etc.,  Co.  v.  Patton,  105  Tex.  621,  154  S.  W.  540,  45  L. 
R.  A.  (N.  S.)  303. 

Fe/mon^— Drown  v.  Tel.,  etc.,  Co.,  SO  Vt.  1,  66  Atl.  801. 

rirymm.—R.  Co.  v.  Rubin,  102  Va.  S09,  47  S.  E.  834 ;  Trac.  Co.  v.  Daily, 
111  Va.  665,  69  S.  E.  963. 

Canada.— Labombarde  v.  Gas  Co.,  10  Ont.  L.  R.  446,  5  Ont.  W.  R.  534 ;  Sut- 
ton V.  Dundas,  11  Ont.  W.  R.  501.     See  Hinman  v.  R.  Co.,  16  Manitoba,  16. 

96  Alabama.— McKay  v.  Southern  Bell  Tel.,  etc.,  Co.,  Ill  Ala.  337,  19  So.  695, 
56  Am.  St.  Rep.  59,  31  L.  R.  A.  589. 

Arkansas.— City  Electric  St.  R.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426, 

54  Am.  St.  Rep.  262,  31  L.  R.  A.  570. 

California.— Bow  v.  Tel.,  etc.,  Co.,  157  Cal.  182,  106  Pac.  587. 

Georgia.— West.  U.  Tel.  Co.  v.  Griffith,  111  Ga.  551,  36  S.  E.  859 ;   Trammell 


I 


§    201)  LIABILITY  FOR   INJURIES  253 

through  telegraph  or  telephone  wires  and  do  damage.^'^  In  most 
instances,  however,  the  courts  submit  the  whole  matter  to  the  jury, 

V.  R.  Co.,  9  Ga.  App.  98,  70  S.  E.  892 ;  Eining  v.  Georgia,  etc.,  Elec.  Co.,  133 
Ga.  458,  66  S.  E.  237. 

IlUnois.— Economy  Lt.,  etc.,  Co.  v.  Hiller,  203  111.  518,  68  N.  E.  72;  Cooper 
V.  Light  Co.,  164  111.  App.  581. 

Indiana.— Tel.  Co.  v.  Sokola,  34  Ind.  App.  429,  73  N.  E.  143.  See  Logans- 
port  V.  Smith,  47  Ind.  App.  64,  93  N.  E.  883. 

Kansas.— BiiUUe  v.  Light,  etc.,  Co.,  87  Kan.  604,  125  Pac.  51.  See  Kansas 
City  V.  File,  60  Kan.  157,  55  Pac.  877. 

Kentucky.— Cumhevland  Tel.,  etc.,  Co.  v.  Ware,  74  S.  W.  289,  24  Ky.  Law 
Eep.  2519. 

Louisiana. — Simmons  v.  Gas  Co.,  116  La.  1033,  41  South.  248;  Hebert  v. 
Lake  Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35  South.  731,  100  Am.  St.  Rep.  505, 
64  L.  R.  A.  101. 

Mississippi. — Cumberland  Tel.,  etc.,  Co.  v.  Cosnahan,  105  Miss.  615,  62 
South.  824. 

IfissoMrt.— Harrison  v.  Kansas  City  Elec.  Lt.  Co.,  195  Mo.  606,  93  S.  W.  951, 
7  L.  R.  A.  (N.  S.)  293. 

Montana.— yiize  v.  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  Rep. 
659,  16  Ann.  Cas.  1189. 

Pennsylvania.— Baltry  v.  Light,  etc.,  Co.,  208  Pa.  403,  57  Atl.  833. 

Tennessee.— United  Electric  R.  Co.  v.  Shelton,  89  Teun.  423,  14  S.  W.  863, 
24  Am.  St.  Rep.  614. 

South  Carolina.— Parsons  v.  R.  Co.,  69  S.  C.  305,  48  S.  E.  284,  104  Am.  St. 
Rep.  800. 

Utah.— See  Swan  v.  R.  Co.,  41  Utah,  518,  127  Pac.  267. 

United  States.— Tel.,  etc.,  Co.  v.  Moore,  179  Fed.  364,  102  C.  C.  A.  642,  31  L. 
R.  A.  (N.  S.)  617. 

West  Virginia. — See  Fickeisen  v.  Wheeling  Elec.  Co.,  67  W.  Va.  335,  67  S. 
E.  788,  27  L.  R.  A.  (N.  S.)  893. 

Canada.— Electric  Co.  v.  Heve,  32  Can.  S.  Ct.  462;  Sutton  v.  Dundas,  17 
Ont.  L.  R.  556,  11  Ont.  W.  R.  501,  13  Ont.  W.  R.  126.  See  Earle  v.  Victoria,  2 
Brit.  Col.  156. 

»7  Alabama.— Home  Tel.  Co.  v.  Fields,  150  Ala.  306,  43  South.  711,  telephone 
liable ;  McKay  v.  Southern  Bell,  etc.,  Tel.  Co.,  Ill  Ala.  337,  19  South.  695,  56 
Am.  St.  Rep.  59,  31  L.  R.  A.  589,  both  liable ;  Decatur,  etc.,  Co.  v.  Newsom,  179 
Ala.  127,  59  South.  615,  electric  company  liable. 

Arizona.— Crandall  v.  Consolidated,  etc.,  Co.,  14  Ariz.  322,  127  Pac.  994, 
telephone  liable. 

ArAaHsas.— City  Electric  St.  R.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426,  54 
Am.  St.  Rep.  262,  31  L.  R.  A.  570,  jointly  liable ;  Texarkana,  etc.,  Light  Co.  v. 
Orr,  59  Ark.  215,  27  S.  W.  66,  43  Am.  St.  Rep.  30,  question  for  the  jury. 

Z)eioit;are.— Neal  v.  Wilmington,  etc.,  Ry.,  3  Pennewill  (Del.)  467,  53  Atl.  338, 
trolley  company  liable. 

Gcorfirta.— Atlanta,  etc.,  Tel.  Co.  v.  Cheshire,  12  Ga.  App.  652,  78  S.  E.  53, 
telephone  liable ;  Eining  v.  Georgia,  etc.,  Co.,  133  Ga.  458,  66  S.  E.  237,  both 
negligent  and  both  liable ;  Southern  Bell,  etc.,  Tel.  Co.  v.  Davis,  12  Ga.  App. 
28,  76  S.  E.  786,  telephone  liable ;  Read  v.  City,  etc.,  Ry.,  115  Ga.  366,  41  S.  E. 


254  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  202 

and  the  jury  generally  proceeds  to  assess  the  damages  against  all 
the  companies.''^ 

§  202.  Duty  to  place  guards  over  wires. — Where  electrical  com- 
panies place  wires,  designed  to  carry  powerful  electrical  currents, 
in  a  street  where  there  are  telegraph  and   telephone  wires,  thus 

629,  trolley  not  liable  not  having  time  to  discover  the  defect  before  the  acci- 
dent. 

ZiZmois.— Hayes  v.  Chicago,  etc.,  Co.,  218  111.  414,  75  N.  E.  1003,  2  L.  R. 
A.  (N.  S.)  764,  telephone  not  liable  where  city's  wire  on  same  poles  caused  the 
accident  and  was  held  not  liable ;  Commonwealth,  etc.,  Co.  v.  Melville,  210  111. 
70,  70  N.  E.  1052,  uninsulated  electric  light  wire  in  open  space  under  sidewalk, 
owner  liable ;  Economy,  etc.,  Co.  v.  Hiller,  203  111.  518,  68  N.  E.  72,  both  negli- 
gent and  both  liable ;  Tandrup  v.  Sampsell,  234  111.  526,  85  N.  E.  331,  17  L.  R. 
A.  (N.  S.)  852,  may  sue  any  or  all  several  companies  jointly  liable,  and  may 
obtain  judgment  and  then  issue  execution  against  one  or  all,  and  nothing 
short  of  the  satisfaction  of  the  demand  or  a  release  under  seal  is  a  defense  to 
the  others ;  Kankakee,  etc.,  Ry.  v.  Whittemore,  45  111.  App.  484,  where  a  tele- 
phone wire  is  above  a  trolley  wire,  and  the  trolley  itself  slips  off  the  trolley 
wire  and  breaks  the  telephone  wire,  and  the  latter  falls  on  the  trolley  wire, 
and  also  to  the  ground,  completing  the  circuit  and  killing  a  horse,  the  tele- 
phone company  is  liable. 

Kansas. — Consolidated,  etc.,  Co.  v.  Koepp,  64  Kan.  735,  68  Pac.  60S,  electric 
light  company  not  necessarily  liable,  where  its  current  passed  through  private 
telephone  which  it  had  allowed  to  be  strung  to  its  poles. 

Louisiana. — Simmons  v.  Shreveport,  etc.,  Co.,  116  La.  1033,  41  South.  248, 
both  companies  liable,  both  negligent;  Hebert  v.  Lake  Charles,  etc.,  Ice  Co., 
Ill  La.  522,  35  South.  731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101,  electric  light 
company  liable,  where  its  wire  at  the  point  of  contact  was  not  insulated ; 
Clements  v.  Louisiana  El.,  etc.,  Co.,  44  La.  Ann.  692,  11  South.  51,  16  L.  R.  A. 
43,  32  Am.  St.  Rep.  348,  wire  uninsulated  as  required  by  ordinance,  electric 
company  liable. 

Maryland. — Annapolis,  etc.,  Co.  v.  Fredericks,  109  Md.  595,  72  Atl.  534,  ques- 
tion for  jury  where  wire  sags  and  is  uninsulated ;  West.  U.  Tel.  Co.  v.  State, 
82  Md.  293,  33  Atl.  763,  31  L.  R.  A.  572,  51  Am.  St.  Rep.  464,  telegraph  com- 
pany and  street  railway  not  liable,  where  an  unused  telephoxae  wire  strung  on 
the  poles  of  a  telegraph  company  breaks  and  falls  across  an  electric  light  wire, 
strung  on  the  poles  of  the  street  railway  company,  and  hangs  there  for  two 
weeks,  and  the  electric  light  current  passes  through  it  and  kills  a  person,  un- 
less negligence  on  their  part  is  shown. 

Michigan.— Knfhony  v.  Cass  County  Tel.  Co.,  165  Mich.  388,  130  N.  W.  659, 
telephone  not  liable  where  its  wires  have  been  properly  strung ;  Stark  v.  Mus- 
kegon, etc.,  Co.,  141  Mich.  575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.)  822,  electrical 
company  not  liable  where  child  throws  telephone  wire  of  the  former's  wire  19 
feet  above  ground  and  is  hurt,  although  the  insulation  was  defective. 

Missouri. — Freeman  v.  Missouri,  etc.,  Tel.  Co.,  160  Mo.  App.  271,  142  S.  W. 
733,  both  liable  where  electric  light  company  strings  its  wire  near  a  telephone 
guy  wire;  Strack  v.  Missouri,  etc.,  Co.,  216  Mo.  601,  116  S.  W.  526,  neither 
company  liable  where  the  trouble  could  not  have  been  reasonably  foreseen ; 

0  8  See  cases  in  notes  96  and  97. 


§    202)  LIABILITY  FOR  INJURIES  255 

making  the  latter  wires,  which  before  were  harmless,  dangerous,  it 
is  the  duty  of  the  electrical  company  to  guard  its  wires  so  that  a 
falling  telegraph  or  telephone  wire  will  not  come  in  contact  with 
them.     The   duty  of  the  telegraph  or  telephone  company  in  the 

Luehrmann  v.  Laclede,  etc.,  Co.,  127  Mo.  App.  213,  104  S.  W.  1128,  electric 
light  company  not  liable  where  hoy  throws  loose  wire  over  its  wire,  even 
though  the  wire  was  uninsulated  at  that  point. 

Montana.— Mize  v.  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  Rep. 
659,  16  Ann.  Cas.  1189,  both  companies  liable  where  they  did  not  observe  a 
city  ordinance  requiring  the  separation  of  their  wires  by  at  least  four  feet, 
where  current  passed  from  electric  wire  to  telephone  wire,  thence  to  guy  wire 
and  then  over  wire  fence. 

New  Jersey.— Guinn  v.  Delaware,  etc.,  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  3 
L.  R.  A.  (N.  S.)  988,  111  Am.  St.  Rep.  668,  where  telephone  guy  wire  is  erected 
before  electric  wire  over  it,  and  former  falls  across  latter,  the  telephone  com- 
pany will  be  liable,  there  having  been  no  guard  between  the  two  wires ;  Spires 
V.  Middlesex,  etc.,  Co.,  70  N.  J.  Law,  355,  57  Atl.  424,  electric  company  liable 
where  branch  of  tree  falls  on  wire  and  causes  it  to  break  ;  Hamilton  v.  Borden- 
town,  etc.,  Co.,  68  N.  J.  Law,  85,  52  Atl.  290,  both  liable  where  each  has 
failed  to  exercise  proper  precaution ;  Rowe  v.  New  York,  etc.,  Co.,  66  N.  J.  Law,. 
19,  48  Atl.  523,  both  liable  inasmuch  as  guard  wires  should  have  been  erected ; 
New  York,  etc.,  Tel.  Co.  v.  Bennett,  62  N.  J.  Law,  742,  42  Atl.  759,  question  for 
jury  to  determine  whether  each  or  both  were  guilty  of  negligence ;  Newark, 
etc.,  Co.  V.  Ruddy,  62  N.  J.  Law,  505,  41  Atl.  712,  57  L.  R.  A.  624,  the  pre- 
sumption is  that  the  company  owning  the  wire  causing  the  accident  was  guil- 
ty of  negligence. 

New  York. — Bamberg  v.  International  Ry.  Co.,  121  App.  Div.  1,  105  N,  Y. 
Supp.  621,  where  both  are  guilty  of  negligence,  there  may  be  a  general  verdict 
against  both,  and  the  trial  judge  cannot  set  aside  the  verdict  as  to  one  of 
them;  Horning  v.  Hudson,  etc.,  Co.,  Ill  App.  Div.  122,  97  N.  Y.  Supp.  625, 
affirmed  186  N.  Y,  552,  79  N.  E.  1107,  where  both  their  wires  are  caused  to 
sag  by  fire,  both  will  be  liable ;  Albany  v.  Watervliet,  etc.,  R.  R.,  76  Hun,  136, 
27  N.  Y.  Supp.  848,  electric  company  may  not  be  liable  where  its  current  passes 
through  a  telephone  wire  fallen  on  the  former's  wire  and  kills  a  horse ;  Gor- 
don V.  Ashley,  77  App.  Div.  525,  79  N.  Y.  Supp.  274,  an  individual  vendor  of  a 
line  of  wires  to  a  company  not  individually  liable ;  Polito  v.  Pitriello,  196  N.. 
Y.  517,  89  N.  E.  425,  electric  company  not  liable  where  proximate  cause  being 
the  act  of  another. 

North  Carolina.— Haynes  v.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344, 
26  L.  R.  A.  810,  41  Am.  St.  Rep.  786,  electric  light  current  passing  through  an 
electric  guy  wire,  thence  through  trolley  feed  wire,  thence  through  another 
unused  electric  light  guy  wire,  the  first  is  liable. 

Orcf/on.— Ahern  v.  Oregon  Tel.  Co.,  24  Or.  276,  33  Pac.  403,  35  Pac.  549,  22 
L.  R.  A.  635,  telephone  company  liable ;  Gentzkow  v.  Portland  Ry.  Co.,  54  Or. 
114,  102  Pac.  614,  135  Am.  St.  Rep.  821,  both  liable. 

Pennsylvania. — Kahn  v.  Kittanning,  etc.,  Co.,  238  Pa.  70,  85  Atl.  1117,  elec- 
tric company  not  liable  unless  negligence  is  shown ;  Stark  v.  Pennsylvania 
Tel.  Co.,  225  Pa.  390,  74  Atl.  222,  telephone  company  not  liable  unless  it  is 
shown  it  is  customary  to  have  guards  between  the  two  sets  of  wires  and  that 


256  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  202 

premises  is  not  so  palpable,  but  probably  it  also  exists. ^^  At  least, 
the  duty  of  the  latter  companies  may  be  enlarged  with  the  changed 

the  guard  would  have  prevented  the  accident  in  case  of  storm ;  Stark  v.  Lan- 
caster, etc.,  Co.,  218  Pa.  575,  67  Atl.  909,  where  telephone  wire  falls  on  electric 
light  wire,  the  latter  not  liable  because  of  not  having  a  screen  above  its  wire, 
there  not  being  proof  that  said  screen  would  have  prevented  the  accident ; 
Delahunt  v.  United,  etc.,  Co.,  215  Pa.  241,  64  Atl.  515,  114  Am.  St.  Rep.  958, 
telephone  liable  where  current  from  electric  wires  passes  over  the  former  and 
Injures  patron ;  Fitzgerald  v.  Edison,  etc.,  Co.,  207  Pa.  118,  56  Atl.  350,  ques- 
tion for  jury  where  painter  on  house  came  in  contact  with  uninsulated  wire ; 
Fitzgerald  v.  Edison,  etc.,  Co.,  200  Pa.  540,  50  Atl.  161,  86  Am.  St.  Rep.  732, 
similar  case  where  company  was  liable  to  a  painter  on  house. 

South  Carolina.— Lunaj  v.  Southern  Bell,  etc.,  Tel.  Co.,  90  S.  C.  25,  72  S.  E. 
558,  error  to  charge  jury  that  the  company  was  bound  to  keep  its  wires  per- 
fectly insulated ;  Laughlin  v.  Southern,  etc.,  Corp.,  83  S.  C.  62,  64  S.  E.  1010, 
one  company  liable  for  acts  of  another  acting  as  the  former's  agent. 

TcHncssce.— United-Electric  R.  Co.  v.  Shelton,  89  Temi.  423,  14  S.  W.  863,  24 
Am.  St.  Rep.  614,  both  companies  liable. 

Tejos.— Panhandle,  etc.,  Tel.  Co.  v.  Harris  (Tex.  Civ.  App.)  136  S.  W.  1129, 
telephone  company  liable  for  injuries  to  party  on  house  where  its  wire  comes 
in  contact  with  electric  wire ;  City  of  Greenville  v.  Pitts,  102  Tex.  1,  107  S.  W. 
50,  14  L.  R.  A.  (N.  S.)  979,  132  Am.  St.  Rep.  843,  policeman  cannot  recover 
where  wire  belongs  to  city,  although  any  other  might  have  recovered ;  Wehner 
V.  Lagerfelt,  27  Tex.  Civ.  App.  520,  66  S.  W.  221,  elec-tric  company  liable,  al- 
though wire  belongs  to  another  where  it  has  remained  on  its  wires  for  two 
weeks. 

Washington.— Metz  v.  Washington,  etc.,  Co.,  72  Wash.  188,  130  Pac.  343, 
both  companies  liable. 

Wisconsin.— Ryan  v.  Oshkosh,  etc.,  Co.,  138  Wis.  466,  120  N.  W.  264,  a  day 
sufficient  time  to  charge  company  with  notice  of  displacement  of  guy  wire; 
Rasmussen  v.  Wisconsin,  etc.,  Co.,  133  Wis.  205,  113  N.  W.  453,  electric  com- 
pany may  not  be  liable  where  wire  is  insulated  sufficient  for  its  own  protection ; 
Xagle  V.  Hake,  123  Wis.  256,  101  N.  W.  409,  displacement  of  wire  by  house 
mover,  the  latter  may  be  liable  although  a  settlement  has  already  been  made 
with  the  electric  company. 

Federal  court. — See  Southwestern,  etc.,  Tel.  Co.  v.  Robinson,  50  Fed.  810,  1 
C.  C.  A.  684,  16  L.  R.  A.  545 ;  Henning  v.  West.  U.  Tel.  Co.  (C.  C.)  41  Fed.  864. 

As  affected  by  permission  to  string  wires  of  one  company  on  poles  of  another 
company,  see  Fox  v.  Manchester,  183  N.  Y.  141,  75  X.  E.  1116,  2  L.  R.  A.  (N. 
S.)  474 ;  Consol.  Elec.  etc.,  Co.  v.  Koepp,  64  Kan.  735,  68  Pac.  608.     See  §  211. 

9  9  Rowe  V.  New  York,  etc.,  Tel.  Co.,  66  N.  J.  Law,  19,  48  Atl.  523;  Electric 
Ry.  Co.  V.  Shelton,  89  Tenn.  423,  14  S.  W.  863,  24  Am.  St.  Rep.  614 ;  Richmond, 
etc.,  Ry.  Co.  v.  Rubin,  102  Ya.  809,  47  S.  E.  834.  But  see,  contra,  Albany  v. 
Watervliet,  etc.,  R.  Co.,  76  Hun,  136,  27  N.  Y.  Supp.  848 ;  Block  v.  Milwaukee 
St.  Ry.  Co.,  89  Wis.  371.  61  N.  W.  1101,  46  Am.  St.  Rep.  849,  27  L.  R.  A.  365 ; 
McKay  v.  Southern  Bell  Tel.  Co.,  Ill  Ala.  337,  19  South.  695,  31  L.  R.  A.  589, 
56  Am.  St.  Rep.  59,  where  the  trolleys  are  maintained  in  the  manner  that  oth- 
er trolley  wires  are  erected  and  maintained  by  prudent  and  well-managed  com- 
panies conducting  a  similar  business  in  other  cities,  not  sufficient  to  exonerate 
it  for  negligence  in  this  respect.     See  Spires  v.  Middlesex,  etc..  Power  Co.,  70 


§   203)  LIABILITY  FOR  INJURIES  257 

circumstances;^""  and  it  has  been  held  that  it  is  permissible  for 
the  jury  to  infer  that  the  omission  of  a  guard  between  the  two 
wires  was  an  act  of  negligence. ^°^ 

§  203.  Duty  and  liability  of  railway  companies. — An  electric 
railway  company  which  has  the  authority  to  use  the  streets  and 
public  highways  for  its  line  must  exercise  a  very  high  degree  of 
care  in  the  construction,  maintenance,  and  operation  of  said  line 
and  appliances,  so  that  the  danger  to  the  public  will  practically  be 
no  greater  after  than  it  was  before  the  construction  of  said  line. 
Therefore,  in  order  to  discharge  this  duty,  every  reasonable  pre- 
caution known  to  those  possessed  of  the  skill  and  knowledge  req- 
uisite to  the  safe  conduct  and  control  of  such  an  agency  should 
be  employed  by  the  company.^"^     In  some  cases  the  doctrine  of 

N.  J.  Law,  355,  57  Atl.  424,  guard  wires  under  tree  limbs ;  Guinn  v.  Delaware, 
etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  3  L.  R.  A.  (N.  S.)  988,  111  Am.  St. 
Rep.  668,  must  guard  guy  wires.  See,  also.  New  York,  etc.,  Tel.  Co.  v.  Ben- 
nett, 62  N.  J.  Law,  742,  42  Atl.  759 ;  West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  33 
Atl.  763,  51  Am.  St.  Rep.  464,  31  L.  R.  A.  572 ;  Mize  v.  Rocky  Mountain  Bell 
Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  Rep.  659,  16  Ann.  Cas.  1189 ; 
Parsons  v.  Charleston  Consol.,  etc.,  Elec.  Co.,  69  S.  C.  305,  48  S.  E.  284,  104 
Am.  St.  Rep.  800 ;  Cumberland  Tel.,  etc.,  Co.,  48  Ind.  App.  07,  95  N.  E.  371 ; 
Hebert  v.  Lake  Charles  L.,  etc.,  Co.,  Ill  La.  522,  35  South.  731,  100  Am.  St. 
Rep.  505,  64  L.  R.  A.  101 ;  Heidt  v.  Southern  Tel.,  etc.,  Co.,  122  Ga.  474,  50 
S.  E.  361 ;  Birmingham  L.,  etc.,  Co.  v.  Cockrum,  179  Ala.  372,  60  South.  304 ; 
Jones  V.  Finch,  128  Ala.  217,  29  South.  182. 

100  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  111  Am. 
St.  Rep.  668,  3  L.  R.  A.  (N.  S.)  988. 

101  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  111  Am. 
St.  Rep.  608,  3  L.  R.  A,  (N.  S.)  988.  See,  also,  Spires  v.  Middlesex,  etc.,  P.  Co., 
70  N.  J.  Law,  355,  57  Atl.  424 ;  Rowe  v.  New  York,  etc.,  Tel.  Co.,  66  N.  J.  Law, 
19,  48  Atl.  523 ;  Mahan  v.  Newton,  etc.,  Ry.  Co.,  189  Mass.  1,  75  N.  E.  59 ;  Met- 
ropolitan St.  Ry.  Co.  V.  Gilbert,  70  Kan.  261,  78  Pac.  807,  3  Ann.  Cas.  256 ;  Bir- 
mingham, etc.,  P.  Co.  V.  Cockrum,  179  Ala.  372,  60  South  304 ;  Horning  v.  Hud- 
son River  Tel.  Co.,  Ill  App.  Div.  122,  97  N.  Y.  Supp.  625,  affirmed  in  186  N.  Y. 
552,  79  N.  E.  1107 ;  Burton  Tel.  Co.  v.  Gordon,  25  Ohio  Cir.  Ct.  R.  641 ;  Block 
V.  Milwaukee  St.  Ry.  Co.,  89  Wis.  351,  61  N.  W.  1101,  46  Am.  St.  Rep.  849,  27 
L.  R.  A.  365. 

102  McAdam  v.  Central  Ry.,  etc.,  Co.,  67  Conn.  445,  35  Atl.  341;  Chattanooga 
Elec.  Ry.  Co.  v.  Mingle,  103  Tenn.  667,  56  S.  W.  23,  76  Am.  St.  Rep.  703 ;  Mem- 
phis Street  Ry.  Co.  v.  Kartright,  110  Tenn.  277,  75  S.  W.  719,  100  Am.  St.  Rep. 
807 ;  Kankakee  Elec.  Co.  v.  Whittemore,  45  111.  App.  484 ;  Southwestern,  etc., 
Tel.  Co,  V.  Myane,  86  Ark.  548,  111  S.  W.  987 ;  Richmond,  etc.,  Eiec.  Co.  v.  Ru- 
bin, 102  Va.  809,  47  S.  E.  834 ;  Denver  Tramway  Co.  v.  Reid,  4  Colo,  App.  53, 
35  Pac.  269 ;  Baltimore,  etc.,  Ry.  Co.  v.  Nugent,  86  Md.  349,  38  Atl.  779,  30  L. 
R.  A,  161;  Steverman  v.  Boston,  etc.,  Ry.  Co.,  205  Mass.  508,  91  N.  E.  919; 
Donovan  v.  Kansas  City,  etc.,  Ry.  Co.,  157  Mo.  App.  649,  138  S.  W,  679 ;  Brod 

Jones  Tel. (2d  Ed.) — 17 


258  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  203 

res  ipsa  loquitur  applies. ^''^  Thus,  if  its  trolley  wire,  when  heavily 
charged  with  electricity,  should  fall  on  or  near  a  public  street,  neg- 
ligence will  be  presumed,  although  such  fall  was  caused  by  a  slip- 
ping of  the  trolley  pole  of  a  passing  car.^°*  So  also,  if  a  person  or 
an  animal  comes  in  contact  with  an  unprotected  third  rail,  it  will 
ordinarily  be  liable  for  the  consequences. ^^^  A  prima  facie  case  of 
negligence  is  made  out  where  a  passenger  testifies  that  while  rid- 
ing in  an  electric  car  she  became  alarmed  at  flames  shooting  out  of 
the  controller  box,  and,  in  leaving  the  car,  received  an  electric 
shock  in  stepping  on  or  over  the  metal  doorsill  at  the  rear  of  the 
car.^"^ 

V.  St.  Louis  Tr.  Co.,  115  Mo.  App.  202,  91  S.  W.  993 ;  Horan  v.  Rockwell,  110 
App.  Div.  522,  96  N.  Y.  Supp.  973 ;  Keator  v.  Scranton  Tr.  Co.,  191  Pa.  102,  43 
Atl.  86,  44  L.  R.  A.  546,  71  Am.  St.  Rep.  758 ;  Dallas,  etc.,  Ry.  Co.  v.  Broad- 
hurst,  28  Tex.  Civ.  App.  630,  68  S.  W.  315 ;  Mannon  v.  Camden,  etc.,  R.  Co.,  56 
W.  Va.  554,  49  S.  E.  450. 

103  Memphis  St.  Ry.  Co.  v.  Kartright,  110  Tenn.  277,  75  S.  W.  719,  100  Am. 
St.  Rep.  807 ;  Trenton,  etc.,  Ry.  Co.  v.  Cooper,  60  N.  J.  Law,  219,  37  Atl.  730, 
38  L.  R.  A.  637,  64  Am.  St.  Rep.  592 ;  Ludwig  v.  Metropolitan  St.  Ry.  Co.,  71 
App.  Div.  210,  75  N.  Y.  Supp.  667 ;  Braham  v.  Nassau  Elee.  R.  R.  Co.,  72  App. 
Div.  456,  76  N.  Y.  Supp.  578.  See  notes  to  Walter  v.  Baltimore  Elec.  Co.,  22 
L.  R.  A.  (N.  S.)  1178,  and  Lanning  v.  Pittsburg  R.  Co.,  32  L.  R.  A.  (N.  S.)  1043. 
See  St.  Louis  v.  Bay  State,  etc.,  R.  Co.,  216  Mass.  255,  103  N.  E.  639,  49  L.  R. 
X.  (N.  S.)  447,  Ann.  Cas.  1915B,  706. 

104  Memphis  St.  Ry.  Co.  v.  Kartright,  110  Tenn.  277,  75  S.  W.  719.  100  Am. 
St.  Rep.  807:  Chicago,  etc.,  R.  Co.  v.  Carroll,  102  111.  App.  202 ;  Kirkpatrick  v. 
Metropolitan  St.  Ry.  Co.,  161  Mo.  App.  515,  143  S.  W.  865 ;  Keator  v.  Scranton 
Tr.  Co.,  191  Pa.  102,  43  Atl.  86,  44  L.  R.  A.  546,  71  Am.  St.  Rep.  758 ;  Cincinnati 
Tr.  Co.  v.  Holzenkamp,  74  Ohio  St.  379,  78  N.  E.  529,  113  Am.  St.  Rep.  980,  6 
L.  R.  A.  (N.  S.)  800. 

Cable  slot. — Company  may  be  liable  where  the  slot  was  constructed  or  per- 
mitted to  become  wider  than  necessary,  Griveaud  v.  St.  Louis,  etc.,  Ry.  Co., 
33  Mo.  App.  458.  See  Miller  v.  United  Ry,,  etc.,  Co.,  108  Md.  84,  69  Atl.  636, 
17  L.  R.  A.  (N.  S.)  978,  not  negligent. 

105  St.  Louis  V.  Bay  State,  etc.,  Ry.  Co.,  216  Mass.  255,  103  N.  E.  639, 
49  L.  R.  A.  (N.  S.)  447,  Ann.  Cas.  1915B,  706.  Anderson  v.  Seattle-Tacoma  lu- 
terurban  R.  Co.,  36  Wash.  387,  78  Pac.  1013,  104  Am.  St.  Rep.  962.  But  see 
Riedel  v.  West  Jersey,  etc.,  R.  Co.,  177  Fed.  374,  101  C.  C.  A.  428,  28  L.  R.  A. 
(N.  S.)  98,  21  Ann.  Cas.  746,  where  rail  securely  fenced ;  Sutton  v.  West  Jer- 
sey, etc.,  R.  Co.,  78  N.  J.  Law,  17,  73  Atl.  256;  McAllister  v.  Jung,  112  111. 
App.  138. 

LinMlity  i or  injury  caused  by  electricity  communicated  from  track,  not 
third  rail— See  Wood  v.  Wilmington  City  R.  Co.,  5  Pennewill  (Del.)  369,  64 
Atl.  246 ;  Trenton  Passenger  R.  Co.  v.  Cooper,  60  N.  J.  Law,  219,  37  Atl.  730, 
64  Am.  St.  Rep.  592,  38  L.  R.  A.  637 ;  St.  Louis  v.  Bay  State,  etc.,  R.  Co.,  su- 
pra ;  May  v.  Charleston  Interurban  K.  Co.,  75  W.  Va.  797,  84  S.  E.  893,  doc- 
trine res  ipsa  loquitur  applies. 

10  6  Buckbee  v.  Third  Ave.  R.  Co.,  64  App.  Div.  360,  72  N.  Y.   Supp.  217; 


§    204)  LIABILITY   FOR  INJURIES  259 

§  204.     Same   continued — crossing   highways   and   railroads. — It 

is  the  duty  of  these  companies  to  construct  their  lines  sufficiently 
high  when  crossing  streets,  highways  and  railroad  tracks  as  not 

blowing  or  burning  out  of  controller,  Firebaugh  v.  Seattle  Elec.  Co.,  40  Wash. 
658,  82  Pac.  995,  2  L.  R.  A.  (N.  S.)  836,  111  Am.  St.  Rep.  990 ;  German  v.  Brook- 
lyn, etc.,  R.  Co.,  107  App.  Div.  354,  95  N.  Y.  Supp.  112,  burning  out  of  fuse. 
Lord  V.  Manchester  St.  Ry.,  74  N.  H.  295,  67  Atl.  6.39 ;  Cassady  v.  Old  Colony 
St.  Ry.  Co.,  184  Mass.  156,  68  N.  E.  10,  63  L.  R.  A.  285 ;  Williams  v.  New  York, 
etc.,  R.  Co.,  97  App.  Div.  133,  39  N.  Y.  Supp.  669 ;  Poulsen  v.  Nassau  Elec.  Ry. 
Co.,  18  App.  Div.  221,  45  N.  Y.  Supp.  941. 

Electrical  shocks. — Failure  to  control  currents,  whereliy  metal  parts  of  the 
car  become  charged,  company  liable  for  injury.  Denver  Tramway  Co.  v.  Reid, 
4  Colo.  App.  53,  35  Pac.  269 ;  S.  Covington,  etc.,  Ry.  Co.  v.  Smith,  27  Ky.  l^aw 
Rep.  811,  86  S.  W.  970 ;  Ea.st  St.  Louis,  etc.,  Ry.  Co.  v.  Steger,  65  111.  App.  312 ; 
McDonough  v.  Boston,  etc.,  Ry.  Co.,  208  Mass.  436,  94  N.  E.  809 ;  Black  v.  Met- 
ropolitan, etc.,  R.  Co.,  162  Mo.  App.  90,  144  S.  W.  131 ;  McRae  v.  Metropolitan 
St.  Ry.  Co.,  125  Mo.  App.  562,  102  S.  W.  1032 ;  D'Arcy  v.  Westchester  Elec.  Ry. 
Co.,  82  App.  Div.  263,  81  N.  Y.  Supp.  952 ;  Denison,  etc.,  Ry.  Co.  v.  Johnson,  36 
Tex.  Civ.  App.  115,  81  S.  W.  780 ;  Burt  v.  Douglas  Co.  St.  Ry.  Co.,  83  Wis.  229, 
53  N.  W.  447,  18  L.  R.  A.  479.  But  see,  Chittick  v.  Rapid  Tr.  Co.,  224  Pa.  13, 
73  Atl.  4,  22  L.  R.  A.  (N.  S.)  1073,  bystander  camiot  recover ;  Beebe  v.  St.  Louis 
Tr.  Co.,  206  Mo.  419,  103  S.  W.  1019,  12  L.  R.  A.  (N.  S.)  760,  explosion  in  con- 
troller, not  liable  to  employ«5. 

Charged  tcire. — Street  car  company  must  avoid  Injuries  to  its  passengers 
from  breaking  of  wires,  highest  degree  of  care  required.  Baltimore,  etc.,  R. 
Co.  V.  Nugent,  86  Md.  349,  38  Atl.  779,  39  L.  R.  A.  161 ;  Richmond,  etc.,  Elec. 
Co.  V.  Bowles,  92  Va.  738,  24  S.  E.  388 ;  Hopkins  v.  Michigan  Tr.  Co.,  144  Mich. 
359,  107  N.  W.  909 ;  Burt  v.  Douglas  Co.  St.  Ry.  Co.,  83  Wis.  229,  53  N.  W. 
447,  18  L.  R.  A.  479,  passenger  not  guilty  of  contributory  negligence. 

Collision  ivith  post  in  proximity  to  track. — Street  car  companies  must  exer- 
cise the  highest  degree  of  care  to  prevent  injuries  to  its  passengers  from  posts 
and  other  objects  beside  the  track,  Cameron  v.  Lewiston,  etc.,  R.,  103  Me. 
482,  70  Atl.  534,  18  L.  R.  A.  (N.  S.)  497,  125  Am.  St.  Rep.  315 ;  leaning  of  posts 
toward  the  track,  Pomeroy  v.  Boston,  etc.,  R.  Co.,  193  Mass.  507,  79  N.  E.  767 ; 
cross-beams,  Gardner  v.  Metropolitan,  etc.,  R.  Co.,  223  Mo.  389,  122  S.  W.  1068, 
18  Ann.  Cas.  1166 ;  where  high  speed  of  car  causes  an  oscillation  which  throws 
the  passenger  toward  the  poles,  Schmidt  v.  Coney  Island,  etc.,  R.  Co.,  26  App. 
Div.  391,  49  N.  Y.  Supp.  777 ;  riding  on  running  board  does  not  in  all  cases 
constitute  contributory  negligence,  Hesse  v.  Meridenu,  etc.,  Tramway,  75  Conn. 
571,  54  Atl.  299 ;  Cameron  v.  Lewiston,  etc.,  St.  Ry.,  supra ;  Elliott  v.  Newport, 
etc.,  R.,  18  R.  I.  707,  28  Atl.  338,  31  Atl.  694,  23  L.  R.  A.  208 ;  so  as  to  deny 
damages  for  coming  in  contact  with  a  pole ;  Cameron  v.  Lewiston,  etc.,  St. 
Ry.,  supra ;  Elliott  v.  Newport,  etc.,  R.,  supra ;  Burns  v.  Johnstown,  etc.,  R. 
Co.,  213  Pa.  143,  62  Atl.  564,  2  L.  R.  A.  (N.  S.)  1191. 

Projection  of  body  beyond  side  of  car,  where  contributory  negligence  depends 
on  circumstances,  Wichita,  etc.,  Lt.  Co.  v.  Cummings,  72  Kan.  694,  84  Pac.  121 ; 
Christensen  v.  Metropolitan,  etc.,  R.  Co.,  137  Fed.  708,  70  C.  C.  A.  657;  Salmon 
V.  Elec.  Ry.  Co.,  124  Ga.  1056,  53  S.  E.  575.  Poles  of  another  company,  Prev- 
isich  V.  Butte,  etc.,  R.  Co.,  47  Mont.  170,  131  Pac.  25,  not  generally  liable. 


260  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  204 

to  interfere  with  travel  or  the  working  of  the  employes  of  railroad 
companies.  In  towns  and  cities  it  often  happens  that  vehicles 
travel  the  streets  with  loads  reaching  rather  high  from  the  pave- 
ment, and  in  order  that  any  property  or  person  should  not  be  in- 
jured by  the  coming  in  contact  of  such  vehicles  with  the  lines  of 
these  companies  crossing  the  streets,  they  should  be  constructed 
and  kept  reasonably  high  to  avoid  all  such  occurrences;  on  a  fail- 
ure to  do  so  the  company  will  be  liable.^"''  The  same  duty  is  im- 
posed upon  such  companies  whose  wires  are  crossing  the  country 
highways  ;^°®  but  there  may  be  some  variances  allowed  with  re- 
spect to  the  height  of  wires  crossing  country  highways. ^"^  It  is 
very  often  the  case  that  telegraph,  telephone,  and  electric  lines  cross 
and  recross  railroad  tracks ;    when  they  do,   the  wires  should  be 

107  Dickey  v.  Maine  Tel.  Co.,  46  Me.  4S3 ;  North  Arkansas  Tel.  Co.  v.  Peters, 
103  Ark.  564,  148  S.  W.  273;  Williams  v.  Louisiana,  etc.,  Power  Co.,  43  La. 
Ann.  295,  8  South.  938 ;  Winegarner  V;  Edison,  etc.,  Co.,  S3  Kan.  67,  109  Pac. 
778,  28  L.  R.  A.  (N.  S.)  677;  Crawford  v.  Standard,  etc.,  Co.,  139  Iowa,  331, 
115  N.  W.  878,  question  of  fact;  Cumberland,  etc.,  Co.  v.  Pierson,  170  Ind.  543, 
84  N.  E.  1088,  as  to  pleadings ;  Weaver  v.  Dawson,  etc.,  Co.,  82  Neb.  696,  118 
N.  W.  650,  22  L.  R.  A.  (N.  S.)  1189,  lower  than  statutory  requirement ;  Texar- 
kana,  etc.,  Elec.  Co.  v.  Orr,  59  Ark.  215,  27  S.  W.  66,  43  Am.  St.  Rep.  30 ;  New 
England,  etc.,  Tel.  Co.  v.  Moore,  179  Fed.  364,  102  C.  C.  A.  642,  31  L.  R.  A.  (N. 
S.)  617 ;  Diller  v.  Northern  Cal.  P.  Co.,  162  Cal.  531,  123  Pac.  359,  Ann.  Cas. 
1913D,  908;  Foley  v.  Northern  Cal.  P.  Co.,  14  Cal.  App.  401,  112  Pac.  467; 
Elec.  Co.  V.  Soper,  38  Colo.  126,  88  Pac.  161 ;  Denver  Consol.  Elec.  Co.  v.  Simp- 
son, 21  Colo.  371,  41  Pac.  499,  31  L.  R.  A.  566 ;  Larson  v.  Central  Ry.  Co.,  56 
111.  App.  263;  Augusta  Ry.,  etc.,  Co.  v.  Weekly,  124  Ga.  384,  52  S.  E.  444; 
Aiken  v.  City  of  Columbus,  167  Ind.  139,  78  N.  E.  657,  12  L.  R.  A.  (N.  S.)  416 ; 
Emporia  v.  White,  74  Kan.  864,  86  Pac.  295 ;  Kansas  City  v.  Gilbert,  65  Kan. 
469,  70  Pac.  350 ;  Kansas  City  v.  File,  60  Kan.  157,  55  Pac.  877 ;  Macon  v.  Pa- 
ducah  St.  Ry.  Co.,  110  Ky.  680,  62  S.  W.  496 ;  Leavenworth  Coal  Co.  v.  Ratch- 
ford,  5  Kan.  App.  150,  48  Pac.  927 ;  Walter  v.  Baltimore  Elec.  Co.,  109  Md.  513, 
71  Atl.  953,  22  L.  R.  A.  (N.  S.)  1178 ;  State  v.  Crisfield,  etc.,  Mfg.  Co.,  118  Md. 
521,  85  Atl.  615 ;  Sykes  v.  Portland,  177  Mich.  290,  143  N.  W.  326 ;  Johnson  v. 
Bay  City,  164  Mich.  251,  129  N.  W.  29.  Ann.  Cas.  1912B,  866 ;  Prince  v.  Lowell 
Elec.  Lt.  Corp.,  201  Mass.  276,  87  N.  E.  558 ;  Linton  v,  Weymouth,  etc.,  P.  Co., 
188  Mass.  276,  74  N.  E.  321 ;  Potera  v.  Brookhaven,  95  Miss.  774,  49  South.  617 ; 
Davenport  v.  Electric  Co.,  242  Mo.  Ill,  145  S.  W,  454 ;  Gannon  v.  Laclede  Gas 
Lt.  Co.,  145  Mo.  502,  46  S.  W.  968,  47  S.  W.  907,  43  L,  R.  A.  505 ;  Newark  Elec, 
etc.,  P.  Co.  V.  Ruddy,  62  N.  J.  Law,  507,  41  Atl.  712,  57  L.  R.  A.  624 ;  Hebert  v. 
Hudson  River  Elec.  Co.,  136  App.  Div.  107,  120  N.  Y.  Supp.  672 ;  Haynes  v. 
Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  41  Am.  St.  Rep.  786,  26  L.  R.  A. 
810;  Carroll  v.  Electric  Co.,  47  Or.  424,  84  Pac.  389,  6  L.  R.  A.  (N.  S.)  290; 
Boyd  V.  Portland  Elec.  Co.,  40  Or,  126,  66  Pac.  576,  57  L.  R.  A.  619 ;  Snyder  v. 
Wheeling  Elec.  Co.,  43  W.  Ya.  661,  28  S.  E.  733,  64  Am.  St.  Rep.  922,  39  L.  R. 
A.  499. 

10  8  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.)  15  Atl.  624. 

109  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500. 


§    206)  LIABILITY   FOR   INJURIES  261 

stretched  sufficiently  high  at  these  places  as  not  to  interfere  with 
the  running-  of  trains,  or  to  endanger  the  employes  of  the  railroad 
companies. ^^'^ 

§  205.  Negligence,  basis  of  action. — The  liability  of  telegraph, 
telephone,  or  electrical  companies  for  injuries  caused  by  the  im- 
proper location  or  maintenance  of  their  lines  depends  upon  the 
question  whether  they  have  been  guilty  of  negligence  in  this  re- 
spect.^^^  While  there  must  be  negligence  in  order  that  the  com- 
pany may  be  held  liable,  yet  this  may  be  presumed ;  ^^^  and  in  some 
cases  the  facts,  when  undisputed,  may  be  so  strong  as  to  hold  the 
company  guilty  of  negligence  per  se}'^^  When  this  is  the  case 
it  is  a  question  of  law  to  be  decided  by  the  court ;  ^^*  but  if  the  facts 
are  disputed,  the  question  of  negligence  then  becomes  a  mixed  ques- 
tion of  law  and  fact.^^^ 

§  206.  Negligence,  what  constitutes — duty  to  perform. — There 
are  necessarily  three  elements  essential  to  the  existence  of  negli- 

110  American,  etc.,  Co.  v.  Kersh,  27  Tex.  Civ.  App.  127,  66  S.  W.  74;  employes 
may  bold  railroad  liable,  Meyers  v.  Detroit,  etc.,  R.  E.,  166  Mich.  403,  132  N. 
W,  109 ;  or  both  the  railroad  and  telephone  company,  Southwestern,  etc.,  Tel. 
Co.  V.  Crank  (Tes.  Civ.  App.)  27  S.  W.  38,  affirmed  Dillingham  v.  Crank,  87 
Tex.  104,  27  S.  W.  93 ;  telephone  company  not  liable  when  line  is  stretched  by 
patron,  and  connected  to  former's  line.  Southwestern,  etc.,  Tel.  Co.  v.  Corbett 
(Tex.  Civ.  App.)  14S  S.  W.  826.  See  §§  74,  181.  See  also,  McCowan  v.  State, 
146  Ala.  679,  40  South.  142 ;  St.  Louis,  etc.,  R.  Co.  v.  Batesville,  etc.,  Tel.  Co., 
80  Ark.  499,  97  S.  W.  660;  Fhiladelphia,  etc.,  R.  Co.  v.  Wilmington,  etc.,  R.  Co., 
8  Del,  Ch.  134,  38  Atl.  1067 ;  West  Jersey  R.  Co.  v.  Camden,  etc.,  R.  Co.,  52  N. 
J.  Eq.  31,  29  Atl.  423 ;  Louisville,  etc.,  R.  Co.  v.  Bowling  Green  R.  Co.,  110  Ky. 
788,  63  S.  W.  4 ;  Cincinnati,  etc.,  R.  Co,  v.  Cincinnati,  etc.,  R.  Co.,  12  O,  C.  D. 
113 ;  Alt  V.  State,  88  Neb.  259,  129  N.  W.  432,  35  L.  R.  A.  (N.  S.)  1212 ;  New 
York,  etc.,  R.  Co.  v.  Electric  Co.,  219  Mass.  85,  106  N.  E.  566,  L.  R.  A.  1915B, 
822. 

111  Cumberland  Tel.,  etc.,  Co.  v.  Coats,  100  111.  App.  519;  Allen  v.  Atlantic, 
etc.,  Tel.  Co.,  21  Hun  (N.  Y.)  22 ;  Monahan  v.  Miami  Tel.  Co.,  9  Ohio  Dec.  532, 
7  Ohio  N.  P.  95;  Barrett  v.  Independent  Tel.  Co.  (Tex,  Civ,  App.)  65  S.  W. 
1128;  Roberts  v,  Wisconsin  Tel.  Co.,  77  Wis,  589,  46  N,  W.  800.  20  Am.  St. 
Rop.  143,  See,  also,  Lee  v,  Maryland  Tel.,  etc.,  Co.,  97  Md.  692,  55  Atl.  680 ; 
Borell  V.  Cumberland  Tel.,  etc.,  Co.,  133  La.  630,  63  South.  247,  L.  R.  A.  191GD, 
1064,  repairing  after  storm ;  Mullen  v.  Otter  Tail  Power  Co.,  130  Minn.  386, 
153  N.  W.  746,  L.  R.  A,  1916D,  447, 

112  See  §  207,  iia  See  §  207. 

114  Roberts  v,  Wisconsin  Tel,  Co,,  77  Wis.  589,  46  N.  W.  800,  20  Am.  St.  Rep 
143. 

115  Southwestern  Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810,  1  C.  C.  A.  684.  16 
L.  R.  A.  545.  See  §  201.  See,  also,  Riley  v.  City  of  Independence,  258  Mo.  671, 
167  S.  W.  1022,  Ann.  Cas.  1915D,  748.  See,  also,  §  519  et  seq.  See  Turner  v. 
Southern  P.  Co.,  154  N.  C.  131,  69  S.  E.  767,  32  L.  R.  A.  (N.  S.)  848 ;  Braiin  v. 
Elec.  Co.,  200  N.  Y.  484,  94  N.  E.  206,  35  L.  R.  A.  (N.  S.)  1089,  140  Am.  St.  Rop. 
645,  21  Ann.  Cas.  370 ;  Lewis  v.  Bowling  Green  Gaslight  Co.,  135  Ky.  611.  117 


2G2  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  206 

gence :  The  existence  of  a  duty  on  the  part  of  one  toward  another ;  a 
failure  to  perform  that  duty;  and  an  injury  resulting  thereby^^® 
This  principle  applies  to  telegraph,  telephone,  and  electrical  com- 
panies in  the  construction  and  maintenance  of  their  lines.  In  the 
first  place,  it  is  the  duty  of  these  companies  to  so  construct  and 
maintain  their  lines  as  not  to  endanger  the  public.^^'^  This  is  a 
duty  imposed  upon  all  enterprises  which  undertake  to  carry  on  a 
public  business;  and  the  courts  will  therefore  take  judicial  no- 
tice that  it  is  the  duty  of  these  companies  to  exercise  care  to  pre- 
vent their  lines  from  interfering  with  or  endangering  public  trav- 
el.^^^     There  may  be  instances  where  an  injury  has  been  inflicted 

S.  W.  278,  22  L.  E.  A.  (X.  S.)  11G9 ;  Fox  v.  Manchester,  183  N.  T.  141,  75  N.  R 
1116,  2  L.  R.  A.  (N.  S.)  471;  Musolf  v.  Edison  Elec.  Co.,  108  Minn.  369,  122  N. 
W.  499,  24  L.  R.  A.  (N.  S.)  451 ;  Meek  v.  Nebraska  Tel.  Co.,  96  Neb.  539,  148  N. 
W.  325. 

lie  Faris  v.  Hoberg,  1.34  Ind.  269,  33  N.  E.  1028,  39  Am.  St.  Rep.  261;  Gib- 
son V.  Leonard,  143  111.  182,  32  N.  E.  182,  17  L.  R.  A.  588,  36  Am.  St.  Rep.  376 ; 
Gumi  V.  Ohio,  etc.,  R.  Co.,  36  W.  Va.  165,  14  S.  E.  465,  32  Am.  St.  Rep.  842 ; 
Montgomery  v.  Muskegon  Booming  Co.,  88  Mich.  635,  50  N.  W.  729,  26  Am.  St. 
Rep.  308 ;  Roddy  v.  Missouri  Pac.  R.  Co.,  104  Mo.  234,  15  S.  W.  1112,  24  Am. 
St.  Rep.  333,  12  L.  R.  A.  746. 

117  See  §  194  et  seq. 

118  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500;  Guinn  v. 
Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  3  L.  R.  A.  (N.  S.)  988, 
111  Am.  St.  Rep.  668. 

Judicial  notice — properties  of  electricity. — The  courts  take  judicial  notice  of 
the  properties  of  electricity.  Crawfordville  v.  Braden,  130  Ind.  149,  28  N.  E. 
849,  30  Am.  St.  Rep.  214,  14  L.  R.  A.  268 ;  Electric  Emp.  Co.  v.  San  Francisco 
(C.  C.)  45  Fed.  593,  13  L.  R.  A.  131,  setting  fires ;  Brinckkord  v.  West.  U.  Tel. 
Co.,  58  Hun,  610,  12  N.  Y.  Supp.  534. 

Danger  of  electricity. — Courts  take  judicial  notice  of  the  fact  that  electric 
currents  are  dangerous,  De  Kallands  v.  Washtenaw  Home  Tel.  Co.,  153  Mich. 
25,  116  N.  W.  564,  15  Ann.  Cas.  593 ;  Taggart  v.  Newport  St.  Ry.  Co.,  16  R.  I. 
608,  19  Atl.  326,  7  L.  R.  A.  205 ;  Winegarner  v.  Edison,  etc.,  P.  Co.,  83  Kan.  67, 
109  Pac.  778,  28  L.  R.  A.  (N.  S.)  677 ;  Johnston  v.  New  Omaha,  etc.,  Lt.  Co.,  78 
Neb.  24,  110  N.  W.  711,  17  L.  R.  A.  (N.  S.)  435. 

Generation  and  transmission  of  electricity.— The  courts  usuallj-  take  judi- 
cial notice  of  the  nature  and  effect  of  the  generation  and  transmission  of  elec- 
tric currents,  Crawfordville  v.  Braden,  130  Ind.  149,  28  N.  E.  849,  30  Am.  St. 
Rep.  214,  14  L.  R.  A.  268 ;  Consol.  Elec.  Lt.  Co.  v.  People,  94  Ala.  372,  10  South. 
440 ;  Central  Union  Tel.  Co.  v.  Conneaut,  167  Fed.  274,  93  C.  C.  A.  196 ;  Owen 
V.  Portage  Tel.  Co.,  126  Wis.  412,  105  N.  W.  924. 

Eleotriv  liyhts. — The  courts  take  judicial  notice  of  the  fact  that  buildings 
and  streets  are  frequently  illuminated  by  electricity.  Crawfordville  v.  Braden, 
supra ;  Consol.  Elec.  Lt.  Co.  v.  People,  supra.  See  Carthage  v.  Carthage  Lt.  Co., 
97  Mo.  App.  20,  70  S.  W.  936. 

Lightning. — The  courts  will  take  judicial  notice  of  the  nature,  operation  and 
effect  of  lightning.  Southern  Bell  Tel.  Co.  v.  McTyer,  137  Ala.  601,  34  South. 
1020,  97  Am.  St.  Rep.  62 ;  Wells  v.  Northeastern  Tel.  Co.,  101  Me.  371,  64  Atl. 


§    207)  LIABILITY   FOR   INJURIES  2G3 

by  some  cause  for  which  these  companies  would  not  be  liable,  in 
that  they  were  not  under  any  obligations  to  protect  the  injured 
party  from  such  injury;  ^^^  but,  nevertheless,  it  is  a  duty  imposed 
upon  them  to  properly  locate  and  maintain  their  lines  so  that  the 
public  shall  be  as  free  from  danger  after  as  before  their  construc- 
tion.^-^ 

§  207.  Same  continued — failure  to  perform  duty — presumption 
of  negligence. — In  order  for  the  injured  party  to  recover,  it  must  be 
further  shown  that  the  company  has  failed  to  perform  the  duty  of 
constructing  and  maintaining  its  lines  in  a  proper  manner ;  and 
among  the  three  elements  necessary  to  constitute  the  existence  of 
negligence,  this  is  the  most  essential.  As  said  in  the  preceding  para- 
graph, the  courts  will  take  judicial  notice  of  the  duties  of  these  com- 
panies toward  the  public  with  respect  to  the  construction  and  main- 
tenance of  their  lines,  but  it  must  be  shown  by  some  kind  of  testi- 
mony that  the  failure  on  their  part  to  perform  such  duties  was  the 
cause  of  the- injury. ^-^     The  proof  of  such  failure  may  be  a  mixed 

648;  Starr  v.  Southern  Bell  Tel.,  etc..  Co.,  156  N.  C.  4.35.  72  S.  E.  484;  Owen 
V.  Tel.  Co.,  126  Wis.  412,  105  N.  W.  924 ;  Jackson  v.  Wise.  Tel.  Co.,  88  Wis. 
243,  60  N.  W.  430,  26  L.  R.  A.  101 ;  Peninsular  Tel.  Co.  v.  McCaskill,  64  FJa. 
420,  60  South.  338,  Ann.  Cas.  1914B,  1029. 

FAectric  companies. — Courts  will  take  judicial  knowledge  of  the  fact  that 
electric  power  companies  supply  electricity  to  the  public.  Hill  v.  Pacific  Gas, 
etc.,  Co.,  22  Cal.  App.  788,  136  Pac.  492 ;  State  v.  Consumers'  P.  Co.,  119  Minn. 
225,  137  N.  W.  1104,  41  L.  R.  A.  (N.  S.)  1181,  Ann.  Cas.  1914B,  19. 

Telephone  and  telegraph  companies. — The  courts  take  judicial  notice  of  the 
general  nature  and  operation  of  telegraph"  and  telephonic  communications. 
State  V.  Murphy,  130  Mo.  10,  31  S.  W.  -594,  31  L.  R.  A.  798,  affirmed  in  170  U. 
S.  78,  18  Sup.  Ct.  505,  42  L.  Ed.  955 ;  use  of  electricity  for  transmission.  State 
V.  Helena,  34  Mont.  67,  85  Pac.  744 ;  Chamberlayne,  Modern  Law  of  Ev.  §  839. 

iiy  See  §  211  et  seq. 

120  See  §  196  et  seq.  See,  also.  West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  33 
Atl,  763,  31  L.  R.  A.  572,  57  Am.  St.  Rep.  464. 

121  Dickey  v.  Maine  Tel.  Co.,  43  Me.  492,  injury  by  contact  with  telegraph 
wire  across  highway ;  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.)  15  Atl.  624,  death, 
caused  by  sagging  wire  across  highway ;  Wood  v.  Tel.,  etc.,  Co.,  151  Ky.  77, 
151  S.  W.  29 ;  Harton  v.  Forest  City  Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14 
L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390.     See  §  209. 

Relation  of  doctrine  res  ipsa  loquitur  to  burden  of  proof. — The  doctrine  of 
res  ipsa  loquitur  does  not  dispense  with  the  rule  that  he  who  alleges  negli- 
gence must  prove  it.  It  is  simply  a  mode  of  proving  negligence,  and  does  not 
change  the  burden  of  proof.  See  §§  195,  198,  507,  and  cases  cited  thereunder. 
Compare  Pittsburgh,  etc.,  R.  Co.  v.  Higgs,  165  Ind.  694,  76  N.  E.  290,  4  D.  R. 
A.  (N.  S.)  1081;  Lyles  v.  Brannon,  etc.,  Co.,  140  N.  C  25,  52  S.  E.  233;  Thurs- 
ton V.  Detroit,  etc.,  R.  Co.,  1.37  Mich.  231,  100  N.  W.  395 ;  Furnish  v.  Missouri, 
etc.,  R.  Co.,  102  Mo.  438,  13  S.  W.  1044,  22  Am.  St.  Rep.  781. 


264  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  207 

question  of  law  and  fact/^^  but  if  the  proof  of  such  failure  is  undis- 
puted and  it  is  sufficiently  clear  that  the  duty  has  not  been  per- 
formed, the  court  should  settle  the  case  as  a  question  of  law ;  or  the 
testimony  may  be  disputed  and  still  it  would  be  a  question  of  law 
to  be  settled  by  the  court.  For  instance,  if  a  wire  is  left  swinging 
across  the  streets  for  several  days,  to  the  knowledge  of  the  company, 
which  has  had  reasonable  time  to  remove  it  but  fails  to  do  so, 
whereby  injury  is  sustained,  the  court  should  say  whether  the  com- 
pany has  failed  to  perform  its  duty ;  and  yet  this  might  be  a  ques- 
tion for  the  jury,  where  there  is  doubt  as  to  whether  the  company 
has  had  a  reasonable  time  to  remedy  the  defect  in  the  line.^-^  In 
some  cases  it  may  be  presumed  that  the  company  has  failed  to  per- 
form its  duty  in  maintaining  its  lines.^^*  Thus,  if  the  circumstances 
are  of  such  a  nature  that  it  may  fairly  be  inferred  upon  the  most 
reasonable  probability  that  the  accident  was  caused  by  the  failure 

122  Southwestern  Tel.  Co.  v.  Robinson,  50  Fed.  810,  1  C.  C.  A.  684,  16  L.  R. 
A.  545.     See,  also,  §§  199,  201,  209. 

123  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500.     See  §  196. 
12  4  West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  83  Atl.  763,  51  Am.  St.  Rep.  464, 

31  L.  R.  A.  572,  note ;  Haynes  v.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344, 
41  Am.  St.  Rep.  786,  26  L.  R.  A.  810;  Giraudi  v.  Electric  Imp.  Co.,  107  Cal. 
120,  40  Pac.  108,  48  Am.  St.  Rep.  114,  28  L.  R.  A.  596;  Jacks  v.  Reeves,  78 
Ark.  426,  95  S.  W.  781,  proof  of  a  defect  in  a  telephone  line  and  injury  there- 
from to  plaintiff  raises  a  presumption  of  negligence  on  the  part  of  the  de- 
fendant; Thomas  v.  West.  U.  Tel.  Co.,  100  Mass.  156,  telegraph  line  allowed 
to  swing  so  low  across  highway  as  to  obstruct  ordinary  travel,  evidence  of 
some  negligence,  and  unless  explained  will  be  sufficient  to  support  verdict. 
See  note  to  Hart  v.  Washington  Park  Club,  48  Am.  St.  Rep.  305,  and  also 
note  to  Long  v.  Penru  R.  Co.,  30  Am.  St.  Rep.  736.  Proof  that  a  live  electric 
wire  is  broken  and  lying  or  hanging  in  the  public  streets,  and  that  injury  re- 
sults from  contact  therewith,  makes  out  a  prima  facie  case.  Gannon  v.  Lac- 
lede Gaslight  Co.,  145  Mo.  502,  46  S.  W.  968,  47  S.  W.  907,  43  L.  R.  A.  505 ; 
Newark  Elec,  etc.,  Co.  v.  Ruddy,  62  N.  J.  Law,  505,  41  Atl.  712,  57  L.  R.  A.  624, 
affirmed  in  63  N.  J.  Law,  357,  46  Atl.  1100,  57  L.  R.  A.  624 ;  Snyder  v.  Wheel- 
ing Elec.  Co.,  43  W.  Va.  661,  28  S.  E.  733,  39  L.  R.  A.  499,  64  Am.  St,  Rep. 
922;  Boyd  v.  Portland  Elec.  Co.,  40  Or.  126,  66  Pac.  576,  57  L.  R.  A.  619; 
Chaperon  v.  Portland  Gen.  Elec.  Co.,  41  Or.  39,  67  Pac.  928 ;  Walter  v.  Balti- 
more. Elec.  Co.,  109  Md.  513,  71  Atl.  953,  22  L.  R.  A.  (N.  S.)  1178 ;  Runyan  v. 
Kanawha  Water,  etc.,  Co.,  68  W.  Va.  609,  71  S.  E.  259,  35  L.  R.  A.  (N.  S.) 
430.  Falling  of  trolley  wires  raises  a  presumption  of  negligence.  O'Flaherty 
V.  Nassau  Elec.  R.  R.  Co.,  34  App.  Div.  74,  54  N.  Y.  Supp.  96,  affirmed  in  165 
N.  Y.  624,  59  N.  E.  1128 ;  Smith  v.  Brooklyn  Heights  R.  R.  Co.,  82  App.  Div. 
531,  81  N.  Y.  Supp.  838 ;  St.  Louis  v.  Bay  State  Street  R.  Co.,  216  Mass.  255, 
103  N.  E.  639.  49  L.  R.  A.  (N.  S.)  447,  Ann.  Cas.  1015B,  706 ;  Memphis  St.  R. 
Co.  V.  Kartright,  110  Tenn.  277,  75  S.  W.  719,  100  Am.  St.  Rep.  807 ;  Clancy  v. 
New  York,  etc.,  R.  R.  Co.,  82  App.  Div.  563,  81  N.  Y.  Supp.  875 ;  Chattanooga 
Elec.  R.  Co.  V.  Mingle,  103  Tenn,  667,  56  S.  W.  23,  76  Am.  St.  Rep.  703 ;  Clarke 


§    207)  LIABILITY   FOR  INJURIES  265 

of  the  company  to  exercise  proper  precaution,  a  presumption  of 
neg-ligence  arises. ^-^  And,  further,  the  facts  may  go  to  show  that 
the  manner  in  which  the  company's  lines  are  maintained  were  such 
within  themselves  as  to  give  the  court  the  power  to  decide  the  case; 
or,  in  other  words,  the  company  may  be  guilty  of  negligence  per  se 
for  the  manner  in  which  it  constructs  and  maintains  its  lines. ^-® 
While  in  some  cases  the  question  whether  the  company  has  failed 
to  perform  its  duty  in  properly  constructing  and  maintaining  its 
lines  may  be  so  clear  and  convincing  as  that  the  court  should  decide 
it  as  a  question  of  law,^-'^  yet  in  a  majority  of  cases  the  question 
should  be  left  to  the  determination  of  a  jury,  as  there  are  almost 
always  some  controverted  facts  with  respect  to  the  failure  of  the 
company  to  perform  its  duty.^^^  In  some  instances,  as  will  here- 
after be  discussed,  it  may  be  attempted  to  be  shown  that  the  party 

V.  Nassau  Elec.  R.  R.  Co.,  9  App.  Div.  51,  41  N.  Y.  Supp.  78.  But  see  Lanning 
V.  Pittsburg  Ry.,  229  Pa.  575,  79  Atl.  136,  32  L.  R.  A.  (N.  S.)  1043 ;  Diller  v. 
Korthern  California  Power  Co.,  162  Cal.  531,  123  Pac.  859,  Ann.  Cas.  1913D, 
90S,  and  note.    Application  of  res  ipsa  loquitur,  see  §§  194  and  19S. 

125  Hart  V.  Washington  Park  Club  Co.,  157  111.  9,  41  N.  E.  620,  48  Am.  St. 
Rep.  298,  29  L,  R.  A.  492 ;  Howser  v.  Cumberland,  etc.,  R.  Co.,  80  Md.  146,  30 
Atl.  906,  45  Am.  St.  Rep.  332,  27  L.  R.  A.  154.  See  notes  to  Philadelphia,  etc., 
R.  Co.  V.  Anderson,  20  Am.  St.  Rep.  490 ;  Huey  v.  Gahleubeck,  6  Am.  St.  Rep. 
794 ;  Fleming  v.  Pittsburg,  etc.,  R.  Co.,  38  Am.  St.  Rep.  837.  See,  also,  other 
cases  cited  in  note  124. 

Application  of  res  ipsa  loquitur,  see  §§  194,  198. 

12C  Southern  Bell,  etc.,  Tel.  Co.  v.  McTyer,  137  Ala.  601,  34  South.  1020,  97 
Am.  St.  Rep.  62,  abandoned  wires  left  in  private  house. 

127  See  Harton  v.  Forest  City  Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L. 
R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 ;  Citizens'  Tel.  Co.  v.  Westcott,  124  Ky.  684, 
99  S.  W.  1153,  30  Ky.  Law  Rep.  922 ;  Hayes  v.  Chicago  Tel.  Co.,  218  111.  414, 
75  N.  B.  1003,  2  L.  R.  A.  (N.  S.)  764 ;  Shinzel  v.  Philadelphia  Bell  Tel.  Co.,  31 
Pa.  Super.  Ct.  221 ;  Southern  Bell  Tel.  Co.  v.  McTyer,  137  Ala.  601,  34  South. 
1020,  97  Am.  St.  Rep.  62. 

128  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500;  Friesenhan  v. 
Michigan  Tel.  Co.,  134  Mich.  292,  96  N.  W.  501;  Crawford  v.  Standard  Tel. 
Co.,  139  Iowa,  331,  115  N.  W.  878 ;  Flack  v.  West.  U.  Tel.  Co.,  106  Minn.  337, 
118  N.  W.  1022 ;  Campbell  v.  Delaware,  etc.,  Tel.,  etc.,  Co.,  70  N.  J.  Law,  195, 
56  Atl.  303 ;  New  York,  etc.,  Tel.  Co.  v.  Bennett,  62  N.  J.  Law.  742,  42  Atl.  759; 
Ensign  v.  Central  New  York  Tel.,  etc.,  Co.,  79  App.  Div.  244,  79  N.  Y.  Supp. 
799,  affirmed  in  179  N.  Y.  539,  71  N.  E.  1130 ;  Varnau  v.  Peinisylvania  Tel.  Co., 
5  Lane.  Law  Rev.  (Pa.)  97,  affirmed  in  (Pa.)  15  Atl.  624 ;  South  Texas  Tel.  Co. 
v.  Tabb,  52  Tex.  Civ.  App.  213,  114  S.  W.  448 ;  Randall  v.  Northwestern  Tel. 
Co.,  54  Wis.  140,  11  N.  W.  419,  41  Am.  Rep.  17 ;  Reid  v.  Tel.  Co.,  151  App.  Div. 
96,  135  N.  Y.  Supp.  846 ;  Snee  v.  Tel.  Co.,  24  S.  D.  361,  123  N.  W.  729 ;  Poume- 
roule  V.  Cable  Co.,  167  Mo.  App.  533,  152  S.  W.  114 ;  Musolf  v.  Duluth  Edison 
Elec.  Co.,  108  Minn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451.  See  Davidson 
V.  Utah  Independent  Tel.  Co.,  34  Utah,  249,  97  Pac.  124.     See,  also,  §§  199, 


266  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  208 

sustained  his  injury  by  his  own  contributory  negligence.^^^  When 
this  is  the  case  the  question  can  only  be  settled  by  a  jury  after 
having  been  properly  charged  as  to  the  law  in  the  case/^° 

§  208.  Same  continued — an  injury  sustained — proximate  cause. 
The  company  may  fail  to  perform  the  duty  of  maintaining  its  lines, 
which  it  is  under  obligation  to  the  public  to  perform,  but  still,  if 
there  is  no  injury  sustained  by  any  one  for  such  failure,  the  com- 
pany will  not  be  liable. ^^^  It  may  commit  a  wrong  or  violate  its 
public  duties,  for  which  the  public  may  have  recourse,  but  if  no  one 
has  sustained  an  injury,  or  if  his  injuries  are  no  greater  than  those 
suffered  by  the  public  in  general,  the  company  can  only  be  liable 
for  a  public  prosecution.  It  is  not  enough  that  the  party  should 
have  been  injured,  but  the  injury  must  be  the  result  of  the  failure 
on  the  part  of  the  company  to  perform  its  duty,  and  this  failure 
must  be  the  proximate  cause  of  the  injury  and  not  some  agency  put' 
in  force  by  the  negligence  of  another.^^-  The  failure  of  the  com- 
pany to  perform  its  duty  in  maintaining  its  lines  may  be  actionable 
or  not  actionable.  That  is,  it  may  proximately  inflict  an  injury, 
or  it  may  result  harmlessly,  or  be  but  the  remote  cause  or  mere  con- 
dition of  an  injury,  of  which  some  intervening  act  or  negligence  is 
the  efficient  and  proximate  cause.  It  follows,  therefore,  that  there 
must  not  only  be  a  causal  connection  between  the  said  failure  of  the 
company  to  maintain  its  lines  properly  or  the  negligence  com- 
plained of  and  the  injury  suffered,  but  the  connection  must  be  by  a 
natural  and  unbroken  sequence — without  intervening  elffcient 
causes — so  that  but  for  the  negligence  of  the  company  the  injury 
would  not  have  occurred. ^^^     It  must  not  only  be  a  cause  but  it 

201 ;  Lewis  v.  Bowling  Green  Gaslight  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L. 
R.  A.  (N.  S.)  1169 ;  Fox  v.  Manchester,  183  N.  Y.  141,  75  N.  E.  1116,  2  L.  R.  A. 
(N.  S.)  474. 

129  See  §  210. 

13  0  See  §  210. 

131  West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  83  Atl.  763,  31  K  R.  A.  572,  51 
Am.  St.  Rep.  464 ;  Varnau  v.  Pennsylvania  Tel.  Co.,  5  Lane.  Law  Rev.  (Pa.) 
97.  See  Oehs  v.  Public  Sei-vice  R.  Co.,  81  N.  J.  Law,  661,  SO  Atl.  495,  36  L.  R. 
A.  (N.  S.)  240,  Ann.  Cas.  1912D,  255. 

132  Allen  V.  Atlantic,  etc.,  Tel.  Co.,  21  Hun  (N.  Y.)  22.  See,  also,  Henning 
V.  West.  U.  Tel.  Co.  (C.  C.)  43  Fed.  131 ;  Davis  v.  Dudley,  4  Allen  (Mass.)  557 ; 
Harton  v.  Forest  City  Tel.  Co.,  146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.) 
956,  14  Ann.  Cas.  390.     See,  also,  cases  cited  in  following  notes. 

133  Seith  V.  Commonwealth  Elec.  Co.,  241  111.  252,  89  N.  E.  425,  24  L.  R.  A. 
(N.  S.)  978,  132  Am.  St.  Rep.  204;  Harton  v.  Forest  City  Tel.  Co.,  146  N.  C. 
429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 ;  Smith  v.  Missouri, 
etc.,  Tel.  Co.,  113  Mo.  App.  429,  87  S.  W.  71 ;  Citizens'  Tel.  Co.  v.  Thomas,  45 
Tex.  Civ.  App.  20,  99  S.  W.  879;  Chattanooga  Light,  etc.,  Co.  v.  Hodges,  109 


§    208)  LIABILITY   FOR  INJURIES  267 

must  be  the  proximate  cause ;  that  is,  the  direct  and  immediate 
cause  of  the  injury. ^^^  Thus  it  would  not  be  liable  for  an  injury 
one  of  the  concurrent  causes  of  which  was  the  presence  of  its  wires, 
as  where  the  poles  and  wires  interfered  with  the  operations  of  a  fire 
company  and  prevented  the  extinguishment  of  the  fire ;  "'"'  nor 
would  it  be  liable  for  an  injury  caused  by  a  broken  pole  or  line, 

Tenn.  331,  70  S.  W.  616,  60  L.  R.  A.  459,  97  Am.  St.  Rep.  844 ;  Georgetown  Tel. 
Co.  V.  McCullough,  118  Ky.  182,  SO  S.  W.  782,  111  Am.  St.  Rep.  294.  See  note 
to  Gilson  V.  Delaware,  etc.,  Canal  Co.,  36  Am.  St.  Rep.  807.  See,  also,  Mize  v. 
Rocky  Mountain  Bell  Tel.  Co.,  88  Mont.  521,  100  Puc.  971,  129  Am.  St.  Rep. 
659,  16  Ann.  Cas.  1189 ;  Johnston  v.  New  Omaha  Thompson-Houston  Elec.  L. 
Co.,  78  Neb.  24,  27,  110  N.  W.  711,  113  N.  W.  526,  17  L.  R.  A.  (N.  S.)  435. 

13  4  Seith  V.  Commonwealth  Elec.  Co.,  241  111.  252,  89  N.  E.  425,  132  Am.  St. 
Rep.  204,  24  L.  R.  A.  (N.  S.)  978;  Harton  v.  Forest  City  Tel.  Co.,  146  N.  C. 
429,  59  S.  E.  1022,  14  L.  R.  A.  (N.  S.)  956,  14  Ann.  Cas.  390 ;  Smith  v.  Missouri, 
etc.,  Tel.  Co.,  113  Mo.  App.  429,  87  S.  W.  71 ;  Citizens'  Tel.  Co.  v.  Thomas,  45 
Tex.  Civ.  App.  20,  99  S.  W.  879;  Mize  v.  Rocky  Mountain  Bell  Tel.  Co.,  38 
Mont.  521,  100  Pac.  971,  129  Am.  St.  Rep.  659,  16  Ann.  Cas.  1189 ;  Hebert  v.. 
Lake  Charles,  etc.,  Light  Co.,  Ill  La.  522,  35  South.  731,  64  L.  R.  A.  101,  100 
Am.  St.  Rep.  505;  Stark  v.  Muskegon  Trac,  etc.,  Co.,  141  Mich.  575,  104  N.  W. 
1100,  1  L.  R.  A.  (N.  S.)  822 ;  Musolf  v.  Duluth  Edison  Elec.  Co.,  lOS  Minn.  369,. 
122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451 ;  American  District  Tel.  Co.  v.  Oldham, 
148  Ky.  320,  146  S.  W.  764,  Ann.  Cas.  1913E,  376 ;  Home  Tel.  Co.  v.  Fields,  150 
Ala.  306,  43  South.  711 ;  Home  Tel.  Co.  v.  Gasper,  123  Ky.  128,  93  S.  W.  1057,. 
9  L.  R.  A.  (N.  S.)  548. 

The  intervening  act,  that  of  a  child. — The  general  rule  seems  to  be  that  the 
fact  that  the  person  responsible  for  the  intervening  act  is  a  child  does  not 
affect  the  case,  but,  if  the  act  itself  is  an  intervening  efficient  cause,  it  will 
break  the  causal  connection  between  the  defendant's  negligence  and  the  plain- 
tiflf's  Injury,  even  though  it  is  the  act  of  an  irresponsible  child.  See  Trout  v. 
Philadelphia  Elec.  Co.,  236  Fa.  506,  84  Atl.  967,  42  L.  R.  A.  (N.  S.)  713 ;  Weth- 
erby  v.  Twin  State,  etc.,  Elec.  Co.,  83  Vt.  189,  75  Atl.  8,  25  L.  R.  A.  (N.  S.) 
1220,  21  Ann.  Cas.  1092 ;  Sheffield  Co.  v.  Morton,  161  Ala.  153,  49  South.  772 ; 
Mayfield,  etc.,  Light  Co.  v.  Webb,  33  Ky.  Law  Rep.  909,  111  S.  W.  712,  18  L. 
R.  A.  (N.  S.)  179 ;  Johnston  v.  New  Omaha  Thompson  Elec.  Light  Co.,  78  Neb. 
24,  27,  110  N.  W.  711,  113  N.  W.  526,  17  L.  R.  A.  (N.  S.)  435 ;  Charette  v. 
L'Anse,  154  Mich.  304,  117  N.  W.  737.  See  Akin  v.  Bradley,  etc..  Machinery 
Co.,  48  Wash.  97,  92  Pac.  903,  14  L.  R.  A.  (N.  S.)  586.  But  see  contra.  Temple 
v.  McCombs  City  Elec.  Co.,  89  Miss.  1,  42  South.  874,  11  L.  R.  A.  (N.  S.)  449, 
119  Am.  St.  Rep.  608,  10  Ann.  Cas.  924 ;  Consolidated  Elec,  etc.,  Co.,  65  Kan. 
798,  70  Pac.  884;  Daltry  v.  Media  Elec,  etc,  Co.,  208  Pa.  403,  57  Atl.  833; 
Denver  Con.  Elec.  Co.  v.  Walters,  39  Colo.  301,  89  Pac  815 ;  Simonton  v.  Citi- 
zens' Elec,  etc,  Co.,  28  Tex.  Civ.  App.  376,  67  S.  W.  530.  But  see  Stark  Mus- 
kegon Trac,  etc.,  Co.,  141  Mich.  575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.)  822; 
Keefe  v.  Narragansett  Elec,  etc,  Co.,  21  R.  I.  575,  43  Atl.  542;  Graves  v. 
Washington,  etc,  Co.,  44  Wash.  675,  87  Pac  956,  11  L.  R.  A.  (N.  S.)  452.  See 
Ruehl  v.  Ligerwood  Rural  Tel.  Co.,  23  N.  D.  6,  135  N.  W.  793,  Ann.  Cas.  1914C, 
680,  question  for  jury. 

135  Chaffe  V.  Tel.,  etc.  Const.  Co.,  77  Mich.  625,  43  N.  W.  1064,  6  L.  R.  A. 


268  TELEGRAPH  AND  TELEPHONE  COMPANIES.         (§  209 

when  the  defect  in  the  line  has  been  caused  by  a  severe  storm ;  ^^^ 
but  if  the  defective  part  is  allowed  to  remain  unrepaired  unreason- 
ably long,  and  a  new  force  intervened,  with  the  creation  of  which 
the  company  was  not  responsible  and  which  would  have  been  harm- 
less but  for  the  defective  line,  the  company  will  be  liable  on  the 
ground  that  the  proximate  cause  was — not  altogether  the  defect 
in  the  line — the  negligence  in  repairing  the  line  within  a  reasonable 
time  after  the  breakage. ^^^  In  other  words,  if  the  company  is  neg- 
ligent, and  its  negligence  combines  with  that  of  another,  or  with 
any  other  intervening  cause,  it  is  liable,  although  its  negligence 
was  not  the  sole  negligence,  or  the  sole  proximate  cause,  and  al- 
though its  negligence,  without  such  other  independent  intervening 
cause,  would  not  have  produced  the  injury. ^^® 

§  209.  Evidence  of  negligence. — In  the  absence  of  any  presump- 
tion of  the  company's  negligence,  the  injured  party  must  prove, 

455.  18  Am.  St.  Rep.  424 ;  Nichols  v.  Minneapolis,  33  Minn.  430,  23  N.  W.  868, 
53  Am.  Rep.  56. 

Duty  to  shut  off  current  in  case  of  fire. — An  electric  company  is  not  charged 
with  a  duty  to  cut  off.  at  its  own  instance  and  in  the  absence  of  an  ordi- 
nance to  that  effect,  the  current  from  some  certain  district  merely  upon 
knowledge  teing  brought  to  it  that  a  building  within  that  district  is  on  fire. 
So  there  is  no  negligence  imputed  to  it  because  of  the  fact  that  one  of  its 
employes,  at  the  time  off  duty,  was  present  when  a  house  was  afire  during 
the  night,  and,  seeing  one  of  the  company's  wires  disconnected  from  the 
building  and  sputtering  on  the  ground,  "did  nothing."  Pennebaker  v.  San 
Joaquin,  etc..  Power  Co..  158  Cal.  579,  112  Pac.  459,  31  L.  R.  A.  (X.  S.)  1099. 
139  Am.  St.  Rep.  202,  citing  New  Omaha  Thompson-Houston  Elec.  Light  Co. 
V.  Anderson,  73  Neb.  84,  102  N.  W.  89.  and  Trouton  v.  Omaha  Thomp- 
son-Houston Elec.  Light  Co..  77  Neb.  821.  110  N.  W.  569.  Compare  Gannon  v. 
Laclede  Gaslight  Co..  145  Mo.  502,  46  S.  W.  968,  47  S.  W.  907.  43  L.  R.  A.  505. 
The  utmost  that  will  be  exacted  of  the  company  in  this  regard  is  that  it 
shall  hold  itself  in  readiness  to  cut  off  the  current  when  the  necessity  arises 
and  it  is  informed  by  the  proper  authority.  Pennebaker  v-  San  Joaquin,  etc., 
Power  Co..  supra.  Defendant,  under  contract  with  plaintiff,  a  merchant,  sup- 
plied electric  current  to  his  store.  A  fire  broke  out  in  a  restaurant  in  the  rear 
of  the  store  and  separated  from  it  by  a  solid  partition.  Defendant  severed 
the  wires  supplying  the  store  with  electric  current,  and  plaintiff,  by  reason 
of  the  darkness,  was  unable  to  remove  his  stock  and  fixtures.  The  action  was 
brought  to  recover  the  value  of  such  property,  which  was  entirely  destroyed 
by  the  fire.  Held,  that  the  defendant  had  the  right  to  sever  the  wires,  pro- 
viding it  was  reasonably  necessary  to  do  so  in  order  to  save  loss  or  damage 
to  its  own  property,  but  no  such  right  arose  until  the  act  became  necessary. 
It  was  conceded  that  the  wires  were  cut  forty  minutes  before  there  was  any 
such  necessity  and  that  the  defendant  knew  that  plaintiff  would  need  light 
to  save  his  property.  Held,  also,  th.at  the  evidence  sustained  a  finding  that 
cutting  the  wires  at  the  time  and  under  the  circumstances  was  an  actionable 
breach  of  defendant's  duty  to  plaintiff.  Mullen  v.  Otter  Tail  Power  Co.,  130 
Minn.  386,  153  N.  W.  746,  L.  R.  A.  1916D.  447.     See  §  218. 

136  Ward  v.  Atlantic,  etc.,  Pac.  Tel.  Co.,  71  N.  Y.  81,  27  Am.  Rep.  10. 

137  Southwestern  Tel.,  etc.,  Co.  v.  Robinson,  50  Fed.  810.  1  C.  C.  A.  684.  16 
L.  R.  A.  .545 ;  Southern  Tel.,  etc.,  Co.  v.  McTyer,  137  Ala.  601.  34  South.  1020, 
97  Am.  St.  Rep.  62.     See  §  199.     See  other  cases  in  note  134,  supra. 

138  Harrison  v.   Kansas  City   Elec.  L.   Co.,   195  Mo.  606,  93    S.   W.  951,   7 


§    209)  LIABILITY  FOR  INJURIES  209 

by  a  fair  preponderance  of  the  evidence,  facts  which  establish  the 
negHg-ence  of  the  company  as  being  the  proximate  cause  of  his  in- 
jury ;^^^  and  having  done  this,  he  is  entitled  to  recover  except  in 
those  jurisdictions  which  hold  that  he  must  also  take  the  burden  of 

L.  R.  A.  (N.  S.)  293,  injury  resulting  to  a  person  coming  in  contact  with  the 
grounded  current  of  an  electric  company,  and  which  would  not  have  occurred 
except  for  the  act  of  a  stranger  in  making  a  second  ground  at  another 
place;  Horning  v.  Hudson  R.  Tel.  Co.,  Ill  App.  Div.  122,  97  N.  T.  Supp.  625, 
abandoned  telephone  wire,  through  which  a  current  passed  from  an  unin- 
sulated electric  wire,  and  but  for  such  uninsulated  wire  the  injury  would 
not  have  occurred ;  City  Elec.  S.  R.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426,  54 
Am.  St.  Rep.  262,  31  L.  R.  A.  570,  negligence  of  telephone  and  electric  com- 
panies both  the  proximate  cause  and  both  liable.  Where  unprotected  or  neg- 
ligently strung  telephone  wires  come  in  contact  with  heavily  charged  unin- 
sulated or  unguarded  wires,  owned  or  controlled  by  a  separate  company, 
thereby  causing  injury.  See  McKay  v.  Southern  Bell,  etc.,  Tel.  Co.,  Ill  Ala. 
337,  19  South.  695,  56  Am.  St.  Rep.  59,  31  L.  R.  A.  5S9;  Jones  v.  Finch,  128 
Ala.  217,  29  South.  1R2;  Cumberland,  etc.,  Tel.  Co.  v.  Ware,  115  Ky.  581.  74 
S.  W.  289 ;  Economy  L.,  etc..  Co.  v.  Hiller,  203  111.  518,  68  N.  E.  72 ;  United 
Elec.  R.  Co.  V.  Shelton,  89  Tenn.  423,  14  S.  W.  863,  24  Am.  St.  Rep.  614; 
West.  U.  Tel.  Co.  v.  State,  82  Md.  293,  33  Atl.  763,  51  Am.  St.  Rep.  464.  31 
L.  R.  A.  572;  Hebert  v.  Lake  Charles,  etc.,  Co.,  Ill  La.  522,  35  South.  731, 
100  Am.  St.  Rep.  505,  64  L.  R.  A.  101 ;  Kankakee  Elec.  R.  Co.  v.  Whittemore, 
45  111.  App.  484;  Standard  L.,  etc.,  Co.  v.  Muncey,  .33  Tex.  Civ.  App.  416, 
76  S.  W.  931 ;  San  Antonio,  etc.,  Elec.  Co.  v.  Speegle  (Tex.  Civ.  App.)  60  S.  W. 
884;  Twist  v.  Rochester,  37  App.  Div.  307,  55  N.  Y.  Supp.  850,  affirmed  in 
165  N.  Y.  619,  59  N.  E.  1131,  holding  city  owning  an  uninsulated  patrol  wire 
liable.  See,  also,  §  200.  See  Trammell  v.  Columbus  R.  Co.,  9  Ga.  App.  98, 
70  S.  E.  892;  Home  Tel.  Co.  v.  Fields,  150  Ala.  306,  43  South.  711;  Crandall 
V.  Consol..  etc.,  Tel.  Co.,  14  Ariz.  .322,  127  Pac.  994;  Cumberland  Tel.,  etc.,  Co. 
V.  Woodham,  99  Miss.  318,  54  South.  890;  Campbell  v.  United  R.  Co.,  243 
Mo.  141,  147  S.  W.  788;  Garretson  v.  Tacoma  R.,  etc.,  Co.,  50  Wash.  24,  96 
I'ac.  511 ;    Luehrmann  v.  Laclede,  etc.,  Co»,  127  Mo.  App.  213,  104  S.  W.  1128. 

139  Dickey  v.  Maine  Tel.  Co.,  43  Me.  492;  Pennsylvania  Tel.  Co.  v.  Varnau 
(Pa.)  15  Atl.  624;  Arkansas  Tel.  Co.  V.  Ratteree,  57  Ark.  429.  21  S.  W.  10.j9; 
Diller  v.  Northern  California  Power  Co.,  162  Cal.  531,  123  Pac.  3.59,  Ann.  Cas. 
1913D,  90S;  Southern  Bell  Tel.  Co.  v.  Lynch.  95  Ga.  529.  20  S.  E.  500; 
Mize  v.  Rocky  Mountain  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St. 
Rep.  659,  10  Ann.  Cas.  1189. 

Sufficient  to  support  verdict,  see  Postal  Tel.  Calile  Co.  v.  Jones,  133  Ala. 
217,  32  South.  500 ;  Wells  v.  Northeastern  Tel.  Co.,  101  Me.  .371,  64  Atl.  648 ; 
Louisville  Home  Tel.  Co.  v.  Gasper,  123  Ky.  128,  93  S.  W.  1057,  29  Ky.  Law 
Rep.  578,  9  L.  R.  A.  (N.  S.)  548;  Walther  v.  American  Dist.  Tel.  Co.,  11  Misc. 
Rep.  71,  32  N.  Y.  Supp.  751 ;  Southern  Tel.,  etc.,  Co.  v.  Evans,  54  Tex.  Civ.  App. 
63,  116  S.  W.  418;  Bishop  v.  Rockv  Mountain  Bell  Tel.  Co.,  33  Utah,  404,  94 
Pac.  976 ;  Jackscm  v.  Wisconsin  Tel.  Co.,  88  Wis.  243,  60  N.  W.  430,  26  L.  R.  A. 
101;  Tel.  Co.  v.  Peters,  103  Ark.  564,  148  S.  W.  273;  Reid  v.  Tel.  Co.,  151 
App.  Div.  96,  135  N.  Y.  Supp.  846;  Tliompson  v.  Reed,  29  S.  D.  85,  135 
N.  W.  679;  Tel.  Co.  v.  Asbury,  147  Ky.  307,  143  S.  W.  1050;  Stuhr  v.  Tel. 
Co.,  119  Minn.  508,  138  N.  W.  693;  Realty,  etc.,  Co.  v.  Tel.,  etc.,  Co.,  122 
Minn.  424,  142  N.  W.  807;    Thomas  v.  West.  U.  Tel.  Co.,  100  Mass., 156. 

Insufficient  to  support  verdict,  see  Jacks  v.  Reeves.  78  Ark.  426,  95  S.  W. 
781;  Lee  v.  Maryland  Tel.,  etc.,  Co.,  97  Md.  692,  55  Atl.  680;  Johnson  v. 
JNorthwestern  Tel.  Exch.,  54  Minn.  37,  55  N.  W.  829;  Brinckkord  v.  West. 
U.  Tel.  Co.,  58  Hun,  610,  12  N.  Y.  Supp.  534;  Fitch  v.  Central  New  York 
Tel.,  etc.,  Co.,  42  App.  Div.  321,  59  N.  Y.  Supp.  140;  Tel.  Co.  v.  Fleming,  53 
Ind.  App.  555,  102  N.  E,  163 ;   Wood  v.  Tel.,  etc.,  Co.,  151  Ky.  77,  151  S.  W.  29. 


270  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  209 

negativing  contributory  negligence  on  his  own  part.^*^  Where  the 
burden  is  on  the  injured  party  to  prove  negligence  on  the  part  of 
the  company,  it  generally  becomes  a  question  to  be  decided  by  the 
jury;^*^  as,  where  there  was  evidence  that  the  company's  wires 
had  been  detached  from  a  pole  so  as  to  obstruct  a  highway  for 
two  days  prior  to  an  injury  occasioned  thereby,  it  was  a  question 
for  the  jury  whether  or  not  the  company  had  exercised  due  care  in 
discovering  and  remedying  the  condition  of  the  wires. ^*^  Evidence 
to  the  effect  that  the  ware  became  detached  because  of  being  fast- 
ened to  a  rotten  arm  was  sufficient  to  warrant  a  finding  that  the 
use  of  the  cross-arm  was  negligence,  proximately  causing  plaintiff's 
injury.^'*^  But  the  question  of  admissibility  of  evidence  should  be 
left  to  the  court.^**  So  where  an  action  for  damages  for  injuries 
sustained  by  being  thrown  over  a  telephone  wire,  it  is  a  ques- 
tion as  to  whether  evidence  should  be  admitted  to  show  that 
shortly  after  the  accident  the  defendant  raised  its  wires  at  that 
point.  It  has  been  held  that  such  evidence  was  admissible. ^*^ 
Evidence  has  been  admitted  to  show  the  height  of  the  wires  on  a 
prior  day ;  ^^^    this  is  not,  however,  the  general  doctrine.^*''     Upon 

140  Dickey  v.  Maine  Tel.  Co.,  43  Me.  492;  Tel.  Co.  v.  Fleming,  53  Ind.  App. 
555,  102  N.  E.  163. 

141  See  §  207. 

14  2  Postal  Tel.  Cable  Co.  v.  Jones,  133  Ala.  217,  32  South.  500. 

143  Clairain  v.  West.  U.  Tel.  Co.,  40  La.  Ann.  178,  30  South.  625.  See  Meek 
V.  Nebraska  Tel.  Co.,  96  Neb.  539,  148  N.  W.  325. 

144  West.  U.  Tel.  Co.  v.  Levi,  47  Ind.  552;  Southwestern  Tel.,  etc.,  Co.  v. 
Whiteman,  36  Tex.  Civ.  App.  163,  81  S.'w.  76;  Fish  v.  Waverly  Elec,  etc., 
Co.,  189  N.  T.  336,  82  N.  E.  150,  13  L.  R.  A.  (N.  S.)  226,  opinion  evidence; 
Pennebaker  v.  San  Joaquin  L.,  etc.,  Co.,  158  Cal.  579.  112  Pac.  459,  31  L.  R.  A. 
(N.  S.)  1099.  139  Am.  St.  Rep.  202 ;  Harrison  v.  Kansas  City  Elec,  etc.,  Co., 
195  Mo.  600,  93  S.  W.  951,  7  L.  R.  A.  (N.  S.)  293,  not  admissible. 

145  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.)  15  Atl.  624.  See  Snyder  v.  Mu- 
tual Tel.  Co.,  135  Iowa,  215,  112  N.  W.  776,  14  L.  R.  A.  (N.  S.)  321;  Musolf 
v.  Edison  Elec.  Co.,  108  Minn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451. 

146  Pennsylvania  Tel.   Co.   v.   Varnau  (Pa.)   15  Atl.  624;    Gloucester  Elec. 

14T  Nalley  v.  Hartford,  etc.,  Co.,  51  Conn.  524.  50  Am.  Rep.  47;  Delaney  v. 
Hilton,  50  X.  Y.  Super.  Ct.  341 ;  Henkel  v.  Murr,  31  Hun  (N.  Y.)  28 ;  Martin 
V.  Towle,  59  N.  H.  31;  Tyler  v.  Todd,  36  Conn.  220;  Dougan  v.  Champlain 
Transp.  Co.,  56  N.  Y.  1 ;  Wooley  v.  Grand  St.,  etc.,  R.  Co.,  83  N.  Y.  121 ;  Se- 
well  V.  Cohoes,  75  N.  Y.  45,  31  Am.  Rep.  418;  Hudson  v.  Chicago,  etc.,  R. 
Co.,  59  Iowa,  581,  13  N.  W.  735,  44  Am.  Rep.  692 ;  Cramer  v.  Burlington,  45 
Iowa,  627;  Morrell  v.  Peck,  24  Hun  (N.  Y.)  37;  Terre  Haute,  etc.,  R.  Co.  v. 
Clem,  123  Ind.  15,  23  N.  E.  965,  7  L.  R.  A.  588,  18  Am.  St.  Rep.  303 ;  Ely  v. 
St.  Louis,  etc.,  R.  Co.,  77  Mo.  34 ;  Dale  v.  Delaware,  etc.,  R.  Co.,  73  N.  Y.  471 ; 
Morse  v.  Minneapolis,  etc.,  R.  Co.,  30  Minn.  465,  16  N.  W.  358 ;  Baird  v.  Daly, 
68  N.  Y.  551 ;    Id.,  57  N.  Y.  236,  15  Am.  Rep.  488. 


1 


§    209)  LIABILITY   FOR   INJURIES 


271 


an  issue  as  to  the  soundness  of  certain  poles  which  had  fallen,  it  is 
error  to  admit  evidence  of  the  soundness  of  other  poles  near  them, 
without  showing  some  proof  that  their  condition  ought  to  be  the 
same  as  that  of  the  others. ^*^  Evidence  that  after  the  occurrence 
of  the  injury  the  company  repaired  the  place  where  the  injury  oc- 
curred, or  discharged  a  negligent  servant,  is  inadmissible ;  since  to 
admit  such  would  be  to  place  a  premium  upon  the  continuance  of 
negligence.^*®  And  evidence  which  tends  to  prove  that  other  par- 
ties had  passed  safely  along  the  place  of  the  accident  should  not  be 
admitted,  as  this  is  not  proof  of  the  exercise  of  proper  care  by  the 
company.^ ^"^  But  evidence  may  be  admitted  to  show  that  others 
received  injuries  at  the  same  place  and  in  the  same  manner;  ^^^ 
yet  this  has  been  otherwise  held  by  some  of  the  courts. ^^^  In  deter- 
mining relevancy  or  admissibility  of  evidence,  the  court  should  al- 

Co.  V.  Kankas,  120  Fed.  490,  56  C.  C.  A.  640,  where  position  of  wire  has  not 
been  materially  changed,  the  testimony  of  a  witness  as  to  the  height  of  the 
wire  where  the  injury  occurred,  five  or  ten  minutes  after  the  accident,  is  com- 
petent as  showing  the  position  of  the  wire  at  the  time  of  the  injury  in  respect  to 
exposing  people  unreasonably  and  negligently  to  danger.  See  Randall  v.  North- 
western Tel.  Co.,  54  Wis.  142,  11  N.  W.  419,  41  Am.  Kep.  17,  wires  and  posts 
frequently  down  for  a  few  months  before  accident;  East  Tennessee  Tel.  Co. 
V.  Simm,  99  Ky.  404,  36  S.  W.  171;  Same  v.  Sim,  20  Ky.  Law  Rep.  1330, 
38  S.  W.  131,  wire  overcharged  on  prior  occasions;  Consolidated  Gas,  etc., 
Co.  T.  State,  109  Md.  186,  72  Atl.  651,  condition  of  wires  two  weeks  prior  to 
accident;  Rondeau  v.  Sayles,  30  R.  I.  228,  74  Atl.  785,  light  frequently  gone 
out  in  wire  for  five  years  prior  to  accident,  all  held  admissible.  See  note  to 
32  L.  R.  A.  (N.  S.)  10S4. 

148  West.  U.  Tel.  Co.  v.  Levi,  47  Ind.  552;  Snyder  v.  Mutual  Tel.  Co.. 
135  Iowa,  215,  112  N.  W.  776,  14  L.  R.  A.  (N.  S.)  321 ;  West  v.  Bayfield  Mill 
Co.,  144  Wis.  106,  128  N.  W.  992,  45  L.  R.  A.  (N.  S.)  134,  as  to  condition  of 
insulation  at  other  times. 

149  Readman  v.  Conway,  126  Mass.  374;  Sewell  v.  Cohoes,  11  Hun  (X.  Y.) 
626;  Couch  v.  Watson  Coal  Co.,  46  Iowa,  17;  Campbell  v.  Chicago,  etc.,  R. 
Co.,  45  Iowa,  76.  But  see  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.)  15  Atl.  624. 
See,  also,  Colorado  Elec.  Co.  v.  Lubbers,  11  Colo.  505,  19  Pac.  479,  7  Am. 
St.  Rep.  255 ;  Ziehm  v.  United  Elec,  etc.,  Co.,  104  Md.  48,  64  Atl.  61 ;  Kraatz 
v.  Brush  Elec.  Lt.  Co.,  82  Mich.  457,  46  N.  W.  787;  Wynnewood  v.  Cox,  31 
Okl..563,  122  Pac.  528,  Ann.  Cas.  1913E,  349;  Geer  v.  New  York,  etc.,  Tel. 
Co.,  144  App.  Div.  874,  129  N.  Y.  Supp.  784 ;  Harrington  v.  Com'rs,  153  N.  C. 
437,  69  S.  E.  399.  See,  also,  §  516.  See,  also,  Riley  v.  City  of  Indei>endence, 
258  Mo.  671,  167  S.  W.  1022,  Ann.  Cas.  191 5D,  748. 

150  Branch  v.  Libbey,  78  Me.  321,  5  Atl.  71,  57  Am.  Rep.  810;  Hudson  v, 
Chicago,  etc.,  R.  Co.,  59  Iowa,  581,  13  N.  W.  735,  44  Am.  Rep.  692 ;  Hubbard 
V.  Concord,  35  N.  H.  52,  69  Am.  Dec.  520. 

i^'i  Wooley  v.  Grand  St.,  etc.,  R.  Co.,  83  N.  Y.  121;  Phelps  v.  Winona,  etc., 
R.  Co.,  37  Minn.  485,  35  N.  W.  273,  5  Am.  St.  Rep.  867. 

152  Hubbard  v.  Concord,  35  N,  H.  52,  69  Am.  Dec.  520;    Piollet  v.  Simmers, 


272  TELEGRAFH  AND  TELEPHONE  COMPANIES         (§  210 

ways  forbid  the  admission  of  testimony  to  a  collateral  fact  which 
furnishes  no  legal  inference  as  to  the  principal  fact  in  dispute.^^' 
To  state  the  numberless  decisions  on  the  relevancy  or  admissibility 
of  certain  evidence  in  negligent  cases  would  be  an  almost  impossible 
task,  but  the  general  rule  governing  the  admission  of  evidence  in 
civil  cases  applies  as  well  to  the  subject  under  consideration  as 
elsewhere/^*  Therefore  it  will  hardly  be  advisable  to  enter  into  a 
discussion  of  any  length  on  this  subject,  but  refer  the  reader  to 
treatises  on  this  particular  subject. 

§  210.  Contributory  and  imputed  negligence. — As  in  other  cases 
of  negligence,  contributory  negligence  on  the  part  of  the  plaintiff  in 
an  action  for  injury  done  by  any  of  these  electrical  companies  in 
the  construction  or  maintenance  of  their  lines  precludes  recov- 
gj.y  155    'x'his  rule  applies  as  well  where  the  injury  is  to  the  plain- 

106  Pa.  95,  51  Am.  Rep.  4&6 ;  Aldrich  v.  Inhabitants  of  Pelham,  1  Gray  (Mass.) 
510 ;   Johnson  v.  Manhattan  R.  Co.,  52  Hun,  111,  4  N.  T.  Supp.  848. 

153  1  Whart.  on  Ev.  §§  29,  40;  Collins  v.  Dorchester,  6  Cush.  (Mass.)  397; 
Aldrich  v.  Inhabitants  of  Pelham,  1  Gray  (Mass.)  510. 

154  Wharton  on  Ev.  §§  40-44;  1  Greenleaf  on  Ev.  §  49c,  p.  72  (14th  Ed.). 
The  clothing  worn  by  a  person  at  the  time  of  coming  in  contact  with  a  wire 
is  admissible  as  tending  to  illustrate  the  manner  in  which  an  injury  was 
caused.  Quincy  Gas,  etc.,  Co.  v.  Baumann,  203  111.  295,  67  N.  E.  807.  See 
Walters  v.  Syracuse,  etc.,  Ry.  Co.,  178  N.  Y.  50,  70  N.  E.  98. 

Photographs,  laying  foundation  for  admission  of  enlargement,  see  Diller 
T.  Northern  California  Power  Co.,  1G2  Cal.  531,  123  Pac.  359,  Ann.  Cas.  1913D, 
908. 

Admissions  and  declarations,  admissions  of  corporate  agents,  see  Diller  v. 
Northern  California  Power  Co.,  162  Cal.  531,  123  Pac.  359,  Ann.  Cas.  1913D, 
908.  But  see  Randall  v.  Northwestern  Tel.  Co.,  54  Wis.  140,  11  N.  W.  419. 
41  Am.  Rep.  17;  Brunke  v.  Missouri,  etc.,  Tel.  Co.,  115  Mo.  App.  36,  90 
S.  W.  753,  an  action  for  injury  to  a  pedestrian  by  a  tool  thrown  from  one 
lineman  to  another,  in  which  evidence  was  admitted  to  show  that  it  was 
customary  to  pass  tools  by  means  of  a  line.  See  Leeds  v.  New  York  Tel. 
Co.,  79  App.  Div.  121,  SO  N.  Y.  Supp.  114;  Thompson  v.  Reed,  29  S.  D.  85, 
135  N.  W.  679.  See  Riley  v.  City  of  Independence,  258  Mo.  671,  167  S.  W. 
1022,  Ann.  Cas.  1915D,  748,  defective  switch  box. 

155  Katafiasz  v.  Toledo  Consol.  Elec.  Co.,  24  Ohio  Cir.  Ct;  R.  127;  Penne- 
baker  v.  San  Joaquin  Lt.,  etc.,  Co.,  158  Cal.  579,  112  Pac.  459,  31  L.  R.  A. 
(N.  S.)  1099,  139  Am.  St.  Rep.  202 ;  Lofton  v.  Elec.  Co.,  61  Fla.  293,  54  South. 
959;  Foley  v.  Power  Co.,  14  Cal.  App.  401,  112  Pac.  4G7;  Brunelle  v.  Light 
Corp.,  188  Mass.  493,  74  N.  E.  676;  Id.,  194  ]\Iass.  407,  80  N.  E.  466;  Winkel- 
man  v.  Light  Co.,  110  Mo.  App.  184,  85  S.  W.  99;  Charette  v.  L'Anse,  154 
Mich.  304,  117  N.  W.  737;  Carroll  v.  Elec.  Co.,  52  Or.  370,  97  Pac.  552; 
Gentzkow  v.  R.  Co.,  54  Or.  114,  102  Pac.  614,  135  Am.  St.  Rep.  821;  Weir  v. 
Light  Co.,  221  Pa.  611,  70  Atl.  874;  Haertel  v.  Light,  etc.,  Co.,  219  Pa.  640, 
69  Atl.  282;  Everett  v.  Elec.  Co.,  228  Pa.  241,  77  Atl.  460;  Edmundson  v. 
Light  Co.,  223  Pa.  93,  72  Atl.  268 ;    Milne  v.  Tel.  Co.,  29  R.  I.  504,  72  Atl.  716 ; 


§    210)  LIABILITY  FOR  INJURIES  27S 

tiff's  property  as  where  it  is  to  his  person.^^®  Thus  one  who  has 
notice  of  the  dangerous  condition  of  a  wire  or  other  electrical  appli- 
ance and  voluntarily  brings  himself  into  contact  with  it  cannot 
hold  the  company  for  the  resulting  injuries. ^^^  However,  to  give 
rise  to  this  defense,  it  must  be  shown  that  the  plaintiff  in  coming  in 

Billington  v.  R.,  etc.,  Co.,  137  Wis.  416,  119  N.  W.  127 ;  Requena  de  Molina 
V.  Light,  etc.,  Co.,  4  Porto  Rico  Fed.  356;  Ligtit,  etc.,  Co.  t.  Laurence,  3» 
Can.  S.  Ct.  326;  Randall  v.  Elec.  Co.,  6  Ont.  L.  R.  619,  2  Ont.  W.  R.  146; 
Borell  V,  Tel.  Co.,  133  La.  630,  63  South.  247.  See  Tel.  Co.  v.  Arnold  (Ky.) 
119  S.  W.  811 ;  Hodgins  v.  Bay  City,  156  Mich.  687,  121  N.  W.  274,  132  Am. 
St.  Rep.  546.  See,  also,  Ergo  v.  Merced  Falls  Gas,  etc.,  Co.,  161  Cal.  334, 
119  Pac.  101,  41  L.  R.  A.  (N.  S.)  79;  Clements  v.  Louisiana  Elec.  Lt.  Co., 
44  La.  Ann.  692,  11  South.  51,  32  Am.  St.  Rep.  348,  16  L.  R.  A.  43 ;  Stark  v. 
Muskegon  Tr.,  etc.,  Co.,  141  Mich.  575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.)  822 ; 
Carroll  v.  Elec.  Co.,  47  Or.  424,  84  Pac.  389,  6  L.  R,  A.  (N.  S.)  290 ;  Burnett  v. 
Ft.  Worth,  etc.,  Co.,  102  Tex.  31,  112  S.  W.  1040,  19  L.  R.  A.  (N.  S.)  504; 
Anderson  t.  Inland  Tel.,  etc.,  Co.,  19  Wash.  575,  53  Pac.  657,  41  L.  R.  A.  410. 

15  6  See  §  196.  See  Southern  Bell,  etc.,  Tel.  Co.  v.  Watts,  66  Fed.  460,  13 
C.  C.  A.  579. 

157  Cook  V.  W^ilmington  City  Elec.  Co.,  9  Houst.  (Del.)  306,  32  Atl.  643; 
Columbus  R.  Co.  v.  Dorsey,  119  Ga.  363,  46  S.  E.  635 ;  Frauenthal  v.  Laclede 
Gaslight  Co.,  67  Mo.  App.  1;  Katafiasz  v,  Toledo  Consol.  Elec.  Co.,  24  Ohio 
Cir.  Ct.  R.  127 ;  Gas,  etc.,  Co.  v.  Davis,  138  Ky.  628,  128  S.  W.  1062 ;  Shade 
V.  Power  Co.,  152  Cal.  10,  92  Pac.  62;  Woodward  v.  Taunton,  203  Mass.  63, 
89  N.  E.  114 ;  Johnston  v.  Light  Co.,  78  Neb.  27,  113  N.  W.  526,  17  L.  R.  A. 
(N.  S.)  435 ;  Hickok  v.  Power  Co.,  200  N.  Y.  464,  93  N.  E.  1113 ;  McNamee  v. 
Tel.  Co.,  140  App.  Div.  874,  125  N.  Y.  Supp.  622;  Carroll  v.  Elec.  Co.,  47 
Or.  424,  84  Pac.  389,  6  L.  R.  A.  (N.  S.)  290 ;  Requena  de  Molina  v.  Light,  etc., 
Co.,  4  Porto  Rico  Fed.  356 ;  Billington  v.  R.,  etc.,  Co.,  137  Wis.  416,  119  N.  W. 
127 ;  Junior  v.  Missouri  Elec.  etc.,  Co.,  127  Mo.  79,  29  S.  W.  988 ;  Tri-City  Ry. 
Co.  V.  Killeen,  92  111.  App.  57 ;  Dansville  St.  Car.  Co.  v.  Watkins,  97  Va.  713, 
34  S.  E.  884 ;  Anderson  v.  Jersey  City  Elec,  etc.,  Co.,  64  N.  J.  Law,  664,  46 
Atl.  593;  Wood  v.  Diamond  Elec.  Co.,  185  Pa.  529,  39  Atl.  1111;  Stark  v. 
Muskegon  Tr.  Co.,  141  Mich.  575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.)  822,  and 
note.  But  see  Diller  v.  Northern  California  Power  Co.,  162  Cal.  531,  123 
Pac.  359,  Ann.  Cas.  1913D,  90S ;  Clements  v.  Louisiana  Elec,  etc.,  Co.,  44  La. 
Ann.  692,  11  South.  51,  16  L.  R.  A.  43,  32  Am.  St.  Rep.  .348 ;  Leavenworth  v. 
Ratchford,  5  Kan.  App.  150,  48  Pac  927;  Dillon  v.  Allegheny,  etc,  L.  Co., 
179  Pa.  482,  36  Atl.  164 ;  Snyder  v.  Mutual  Tel.  Co.,  135  Iowa,  215,  112  N.  W. 
776,  14  L.  R.  A.  (N.  S.)  321 ;  Musolf  v.  Duluth  Edison  Elec.  Co.,  108  Minn.  369, 
122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451 ;  Weaver  v.  Dawson  County,  etc.,  Tel. 
Co.,  82  Neb.  696,  118  N.  W.  650,  22  L.  R.  A.  (N.  S.)  1189,  not  bound  to  antici- 
pate danger ;  Ryan  v.  St.  Louis  Tr.  Co.,  190  Mo.  621,  89  S.  W.  865,  2  L.  R.  A. 
(N.  S.)  777;  Mangan  v.  Louisville  Elec  L.  Co.,  122  Ky.  476,  91  S.  W.  703, 
6  L.  R.  A.  (N.  S.)  459 ;  Ferrell  v.  Dixie  Cotton  Mills,  157  N.  C.  528,  73  S.  E. 
142,  37  L.  R.  A.  (N.  S.)  64;  Braun  v.  Buffalo,  etc,  Elec.  Co.,  200  N.  Y.  484. 
9i  N.  E.  206,  35  L.  R.  A.  (N.  S.)  10S9,  140  Am.  St.  Rep.  645,  21  Ann.  Cas.  370; 
Miner  v.  Franklin  County  Tel.  Co.,  83  Vt.  311,  75  Atl.  653,  26  L.  R.  A.  (N.  S.) 
Jones  Tel.(2d  Ed.)— IS 


274  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  210 

contact  with  the  appliances  voluntarily  and  unnecessarily  exposed 
himself  to  danger,^^*  and,  if  reasonable  men  might  honestly  differ 
on  the  question,  the  court  will  not  hold  the  plaintiff  guilty  of  con- 
tributory negligence  as  a  matter  of  law/'^'*  While  in  most  jurisdic- 
tions negligence  of  the  parents,  or  others  in  loco  parentis,  cannot  be 
imputed  to  a  child  to  support  the  plea  of  contributory  negligence, 

1195.  A  person  traveling  in  a  public  street  or  highway  has  a  right  to  assume 
that  it  is  free  from  dangerous  obstacles.  Brush  Elec.  Co.  v.  Kelley,  126  Ind. 
220,  25  N.  E.  812,  10  L.  R.  A.  250;  Suburban  Elec.  Co.  v.  Nugent,  5S  N.  J. 
Law,  658.  34  Atl.  1069,  32  L.  R.  A.  700 ;  Hovey  v.  Michigan  Tel.,  etc.,  Co.,  124 
Mich.  607,  83  N.  W.  600 ;  Devlin  v.  Beacon  Light  Co.,  192  Pa.  188,  43  Atl.  962. 
15  8  Clements  v.  Louisiana  Elec.  L.  Co.,  44  La.  Ann.  692,  11  South.  51,  32 
Am.  St.  Rep.  348,  16  L.  R.  A.  43;  Wolpers  v.  New  York,  etc.,  Elec.  L.,  etc., 
Co.,  91  App.  Div.  424,  86  N.  Y.  Supp.  845;  Pierce  v.  Gas,  etc.,  Co.,  161  Cal. 
176,  118  Pac.  700;  Tackett  v.  Henderson  Bros.  Co.,  12  Cal.  App.  658,  108 
Pac.  151;  Lighting  Co.  v.  Tyler,  177  Ind.  278,  96  N.  E.  768;  Tel.  Co.  v.  West- 
cott,  124  Ky.  684,  99  S.  W.  1153,  30  Ky.  Law  Rep.  922 ;  Lydon  v.  Ilium.  Co., 
209  Mass.  529,  95  N.  E.  936 ;   Gilbert  v.  Elec.  Co.,  93  Minn.  99,  100  N.  W.  653, 

106  Am.  St.  Rep.  430 ;  Trout  v.  Gaslight  Co.,  151  Mo.  App.  207,  132  S.  W.  58 ; 
Goodwin  v.  Tel.  Co.,  157  Mo.  App.  596,  138  S.  W.  940;  Campbell  v.  R.  Co., 
243  Mo.  141,  147  S.  W.  788;  Buckley  v.  Lighting  Co.,  93  App.  Div.  436,  87 
N.  Y.  Supp.  763 ;  McCabe  v.  Lighting  Co.,  26  R.  I.  427,  59  Atl.  112 ;  Milne 
V.  Tel.  Co.,  29  R.  I.  504,  72  Atl.  716;  Ice  Co.  v.  Moses  (Tex.  Civ.  App.)  134 
S.  W.  379;  Drown  v.  Tel.,  etc.,  Co.,  80  Vt.  1,  66  Atl.  801;  Railroad  Co.  v. 
Rubin,  102  Va.  809,  47  S.  E.  834 ;  Danville  v.  Thornton,  110  Va.  541,  66  S.  E. 
839 ;  Dover  v.  Elec.  Co.  (C.  C.)  155  Fed.  256 ;  Randall  v.  Ahearn,  34  Can.  S. 
Ct.  698. 

159  Jones  v.  Finch,  128  Ala.  217,  29  South.  182;  Giraudi  v.  Elec.  Imp.  Co., 

107  Cal.  120,  40  Pac.  108,  48  Am.  St.  Rep.  114,  28  L.  R.  A.  596 ;  Denver  Tr.  Co. 
V.  Reid,  4  Colo.  App.  53,  35  Pac.  269 ;  Brush  Elec.  L.  Co.  v.  Kelley,  126  Ind. 
220,  25  N.  E.  812,  10  L.  R.  A.  250;  Leavenworth  Coal  Co.  v.  Ratchford,  5  Kan. 
App.  150,  48  Pac.  927;  Williams  v.  Louisiana  Elec.  L.,  etc.,  Co.,  43  La.  Ann. 
295,  8  South.  938;  Suburban  Elec.  Co.  v.  Nugent.  58  N.  J.  Law,  658,  34  Atl. 
1069,  32  L.  R.  A.  700;  Dillon  v.  Allegheny  County  L.'Co.,  179  Pa.  482,  36  Atl. 
164 ;  Hayues  v.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  41  Am.  St.  Rep. 
786,  26  L.  R.  A.  810 ;  Denver  v.  Sherret,  88  Fed.  226,  31  C.  C.  A.  499 ;  Pierce  v. 
Gas,  etc.,  Co.,  161  Cal.  176,  118  Pac.  700 ;  Prince  v.  Light  Co.,  201  Mass.  276, 
87  N.  E.  558 ;  Hodgins  v.  Bay  City,  156  Mich.  687,  121  N.  W.  274,  132  Am.  St. 
Rep.  546 ;  Smith  v.  Tel.  Co.,  113  Mo.  App.  429,  87  S.  W.  71 ;  Sommer  v.  Service 
Corp.,  79  N.  J.  Law,  349,  75  Atl.  892 ;  Harrington  v.  Wadesboro,  153  N.  C.  437, 
69  S.  E.  399 ;  Frantz  v.  Elec.  Co.,  231  Pa.  589,  80  Atl.  1106 ;  Light,  etc.,  Co.  v. 
Arntson,  157  Fed.  540,  87  C.  C.  A.  1 ;  Dunn  v.  Cavanaugh,  185  Fed.  451,  107 
C.  C.  A.  521 ;  Tel.,  etc.,  Co.  v.  Davis,  12  Ga.  App.  28,  76  S.  B.  786 ;  Gas,  etc., 
Co.  V.  Dibka,  54  Ind.  App.  248,  100  N.  B.  877 ;  State  v,  Mfg.  Co.,  118  Md.  521, 
85  Atl.  615. 

Right  to  assume  that  electrical  appliances  in  order.  Mangan  v.  Light  Co., 
122  Ky.  476,  91  S.  W.  703,  29  Ky.  Law  Rep.  38,  6  L.  R.  A.  (N.  S.)  459;  Haus- 
ler  V.  Elec.  Co.,  144  111.  App.  643;  Light  Co.  v.  Dean,  142  Ky.  67b,  134  S.  W. 
1115 ;  Ryan  v.  Transit  Co.,  190  Mo.  621,  89  S.  W.  865,  2  L.  R.  A.  (N.  S.)  777 ; 


§    210)  LIABILITY   FOR   INJURIES  275 

when  the  action  is  for  the  child's  benefit/®*'  yet  when  the  action  is 
by  the  parent,  in  his  own  right,  or  for  his  benefit,  the  contributory 
neghgence  of  the  parent  may  be  shown  in  evidence  in  bar  of  the 
action,  and  this  although  the  action  is  brought  by  one  parent  and 
the  negligence  was  that  of  another."^  And  the  negligence  of  the 
company's  servant  may  be  imputed  to  the  company.^*'-  In  cases 
where  the  defense  of  contributory  negligence  is  set  up  by  the  com- 
pany, it  will  usually  be  a  question  of  fact  to  be  settled  by  a  jury.^*^^ 

Clements  v.  Louisiana  Elec.  L.  Co.,  44  La.  Ann.  692,  11  Sonth.  .51,  32  Am.  St. 
Rep.  348,  16  L.  R.  A.  4.3 ;  Knowlton  v.  Des  Moines  Edison  L.  Co.,  117  Iowa, 
451,  90  N.  W.  SIS ;  Mitcliell  v.  Raleigh  Elec.  Co.,  129  N.  C.  166,  39  S.  E.  801, 
85  Am.  St.  Rep.  735,  55  L.  R.  A.  39S ;  Thomas  v.  Wheeling  Elec.  Co.,  54  W.  Va. 
395,  46  S.  E.  217 ;  White  v.  Elec.  Co.,  75  Wash.  139,  134  Pac.  807. 

Failure  to  protect  hands  does  not  necessarily  constitute  negligence.  Snyder 
V.  Mutual  Tel.  Co.,  135  Iowa,  215,  112  N.  W.  776,  14  L.  R.  A.  (N.  S.)  321; 
Trout  V.  Gaslight  Co.,  151  Mo.  App.  207,  132  S.  W.  58;  Paine  v.  Elec.  111.,  etc., 
Co.,  64  App.  Div.  477,  72  N.  Y.  Supp.  279 ;  Geismann  v.  Missouri  Edison  Elec. 
Co.,  173  Mo.. 654,  73  S.  W.  654;  Kelly  v.  Elec.  Co.,  167  111.  App.  210. 

i«o  Flaherty  v.  Butte  Elec.  R.  Co.,  40  Mont.  454,  107  Pac.  416,  135  Am.  St. 
Rep.  630 ;  Haynes  v.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  26  L.  R.  A. 
810,  41  Am.  St.  Rep.  786.  See  note  to  Hampel  v.  Detroit,  etc.,  R.  Co.,  110  Am. 
St.  Rep.  278,  for  cases  collated  on  subject.  But  see,  contra,  Mayor,  etc.,  of 
Cumberland  v.  Lottig,  95  Md.  42,  51  Atl.  841.  Child  may  be  negligent  itself. 
Johnston  v.  Elee.  L.  Co.,  78  Neb.  24,  27,  110  N.  W.  711,  113  N.  W.  526,  17  L. 
R.  A.  (N.  S.)  435. 

161  See  West.  U.  Tel.  Co.  v.  Hoffman,  SO  Tex.  420,  15  S.  W.  1048,  26  Am.  St. 
Rep.  759.  See  Ruehl  v.  Ledgerwood  Rural  Tel.  Co.,  23  N.  D.  6,  135  N.  W.  793, 
Ann.  Cas.  1914C,  680,  not  negligence  to  play  In  yard  while  poles  are  being 
constructed ;  to  same  effect  Ferrell  v.  Dixie  Cotton  Mills,  157  N.  C.  528,  73  S. 
E.  142,  37  L.  R.  A.  (N.  S.)  64. 

162  Harrison  v.  Kansas  City  Elec.  L.  Co.,  195  Mo.  606,  93  S.  W.  951,  7  L.  R. 
A.  (N.  S.)  293,  negligence  of  child  not  imputed  to  its  father. 

163  Thomas  v.  West.  U.  Tel.  Co.,  100  Mass.  156;  Frie.senhan  v.  Michigan  Tel. 
Co.,  134  Mich.  292,  96  N.  W.  501 ;  Kyes  v.  Valley  Tel.  Co.,  132  Mich.  281,  93  N. 
W.  623 ;  Nebraska  Tel.  Co.  v.  Jones,  60  Neb.  396,  83  N.  W.  197 ;  Campbell  v. 
Delaware,  etc.,  Tel.,  etc.,  Co.,  70  N.  J.  Law,  195,  56  Atl.  303 ;  New  York,  etc., 
Tel.  Co.  V.  Bennett,  62  N.  J,  Law,  742,  42  Atl.  759 ;  Little  v.  Central  Dist.,  etc., 
Tel.  Co.,  213  Pa.  229,  62  Atl.  848 ;  Alice,  etc.,  Tel.  Co.  v.  Billingsley,  33  Tex. 
Civ.  App.  452,  77  S.  W.  255 ;  Randall  v.  Northwestern  Tel.  Co.,  54  Wis.  140,  11 
N.  W.  419,  41  Am.  St.  Rep.  17 ;  Dobbins  v.  Tel.  Co.,  163  Ala.  222,  50  South. 
919,  136  Am.  St.  Rep.  69;  Longlevy  v.  Tel.,  etc.,  Co.,  205  Mass.  46,  90  N.  E. 
1145;  Snee  v.  Tel.  Co.,  24  S.  D.  361,  123  N.  W.  729;  Texarkana  Gas,  etc.,  Co. 
V.  Orr,  59  Ark.  215,  27  S.  W.  66,  43  Am.  St.  Rep.  30 ;  Bergin  v.  Southern,  etc., 
Tel.  Co.,  70  Conn.  54,  38  Atl.  888,  39  L.  R.  A.  192 ;  Cosgrove  v.  Kennebec  L., 
etc.,  Co.,  98  Me.  473,  57  Atl.  841 ;  Reagan  v.  Boston  Elec,  etc.,  Co.,  167  Mass. 
406,  45  N.  E.  743 ;  Proctor  v.  San  Antonio  St.  R.  Co.,  26  Tex.  Civ.  App.  148,  62 
S.  W.  938,  939 ;  Southern  Bell  Tel.  etc.,  Co.  v.  Davis,  12  Ga.  App.  28,  76  S.  E. 
786 ;  Michigan,  etc.,  Elec.  Co.  v.  Dibka,  54  Ind.  App.  248,  100  N.  E.  877 ;  Lewis 
V.  Bowling  Green  Gaslight  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.) 


276  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  211 

In  the  absence  of  Employers'  Liability  Laws,  or  other  statutes  abro- 
gating the  defense,  an  employe  may  not  recover  from  his  company 
damages  for  injuries,  where  his  negligence  contributed  to  the  re- 
ceipt of  the  injury.^^* 

§  211.  Injuries  to  servants — under  common  law. — The  question 
whether  servants  or  employes  of  telegraph,  telephone,  and  electri- 

1169;  Goodwin  v.  Columbia  Tel.  Co.,  157  Mo.  App.  596,  138  S.  W.  940;  Miller 
V.  Lewiston  Elec.  L.,  etc.,  Co.,  212  Pa.  59.3,  62  Atl.  32 ;  Fox  v.  Manchester,  183 
N.  y.  141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474 ;  Braun  v.  Elec.  Co.,  200  N.  Y. 
484,  94  N.'  E.  206,  35  L.  R.  A.  (N.  S.)  1089,  140  Am.  St.  Rep.  645,  21  Ann.  Cas. 

S70. 

Contributory  negligence  as  a  question  of  law,  see  Citizens'  Tel.  Co.  v.  West- 
cott,  124  Ky.  6S4,  99  S.  W.  1153,  30  Ky.  Law  Rep.  922 ;  Johnston  v.  New  Oma- 
ha Thomson-Houston  E.  L.  Co.,  78  Neb.  27,  113  N.  W.  526,  17  L.  R  A.  (N.  S.) 

435. 

164  Question  for  jury,  O'Donnel  v.  Louisville  Elec.  Lt.  Co.,  21  Ky.  Law  Rep. 
1362,  55  S.  W.  202 ;  Martin  v.  New  Jersey  St.  Ry.  Co.,  81  N.  J.  Law,  562,  80 
Atl.  477,  Ann.  Cas.  1912D,  212 ;  however  it  may  be  a  question  of  law,  Dixon  v. 
Louisiana  Elec.  Lt.,  etc.,  Co.,  47  La.  Ann.  1147,  17  South.  696 ;  Mulligan  v.  Mc- 
Caffery,  182  Mass.  420,  65  N.  E.  831 ;  handling  of  wire  itself  not  contributory 
negligence,  Myhan  v.  Louisiana  Elec.  Lt.,  etc.,  Co.,  41  La.  Ann.  964,  6  South. 
799,  17  Am.  St.  Rep.  436,  7  L.  R.  A.  122 ;  may  assume  that  company  has  not 
enhanced  danger,  Birmingham  Ry.,  etc.,  Co.  v.  Canfield,  177  Ala.  422,  59  South. 
217 ;  Myhan  v.  Louisiana  Elec,  etc.,  Co.,  supra ;  Hubbard  v.  Central,  etc.,  R. 
Co.,  131  Ga.  658,  63  S.  E.  19,  19  L.  R.  A.  (N.  S.)  738,  Alabama's  Liability  Act. 

Failure  to  use  ruljber  gloves  when  necessary,  contributory  negligence.  Ju- 
nior V.  Missouri,  etc.,  P.  Co.,  127  Mo.  79,  29  S.  W.  988 ;  Larkin  v.  Queensbor- 
ough  Gas,  etc.,  Co.,  158  App.  Div.  414,  143  N.  Y.  Supp.  578 ;  Hart  v.  Allegheny 
Co.,  Lt.  Co.,  201  Pa.  234,  50  Atl.  1010 ;  the  rule  otherwise  if  the  servant  had 
no  reasonable  knowledge  that  the  wire  was  charged,  Harroun  v.  Brush  Elec, 
etc,  Co.,  12  App.  Div.  126,  42  N.  Y.  Supp.  716 ;  Marion  Lt.,  etc.,  Co.  v.  Vermil- 
lion, 51  Ind.  App.  677,  99  N.  E.  55,  100  N.  E.  100 ;  Id.,  94  N.  E.  1038. 

Use  of  safety  helt.— The  failure  to  use  safety  belt  when  necessary  contribu- 
tory negligence.  Roberts  v.  Missouri,  etc.,  Tel.  Co.,  166  Mo.  370,  66  S.  W.  155 ; 
Smithgall  v.  American  Union  Tel.  Co.,  45  Pa.  Super.  Ct.  378,  will  not  ordina- 
rily be  inferred. 

Contact  with  appliances  known  to  he  dangerous. — Should  not  be  allowed  to 
recover  for  injuries  therefrom.  Sweezo  v.  Cheyboygan  Elec.  Lt.,  etc.,  Co.,  166 
Mich.  25,  131  N.  W.  125;  Anglin  v.  American  Const.,  etc.,  Co.,  109  App.  Div. 
237,  96  N.  Y.  Supp.  49 ;  Woelflen  v.  Lewiston,  etc.,  Co.,  49  Wash.  407,  95  Pac. 
493 ;  Ergo  v.  Merced,  etc.,  Elec.  Co.,  161  Cal.  334,  119  Pac.  101,  41  L.  R.  A.  (N. 
S.)  79 ;  Epperson  v.  Postal  Tel.  Cable  Co.,  155  Mo.  346,  50  S.  W.  795,  55  S.  W. 
1050.    See  East  Tennessee  Tel.  Co.  v.  Bowen,  143  Ky.  777,  137  S.  W.  523. 

Contact  with  appliance  not  known  to  6e  dangerous.— ^honld  be  allowed  to 
recover  damages  for.  Jordan  v.  Missouri,  etc.,  Tel.  Co.,  136  Mo.  App.  192,  116 
S.  W.  432 ;  Poor  v.  Madison  River  P.  Co.,  38  Mont.  341,  99  Pac.  947 ;  Latimer  v. 
General  Elec.  Co.,  81  S.  C.  374,  62  S.  E.  438 ;  Cessna  v.  Metropolitan  St.  Ry., 
118  Mo.  App.  6.59,  95  S.  W.  277 ;  Smith  v.  Milwaukee  Elec,  etc.,  Lt.  Co.,  127 
Wis.  253,  106  N.  W.  829,  question  for  jury ;  Reeve  v.  Colusa  Gas,  etc,  Co.,  152 


§    211)  LIABILITY    FOR   INJURIES  277 

cal  companies  may  recover  damages  from  them  for  injuries  sus- 
tained while  discharging  their  duties  thereunder,  must  be  settled 
by  the  rules  applicable  to  master  and  servant.^*'"     Where  this  rule 

Cal.  99,  92  Pac.  89 ;  Tel.  Co.  v.  St.  Clair,  168  Fed.  645,  94  C.  C.  A.  109 ;  Ha- 
worth  V.  Mineral  Belt  Tel.  Co.,  105  Mo.  App.  161,  79  S.  W.  727 ;  Raab  v.  Hud- 
son River  Tel.  Co.,  139  App.  Div.  286,  123  N.  Y.  Supp.  1037;  Southern  Bell 
Tel.,  etc.,  Co.  v.  Shamos,  12  Ga.  App.  403,  77  S.  E.  312,  "riding  the  cable"  ; 
Grimm  v.  Omaha  Elec,  etc.,  Co.,  79  Neb.  387,  395,  112  N.  W.  620,  114  N.  W. 
769;  Memphis  Consol.  Gas,  etc.,  Co.  v.  Simpson  (Tenn.)  109  S.  W.  1155,  where 
defect  or  danger  may  be  observed,  rule  otherwise. 

Touching  xoirc  while  grounded. — Where  an  experienced  lineman  knowingly 
touches  grounded  wire,  guilty  of  contributory  negligence.  Smart  v.  Louisiana 
Elec.  Lt.  Co.,  47  La.  Ann.  809,  17  South.  346 ;  Piedmont  Elec.  111.  Co.  v.  Pat- 
terson, 84  Ya.  747,  6  S.  E.  4. 

Defect  in  pole,  failure  to  discover. — Defect  in  a  pole  which  could  have  been 
discovered  by  reasonable  inspection,  failure  so  to  do  by  an  experienced  line- 
man who  is  injured  as  the  result,  cannot  recover.  Livingway  v.  Houghton  Co., 
etc.,  E.  Co.,  145  Mich.  86,  108  N.  W.  662 ;  West.  U.  Tel.  Co.  v.  Holtby,  29  Ky. 
Law  Rep.  523,  93  S.  W.  652 ;  Walsh  v.  New  York,  etc.,  R.  Co.,  80  App.  Div.  316, 
80  N.  Y.  Supp.  767 ;  Terrell  v.  Washington,  158  N,  C.  281,  73  S.  E.  888 ;  Jones 
V.  Postal  Tel.  Cable  Co.,  91  S.  C.  273,  74  S.  E.  492 ;  Berley  v.  West.  U.  Tel. 
Co.,  82  S.  C.  360,  64  S.  E.  157 ;  Abiline,  etc.,  Water  Co.  v.  Robinson,  62  Tex. 
Civ.  App.  219,  131  S.  W.  299 ;  Southern  Bell  Tel.,  etc.,  Co.  v.  Clements,  98  Va. 
1,  34  S.  E.  951 ;  Johnston  v.  Syracuse  Lighting  Co.,  193  N,  Y.  592,  86  N.  B.  539, 
127  Am.  St.  Rep.  988,  defect  in  cross-arm. 

Disobedience  of  orders  or  rules. — When  employe  disobeys  the  orders  of  the 
company  or  fails  to  observe  its  rules,  cannot  ordinarily  recover.  West  Ken- 
tucky Coal  Co.  V.  Kuykendall,  151  Ky.  384,  151  S.  W.  928 ;  Lapslely  v.  United 
Electric  Co.,  79  N.  J,  Law,  131,  74  Atl.  283 ;  Illinois  Steel  Co.  v.  Kinuare,  100 
111.  App.  208 ;  Mclsaac  v.  Electric  Co.  (R.  I.)  83  Atl.  754,  if  the  rules  have  not 
been  rescinded  or  abrogated;  Southern  Bell  Tel.,  etc.,  Co.  v.  Shamos,  12  Ga. 
App.  463,  77  S.  E.  312 ;  West.  U.  Tel.  Co.  v.  Tweed  (Tex.  Civ.  App.)  138  S.  W. 
1155. 

Employe  acting  in  emergencies. — Not  ordinarily  guilty  of  contributory  neg- 
ligence. Sandquist  v.  Independent  Tel.  Co.,  38  Wash.  313,  80  Pac.  539 ;  Kan- 
sas City,  etc.,  Ry.  Co.  v.  Rogers,  203  Fed.  462,  121  C.  C.  A.  586;  Jacksonville 
Elec.  Co.  V.  Sloan,  52  Fla.  257,  42  South.  510;  Mehan  v.  Lowell  Elec,  etc., 
Coi-p.,  192  Mass.  53,  78  N.  E.  385,  question  for  jury. 

185  West.  U.  Tel.  Co.  v.  Tracy,  114  Fed.  282,  52  C.  C.  A.  168 ;  Bergin  v.  South- 
ern New  Eng.  Tel.  Co.,  70  Conn.  54,  38  Atl.  888,  39  L.  R.  A.  192  ;  McGorty  v. 
Southern  New  Eng.  Tel.  Co.,  69  Conn.  635,  38  Atl.  359,  61  Am.  St.  Rep.  62; 
Jenney  Elec.  L.,  etc.,  Co.  v.  Murphy,  115  Ind.  566,  IS  N.  E.  30;  Clairaiu  v. 
West.  U.  Tel.  Co.,  40  La.  Ann.  178,  30  South.  625 ;  Maryland  Tel.,  etc.,  Co.  v. 
Cloman,  97  Md.  620,  55  Atl.  681 ;  Flood  v.  West.  U.  Tel.  Co.,  61  Hun,  619,  15 
N.  Y.  Supp.  400 ;  Chalmers  v.  Paterson,  etc.,  Tel.  Co.,  66  N.  J.  Law,  41,  48  Atl. 
993 ;  Postal  Tel.  Cable  Co.  v.  Coote  (Tex.  Civ.  App.)  57  S.  W.  912 ;  General 
Elec.  Co.  V.  Murray,  32  Tex.  Civ.  App.  226,  74  S.  W.  50 ;  Davis  v.  Port  Huron 
Engine,  etc.,  Co.,  126  Mich.  429,  85  N.  W.  1125 ;  Carr  v.  Manchester  Elec.  Co., 
70  N.  H.  308,  48  Atl.  286 ;  Junior  v.  Missouri  Elec,  etc,  Co.,  127  Mo.  79,  29  S. 
W.  988 ;  Newnom  v.  Southwestern,  etc.,  Tel.  Co.  (Tex.  Civ.  App.)  47  S.  W.  009 ; 
Pell  Tel.  Co.  v.  Detharding,  148  Fed.  371,  78  C.  C.  A.  185;    Ambre  v.  Postal 


278  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  211 

has  not  been  changed  by  legislation,  it  is  well  settled  that  a  servant 
assumes  the  obvious  risks  of  the  service  into  which  he  enters,  even 
if  the  business  be  ever  so  dangerous. ^^^  This  is  implied  in  his  vol- 
untary undertaking,  and  it  comes  within  a  principle  which  has  a 
much  broader  and  more  general  application,  and  which  is  expressed 
in  the  maxim,  Volenti  non  fit  injuria.  The  reason  on  which  it  is 
founded  is  that,  whatever  may  be  the  master's  general  duty  to  con- 
duct his  business  safely  in  reference  to  persons  who  may  be 
affected  by  it,  he  owes  no  legal  duty  in  that  respect  to  one  who 
contracts  to  work  in  the  business  as  it  is.^®''  So  the  general  rule 
is  that  an  experienced  lineman  assumes  the  risk  of  the  breaking  of 
any  pole  he  is  called  upon  to  climb  in  the  course  of  his  employment, 
if  the  defect  which  caused  the  pole  to  break  was  not  of  original 
construction,  and  that,  therefore,  the  company  owes  him  no  duty  to 
inspect  the  pole  before  sending  him  upon  it.^''*'     However,  the  rule 

Tel.  Cable  Co.,  43  Ind.  App.  47,  86  N.  E.  871 ;  Cahill  v.  New  Eng.,  etc.,  Tel.  Co., 
193  Mass.  415,  79  N.  E.  821 ;  Shore  v.  Spokane,  etc.,  R.  Co.,  57  Wash.  212,  106 
Pac.  753 ;  Chisholm  v.  New  England,  etc.,  Tel.  Co.,  17G  Mass.  125,  57  N.  E.  383 ; 
Fritz  V.  Salt  Lake,  etc.,  Elec.  Co.,  18  Utah,  493,  56  Pac.  90;  De- Kallands  v. 
Washtenaw  Home  Tel.  Co.,  153  Mich.  25,  116  N.  W.  564,  15  Ann.  Cas.  593; 
Harrison  v.  Detroit,  etc.,  R.  Co.,  137  Mich.  78,  100  N.  W.  451 ;  Mobile  Elec.  Co. 
V.  Sanges,  169  Ala.  341,  53  South.  176.  Ann.  Cas.  1912B,  461. 

160  Southwestern  Tel.  Co.  v.  Woughter,  56  Ark.  206,  19  S.  W.  575;  Ambre  v. 
Postal  Tel.  Cable  Co.,  43  Ind.  App.  47,  86  N.  E.  871 ;  Clark  v.  Johnson  Co.  Tel. 
Co.,  137  Iowa,  81, 114  N.  W.  554  ;  Barto  v.  Iowa  Tel.  Co.,  126  Iowa,  241,  101  N.  W. 
876,  106  Am.  St.  Rep.  347 ;  West.  U.  Tel.  Co.  v.  McMullen,  58  N.  J.  Law,  155, 
33  Atl.  384,  32  L.  R.  A.  351 ;  West.  U.  Tel.  Co.  v.  Burton,  53  Tex.  Civ.  App. 
378,  115  S.  W.  364 ;  Miner  v.  Franklin  Co.  Tel.  Co.,  83  Vt.  311,  75  Atl.  653,  26 
L.  R.  A.  (N.  S.)  1195 ;  Anderson  v.  Inland  Tel.  Co.,  19  Wash.  575,  53  Pac.  657, 
41  L.  R.  A.  410.  He  does  not  assume  the  risk  of  his  employer's  negligence,  Er- 
win  V.  Missouri,  etc.,  Tel.  Co.,  173  Mo.  App.  508,  158  S.  W.  913,  unless  he  has 
actual  knowledge  thereof  or  are  so  obvious  as  to  charge  him  with  constructive 
notice,  Burke  v.  Union  Coal,  etc.,  Co.,  157  Fed.  178,  84  C.  C.  A.  626 ;  Kath  v. 
East  St.  Louis,  etc.,  R.  Co.,  232  111.  126,  83  N.  E.  533,  15  L.  R.  A.  (N.  S.)  1109 ; 
West.  U.  Tel.  Co.  v.  McMullen,  supra ;  Mobile  Elec,  Co.  v.  Sanges,  169  Ala.  341» 
53  South.  176,  Ann.  Cas.  1912B,  461 ;  Willis  v.  Plymouth,  etc.,  Tel.  Co.,  75  N. 
H.  453,  75  Atl.  877,  30  L.  R.  A.  (N.  S.)  477 ;  McGuire  v.  Bell  Tel.  Co.,  167  N.  Y. 
208,  60  N.  E.  433,  52  L.  R.  A.  437 ;  Nordstrom  v.  Spokane,  etc.,  R.  Co.,  55  Wash. 
521,  104  Pac.  809,  25  L.  R.  A.  (N.  S.)  364 ;  Consolidated  Gas,  etc.,  Co.  v.  Cham- 
bers, 112  Md.  324,  75  Atl.  241,  26  L.  R.  A.  (N.  S.)  509 ;  Lynch  v.  Saginaw  Val- 
ley Tr.  Co.,  153  Mich.  174,  116  N.  W.  983,  21  L.  R.  A.  (N.  S.)  774  ;  Ashton  v. 
Boston,  etc.,  R.  Co.,  222  Mass.  65,  109  N.  E.  820,  L.  R.  A.  1916B,  1281 :  Borell 
v.  Cumberland  Tel.,  etc.,  Co.,  133  La.  630.  63  South.  247,  L.  R.  A.  1916D,  1064 ; 
Perry  v.  Ohio  Valley  Elect.  R.  Co.,  72  W.Va.  282,  78  S.  E.  692,  L.R.A.  1016D,  9G2.' 

167  See  Fitzgerald  v.  Connecticut  Paper  Co.,  155  Mass.  155,  29  N.  E.  464,  31 
Am.  St.  Rep.  537 ;  Rolseth  v.  Smith,  38  Minn.  14,  35  N.  W.  565,  8  Am.  St.  Rep. 
637. 

168  Britton  v.  Central  U.  Tel.  Co.,  131  Fed.  844,  65  C.  C.  A.  598 ;  Mobile  Elec. 


§    211)  LIABILITY   FOR   INJURIES  279 

would  be  otherwise  if  it  is  shown  that  it  was  the  custom  and  prac- 
tice of  the  company  to  inspect  its  poles  ;^*'''    and  some  authorities 

Co.  V.  Sanges,  169  Ala.  341,  53  South.  17G,  Ann.  Gas.  1912B,  461;  Dixon  v. 
West.  U.  Tel,  Co.  (C.  C.)  68  Fed.  6.30 ;  Mc-Gorty  v.  Southern  New  Eng.  Tel.  Co., 
69  Conn.  635,  38  Atl.  359,  61  Am.  St.  Rep.  62 ;  Lynch  v.  Saginaw  Valley  Tr. 
Co.,  153  Mich.  174,  116  N.  W.  983,  21  L.  R.  A.  (N.  S.)  774 ;  Krimmel  v.  Edison 
Ilium.  Co.,  130  Mich.  613,  90  N.  W.  336 ;  Saxton  v.  Northwestern  Tel.  Exch. 
Co.,  81  Minn.  314,  84  N.  W.  109;  Leach  v.  Central  New  York  Tel.,  etc.,  Co.,  81 
App.  Div.  637,  SO  N.  Y.  Supp.  1037 ;  Cumberland  Tel.  Co.  v.  Loomis,  87  Tenn. 
504,  11  S.  W.  356 ;  Southwestern,  etc.,  Tel.  Co.  v.  Tucker,  102  Tex.  224,  114  S. 
W.  790,  reversed  50  Tex.  Civ.  App.  476,  110  S.  W.  481 ;  Kellogg  v.  Denver  City 
Tramway  Co.,  18  Colo.  App.  475,  72  Pac.  609 ;  Peoria  Gen.  Elec.  Co.  v.  Gallag- 
her, 68  111.  App,  248 ;  Ewald  v.  Michigan  C.  R.  Co.,  107  111.  App.  294 ;  Evans- 
ville,  etc.,  L.  Co.  v.  Raley,  38  Ind.  App.  342,  76  N.  E.  548,  78  N.  E.  254 ;  Mc- 
Isaac  v.  Northampton  Elec.  L.  Co.,  172  Mass.  89,  51  N.  E.  524,  70  Am.  St.  Rep. 
244 ;  Tanner  v.  New  York,  etc.,  R.  Co.,  180  Mass.  572,  62  N.  B.  993 ;  Broderick 
v,  St,  Paul  City  R.  Co.,  74  Minn,  163,  77  N,  W.  28 ;  De  Frates  v.  Central  U. 
Tel.  Co.,  243  111.  356,  90  N.  E.  719;  Eigenbrod  v.  Cumberland,  etc.,  Tel.  Co.,  121 
La.  228,  46  South.  219;  Goddard  v.  Interstate  Tel.  Co.,  56  Wash.  536,  106  Pac. 
188.  But  see  Jennison  v.  Waltham  Gaslight  Co.,  201  Mass.  352,  87  N.  E.  594 ; 
Clark  V.  Johnson  County  Tel.  Co.,  146  Iowa,  428,  123  N.  W.  327;  Holden  v. 
Gary  Tel.  Co.,  109  Minn.  59,  122  N.  W.  1018.  Should  make  inspection  himself. 
La  Duke  v.  Hudson  R.  Tel.  Co.,  124  App.  Div.  106,  108  N.  Y,  Supp.  189 ;  Sias 
V.  Consol.  L.  Co.,  73  Vt.  35,  50  Atl.  554 ;  Consol.  Gas,  etc.,  Co.  v.  Chambers,  112 
Md.  324,  75  Atl.  241,  26  L.  R.  A.  (N.  S.)  509,  although  poles  belong  to  another 
company.  But  the  means  and  opportunity  must  be  given  to  lineman  to  make 
such  in.spectiou.  La  Duke  v.  Hudson  R.  Tel.  Co.,  136  App.  Div.  136,  120  N.  Y. 
Supp.  171 ;  McGuire  v.  Bell  Tel.  Co.,  167  N.  Y.  208,  60  N.  E.  433,  52  L.  R.  A. 
437 ;  Riker  v.  New  York,  etc.,  R,  Co.,  64  App.  Div.  357,  72  N.  Y,  Supp.  168 ; 
Munroe  v,  Fred  T.  Ley  &  Co.,  156  Fed.  468,  84  C,  C,  A,  278 ;  Lynch  v.  Saginaw 
Valley  Tr.  Co.,  153  Mich.  174,  116  N.  W.  983,  21  L.  R.  A.  (N.  S.)  774;  Jones  v. 
Postal  Tel,  Cable  Co.,  91  S.  C.  273,  74  S.  E.  492 ;  Hord  v.  Pacific  Tel.,  etc.,  Co., 
68  Wash.  119,  122  Pac.  598. 

169  McGuire  v.  Bell  Tel.  Co.,  167  N.  Y.  208,  60  N.  E.  433,  52  L.  R.  A.  437. 
See,  also,  West.  U.  Tel.  Co.  v.  Tracy,  114  Fed.  282,  52  C.  G.  A.  168 ;  Cumber- 
land Tel.,  etc.,  Co.  v.  Bills,  128  Fed.  272,  62  C.  C.  A.  620;  Weiden  v.  Brush 
Elec,  L,  Co.,  73  Mich.  268,  .41  N.  W.  269 ;  Essex  County  Elec,  Co,  v,  Kelly, 
60  N,  J,  Law,  306,  37  Atl,  619;  Walsh  v.  New  York,  etc.,  R.  Co.,  80  App, 
Div,  316,  80  N.  Y.  Supp,  767;  ld„  178  N,  Y,  588,  70  N,  E,  1111;  McDonald  v. 
Postal  Tel,  Co.,  22  R.  I,  131,  46  Atl.  407 ;  West.  U.  Tel,  Co.  v,  Holtby,  29  Ky. 
Law  Rep.  523,  93  S,  W.  6.52;  Southern  Bell,  etc.,  Tel.  Co.  v.  Clements,  98 
Va.  1,  34  S.  E.  951 ;  Dixon  v.  West.  U.  Tel.  Co,  (C.  C)  71  Fed,  143,  rule  not 
affected  by  the  fact  that  the  poles  do  not  belong  to  employer ;  Jackson  Fibre 
Co,  V.  Meadows,  159  Fed.  110,  86  C.  C.  A.  300;  Munroe  v.  Ley  &  Co.,  156 
Fed.  468,  84  C.  C.  A.  278 ;  Mobile  Elec.  Co.  v.  Sanges,  169  Ala.  341,  53  South. 
176,  Ann.  Cas.  1912B,  461 ;  Southwestern  Tel.  Co.  v.  Woughter,  56  Ark.  206, 
19  S.  W.  575;  Mclsaac  v,  Northampton  Elec,  Lt,  Co,,  172  Mass.  89, 
51  N,  E.  524,  70  Am.  St.  Rep.  244 ;  Willis  v,  Plymouth,  etc,  Tel,  Co,,  75 
N,  H,  453,  75  Atl,  877,  30  L,  R.  A,  (N.  S.)  477 ;  Jones  v.  Postal  Tel,  Cable 
Co.,  91  S.  C.  273,  74  S.  E.  492 ;    Corby  v,  Missouri,  etc,  Tel,  Co,,  231  Mo.  417, 


280  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  211 

seem  to  impose  the  duty  of  inspecting  poles  upon  the  companies  as 
a  matter  of  law.^^"  The  same  rules  of  law  are  applicable  to  cross- 
arms/^^  and  to  spikes  or  steps  of  poles.^^-  But  it  seems  that  a  line- 
man will  not  be  held  to  assume  the  risks  arising  from  defects  in  the 
original  construction  of  the  poles  or  its  appurtenances ;  ^''^  nor  does 
the  rule  apply  to  the  case  of  inexperienced  linemen;  ^'^  nor  to  em- 

132  S.  W.  712;  Hulse  v.  Home  Tel.  Co.,  164  Mo.  App.  126,  147  S.  W.  1124; 
Southwestern  Tel.,  etc.,  Co.  v.  Tucker,  50  Tex.  Civ,  App.  476,  110  S.  W.  4S1 ; 
Murphy  v.  Pacific  Tel.,  etc.,  Co.,  68  Wash.  643,  124  Pac.  114. 

170  San  Antonio  Edison  Co.  v.  Dixon,  17  Tex.  Civ.  App.  320,  42  S.  W.  1009; 
Dupree  v.  Alexander,  29  Tex.  Civ.  App.  31,  68  S.  W.  739 ;  Clairaiu  v.  West. 
U.  Tel.  Co.,  40  La.  Ann.  178,  3  South.  625;  Berley  v.  West.  U.  Tel.  Co.,  82 
S.  C.  3G0.  64  S.  E.  157. 

171  Roberts  v.  Missouri,  etc.,  Tel.  Co.,  166  Mo.  371,  66  S.  W.  155;  Flood  v. 
West.  U.  Tel.  Co.,  131  N.  Y.  603,  30  N.  E.  196;  Johnston  v.  Syracuse  Light- 
ing Co.,  193  N.  Y.  592,  86  N.  E.  539,  127  Am.  St.  Rep.  988 ;  Southern  Bell  Tel. 
Co.  V.  Starnes,  122  Ga.  602,  50  S.  E.  343,  defect  concealed  by  paint;  lincoln 
Gas,  etc.,  L.  Co.  v.  Thomas,  74  Neb.  257,  104  N.  W.  153,  safety  belt  being  un- 
buckled by  pole,  company  not  liable ;  Consol.  Gas,  etc.,  Co.  v.  Chambers,  112 
Md.  324,  75  Atl.  241,  26  L.  R.  A.  (N.  S.)  509.  But  see  Indianapolis  Tel.  Co.  v. 
Sproul,  49  Ind.  App.  613,  93  N.  E.  463 ;  Jennison  v.  Waltham  Gas  Lt.  Co.,  201 
Mass.  352,  87  N.  E.  594;  Rutledge  v.  Swinney,  170  Mo.  App.  251,  156  S.  W. 
478 ;    McDonald  v.  Postal  Tel.  Co.,  22  R.  I.  131,  46  Atl.  407. 

172  Little  V.  Hyde  Park  Elec.  L.  Co.,  191  Mass.  386,  77  N.  E.  716;  Foley 
V.  Jersey  City  Elec.  L.  Co.,  54  N.  J.  Law,  411,  24  Atl.  487 ;  Gibbons  v.  Brush 
Elec.  111.  Co.,  36  App.  Div.  140,  55  N.  Y.  Supp.  378,  frame  and  hood  falling 
due  to  rusty  condition  of  screws  with  which  they  were  fastened  to  pole; 
Greene  v.  West.  U.  Tel.  Co.  (C.  C.)  72  Fed.  250,  insufficiently  guyed  "gin" 
pole;  Mulligan  v.  McCaffery,  182  Mass.  420,  65  N.  E.  831,  lineman  using  ap- 
pliances furnished  him  by  company  for  a  purpose  for  which  they  were  not 
intended,  company  not  liable;  Towne  v.  United  Elec,  etc.,  P.  Co.,  146  Cal. 
766,  81  Pac.  124,  70  L.  R.  A.  214,  2  Ann.  Cas.  905,  pole  falling  because  of 
pike  pole  used  by  fellow  servant,  not  penetrating  pole.  See  Blust  v.  Pacific 
Tel.  Co.,  48  Or.  34,  84  Pac.  847,  assumes  risk  of  cable  falling. 

173  Chisholm  v.  New  Eng.  Tel.  Co.,  185  Mass.  82,  69  N.  E.  1042;  Livingway 
V.  Houghton  County  St.  R.  Co.,  145  Mich.  86,  108  N.  W.  662 ;  Bland  v.  Shreve- 
port  Belt  R.  Co.,  48  La.  Ann.  1057,  20  South.  284,  36  L.  R.  A.  114;  Kelly  v. 
Erie,  etc.,  Tel.  Co.,  34  Minn.  321,  25  N.  W.  700;  Riker  v.  New  York,  etc., 
R.  Co.,  64  App.  Div.  357,  72  N.  Y.  Supp.  168.  See,  also,  Ault  v.  Nebraska  Tel. 
Co.,  82  Neb.  434,  118  N.  W.  73,  130  Am.  St.  Rep.  686;  Eastern  Kentucky 
Home  Tel.  Co.  v.  Mellon  (Ky.)  116  S.  W.  709 ;  McDonald  v.  Postal  Tel.  Co., 
22  R.  I.  131,  46  Atl.  407.  But  the  company  is  not  liable  for  latent  defects 
which  could  be  discovered  by  any  precaution  which  reason  could  prescrilie. 
Essex  County  Elec.  Co.  v.  Kelly,  57  N.  J.  Law,  100,  29  Atl.  427;  Maryland, 
etc.,  Tel.  Co.  v.  Cloman,  97  Md.  620,  55  Atl.  681;  Atlantic,  etc.,  R.  Co.  v. 
Reynolds,  117  Ga.  47,  43  S.  E.  456. 

174  Jackson  Fiber  Co.  v.  Meadows,  159  Fed.  110,  86  C.  C.  A.  300;  Lord  v. 
Wakefield,  185  Mass.  214,  70  N.  E.  123,  holding  that  he  should,  however,  ex- 
ercise precaution ;    West.  U.  Tel.  Co.  v.  Burgess,  108  Fed.  26,  47  C.  C.  A.  168^ 


§    211)  LIABILITY   FOR   INJURIES  281 

ployes  of  a  company  using  the  poles  and  cross-arms  of  another  com- 
pany which  is  being  sued.^^^  And  an  electric  company  owes  to  its 
employes  the  duty  of  exercising  a  very  high  degree  of  care  for  their 
protection  against  any  injury  arising  from  the  use  of  high  currents 
of  electricity.^'^*'  So  these  companies  must  take  precautions  to  pro- 
tect their  employes  from  injuries  from  the  accidental  crossing  or 
contact  of  wires  with  others  heavily  charged  with  electricity.^'" 
Moreover,  the  rule  that  a  master  is  responsible  for  dangerous  condi- 
tions existing  near  the  servant's  place  of  work  is  frequently  applied 
in  cases  where  a  telephone  or  telegraph  company  has  permitted  an 
electric  company  to  string  its  high-tension  wires  upon  the  poles  of 
the  former,  whose  servants  are  injured  thereby  ;^^^    however,  it  is 

writ  of  certiorari  denied  in  181  U.  S.  620,  21  Sup.  Ct.  924,  45  L.  Ed.  1031; 
Britton  v.  Central  U.  Tel.  Co.,  131  Fed.  844.  65  C.  C.  A.  598;  Dawson  v. 
Lawrence  Gaslight  Co.,  188  Mass.  481,  74  N.  E.  912 ;  Sias  v.  Consol.  Lighting 
Co.,  79  Vt.  224,  64  Atl.  1104;  Jennison  v.  Waltham  Gaslight  Co.,  201  Mass. 
352,  87  N.  E.  594;  Clark  v.  Johnson  County  Tel.  Co.,  146  Iowa,  428,  123 
N.  W.  327;  Holden  v.  Gary  Tel.  Co.,  109  Minn.  59,  122  N.  W.  1018;  La 
Duke  V.  Hudson  R.  Tel.  Co.,  136  App.  Div.  136,  120  N.  Y.  Supp.  171. 

1T5  Consol.  Gas,  etc.,  Elec,  etc.,  Co.  v.  Chambers,  112  Md.  324,  74  Atl.  241, 
26  L.  R.  A.  (N.  S.)  509 ;  New  York,  etc.,  Tel.  Co.  v.  Speicher,  59  N.  J.  Law, 
23,  39  Atl.  661,  not  liable  to  an  employ§  of  the  city.  See  Deuison,  etc.,  P.  Co. 
V.  Patton,  105  Tex.  621,  154  S.  W.  540,  45  L.  R.  A.  (N.  S.)  303;  Louisville 
Home  Tel.  Co.  v.  Beeler,  125  Ky.  366,  101  S.  W.  397;  Augusta  R.  Co.  v. 
Andrews,  89  Ga,  653,  16  S.  E.  203.  But  see  Dixon  v.  West.  U.  Tel.  Co.  (C.  C.) 
71  Fed.  143 ;  McGuire  v.  Bell  Tel.  Co.,  167  N.  Y.  208,  60  N.  E.  433,  52  L.  R.  A. 
437. 

IT 6  Duty  to  team  employes  of  such  dangers  which  are  or  should  be  known 
to  company,  but  which  are  unknown  to  the  employ§s.  Tel.  Co.  v.  St.  Clair, 
168  Fed.  645,  94  C.  C.  A.  109;  Britton  v.  Central  Union  Tel.  Co.,  131  Fed. 
844,  65  C.  C.  A.  598;  Cumberland  Tel.,  etc.,  Co.  v.  Bills,  128  Fed.  272,  62 
C.  C.  A.  620;  Reeve  v.  Colusa  Gas,  etc.,  Co.,  152  Cal.  99,  92  Pac.  89;  Tedford 
V.  Los  Angeles  Elec.  Co.,  134  Cal.  76,  66  Pac.  76,  54  L.  R.  A.  85 ;  Myhan  v. 
Louisiana  Elec.  Lt.,  etc.,  Co.,  41  La.  Ann.  964,  6  South.  799,  17  Am.  St.  Rep. 
436,  7  L.  R.  A.  172 ;  Willis  v.  Plymouth,  etc.,  Tel.  Co.,  75  N.  H.  453,  75  Atl. 
877,  30  L.  R.  A.  (N.  S.)  477 ;  West.  U.  Tel.  Co.  v.  McMullen,  58  N.  J.  Law,  155, 
33  Atl.  384,  32  L.  R.  A.  351 ;  Cetofonte  v.  Camden  Coke  Co.,  78  N.  J.  Law, 
662,  75  Atl.  913,  27  L.  R.  A.  (N.  S.)  1058,  loading  cars  near  steel  rails. 

17  7  Moran  v.  Corliss  Steam  Engine  Co.,  21  R.  I.  386,  43  Atl.  874,  45  L.  R.  A. 
267.  See,  also,  General  Elec.  Co.  v.  Murray,  32  Tex.  Civ.  App.  226,  74  S.  W. 
50.  See  §  200 ;  Cumberland  Tel.,  etc.,  Co.  v.  Ware,  115  Ky.  581,  74  S.  W.  289 ; 
Dow  v.  Sunset  Tel.,  etc.,  Co.,  157  Cal.  182,  106  Pac.  587. 

17  8  Barto  v.  Iowa  Tel.  Co.,  126  Iowa,  241,  101  N.  W.  876,  106  Am.  St.  Rep. 
347;  Olson  v.  Nebraska  Tel.  Co.,  87  Neb.  593,  127  N.  W.  916;  Raab  v.  Hud- 
son R.  Tel.  Co.,  139  App.  Div.  286,  123  N.  Y.  Supp.  1037 ;  Miner  v.  Franklin 
County  Tel.  Co.,  83  Vt.  311,  75  Atl.  053,  20  L.  R.  A.  (N.  S.)  1195 ;  Drown  v. 
New  England  Tel.,  etc.,  Co.,  81  Yt.  358,  70  Atl.  599.  See  Geer  v.  New  York, 
etc.,  Tel.  Co.,  144  App.  Div.  874,   129  N.   Y.   Supp.  784.     Compare  Clark  v. 


282  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  211 

necessary  to  show  that  the  injury  was  one  which  might  have  been 
anticipated  by  the  company. ^^'^  Each  of  these  companies  owes  to 
the  servants  of  the  other  the  duty  to  construct  and  maintain  its 
wires  and  appliances  so  that  they  will  not  be  a  menace  to  the  safety 
of  such  servants  when  they  are  about  their  respective  duties  as 
linemen  or  otherwise.^^"  So  a  company  maintaining  wires,  over 
which  a  dangerous  current  of  electricity  passes,  upon  a  pole  used 
jointly  by  others  is  bound  to  know  that  linemen  of  the  other  com- 
pany may  come  in  contact  with  its  wires,  and  must  use  reasonable 

Union  Iron,  etc.,  Co.,  234  Mo.  436,  137  S.  W.  577,  45  L.  R.  A.  (N.  S.)  295.  See 
Denison,  etc.,  P.  Co.  v.  Patton,  105  Tex.  621,  154  S.  W.  540,  45  L.  R,  A.  (N.  S.) 
303 ;  Fox  v.  Manchester,  183  N.  Y.  141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.)  474. 
But  see  Consol.  Elec,  etc.,  Co.  v.  Koepp,  64  Kan.  735,  68  Pac.  608.  See  Mu- 
solf  V.  Elec.  Co.,  lOS  Minn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451. 

Does  not  assume  risk  from  unknotcn  dangers  in  the  appliances  of  other 
companies  not  discoverable  by  an  exercise  of  reasonable  care.  Tel.  Co.  v. 
St.  Clair,  168  Fed.  645,  94  C.  C.  A.  109 ;  Postal  Tel.  Cable  Co.  v.  Likes,  225 
111.  249,  80  N.  E.  136;  Ambre  v.  Postal  Tel.  Cable  Co.,  43  Ind.  App.  47,  86 
N.  E.  871;  Biddle  v.  Leavenworth,  etc.,  P.  Co.,  87  Kan.  604,  125  Pac.  51; 
Cumberland  Tel.,  etc.,  Co.  v.  Graves,  31  Ky.  Law  Rep.  972,  104  S.  W.  356; 
Suyer  v.  New  York,  etc.,  Tel.  Co.,  73  N.  J.  Law,  535.  64  Atl.  122 ;  West.  U. 
Tel.  Co.  V.  McMullen,  58  N.  J.  Law,  155,  33  Atl.  384,  32  L.  R.  A.  351 ;  Speight 
v.  Rocky  Mountain  Bell  Tel.  Co.,  36  Utah,  483,  107  Pac.  742;  Barto  v. 
Iowa  Tel.  Co.,  126  Iowa,  241,  101  N.  W.  876,  106  Am.  St.  Rep.  847. 

IT 9  See  Richmond  v.  New  York,  etc.,  R.  Co.,  8  App.  Div.  382,  40  N.  Y. 
Supp.  812 ;  Dalton  v.  Atlantic,  etc.,  R.  Co.,  4  Hughes,  180,  Fed.  Gas.  No.  3,550 ; 
Southern  R.  Co.  v.  Carr,  153  Fed.  106,  82  C.  C.  A.  240;  Calumet  Elec,  etc., 
Co.  V.  Grosse,  70  111.  App.  381. 

180  Atlanta  Consol.,  etc.,  R.  Co.  v.  Owings,  97  Ga.  663,  25  S.  E.  377,  33  L. 
R.  A.  798;  Barker  v.  Boston  Elec,  etc,  Co.,  178  Mass.  503,  60  N.  E.  2; 
Wagner  v.  Brooklyn  Heights  R.  Co.,  69  App.  Div.  349,  74  N.  Y,  Supp.  809, 
affirmed  in  174  N.  Y.  520,  66  N.  E.  1117 ;  Standard  Light,  etc.,  Co.  v.  Muncey, 
33  Tex.  Civ.  App.  416,  76  S.  W.  931 ;  Dallas,  etc,  Co.  v.  Mitchell,  33  Tex.  Civ. 
App.  424,  76  S.  W.  935;  Huber  v.  La  Crosse  City  R.  Co.,  92  Wis.  636,  66 
N.  W.  708,  31  L.  R.  A.  583,  53  Am.  St.  Rep.  940;  Newark  Elec,  etc,  Co.  v. 
Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37  L.  R.  A.  725.  But  see  Denison  Light, 
etc,  P.  Co.,  105  Tex.  621,  154  S.  W.  540,  45  L.  R.  A.  (N.  S.)  303.  See  Mahau 
V.  Newton,  etc.,  R.  Co.,  189  Mass.  1,  75  N.  E.  59 ;  Paine  v.  Elec.  111.,  etc,  Co., 
64  App.  Div.  477,  72  N.  Y.  Supp.  279;  Toledo,  etc.,  L.  Co.  v.  Rippon,  28 
Ohio  Cir.  Ct.  R.  561,  affirmed  75  Ohio  St.  609,  80  N.  E.  1133;  Dannenhower 
V.  West.  U.  Tel.  Co.,  218  Pa.  216,  67  Atl.  207 ;  Wilkins  v.  Water,  etc,  L.  Co., 
92  Neb.  513,  138  N.  W.  754;  Trammell  v.  Columbus  R.  Co.,  9  Ga.  App.  98, 
70  S.  E.  892 ;  New  England  Tel.  Co,  v.  Moore,  179  Fed.  364,  102  C.  C.  A.  642, 
31  L.  R.  A.  (N.  S.)  617 ;  Logansport  v.  Smith,  47  Ind.  App.  64,  93  N.  E.  883 ; 
Cumberland  Tel.,  etc.,  Co.  v.  Cosnahan,  105  Miss.  615,  62  South.  824.  But 
see  Borell  v.  Cumberland  Tel.,  etc,  Co.,  133  La.  630,  63  South.  247;  Martin 
V.  Citizens'  General  Elec  Co.,  29  Ky.  Law  Rep.  103,  92  S.  W.  547;  Augusta 
R.  Co.  V.  Andrews,  89  Ga.  653,  16  S.  E.  203. 


§    212)  LIABILITY   FOR   INJURIES  283 

care  in  insulating  such  wires  for  their  protection ;  ^^^  but  this  duty 
does  not  exist  as  to  parts  of  the  line  where  no  one  could  reasonably 
be  expected  to  come  in  contact  with  the  wire;  ^^-  nor  does  it  apply 
to  a  company  and  its  employes  who  are  mere  volunteers  or  naked 
licensees  in  the  use  of  defendant's  poles. ^^^ 

§  212.  Must  furnish  suitable  appliances  and  safe  place  to  work. 
Notwithstanding  that,  under  the  common  law,  the  employes  of 
telephone,  telegraph,  and  electric  companies  assume  the  risks  and 
dangers  to  which  they  may  be  subjected  while  in  the  discharge  of 

181  lUingsworth  v.  Boston  Elec.  L.  Co.,  161  Mass.  583,  37  X.  E.  778,  2o 
L.  R.  A.  552;  Barker  v.  Boston  Elec.  L.  Co.,  178  Mass.  503,  60  N.  E.  2 ; 
Newark  Elec.  L.,  etc.,  P.  Co.  v.  Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37  L.  R.  A. 
725;  Beaning  v.  South  Bend  Elec.  Co.,  45  Ind.  App.  261,  90  N.  E.  786; 
Knowlton  v.  Des  Moines  p]dison  Light  Co.,  117  Iowa,  451,  90  N.  W.  818; 
Wagner  v.  Brooklyn  Heights  R.  Co.,  69  App.  Div.  349,  74  N.  Y.  Siipp.  809, 
affirmed  in  174  N.  Y.  520,  66  N.  E.  1117;  Mangan  v.  Hudson  R.  Tel.  Co., 
50  Misc.  Rep.  388,  100  N.  Y.  Supp.  539 ;  Standard  Light,  etc.,  P.  Co.,  v.  Mun- 
cey,  33  Tex.  Civ.  App.  416,  76  S.  W.  931;  Dallas  Elec.  Co.  v.  Mitchell,  33 
Tex.  Civ.  App.  424,  76  S.  W.  935;  Musolf  v.  Duluth  Edison  Elec.  Co.,  108 
Minn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451 ;  Aaron  v.  Tel.  Co.,  89  Kan. 
186,  131  Pac.  582,  45  L.  R.  A.  (N.  S.)  309. 

The  following  cases  hold  that  the  liighest  degree  of  care  and  .skill  is  re- 
quired:  Bowling  Green  Gaslight  Co.  v.  Dean,  142  Ky.  678,  1.34  S.  W.  1115; 
Von  Trebra  v.  Laclede  Gaslight  Co.,  209  Mo.  648,  108  S.  W.  559;  Trout  v. 
Laclede  Gaslight  Co.,  151  Mo.  App.  207,  132  S.  W.  58;  Downs  v.  Missouri, 
etc.,  Tel.  Co.,  161  Mo.  App.  274,  143  S.  W.  889;  Gentzkow  v.  Portland  R. 
Co.,  54  Or.  114,  102  Pac.  614,  135  Am.  St.  Rep.  821;  Hodgins  v.  Bay  City, 
156  Mich.  687,  121  N.  W.  274,  132  Am.  St.  Rep.  546 ;  Cincinnati  Gas,  etc.,  Elec. 
Co.  V.  Archdeacon,  80  Ohio  St.  27,  88  N.  E.  125. 

Use  of  i)oles  vAthout  consent. — Where  one  company  is  maintaining  its  wires 
upon  the  poles  of  another  without  its  consent,  except  that  implied  through 
possessive  acquiescence,  and  without  any  compensation,  accommodation,  priv- 
ilege, or  benefit  on  account  of  the  use  of  the  poles  by  the  owner  thereof,  so 
that  the  company  and  its  employes,  in  going  upon  and  using  such  poles,  are  mere 
volunteers  or  naked  licensees,  the  owner  of  the  poles  owes  them  the  sole 
duty  of  abstaining  from  inflicting  intentional  or  wanton  injury.  Heskell  v. 
Auburn  Lt.,  etc.,  Co.,  209  N.  Y.  86,  102  N.  E.  540,  L.  R.  A.  1915B,  1127 ;  Deni- 
son  Lt.,  etc.,  Co.  v.  Patton,  105  Tex.  621,  154  S.  W.  540,  45  L.  R.  A.  (N.  S.)  303. 

182  Hector  v.  Boston  Elec.  L.  Co.,  174  Mass.  212.  54  N.  E.  539,  75  Am. 
St.  Rep.  .300;    Sias  v.  Lowell,  etc.,  St.  R.  Co.,  179  Mass.  .343,  60  N.  E.  974. 

W^here  the  employes  are  guilty  of  contributory  negligence,  they  cannot  re- 
cover in  these  classes  of  cases.  See  Columbus  R.  Co.  v.  Dorsey,  119  Ga.  363, 
46  S.  E.  635;  Milne  v.  Providence  Tel.  Co.,  29  R.  I.  504,  72  Atl.  716;  Leipie 
V.  Madison,  etc.,  Elec.  Co.,  133  Wis.  547,  113  N.  W\  946. 

183  Heskell  v.  Auburn  Light,  etc.,  P.  Co.,  209  N.  Y.  86,  102  N.  E.  540, 
L.  R.  A.  1915B,  1127;  Denison  Light,  etc.,  Co.  v.  Patton,  105  Tex.  621,  154 
S.  W.  540,  45  L.  R.  A.  (N.  S.)  .303 ;  Consolidated  Gas,  etc.,  Co.  v.  Chambers, 
112  Md.  324,  75  Atl.  241,  26  L.  R.  A.   (N.  S.)  509. 


284  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  212* 

their  duties,  yet  these  companies  must  furnish  proper  appliances  for 
their  employes  as  well  as  a  safe  place  to  work.^^*  This  duty,  on 
the  part  of  these  companies,  is  an  affirmative  and  continuing 
duty,^^^  and  one  that  cannot  be  delegated;  ^^'^  where,  however,  the 
place  in  which  the  work  is  to  be  done  and  the  appliances  to  be  used 
are  in  themselves  as  safe  as  can  reasonably  be  expected,  and  the 
danger  arises  necessarily  in  the  doing  of  the  work,  ordinarily  the 
company  has  discharged  its  duty  when  it  has  furnished  to  its  em- 

i84Clairain  v.  West.  U.  Tel.  Co.,  40  La.  Ann.  178,  3  South.  625;  Anlt  v. 
Nebraska  Tel.  Co.,  S2  Neb.  4.34,  118  N.  W.  73,  130  Am.  St.  Rep.  686;  Barto 
V.  Iowa  Tel.  Co.,  126  Iowa,  241,  101  N.  W.  876,  106  Am.  St.  Rep.  347; 
Paducah  R.,  etc.,  Co.  v.  Bell,  27  Ky.  Law  Rep.  428,  8.5  S.  W.  216;  New 
Omaha  Thomson-Houston  Elec.  L.  Co.  v.  Rombold,  68  Neb.  54,  93  N.  W. 
966.  97  N.  W.  1030;  General  Elec.  Co.  v.  Murray,  32  Tex.  Civ,  App.  226, 
74  S.  W.  50;  Tel.  Co.  v.  Pemberton,  86  Ark.  329,  111  S.  W.  257;  Cahill  v. 
Tel.,  etc.,  Co.,  193  Mass.  415,  79  N.  E.  821;  Clonts  v.  Gaslight  Co.,  144  :\Io. 
App.  582,  129  S.  W.  238;  Id.,  160  Mo.  App.  456,  140  S.  W.  970;  Orr  v. 
Tel.  Co.,  130  N.  C.  627,  41  S.  E.  880 ;  Id.,  132  N.  C.  691,  44  S.  E.  401 ;  Hicks 
V.  Tel.  Co.,  1.57  N.  C.  519,  73  S.  E.  139;  Hyland  v.  Southern  Bell,  etc..  TeL 
Co.,  70  S.  C.  31.5,  49  S.  E.  879 ;  La  Duke  v.  Hudson  R.  Tel.  Co.,  136  App. 
Div.  136,  120  N.  Y.  Supp.  171;  Miner  v.  Franklin  County  Tel.  Co.,  83  Vt. 
311,  75  Atl.  653,  26  L.  R.  A.  (N.  S.)  1195 ;  Postal  Tel.,  etc.,  Co.  v.  Grantham, 
187  Fed.  52,  109  C.  C.  A.  370;  Kansas  City,  etc.,  Ry.  v.  Rogers,  203  Fed. 
462,  121  C.  C.  A.  586;  Weiden  v.  Brush  Elec.  L.  Co.,  73  Mich.  268,  41  N. 
W.  269 ;  Willis  v.  Plymouth,  etc.,  Tel.  Co.,  75  N.  H.  453,  75  Atl.  877,  30  L. 
R.  |A.  (N.  S.)  477;  Cable  Co.  v.  Likes,  124  111.  App,  459;  De  Frates  v,  Tel. 
Co..  149  111.  App.  569;  Tel,  Co.  v.  Wakefield  (Ky,)  126  S,  W.  127;  Home 
V.  Light,  etc.,  Co.,  144  N.  C.  375,  57  S.  E,  19;  Fibre  Co.  v.  Meadows.  159 
Fed,  110,  86  C,  C.  A.  300;  Colorado  Elec.  Co.  v.  Lubbers,  11  Colo.  505,  19 
Pac.  479,  7  Am.  St.  Rep.  255,  employe  injured  by  a  sudden  turning  on  the 
current,  or  by  a  "live"  wire  sagging  upon  a  "dead"  one.  See  Bridges  v.  Los 
Angeles,  etc.,  R.  Co.,  156  Cal,  492,  105  Pac,  586,  25  L.  R.  A,  (N.  S.)  914. 
And  see  note  to  Brazil,  etc.,  Co.  v.  Gibson,  98  Am,  St.  Rep.  289. 

Poles  held  an  appliance,  and  not  a  place  for  work.  See  Britten  v.  Central 
U.  Tel.  Co.,  131  Fed.  844,  65  C.  C,  A.  508. 

185  Barto  V.  Iowa  Tel.  Co.,  126  Iowa,  241,  101  N.  W.  876,  106  Am.  St. 
Rep.  347. 

186  Bridges  v,  Los  Angeles,  etc.,  R,  Co.,  156  Cal.  492,  105  Pac.  586,  25  L. 
R.  A.  (N.  S.)  914;  Cumberland  Tel.,  etc.,  Co.  v.  Bills,  128  Fed,  272,  66  C. 
C,  A,  620;  Evansville  Gas,  etc.,  Co.  v.  Robertson,  55  Ind.  App.  353,  100  N. 
E.  689;  Keeley  v.  Boston  Elec.  Ry.  Co.,  192  Mass.  481,  78  N.  E.  490;  Choc- 
taw Elec.  Co.  V.  Clark,  28  Okl.  399,  114  Pac.  730;  Williams  v.  North  Wis- 
consin Lumber  Co.,  124  Wis.  328,  102  N,  W,  589;  Stephens  v.  Pacific  Elec. 
Ry,  Co,,  16  Cal,  App,  512,  117  Pac,  559;  Twombly  v.  Consol,  Elec,  Lt,  Co., 
98  Me,  3.53,  57  Atl,  85,  64  L,  R,  A,  551;  Chisholm  v.  New  England  Tel.,  etc., 
Co.,  185  Mass.  82,  69  N.  E,  1042 ;  Kelly  v,  Erie  Tel,,  etc.,  Co.,  34  Minn,  321, 
25  N,  W,  706;  Moran  v,  Corliss  Steam  Eng.  Co.,  21  R.  I.  386,  43  Atl.  874, 
44  L.  R.  A.  267;  Mitchell  v.  United  States  Coal  etc.,  Co.,  67  W.  Va.  480,  68 
S.  E.  366. 


§    213)  LIABILITY   FOR  INJURIES  285 

ployes  all  the  suitable  means  of  obviating  the  danger.^^^  The  duty 
to  furnish  suitable  appliances  does  not,  however,  require  these 
companies  to  keep  tools  and  apparatus  in  good  condition  after  they 
are  furnished,  if  they  were  in  proper  condition  when  first  pro- 
vided.^^®  And  the  rule  does  not  go  so  far  as  to  require  the  company 
to  provide  the  best  machinery  obtainable,  but  only  such  as  is  rea- 
sonably safe.^^^  Neither  is  it  their  duty  to  provide  rules  and  regu- 
lations for  the  doing  of  their  work.^^" 

§  213.  Fellow  servant  doctrine — where  vice  principal  not  in- 
volved.— A  telegraph,  telephone,  or  an  electric  company  each  owes 
to  its  respective  employes  the  duty  of  exercising  reasonable  care  in 
the  selection  and  retention  of  their  fellow  servants;  ^"^  and,  when 
this  duty  has  been  discharged,  one  among  the  assumed  risks  of  such 
employes  is  the  risk  of  injury  which  is  likely  to  arise  from  the  negli- 
gence of  such  fellow  servants.  While  this  is  the  general  rule,  under 
the  common  law,  yet  it  is  sometimes  difficult  to  determine  who  are 
"fellow  servants"  Avithin  the  meaning  of  the  rule,  because  of  the 
fact  that  the  term  is  not  only  used  in  two  distinct  senses,  but,  fur- 
thermore, there  are  two  entirely  distinct  tests  applied  in  the  differ- 
ent jurisdictions  to  determine  this  question.  "Two  servants"  may 
not  be  "fellow  servants"  although  employed  by  the  same  company, 
because  the  two  may  be  engaged  in  work  which  is  entirely  discon- 
nected, or,  although  connected  or  being  in  the  same  department, 
one  servant  may  be  intrusted  with  a  certain  degree  of  superin- 
tendence over  the  other,  so  as  to  be,  in  the  view  of  the  law,  a  vice 

187  Bridges  v.  Los  Angeles,  etc.,  R.  Co.,  156  Cal.  492,  105  Pac.  586,  25 
L.  E.  A.  (N.  S.)  914;  Mullin  v.  Genesee,  etc.,  Gas  Co.,  202  N.  T.  275,  95  N. 
E.  689 ;  Long  v.  Johnson  Co.  TeL  Co.,  134  Iowa,  336,  111  N.  W.  984 ;  Wight 
V.  Cumberland  Tel.,  etc.,  Co.,  137  Ky.  299,  125  S.  W.  719.  See  Corby  v.  Mis- 
souri, etc.,  Tel.  Co.,  231  Mo.  417,  132  S.  W.  712.  See,  also,  Beebe  v.  St.  Louis 
Tr.  Co.,  206  Mo.  419,  103  S.  W.  1019,  12  L.  R.  A.  (N.  S.)  760,  explosion  inside 
controller  not  liable  for;  Lancaster  v.  Central  City  Light,  etc.,  Co.,  137  Ky. 
355,  125  S.  W.  739,  27  L.  R.  A.   (N.  S.)  181. 

188  Towne  v.  U.  Elec,  etc.,  Co.,  146  Cal.  766,  81  Pac.  124,  70  L.  R.  A.  214,  2 
Ann.  Cas.  905,  where  pike  poles  were  not  kept  properly  sharpened  by  the 
employes  who  used  them ;  Mulligan  v.  McCaffery,  182  IMass.  420,  65  N.  E. 
831,  using  appliances  for  purposes  other  than  those  for  which  they  were 
not  furnished ;  Lancaster  v.  Central  City,  etc.,  P.  Co.,  137  Ky.  355,  125  S.  W. 
739,  27  L.  R.  A.  (N.  S.)  181;  Blust  v.  Pacific,  etc.,  Tel.  Co.,  48  Or.  34,  84 
Pac.  847. 

189  Blust  V.  Pacific,  etc.,  Co.,  48  Or.  34,  84  Pac.  847. 

190  Blust  V.  Pacific,  etc.,  .Co.,  48  Or.  34,  84  Pac.  847. 

191  Chandler  v.  Atlantic  Coast  Elec.  R.  Co.,  61  N.  J.  Law,  380,  39  Atl. 
674;  Gier  v.  Los  Angeles  ConsoL  Elec.  R.  Co.,  108  Cal.  129,  41  Pac.  22. 
See  §  212. 


2S6  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  214 

principal.  So,  if  the  work  of  the  two  servants  is  disconnected,  and 
the  question  of  vice  principal  is  not  involved,  they  are  not  consid- 
ered fellow  servants.  Thus  it  is  generally  held  that  the  linemen 
are  not  fellow  servants  of  members  of  the  gang  who  erected  the 
poles  ^^^  and  their  appliances;  ^^^  nor  are  the  linemen  fellow  serv- 
ants of  those  digging  holes  and  setting  poles. ^''*  However,  if  the 
work  is  only  somewhat  different,  but  performed  by  members  of  the 
same  gang,  they  are  fellow  servants.^" ^ 

§  214.  Same — where  vice  principal  is  involved. — It  has  been 
held  in  those  jurisdictions  where  the  so-called  "superior  servant" 
doctrine  is  adopted  that  a  telegraph  or  telephone  company  was  lia- 
ble to  a  lineman  for  injuries  resulting  from  the  negligence  of  an- 
other servant  who  was  in  charge  of  the  work  and  who  was  superior 
to  the  lineman. ^^®  On  the  other  hand,  while  much  conflict  exists  in 
cases  presenting  very  similar  facts,^"'^  the  majority  of  the  courts 
determine  the  liability  of  the  company  by  the  character  of  the  act 
causing  the  injury,  or  by  the  nature  of  the  duty  intrusted  to  the 
servant  or  the  capacity  in  which  he  acted  while  doing  the  particular 
act  complained  of,  and  not  by  his  grade  or  rank.^"^  So,  when  the 
company  intrusts  some  duty  to  a  servant  which  the  company  owes 
to  another  servant,  and  which  cannot,  therefore,  be  delegated  by 
the  company,  and  the  duty  is  not  performed,  or  is  negligently  per- 
formed, the  negligent  servant  is  a  vice  principal,   since  he  must  be 

i92Livingway  v.  Houghton  County  Street  R.  Co.,  145  Mich.  86,  108  N. 
W.  662,  where  poles  had  been  constructed  two  years  before  the  accident. 

inschisholm  v.  New  England  Tel.,  etc.,  Co.,  185  Mass.  82,  69  N.  E.  1042; 
Eastern  Kentucky  Home  Tel.  Co.  v.  Mellon  (Ky.)  116  S.  W.  709;  Welty  v. 
Lake  Superior,  etc.,  R.  Co.,  100  Wis.  128,  75  N.  W.  1022. 

i94Ault  V.  Nebraska  Tel.  Co.,  82  Neb.  434,  118  N.  W.  73,  130  Am.  St. 
Rep.  686. 

195  Wight  V.  Cumberland,  etc.,  Tel.  Co.,  137  Ky.  209,  125  S.  W.  718;  East- 
ern Kentucky  Home  Tel.  Co.  v.  ISIellon  (Ky.)  116  S.  W.  709;  Wagner  v. 
Portland,  40  Or.  389,  60  Pac.  985,  67  Pac.  300;  Neal  v.  Northern,  etc.,  R. 
Co.,  57  Minn.  365,  59  N.  W.  312.     See,  also,  §  212. 

Telegraph  operators  are  fellow  servants  of  train  employes,  see  Rogers  v. 
Pere  Marquette  R.  Co.,  166  Mich.  42,  131  N.  W.  159,  52  L.  R.  A.  (N.  S.) 
1123,  Ann.  Cas.  1912D,  881. 

196  Cumberland  Tel.,  etc.,  Co.  v.  Graves,  31  Ky.  Law  Rep.  972,  104  S. 
W.  356;  Cumberland  Tel.,  etc.,  Co.  v.  Wave,  115  Ky.  581,  74  S.  W.  289; 
West.  U.  Tel.  Co.  v.  Holtby,  29  Ky.  Law  Rep.  523,  93  S.  W.  652. 

19T  Fritz  V.  West.  U.  Tel.  Co.,  25  Utah,  263,  71  Pac.  209;  West.  U.  Tel. 
Co.  V.  Nolan,  132  111.  App.  427,  may  be  a  question  of  fact  for  the  jury ; 
Hillis  V.  Spokane,  etc.,  R.  Co.,  60  Wash.  7.  110  Pac.  624. 

i98Texarkana  Tel.  Co.  v.  Pemberton,  86  Ark.  329,  111  S.  W.  257;  New 
Omaha  Thomson-Houston  Elec.  L.  Co.  v.  Baldv^in,  62  Neb.  180,  87  N.  W.  27; 
Sandquist  v.  Independent  Tel.  Co.,  38  Wash.  313,  80  Pac.  539. 


§    215)  LIABILITY   FOR   INJURIES  2S7 

regarded  as  being-  the  agent  or  representative  of  the  company. ^°® 
Therefore  the  duty  of  inspecting  the  appliances  to  be  used  by  the 
servants  and  their  place  to  work,^°"^  the  duty  of  instructing  inexperi- 
enced men,^°^  and  the  duty  of  selecting  fellow  servants,  appliances, 
etc.,^°^  cannot  be  usually  delegated,  and  the  employe  intrusted  with 
either  of  these  duties  is  a  vice  principal,  and  not  a  fellow  servant. 
In  applying  the  doctrine  that  the  character  of  the  act,  in  the  per- 
formance of  which  an  injury  arises  to  a  coemploye,  determines 
whether  the  offending  servant  is  a  vice  principal  or  not,  it  will  be 
observed  that  the  latter  may,  in  certain  cases,  occupy  a  dual  posi- 
tion with  his  fellow  workmen. -°^  He  may  be  a  vice  principal  or  the 
representative  of  the  company  as  to  all  matters  where  he  is  in- 
trusted with  the  discharge  of  duties  which  the  company  itself  is 
required  to  perform,  and  a  coservant  in  the  discharge  of  duties  not 
personal  to  the  master.  So,  if  the  act  causing  the  injury  is  com- 
mitted while  the  employe,  however  high  his  grade  may  be  in  other 
matters,  is  merely  carrying  out  the  details  of  the  work,  he  is,  in 
respect  to  that  act,  only  a  fellow  servant,  for  whose  negligence  the 
company  is  not  liable  to  the  other  servants. ^"'^ 

§  215.  Same — employes  in  control  of  current. — It  is  held,  in 
some  cases,  that,  where  the  lineman  has,  in  the  performance  of  his 

19  9  See  §  212. 

200  Cumberland  Tel.,  etc.,  Co.  v.  Bills,  128  Fed.  272,  62  C.  C.  A.  620;  West. 
U.  Tel.  Co.  V.  Tracy,  114  Fed.  282,  52  C.  C.  A.  168,  inspecting  the  poles; 
Twombly  v.  Consol.  Elec.  L.  Co.,  98  Me.  353,  57  Atl.  85,  64  L.  R.  A.  ,551. 
inspection  of  ladders.  But  see  Gibbons  v.  Brush  Elec.  Ilium.  Co.,  36  App. 
Div.  140,  55  N.  Y.  Supp.  378. 

201  West.  U.  Tel.  Co.  v.  Burgess,  108  Fed.  26,  47  C.  C.  A.  168,  writ  of  cer- 
tiorari denied  in  181  U.  S.  620,  21  Sup.  Ct.  924,  45  L.  Ed.  1031;  Sias  v. 
Consol.  L.  Co.,  79  Vt.  224,  64  Atl.  1104;  Postal  Tel.  Cable  Co.  v.  Likes,  225 
111.  249,  80  N.  E.  136 ;  Tedford  v.  Los  Angeles  Elec.  Co.,  134  Cal.  76,  66  Pac. 
76,  54  L.  R.  A.  85. 

202  Postal  Tel.  Cable  Co.  v.  Coote  (Tex.  Civ.  App.)  57  S.  W.  912,  fore- 
man's negligence  in  employing  incompetent  men  is  that  of  the  company ; 
Vicars  v.  Cumberland  Tel.,  etc.,  Co.,  52  La.  Ann.  2153,  28  South.  367,  power 
to  hire  and  discharge  given  to  one,  not  a  fellow  servant  with  others ;  Sarno 
V.  Atlantic  Stevedoring  Co.,  66  App.  Div.  611,  74  N.  Y.  Supp.  578,  foreman, 
selecting  guy  wires  and  determining  when  they  should  be  replaced ;  Kelly 
V.  Erie  Tel.,  etc.,  Co.,  34  Minn.  321,  25  N.  W.  706,  servant  furnishing  safe 
poles  for  the  other  servants  to  work  upon. 

203  West.  U.  Tel.  Co.  v.  Nolan,  132  111.  App.  427. 

204  Knutter  v.  New  York,  etc.,  Tel.  Co.,  67  N.  J.  Law,  646,  52  Atl.  .565, 
58  L.  R.  A.  808,  district  manager  jerking  down  a  wire  which  had  become 
lodged  in  a  tree,  injuring  a  lineman ;  American,  etc.,  Tel.  Co.  v.  Bower,  20 
Ind.  App.  32,  49  N.  E.  182,  foreman  of  construction  gang  climbing  a  pole 
and  loosing  wires  which  cause  other  poles  to  fall  injuring  a  member  of 
the  gang;    Tweed  v.  Hudson,   etc.,   Tel.   Co.,   130  App.   Div.   231,   114   N.    Y. 


288  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  215 

duty,  to  work  on  wires  carrying  high  and  dangerous  voltage,  the 
duty  of  having  the  current  cut  off,  so  as  to  make  the  place  safe,  is  a 
mere  detail,  and  the  negligence  of  a  foreman  in  regard  thereto  is 
the  negligence  of  a  fellow  servant.^"^  But,  on  the  other  hand,  it 
has  been  held  that  the  duty  of  notifying  the  servants  in  charge  of 
the  power  house  that  linemen  are  at  work  upon  dead  wires,  and 
that  the  current  is  not  to  be  turned  on  until  further  notice,  cannot 
be  delegated.-''*'  It  seems  that  there  should  be  some  distinction 
drawn  between  employes  controlling  the  currents  and  other  cases 
of  employes.  The  reasons  which  may  have  led  to  classing  as  fel- 
low servants  men  employed  in  other  line  of  employment  may  fail 
to  control  situations  in  this  field,  although  closely  analogous.  One 
distinction  is  in  the  sudden  and  unavoidable  nature  of  the  peril 
from  a  failure  to  take  proper  precautions  in  overlooking  dangerous 
agencies  of  this  kind.  A  man  at  one  moment  is  handling  a  harmless 
wire  which  it  is  the  duty  of  the  company  to  keep  so;    in  the  next 

Supp.  607,  foreman  in  making  splice  in  a  "messenger"  wire  along  which  a 
lineman  has  to  propel  himself  in  order  to  fasten  hooks  for  the  suspension 
of  wires;  Morgridge  v.  Providence  Tel.  Co.,  20  R.  I.  386,  39  Atl.  328,  78 
Am.  St.  Rep.  879,  superintendent  directing  workmen  to  let  go  their  hold  on 
a  pole  which  they  are  raising ;  Gibbons  v.  Brush  Elec.  Ilium.  Co.,  36  App. 
Div.  140,  55  N.  Y.  Supp.  378,  foreman  of  a  repair  crew  engaged  in  putting 
up  new  frames,  hoods,  and  lamps  on  the  poles  and  inspecting  poles  and  di- 
recting linemen  to  climb  them ;  Hayes  v.  Jersey  City,  etc.,  R.  Co.,  73  N.  J. 
Law,  639,  64  Atl.  119,  a  foreman  of  repair  gang  and  the  driver  of  the  wagon 
from  the  top  of  which  the  plaintiff  was  at  work  repairing  a  wire  are  both 
fellow  servants;  Grebenstein  v.  Stone,  etc.,  Corp.,  205  Mass.  431,  91  N.  E. 
411,  foreman  giving  certain  orders.     See,  also,  §  215. 

2  05  Bridges  v.  Los  Angeles,  etc.,  R.  Co.,  156  Cal.  492,  105  Pac.  5s6,  25  L. 
R.  A.  (N.  S.)  914;  Guest  v.  Edison  111.  Co.,  150  Mich.  438,  114  N.  W.  226; 
Anglin  v.  American  Const,  etc.,  Co.,  109  App.  Div.  237,  96  N.  Y.  Supp.  49, 
affirmed  in  186  N.  Y.  590,  79  N.  E.  1100;  Shank  v.  Edison  Elec.  111.  Co., 
225  Pa.  393,  74  Atl.  210,  30  L,  R.  A.  (N.  S.)  46,  n,  17  Ann.  Cas.  465,  electrician 
and  lineman.  See  Borell  v.  Cumberland  Tel.,  etc.,  Co.,  133  La.  630,  63  South. 
247,  L.  R.  A.  1916D,  1064 ;  Perry  v.  Ohio  Valley  Elec.  R.  Co.,  72  W.  Va.  282, 
78  S.  E.  692,  L.  R.  A.  1916D,  902.  See  §  208,  note  135,  as  a  duty  to  shut  off 
current  in  case  of  fire. 

206  Hough  V.  Grants  Pass,  etc.,  P.  Co.,  41  Or.  531,  69  Pac.  655;  Crist  v. 
Wichita,  etc.,  P.  Co.,  72  Kan.  135,  83  Pac.  199.  See,  also,  Colorado  Electric 
Co.  v.  Lubbers,  11  Colo.  505,  19  Pac.  479,  7  Am.  St.  Rep.  255;  Jacksonville 
Elec.  Lt.  Co.  v,  Sloan,  52  Fla.  2.57,  42  South.  516;  O'Brien  v.  White  &  Co., 
105  Me.  308,  74  Atl.  721;  Keeley  v.  Boston  Elev.  Ry.  Co.,  192  Mass.  481, 
78  N.  E.  490 ;  Malay  v.  Mt.  Morris,  etc.,  L.  Co.,  41  App.  Div.  574,  58  N.  Y. 
Supp.  659;  Massy  v.  Milwaukee,  etc.,  L.  Co.,  143  Wis.  220.  126  N.  W.  544, 
40  L.  R.  A.  (N.  S.)  814,  139  Am.  St.  Rep.  1096;  Zentner  v.  Oshkosh  Gas  Co., 
126  Wis.  196,  105  N.  W.  911.  See,  also.  Van  Alstine  v.  Standard,  etc.,  P. 
Co.,  116  App.  Div.  100,  101  N.  Y.  Supp.  696,  misunderstanding  between 
€mploy§s  as  to  when  current  should  be  cut  off. 


i 


§    217)  LIABILITY  FOR  INJURIES  289 

mpment  he  may  be  in  contact  with  a  deadly  peril,  unforeseeable 
and  unescapable,  by  reason  of  the  act  of  another  whom  the  com- 
pany has  employed  to  make  and  keep  safe  the  place  of  work.  And 
the  reasons  to  hold  that  the  persons  so  employed  are  agents  per- 
forming a  nondelegable  duty  are  very  apparent.^*''^  At  any  rate, 
however,  where  there  is  a  distinct  and  independent  employe  to 
whom  is  delegated  the  duty  to  disconnect  and  make  safe  the  wires 
on  which  others  must  work,  he  should  ordinarily  be  considered  a 
vice  principal,  and  not  a  fellow  servant  with  the  lineman  and  other 
like  workmen. ^"^ 

§  216,  Under  Employers'  Liability  Act. — In  some  of  the  states 
constitutional  and  statutory  provisions  materially  modify,  and  in 
some  cases  abrogate,  the  common-law  rule  exempting  a  master 
from  liability  for  injuries  to  a  servant  caused  by  the  negligence  of  a 
fellow  servant. ^"^  In  some  of  the  states  the  statute  applies  only  to 
railroad  companies,  while  in  others  it  applies  to  all  corporations, 
including  telephone,  telegraph,  and  electric  companies.^^" 

§  217.  Joint  liability  of  companies — settlement. — Under  certain 
circumstances,  an  employe  may  hold  his  own  company  and  another 
jointly  liable  for  a  personal  injury,  and  even  though  a  verdict  has 
been  returned  against  both,  a  settlement  may  be  made  by  one,  leav- 
ing the  other  company  liable  for  the  entire  verdict.-^'  But  a  suit 
against  two  companies  as  joint  tort-feasors  cannot  be  dismissed  as 
to  one  and  judgment  entered   against   the   other. ^^^     An   injured 

207  See  §  214.  See,  also,  Massy  v.  Milwaukee  Elec,  etc.,  L.  Co.,  143  Wis. 
220,  126  N.  W.  544,  40  L.  R.  A.  (N.  S.)  814,  139  Am.  St.  Rep.  1096 ;  Humphreys 
V.  Raleigh,  etc..  Coke  Co.,  73  W.  Va.  495,  SO  S.  E.  803,  L.  R.  A.  1916C,  1270. 

208  Massy  v.  Milwaukee  Elec.  etc.,  L.  Co.,  143  Wis.  220,  126  N.  W.  544, 
40  L.  R.  A.  (N.  S.)  814,  139  Am.  St.  Rep.  1096;  Zentner  v.  Oshkosh  Gas 
Light  Co.,  126  Wis.  196,  105  N.  W.  911;  Smith  v.  Milwaukee  Elec,  etc.,  L. 
Co.,  127  Wis.  253,  106  N.  W.  829.  But  see  Williams  v.  North  Wisconsin 
Lumber  Co.,  124  Wis.  328,  102  N.  W.  589;  Miller  v.  Centralia,  etc..  P.  Co., 
134  Wis.  316,  113  N.  W.  954,  13  L.  R.  A.  (N.  S.)  742 ;  Marquette,  etc.,  Mfg. 
Co.  V.  Williams,  230  111.  26,  82  N.  E.  424;  Keeley  v.  Boston,  etc.,  R.  Co., 
192  Mass.  481,  78  N.  E.  490;  Brush  Elec.  L.,  etc.,  Co.  v.  Wells,  110  Ga. 
192,  35  S.  E,  365;  Malay  v.  Mt.  Morris  Elec.  L.  Co.,  41  App.  Div.  574,  58  N. 
Y.  Supp.  659. 

20  9  See  the  statutes  of  the  several  states.  See  Ashton  v,  Boston,  etc.,  R. 
Co.,  222  Mass.  65,  109  N.  E.  820,  L.  R.  A.  1916B,  1281. 

210  Arkansas,  Laws  of  1907,  p.  162;  Colorado,  Laws  1901,  p.  161,  c.  67: 
Acts  May  27,  1911  (Laws  1911,  p.  294,  c.  113). 

211  Postal  Tel.,  etc.,  Co.  v.  Likes,  225  111.  249,  80  N.  E.  136;  Musolf  v. 
Edison  Elec.  Co.,  108  Minn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451. 

212  Hart  V.  Allegheny,  etc.,  Co.,  201  Pa.  234,  50  Atl.  1010;  Bamberg  v. 
International  Ry.  Co.,  121  App,  Div,  1,  105  N.  Y.  Supp,  621. 

Jones  Tel.(2d  Ed.)— 19 


290  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  218 

party  may  sue  any  or  all  of  several  companies  jointly  liable,  and 
may  obtain  judgment  and  then  issue  execution  against  one  or  all, 
and  nothing  short  of  the  satisfaction  of  the  demand  or  release  under 
seal  is  a  defense  to  the  others. ^^^  Where  two  or  more  companies 
are  jointly  and  severally  liable,  an  agreement  by  an  employe  of  a 
telephone  company  that  he  will  not  sue  the  latter  unless  it  is  held, 
as  a  matter  of  law,  that  recovery  cannot  be  had  against  an  electric 
light  company,  and  unless  the  consideration  paid  to  him  should  be 
returned  to  the  telephone  company,  is  a  covenant  not  to  sue  and 
not  a  release  barring  his  remedy  against  the  electric  light  com- 
pany.-^* A  settlement  with  one  joint  tort-feasor  and  the  giving  of 
a  release  without  reservation  discharges  the  others,  but  not  where 
the  release  reserves  the  right  to  pursue  the  others.^^^  Where  two 
companies  have  been  held  jointly  liable,  and  one  pays  the  judg- 
ment, it  may  sue  the  other  for  the  amount  paid  on  the  ground  that 
the  injury  was  due  to  the  negligence  of  the  latter. ^^^ 

§  218.  Duty  and  liability  to  trespassers  and  licensees. — As  to 
mere  trespassers  or  licensees,  a  telephone,  telegraph  or  an  electric 
company  is  ordinarily  under  no  legal  obligation  other  than  to  do 
them  no  willful  harm.-^^     So,  if  a  person  goes  upon  the  premises  of 

213  Tandrup  v.  Sampsell,  234  111.  526,  85  N.  E.  331,  17  L.  R.  A.  (N.  S.)  852. 
See  Musolf  v.  Edison  Elec.  Co.,  108  ]Minn.  369,  122  N.  W.  499,  24  L.  R.  A. 
(N.  S.)  451. 

214  Musolf  V.  Duluth,  etc.,  Co.,  108  Minn.  369,  122  N.  W.  499,  24  L.  R.  A. 
(N.  S.)  451,  and  note. 

215  Walsh  V.  New  York,  etc.,  R.  R.,  204  N.  Y.  58,  97  N.  E.  408,  37  L.  R.  A. 
(N.  S.)  1137 ;  Barrett  t.  Third,  etc.,  R.  R.,  45  N.  Y.  628 ;  Metz  v.  Postal  Tel., 
etc.,  Co.,  72  Wash.  188,  130  Pac.  343;  Staab  v.  Rocky  Mountain  Tel.  Co., 
23  Idaho,  314,  129  Pac.  1078 ;  Snyder  v.  Mutual,  etc.,  Co.,  135  Iowa,  215,  112 
N.  W.  776,  14  L.  R.  A.  (N.  S.)  321;  Snyder,  etc.,  Co.  v.  Bowron  (Tex.  Civ. 
App.)  156  S.  W.  550 ;   Hart  v.  Allegheny,  etc.,  Co.,  201  Pa.  234,  50  Atl.  1010. 

216  Fulton,  etc.,  Co.  v.  Hudson  River  Tel.  Co.,  200  N.  Y.  287,  93  N.  E.  1052; 
Fulton  County,  etc.,  Co.  v.  Hudson  River  Tel.  Co.,  130  App.  Div.  343,  114 
N.  Y.  Supp.  642;  Southwestern,  etc.,  Tel.  Co.  v.  Krause  (Tex.  Civ.  App.)  92 
S.  W.  431 ;  Tacoma  v.  Bonnell,  65  Wash.  505,  118  Pac.  642,  36  L.  R.  A.  (N.  S.) 
582,  Ann.  Cas.  1913B,  934.  See  Hayes  v.  Chicago  Tel.  Co.,  218  111.  414,  75 
N.  E.  1003,  2  L.  R.  A.  (N.  S.)  764. 

217  McCaughna  v.  Owosso,  etc.,  Elec.  Co.,  129  Mich.  407,  89  N,  W.  73,  95 
Am.  St.  Rep.  441 ;  Keefe  v.  Narragansett  Elec.  Co.,  21  R.  I.  575,  43  Atl.  542 ; 
Sullivan  v.  Narragansett  Elec,  etc.,  Co.  (R.  I.)  73  Atl.  306 ;  Rodgers  v.  Union 
L.,  etc.,  Co.  (Ky.)  123  S.  W.  293;  Hector  v.  Boston  Elec,  etc,  Co.,  161  Mass. 
558,  37  N.  E.  773,  25  L.  R.  A.  554;  State  v.  Chesapeake,  etc,  Tel.  Co.,  123 
Md.  120,  91  Atl.  149,  52  L.  R.  A.  (N.  S.)  1170;  Newark  Elec  Lt.,  etc,  Co.  v. 
Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37  L.  R.  A.  725;  Elec  Co.  v.  Cronon, 
166  Fed.  651,  92  C.  C.  A.  345,  20  L.  R.  A.  (N.  S.)  816 ;  Riedel  v.  West  Jersey, 
etc,  R.  Co.,  177  Fed.  374,  101  C.  C.  A.  428,  21  Ann.  Cas.  746,  28  L.  R.  A.  (N.  S.) 


i 


§    218)  LIABILITY   FOR   INJURIES  291 

one  of  these  companies,  or  of  another,  out  of  curiosity,-^^  or  for  his 
purposes  or  conveniences,^^''  or  otherwise,--*'  voluntarily  without 
invitation  express  or  implied,  and  is  injured  while  thereon  in  coming 
in  contact  with  heavily  charged  wires  or  otherwise,  he  cannot  re- 
cover as  a  result  thereof.  But  if  he  goes  upon  said  premises  in  the 
performance  of  a  duty  toward  either,  or  for  personal  work,  where 

98;  Peniiebaker  v.  Light,  etc.,  Co.,  158  Cal.  579,  112  Pac.  459,  139  Am.  St. 
Rep.  202,  31  L.  R.  A.  (N.  S.)  1099 ;  Mayfleld,  etc.,  L.  Co.  v.  Webb,  129  Ky.  395, 
111  S.  W.  712,  33  Ky.  Law  Rep.  909,  130  Am.  St.  Rep.  469,  18  L.  R.  A.  (N.  S.) 
179 ;  Braun  v.  Gen.  Elec.  Co.,  200  N.  Y.  484,  94  N.  E.  206,  140  Am.  St.  Rep. 
645,  21  Ann.  Cas.  370,  35  L.  R.  A.  (N.  S.)  1089 ;  Perham  v.  General  Elec.  Co., 
33  Or.  451,  53  Pac.  14,  24,  72  Am.  St.  Rep.  730,  40  L.  R.  A.  799;  Greenville 
V.  Pitts,  102  Tex.  1,  107  S.  ^^  50,  132  Am.  St.  Rep.  843,  14  L.  R.  A.  (N.  S.) 
979 ;  Burnett  v.  Ft.  Worth,  etc.,  Co.,  102  Tex.  31,  112  S.  W.  1040,  19  L.  R.  A. 
(N.  S.)  504;  Denison  L.,  etc.,  Co.  v.  Patton,  105  Tex.  621,  154  S.  W.  540,  45 
L.  R.  A.  (N.  S.)  303 ;  Wetherby  v.  Twin  State  Gas  Co.,  S3  Yt.  189,  75  Atl.  8, 
21  Ann.  Cas.  1092,  25  L.  R.  A.  (N.  S.)  1220.  Nor  is  the  rule  altered  by  the 
fact  that  the  negligence  arose  from  the  violation  of  the  ordinance  or  statute 
rather  than  from  the  negligence  of  common  law.  Burnett  v.  Ft.  Worth,  etc., 
Co.,  supra.  See  Myer  v.  Union  Light,  etc.,  Co.,  151  Ky.  332,  151  S.  W.  941, 
43  L.  R.  A.  (N.  S.)  136,  child  in  churchyard. 

218  Sullivan  v.  Boston,  etc.,  R.  R.  Co.,  156  Mass.  378,  31  N.  E.  128,  boy  going 
upon  roof  of  another;  Burnett  v.  Ft.  Worth,  etc.,  P.  Co.,  102  Tex.  31,  112 
S.  W.  1040,  19  L.  R.  A.  (X.  S.)  504,  practically  same  facts,  and  where  de- 
fectively insulated  wire  in  violation  of  city  ordinance. 

219  Cumberland  Tel.,  etc.,  Co.  v.  Martin,  116  Ky.  554,  76  S.  W.  394,  77  S.  W. 
718,  105  Am.  St.  Rep.  229,  63  L.  R.  A.  469,  person  going  on  porch  of  store, 
out  of  storm,  and  while  there  was  struck  by  lightning,  conducted  to  him  by 
negligently  maintained  wire;  Augusta  Ry,  Co.  v.  Andrews,  89  Ga.  653,  16 
S.  E.  203,  party  climbing  poles;  State  v.  Chesapeake,  etc.,  Tel.  Co.,  123 
Md.  120,  91  Atl.  149,  52  L.  R.  A.  (N.  S.)  1170.  and  note ;  Greenville  v.  Pitts, 
102  Tex.  1,  107  S.  W.  50,  132  Am.  St.  Rep.  843,  14  L.  R.  A.  (X.  S.)  979. 

220  Fireman  going  into  building  and  there  comes  in  contact  with  wire. 
Pennebaker  v.  San  Joaquin  L.,  etc.,  P.  Co.,  158  Cal.  579,  112  Pac.  459,  139 
Am.  St.  Rep.  202,  31  L.  R.  A.  (X.  S.)  1099;  New  Omaha  Thomson-Houston 
Elec.  L.  Co.  v.  Anderson,  73  Xeb.  84,  102  N.  W.  89,  ordinance  requiring  cur- 
rent to  be  cut  off  during  fire ;  Minneapolis  General  Elec.  Co.  v.  Cronon,  166 
Fed.  651,  92  C.  C.  A.  345,  20  L.  R.  A.  (X.  S.)  816,  disinterested  person  volun- 
tarily entering  burning  building  to  extinguish  fire.  See  as  to  duty  of  note  in 
§  212.  Policeman  trespassing  upon  roof  of  building  to  detect  gamblers.  City 
of  Greenville  v.  Pitts,  102  Tex.  1,  107  S.  W.  50,  132  Am.  St.  Rep.  843,  14 
L.  R.  A.  (N.  S.)  979 ;  Hector  v.  Boston  Elec,  etc.,  Co.,  161  Mass.  558,  37  N.  E. 
773,  25  L.  R.  A.  554,  acting  without  scope  of  license. 

But  in  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  X.  J.  Law,  276,  62  Atl.  412, 
3  L.  R.  A.  (X.  S.)  988,  111  Am.  St.  Rep.  668,  it  was  held  that  a  telephone  company 
was  under  a  duty  to  exercise  care  to  a  traveler  even  if  he  was  a  trespasser 
as  between  himself  and  the  landowner.  See,  also,  Davoust  v.  Alameda,  149 
Cal.  69,  84  Pac.  760,  5  L.  R.  A.  (X.  S.)  536,  9  Ann.  Cas.  847 ;  Connell  v.  Keokuk 
Elec,  etc,  Co.,  131  Iowa,  622,  109  X.  W.  177. 


292  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  218 

permission  has  been  given  him  there  to  do,  by  those  in  rightful 
authority,  the  rule  would  be  otherwise,--^  unless  he  has  been  guilty 
of  negligence  while  on  said  premises.-"-  And,  if  the  company,  at  the 
time  of  the  injury,  was  itself  a  trespasser,  having  no  authority  or 
permission  from  the  owner  to  maintain  the  wires  over  or  upon  his 
premises,  the  company  ought  not  to  avail  itself  of  a  rule  designed 

221  Ryan  V,  St.  Louis  Transit  Co.,  190  Mo.  621,  89  S.  W.  8G5,  2  L.  R.  A. 
(N.  S.)  777,  workman  coming  on  premises  to  work  for  independent  contractor ; 
Davoust  V.  Alameda,  149  Cal.  69,  84  Pac.  760,  5  L.  R.  A.  (N.  S.)  5.36,  9  Ann. 
Cas.  847,  implied  invitation  to  use  path  across  lot;  Guinn  v.  Delaware,  etc., 
Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  3  L.  R.  A.  (N.  S.)  988,  111  Am.  St. 
Rep.  668,  person  injured  while  crossing  path  across  field  where  permission 
was  given  him;  Musolf  v.  Duluth  Edison  Elec.-Co.,  108  Minn.  369,  122  N.  W. 
499,  24  L.  R.  A.  (N.  S.)  451,  employes  of  one  company  injured  by  wires  of  an- 
other both  using  same  poles  and  cross  arms ;  New  England,  etc.,  Tel.  Co.  v. 
Moore,  179  Fed.  364,  102  C.  C.  A.  642,  31  L.  R.  A.  (N.  S.)  617,  employe  at- 
tempting to  remove  wire  of  another  company  interfering  with  his  employ- 
er's line,  on  same  subject,  see  Downs  v.  Andrews,  145  Mo.  App.  173,  130 
S.  W.  472 ;  Braun  v.  Buffalo  General  Elec.  Co.,  200  N.  Y.  484,  94  N.  E.  206, 
140  Am.  St.  Rep.  645,  34  L.  R.  A.  (N.  S.)  1089,  21  Ann.  Cas.  370,  workman 
erecting  building  over  which  wire  was  strung;  Mize  v.  Rocky  Mountain 
Bell  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  Rep.  659,  16  Ann. 
Cas.  1189,  railroad  company  granting  license  to  landowner  to  construct  ditch 
on  right  of  way  and  hurt  by  wire  of  telegraph  company  while  at  work.  For 
similar  case,  see  City  Elec.  St.  R.  Co.  v.  Conery,  61  Ark.  381,  33  S.  W.  426, 
54  Am.  St.  Rep.  262,  31  L.  R.  A.  570.  See  Palestine  v.  Siler,  225  111.  630, 
80  N.  E.  345,  8  L.  R.  A.  (N.  S.)  205,  person  taking  hold  of  wire  across  street ; 
Weaver  v.  Dawson  County  Mut.  Tel.  Co.,  82  Neb.  696,  118  N.  W.  650,  22  L. 
R.  A.  (N.  S.)  11S9,  person  traveling  highway  not  bound  to  anticipate  danger; 
Augusta  R.  Co.  v.  Andrews,  92  Ga.  706,  19  S.  E.  713.  See,  also.  Central  U. 
Tel.  Co.  V.  Sokola,  34  Ind.  App.  429,  73  N.  E.  143 ;  Newark  Elec,  etc.,  Co.  v. 
Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37  L.  R.  A.  725 ;  Southwestern,  etc.,  Tel. 
Co.  V.  Bruce,  89  Ark.  581,  117  S.  W.  564;  Valparaiso  L.  Co.  v.  Tyler,  177 
Ind.  278,  96  N.  E.  768;  Philbin  v.  Marlborough  Elec.  Co.,  218  Mass.  394, 
105  N.  E.  893 ;  Blackburn  v.  Southwestern  Missouri  R.  Co.,  ISO  Mo.  App.  548, 
167  S.  W.  457. 

22  2  Pennebaker  t.  San  Joaquin  L.,  etc.,  P.  Co.,  158  Cal.  579,  112  Pac.  459, 
31  L.  R.  A.  (N.  S.)  1099,  139  Am.  St.  Rep.  202 ;  Carroll  v.  Grande  Ronde  Elec. 
Co.,  47  Or.  424,  84  Pac.  389,  6  L.  R.  A.  (N.  S.)  290;  Graves  v.  Washington, 
etc.,  P.  Co.,  44  Wash.  675,  87  Pac.  956,  11  L.  R.  A.  (N.  S.)  452.  But  see,  where 
held  not  guilty  of  negligence,  Ryan  v.  St.  Louis  Transit  Co.,  190  Mo.  621, 
89  S.  W.  865,  2  L.  R.  A.  (N.  S.)  777 ;  Mangan  v.  Louisville  Elec.  L.  Co.,  122 
Ky.  476,  91  S.  W.  703,  6  L.  R.  A.  (N.  S.)  459 ;  Palestine  v.  Siler,  225  111.  6.30, 
80  N.  E.  345,  8  L.  R.  A.  (N.  S.)  205 ;  Weaver  v.  Dawson  County  Mut.  Tel.  Co., 
82  Neb.  696,  118  N.  W.  650,  22  L.  R.  A,  (N.  S.)  1189 ;  Braun  v.  Buffalo  General 
Elec.  Co.,  200  N.  Y.  484,  94  N.  E.  206,  140  Am.  St.  Rep.  645,  34  L.  R.  A.  (N.  S.) 
1089,  21  Ann.  Cas.  370;  Miner  v.  Franklin  County  Tel.  Co.,  83  Vt.  311,  75 
Atl.  653,  26  L.  R.  A.  (N.  S.)  1195. 


§    219)  LIABILITY   FOR   INJURIES  293 

for  the  protection  of  the  owner,  which  position  is  taken  by  some 
courts.  ^-^ 

§  219.  What  companies  liable  for  negligence — vendor,  vendee. 
The  general  rule  is  that,  where  an  electric  company  contracts  to 
furnish  electricity  to  another  who  has  complete  ownership  or  con- 
trol over  the  wires  and  apparatus,  the  former  will  not  ordinarily 
be  liable  for  an  injury  arising  as  a  result  of  escape  of  electricity 
from  said  wires  or  apparatus."'*  And  when  one  company  purchases 
the  plant  of  another  and  continues  the  business,  the  former  im- 
pliedly contracts  with  the  public  that  it  will  use  such  appliances  and 
care  as  are  known  to  the  business  to  protect  them  from  injury;  and 

2  23  Guinn  v.  Delaware,  etc.,  Tel.  Co.,  72  N.  J.  Law,  276,  62  Atl.  412,  111 
Am.  St.  Rep.  668,  3  L.  R.  A.  (N.  S.)  988 ;  Daltry  v.  Media  Blec,  etc.,  Co.,  208 
Pa,  403,  57  Atl.  833;  Caglioue  v.  Mt.  Morris  Elec.  Co.,  56  App.  Div.  191, 
67  N.  Y.  Supp.  GCO;  Southern  Bell  Tel.,  etc.,  Co.  v.  McTyer,  137  Ala.  601, 
34  South.  1020,  97  Am.  St.  Rep.  62;  Reagan  v.  Boston  Elec.  Co.,  167  Mass. 
406,  45  N.  E.  743;  Nelson  v.  Branford  Elec,  etc.,  Co.,  75  Conn.  548,  54  Atl. 
303 ;  Commonwealth  Elec.  Co.  v.  Melville,  210  111.  70,  70  N.  E.  1052.  But  see 
Cumberland,  etc.,  Tel.  Co.  v.  Martin,  116  Ky.  554,  76  S.  W.  394,  77  S.  W.  718, 
105  Am.  St.  Rep.  229,  63  L.  R.  A.  469 ;  Davoust  v.  Alameda,  149  Cal.  69, 
84  Pac.  760,  9  Ann.  Cas.  847,  5  L.  R.  A.  (N.  S.)  536 ;  Romana  v.  Boston  Elev. 
R.  Co.,  218  Mass.  76,  105  N.  E.  598,  L.  R.  A.  1915A,  510. 

224  Memphis  Consol.,  etc.,  Elec.  Co.  v.  Speers,  113  Tenn.  83,  81  S.  W.  595, 
illuminating  a  sign ;  National  Fire  Ins.  Co.  v.  Denver,  etc.,  Co.,  16  Colo.  App. 
86,  63  Pac.  949,  not  liable  for  fire;  Fickeisen  v.  Wheeling  Elec.  Co.,  67  W. 
Va.  335,  67  S.  E.  788,  27  L.  R.  A.  (N.  S.)  893,  one  company  collecting,  selling 
and  delivering  electricity  to  another  company.  But  see  Thomas  v.  Maysville 
Gas  Co.,  108  Ky.  224,  56  S.  W.  153,  53  L.  R.  A.  147,  duty  to  see  wires  of 
street  railway  to  which  it  is  furnishing  electricity  are  insulated;  San  An- 
tonio Gas,  etc.,  Co.  v.  Ocon,  105  Tex.  139,  146  S.  W.  162,  39  L.  R.  A.  (N.  S.) 
1046 ;  Perry  v.  Ohio  Valley  R.  Co.,  70  W.  Va.  697,  74  S.  E.  993 ;  Lewis  v. 
Bowling  Green,  etc.,  Co.,  135  Ky.  611,  197  S.  W.  278,  22  L.  R.  A.  (N.  S.)  1169, 
duty  to  make  inspection  of  vendee's  line.  See  note  41  for  other  cases.  See, 
also,  Minneapolis,  etc.,  Elec.  Co.  v.  Cronon,  166  Fed.  651,  92  C.  C.  A.  345,  20 
L.  R.  A.  (N.  S.)  816;  Hoffman  v.  Leavenworth  Lt,  etc.,  Co.,  91  Kan.  450, 
138  Pac.  632,  50  L.  R.  A.  (N.  S.)  574 ;  Peters  v.  Lynchburg  Lt.,  etc.,  Co.,  108 
Va.  333,  61  S.  E.  745,  22  L.  R.  A.  (N.  S.)  1188. 

Where  an  electric  company  collects  electricity  and  sells  and  delivers  it  to 
another  electric  company  at  a  point  where  the  wires  of  the  two  companies 
meet,  it  is  not  liable  for  the  death  of  a  person  coming  in  contact  with  a 
grounded  wire  of  the  latter  company  which  was  charged  with  the  purchased 
electricity,  but  over  which  the  former  company  had  no  control.  San  Antonio 
Gas,  etc.,  Co.  v.  Ocon,  105  Tex.  139,  146  S.  W.  162,  39  L.  R.  A.  (N.  S.)  1046; 
Fickeisen  v.  Wheeling  Elec.  Co.,  supra.  However,  a  company  which  turns  on 
powerful  current  on  private  wires  strung  along  the  highway  is  bound  to 
inspect  them,  from  time  to  time,  altliough  they  do  not  belong  to  it,  Thomas 
V.  Maysville  Gas  Co.,  supra ;  Lewis  v.  Bowling  Green  Gas  Lt.  Co.,  supra ;  and 
where  the  company  sell  an  electric  fixture  and  agrees  to  furnish  electricity 


294  TELEGKAPH  AND  TELEPHONE  COMPANIES         (§  220 

it  is  answerable  to  any  one  who,  without  fault  on  his  part,  sustains 
damage  for  its  failure  to  do  so.-^^  Under  certain  circumstances 
the  landlord  may  be  liable  to  the  tenant  of  the  former's  leased  prop- 
erty for  damages  arising  from  the  presence  of  electric  wires  on  the 
premises.--® 

§  220.  Injuries  to  or  interference  with  companies. — While  tele- 
graph, telephone,  and  electric  companies  should  use  due  care  in  the 
operation  of  their  lines  to  protect  the  public  from  injury,  the  public, 
on  the  other  hand,  must  not  commit  acts  which  would  interfere 
with,  in  any  manner,  the  formers'  business.  So,  where  these  com- 
panies are  being  lawfully  maintained,  they  may  recover  damages 
against  any  one  for  injuring  their  poles,  wires,  or  other  appliances, 
or  interfering  with  the  operation  of  their  business.--^  So  also  they 
may,  in  certain  instances,  maintain  an  action  of  injunction  against 

to  be  used  thereby  and  to  keep  such  fixture  in  repair  would  be  liable  from 
an  injury  resulting  therefrom,  Fish  v.  Electric  Co.,  18  S.  D.  122,  99  N.  W. 
1092,  112  Am.  St.  Rep.  782 ;    Thomas  v.  Maysville  Gas  Co.,  supra. 

225  Waller  v.  Leavenworth  Light,  etc.,  Co.,  9  Kan.  App.  301,  61  Pae.  327; 
Scheiber  v.  United  Tel.  Co.,  153  Ind.  609,  55  N.  E.  742;  Gordon  v.  Ashley, 
77  App.  Div.  525,  79  N.  Y.  Supp.  274,  reversing  34  ISIisc.  Rep.  743,  70  N.  Y. 
Supp.  1038,  where  private  person  is  vendor,  and  sale  by  him  to  company 
is  without  consent  of  municipal  authority. 

226  Howard  v.  Washington,  etc.,  P.  Co.,  75  Wasla.  255,  134  Pac.  927,  52 
L.  R.  A.  (N.  S.)  578,  negligence  in  not  notifying  plaintiff  of  wires ;  Ferrell  v. 
Dixie  Cotton  Mills,  157  N.  C.  528,  73  S.  E.  142,  37  L.  R.  A.  (N.  S.)  64. 

227  Dickson  v.  Kewanee  Elec.  L.,  etc.,  Co.,  53  111.  App.  379;  Williams  v. 
Citizens'  R.  Co.,  130  Ind.  71,  29  N.  E.  408,  30  Am.  St.  Rep.  201,  15  L.  R.  A. 
64;  Townsend  v.  Epstein,  93  Md.  537,  49  Atl.  629,  86  Am.  St.  Rep.  441,  52 
L.  R.  A.  409 ;  Day  v.  Green,  4  Cush.  (Mass.)  433 ;  Graves  v.  Shattuck,  35  N.  H. 
257,  69  Am.  Dec.  536 ;  New  York,  etc.,  Tel.  Co.  v.  Dexheimer,  14  N.  J.  Law  J. 
295 ;  Millville  Traction  Co.  v.  Goodwin,  53  N.  J.  Eq.  448,  32  Atl.  263 ;  North- 
western Tel.  Exch.  Co.  v.  Anderson,  12  N.  D.  585,  98  N.  W.  706,  102  Am. 
St.  Rep.  580,  65  L.  R.  A.  771.  1  Ann.  Cas.  110;  Pennsylvania  Tel.  Co.  v. 
Vamau  (Pa.)  15  Atl.  624 ;  L.  &  N.  R.  Co.  v.  Gillespie,  165  Ky.  575,  177  S.  W. 
451,  measure  of  damages  for  destroying  line. 

House  moving. — The  moving  of  a  house  along  the  streets  pursuant  to  stat- 
ute and  under  a  license  from  the  city  is  an  extraordinary  use  of  the  street  for 
an  unusual  purpose,  and  as  between  the  mover  and  the  company  the  former  is 
liable  for  the  damage  resulting  from  the  interruption.  Northwestern  Tel. 
Exch.  Co.  V.  Anderson,  12  N.  D.  585,  98  N.  W.  706,  102  Am.  St.  Rep.  580,  65 
L.  R.  A.  771,  1  Ann.  Cas.  110.  But  see  Tel.  Co.  v.  Wilt,  1  Phila.  (Pa.)  270. 
The  telephone  company  must  raise  wires  on  mover's  offer  to  pay  reasonable 
expense  and  on  failure  of  the  company  to  do  so,  the  mover  may  raise  them. 
Tel.,  etc.,  Co.  v.  Thompson  (Tex.  Civ.  App.)  142  S.  W.  1000.  See,  also,  Kibbie 
Tel.  Co.  V.  Landphere,  151  Mich.  309,  315  N.  W.  244,  16  L  R.  A.  (N.  S.)  689.  See 
Collar  V.  Tel.  Co.  (Minn.)  155  N.  W  1075,  L.  R.  A.  1916C,  1249. 


I 


§    221)  LIABILITY   FOR   INJURIES  295 

an  individual, "«  a  municipality," '^  or  another  telegraph,  telephone, 
or  electric  company  -^o  where  either  has  without  authority  inter- 
fered with  or  injured  any  of  the  property  complained  of.  Further- 
more, it  has  been  held  that  any  one  willfully  and  deliberately  inter- 
fering with  any  of  the  said  property  of  these  companies  may  be  in- 
dicted for  malicious  mischief  under  the  common  law ;  -^^  but  the 
punishment  for  the  malicious  injury  to  the  poles,  wires,  and  other 
appliances  of  telegraph  and  telephone  companies  has  been  ex- 
pressly provided  for  and  defined  in  statutes  in  many  of  the  states. ^^^ 
It  is  also  further  provided  in  some  of  these  statutes  that  it  shall  be 
a  criminal  offense  for  any  one  to  maliciously  obstruct  or  interfere 
with  the  transmission  of  messages;  and  it  is  not  necessary  under 
these  statutes  that  there  be  a  physical  injury  to  the  line.-^^ 

§  221.  Same — induction — conduction. — The  operation  of  tele- 
graph and  telephone  companies  may  be  interfered  with  by  the  es- 
cape of  electricity  from  appliances  of  other  electrical  companies 
subsequently  organized  for  quasi-public  purposes,  such  as  electric 

22  8  Kibbie  Tel.  Co.  v.  Landphere,  151  Mich.  309,  115  N.  W.  244,  16  L.  R.  A. 
(N.  S.)  689,  may  enjoin  a  tbreatened  injury  to  its  lines  by  tbe  moving  of  a 
building.  See  State  v.  Nordskog,  76  Wasb.  472,  136  Pac.  694,  50  L.  R.  A. 
(N.  S.)  1216,  and  note  collating  otber  cases;  Allegheny  County  L.  Co.  v. 
Booth,  216  Pa.  564,  66  Atl.  72,  9  L.  R.  A.  (N.  S.)  404. 

229  Missouri  R.  Tel.  Co.  v.  Mitchell,  22  S.  D.  191,  116  N.  W.  67;  Rock  Is- 
land V.  Central  U.  Tel.  Co.,  132  111.  App.  248;  Southern  Bell  Tel.,  etc.,  Co,  v. 
Mobile  (C.  C.)  162  Fed.  523;  Morristown  v.  East  Tennessee  Tel.  Co.,  115 
Fed.  304,  53  C.  C.  A.  132. 

230  Northwestern  Tel.  Exch.  Co.  v.  Twin  City  Tel.  Co.,  89  Minn.  495,  95 
N.  W.  460. 

2  31  State  V.  Watts,  48  Ark.  56,  2  S.  W.  342,  3  Am.  St.  Rep.  216 ;  Alt  v.  State, 
88  Neb.  259,  129  N.  W.  432,  35  I..  R.  A.  (N.  S.)  1212,  evidence  of  malice.  See 
§  783. 

232  St.  Louis,  etc.,  R.  Co.  v.  Batesville,  etc.,  Tel.  Co.,  80  Ark.  499,  97  S.  W. 
660 :  Davis  v.  Pacific  Tel.,  etc.,  Co.,  127  Cal.  312,  57  Pac.  764,  59  Pac.  698 ; 
State  V.  McKee,  126  Mo.  App.  524,  104  S.  W.  486 ;  Telegraph  Co.  v.  Wilt,  1 
I'hila.  (Pa.)  270,  10  Pa.  Law  J.  375 ;  Southwestern  Tel.,  etc.,  Co.  v.  Priest,  31 
Tex.  Civ.  App.  345,  72  S.  W.  241 ;  West.  U.  Tel.  Co.  v.  Bullard,  65  Vt.  634,  27 
Atl.  322 ;  State  v.  Brotzer,  245  Mo.  499,  150  S.  W.  1078.  See  statutes  of  sev- 
eral states  on  subject. 

Ri[/ht  of  railroad  to  cut  line  crossing  tracks. — Where  wires  are  constructed 
across  railroad  tracks  in  accordance  to  law,  the  railroad  company  or  its  em- 
ployes have  no  right  to  cut  them  without  being  subjected  to  prosecution.  Alt 
V.  State,  88  Neb.  259,  129  N.  W.  4.32,  35  L.  R.  A.  (N.  S.)  1212 ;  St.  Louis,  etc., 
R.  Co.  V.  Batesville,  etc.,  Tel.  Co.,  supra ;  McGowan  v.  State,  146  Ala.  679  40 
South.  142. 

23  3  See  the  statutes  in  the  several  states,  and  the  cases  cited  in  note  232. 
See  Martin  v.  Sheriff,  5  Ohio  S.  &  C.  P.  Dec.  100,  32  Wkly.  Law  Bui.  113,  to 
tap  a  telegraph  wire  not  alone  a  crime  under  the  laws  of  Ohio.    To  same'  ef- 


296  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  221 

railway  and  electric  light  and  heating  companies,  when  they  are 
all  on  the  same  streets  and  their  lines  are  running  parallel.  There 
has  been  considerable  litigation  arising  on  the  subject,  where  one 
attempts  to  enjoin  the  other  from  using  the  streets  in  such  a  man- 
ner as  to  interfere  with  the  working  of  the  machinery  of  the  com- 
plaining company,  and  in  determining  the  relative  rights  of  the 
parties  the  courts  are  not  in  complete  accord.  However,  equity 
will  adjust  the  conflicting  interest  as  far  as  possible  and  control 
both  so  that  each  company  may  exercise  its  own  franchise  as  fully 
as  is  compatible  with  the  necessary  exercise  of  the  other's.^^*  So  in 
some  instances  a  court  of  equity  will  enjoin  a  company  maintaining 
a  high-tension  wire  from  interfering  by  induction  or  conduction 
with  a  company  maintaining  a  wire  of  a  less  tension,  provided  the 
latter  has  a  prior  or  otherwise  superior  right  to  the  use  of  the 
streets ;  -^^    but,  if  the  former  company  cannot  prevent  the  induc- 

fect  see  State  v.  Nordskog,  76  Wash.  472,  136  Pac.  694,  50  L.  R.  A.  (N.  S.) 
1216,  and  note. 

An  act  to  regulate  radio  communications. — An  act  to  regulate  radio  com- 
munications was  passed  by  Congress  and  approved  August  13th,  1912  (Act 
Aug.  13,  1912,  c.  287,  37  Stat.  302  [Comp.  St.  1913,  §§  10100-10109])  for  the 
secrecy  of  messages.  The  nineteenth  subsection  of  section  4  is  as  follows: 
"No  i>erson  or  persons  engaged  in  or  having  knowledge  of  the  operation  of 
any  station  or  stations  shall  divulge  or  publish  the  contents  of  any  messages 
transmitted  or  received  by  such  station,  except  to  the  person  or  persons  to 
whom  the  same  may  be  directed,  or  their  authorized  agent,  or  to  another  sta- 
tion employed  to  forward  such  message  to  its  destination,  unless  legally  re- 
quired so  to  do  by  the  court  of  competent  jurisdiction  or  other  competent  au- 
thority. Any  person  guilty  of  divulging  or  publishing  any  message,  except  as 
herein  provided,  shall,  on  conviction  thereof,  be  punishable  by  a  fine  of  not 
more  than  two  hundred  and  fifty  dollars  or  imprisonment  for  a  period  of  not 
exceeding  three  months,  or  both  fine  and  imprisonment,  in  the  discretion  of 
the  court."    See  §  144  as  to  constitutionality  of  act. 

2  34  Edison  Elec.  D.,  etc.,  Co.  v.  Merchants',  etc.,  Elec.  D,,  etc.,  Co.,  200  Pa. 
209,  49  Atl.  766,  86  Am.  St.  Rep.  712. 

23  5  West.  U.  Tel.  Co.  v.  Guernsey,  etc.,  Elec.  L.  Co.,  46  Mo.  App.  120;  Neb- 
raska Tel.  Co.  V.  York  Gas,  etc.,  L.  Co.,  27  Neb.  284,  43  N.  W.  126,  holding  that 
an  electric  light  company  will  not  be  enjoined  from  stringing  its  wires  so  as 
to  interfere  with  a  telephone  company,  where  the  light  company  obtained  its 
franchise  first ;  West.  U.  Tel.  Co.  v.  Champion  Elec.  L.  Co.,  9  Ohio  Dec.  (Re- 
pi'int)  540,  14  Wkly.  Law  Bui.  327;  Central  Pennsylvania  Tel.,  etc.,  Co.  v. 
Wilkes-Barre,  etc.,  R.  Co.,  11  Pa.  Co.  Ct.  R.  417 ;  Rutland  Elec.  L.  Co.  v.  Mar- 
ble City  Elec.  L.  Co.,  65  Vt  377,  26  Atl.  635,  36  Am.  St.  Rep.  868,  20  L.  R.  A. 
821,  holding  that  the  court  will  enjoin  interference  with  the  operation  of  an 
electric  light  company  by  a  company  subsequently  formed  for  the  same  pur- 
pose; Edison  Elec.  L.,  etc.,  Co.  v.  Merchants',  etc.,  Elec,  etc.,  Co.,  200  Pa. 
209,  49  Atl.  766,  86  Am.  St.  Rep.  712 ;  Paris  Elec.  L.  Co.  v.  Southwestern  Tel., 
etc.,  Co.  (Tex.  Civ.  App.)  27  S.  W.  902,  an  electric  light  company  will  be  en- 


1 


§    221)  LIABILITY   FOR   INJURIES  297 

tion  or  conduction  except  at  great  expense,  and  the  latter  can  do 
so  by  the  adoption  of  a  safe  and  comparatively  inexpensive  device, 
the  injunction  will  be  denied,"''  although  the  latter  may  recover  the 
cost  of  procuring  and  installing  such  device.^"  It  has  been  held 
that  if  it  is  part  of  the  contract  of  a  telephone  company  with  the 
state  that  the  maintenance  of  its  lines  shall  not  prevent  the  adop- 
tion by  the  public  of  any  safe,  convenient,  and  expeditious  mode  of 
transit,  such  as  a  street  railway  company,  the  telephone  company  is 
not  deprived  of  any  property  right,  and  cannot  therefore  recover 
for  injuries  either  by  induction  or  by  conduction;  -^®    and  also  that, 

joined  from  placing  its  wires  in  such  close  proximity  as  to  impair  the  efficiency 
of  a  previously  established  telephone  service;  Cumberland  Tel.,  etc.,  Co.  v. 
United  Elec.  R.  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544.  See,  also.  West.  U. 
Tel.  Co.  V.  Los  Angeles  Elec.  Co.  (C.  C.)  76  Fed.  178;  West.  U.  Tel.  Co.  v. 
Champion,  etc.,  L.  Co.,  14  Wkly.  Law  Bui.  (Ohio)  327;  American  Tel.,  etc.,  Co. 
V.  ^Morgan,  etc.,  Co.,  138  Ala.  597,  36  South.  178,  100  Am.  St.  Rep.  53 ;  West.  U. 
Tel.  Co.  V.  Syracuse,  etc.,  Co.,  178  N.  Y.  325,  70  N.  E.  866 ;  West  Jersey,  etc., 
R.  R.  V.  Atlantic  City,  etc.,  Co.,  65  N.  J.  Eq.  613,  56  Atl.  890;  Newark,  etc., 
Co.  V.  Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37  L.  R.  A.  725 ;  Consol.,  etc.,  Co. 
V.  People's,  etc.,  Co.,  94  Ala.  372,  10  South.  440 ;  Wettengel  v.  Allegheny,  etc., 
Co.,  223  Pa.  79,  72  Atl.  265;  Montgomerj^  etc.,  Co.  v.  Citizens,  etc.,  Co.,  142 
Ala.  462,  38  South.  1026 ;  Louisville,  etc.,  Co.  v.  Cumberland,  etc.,  Co.,  Ill  Fed. 
663,  49  C.  C.  A.  524,  reversing  (C.  C)  110  Fed.  593 ;  Northwestern,  etc.,  Co.  v. 
Twin  City,  etc.,  Co.,  89  Minn.  495,  95  N.  W.  460 ;  Northern,  etc.,  Co.  v.  Iowa, 
etc.,  Co.  (Iowa)  98  N.  W.  113 ;  Cumberland,  etc.,  Co.  v.  Louisville,  etc.,  Co.,  114 
Ky.  892,  72  S.  W.  4;  Cumberland,  etc.,  Co.  v.  United  Elec.  Ry.,  93  Tenn.  492, 
29  S.  W.  104,  27  L.  R.  A.  236;  Birmingham  Traction  Co.  v.  Southern,  etc., 
Tel.  Co.,  119  Ala.  144,  24  South.  731 ;  West.  U.  Tel.  Co.  v.  Franklin,  etc.,  Co., 
70  N.  H.  37,  47  Atl.  616,  federal  question  whether  cutting  of  poles  by  car  com- 
pany was  in  violation  of  the  Post  Roads  Act.  See  American  Tel.,  etc.,  Co.  v. 
Mill  Creek  Tp.,  195  Pa.  643,  46  Atl.  140. 

Parties — Rival  companies. — When  one  company  cannot  enjoin  a  rival  com- 
pany from  use  of  street,  see  Baxter  Tel.  Co.  v.  Mutual  Tel.  Ass'n,  94  Kan.  159, 
146  Pac.  324,  L.  R.  A.  1916B,  1083.  Injunction  cannot  be  sustained  by  elec- 
tric company  to  prevent  landlord  from  requiring  tenant  to  use  rival  com- 
pany's electricity.  People's  Laud,  etc.,  Co.  v.  Beyer,  161  Wis.  349,  154  N.  W. 
382,  L.  R.  A.  1916B,  813. 

236  Hudson  River  Tel.  Co.  v.  Watervliet  Tp.,  etc.,  Co.,  135  N;  Y.  393,  32  N. 
E.  148,  31  Am.  St.  Rep.  838,  17  L.  R.  A.  674;  Cumberland  Tel.,  etc.,  Co.  v. 
United  Elec.  R.  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544.  See,  also.  Central 
Pennsylvania  Tel.,  etc.,  Co.  v.  Wilkes-Barre,  etc.,  R.  Co.,  11  Pa.  Co.  Ct.  R.  417. 
But  see  West.  U.  Tel.  Co.  v.  Guernsey,  etc,  Elec.  L.  Co.,  46  Mo.  App.  120. 

237  Cumberland  Tel.,  etc.,  Co.  v.  United  Elec.  R.  Co.,  93  Tenn.  492,  29  S.  W. 
104,  27  L.  R.  A.  236.  See,  also,  Central  Pennsylvania  Tel.,  etc.,  Co.  v.  Wilkes- 
Barre,  etc.,  B.  Co.,  11  Pa.  Co.  Ct.  R.  417. 

23 s  Hudson  River  Tel.  Co.  v.  Watervliet  Tp.,  etc.,  Co.,  135  N.  Y.  393,  32  N.  E. 
148,  31  Am.  St.  Rep.  838,  17  L.  R.  A.  674 ;  Cincinnati  Inclined  Plane  R.  Co.  v. 
City,  etc.,  Tel.  Assoc,  48  Ohio  St.  390,  27  N.  E.  890,  29  Am.  St.  Rep.  559,  12 


298  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  221a 

while  an  electric  light  company  cannot  recover  for  injuries  occa- 
sioned by  induction  from  a  street  railway  company  subsequently 
constructed,  when  the  establishment  of  the  latter  is  a  legitimate  use 
of  the  street,  yet  the  former  may  recover  for  injury  resulting  from 
conduction,  where  it  does  not  occur  upon  or  within  the  streets  or 
through  the  medium  of  the  poles  and  wires  of  the  electric  light  com- 
pany upon  the  streets.^^® 

§  221a.  "Inductive"  electricity — meaning  of — effect. — "Induc- 
tive" electricity  is  the  attraction  which  the  feed  wires  of  these  com- 
panies have  for  one  another.  The  feed  wires  of  electric  light  and 
railway  companies  are  always  heavily  charged  with  electricity 
when  the  said  companies  are  operating  their  plants;  and  when 
there  is  a  telephone  or  telegraph  wire  stretched  near  to  and  parallel 
with  the  wires  of  these  companies,  there  is  a  tendency  of  the  more 
heavily  charged  feed  wire  of  such  companies  to  be  attracted  toward 
the  wire  of  the  telephone  company.  The  induction  may  be  great  or 
small,  and  the  greater  the  amount  necessarily  produces  a  greater 
inductive  force.  The  amount  of  induction  depends  upon  variation 
in  current,  the  distance  of  the  wires  from  each  other,  and  the  length 
of  parallelism  of  the  wires.  The  current  upon  the  trolley  wire  and 
the  feed  wire  of  the  railway  is  quite  variable  in  quantity  and  in- 

L.  R.  A.  534 ;  Tel.  Co.  v.  R.  Co.,  53  Ind.  App.  230,  100  N.  E.  309,  Ann.  Cas. 
1916A,  132,. compare  Bell  v.  David  City,  94  Neb.  157,  142  N.  W.  523;  Cumber- 
land, etc.,  Tel.  Co.  v.  United  Elec.  Ry.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544; 
Spokane  Falls  Gas  L.  Co.  v.  St.  Paul  Ry.  (Mss.  Wash.  1S99)  conduction  by 
electrolysis. 

239  Cumberland  Tel.,  etc.,  Co.  v.  United  Elec.  R.  Co.,  93  Tenn.  492,  29  S.  W. 
104,  27  L.  R.  A.  236.  This  case,  while  arriving  at  a  different  result  than  the 
analogous  case  of  Hudson  River  Tel.  Co.  v.  Watervliet  Tp.,  etc.,  Co.,  supra,  Is 
not  necessarily  in  conflict  therewith,  as  may  be  observed.  But  see  Cumber- 
land Tel.,  etc.,  Co.  v.  United  Elec.  R.  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544, 
injunction  denied  as  injury  could  be  obviated  by  return  wire  much  cheaper 
than  defendant  could  obviate  the  difficulty  by  remodeling  its  system. 

Grounding  current. — A  reason  which  has  been  urged  against  the  allowance 
of  damages  for  injuries  arising  from  conduction  is  that,  inasmuch  as  the 
right  to  use  the  earth  as  a  return  circuit  is  common  and  universal,  it  is  not 
subject  to  the  rule  that  a  party  who  is  prior  in  point  of  time  is  prior  in  point 
of  right  in  using  the  same.  Cincinnati  Inclined  Plane  R.  Co.  v.  City,  etc.,  Tel. 
Assoc.,  4S  Ohio  St.  390,  27  N.  E.  S90,  29  Am.  St.  Rep.  559,  12  I>.  R.  A.  534. 
Where,  however,  a  telephone  company  uses  the  earth  for  this  puri"»ose  on  its 
private  premises  or  the  premises  of  its  sul>scriber,  it  would  be  unfair  to  as- 
sume that  another  company,  by  generating  and  using  an  immeasurably  su- 
l)erior  current  of  electricity,  should  be  allowed  to  invade  the  private  prem- 
ises of  another  and  destroy  the  successful  pursuit  of  a  legitimate  business. 
Cumberland  Tel.,  etc.,  Co.  v.  United  Elec.  R.  Co.,  93  Tenn.  492,  29  S.  W.  104, 
27  L.  R.  A.  236. 


•i 

i 


§    221b)  LIABILITY   FOR   INJURIES  299 

tensity,  owing  to  the  drain  upon  the  store  of  electricity  by  the 
moving  and  stopping  of  the  car.  Nor  is  the  electricity,  as  generated, 
exactly  uniform  in  its  flow  from  the  dynamo.  The  result  is,  when- 
ever the  telephone  wire  is  parallel  with  the  trolley  wire  and  feed 
wire,  there  is  induced  into  the  telephone  wire  a  current  whose  varia- 
tion corresponds  with  the  variation  of  the  electrical  current  on  the 
electric  railway  wires,  thereby  producing  such  disturbances  as  ren- 
der the  use  of  the  telephone  plant  impracticable. 

§  221b.  Same  continued — actions — causes  thereof, — The  actions 
which  arise  under  these  interferences  or  obstructions  to  the  business 
of  telephone  companies  by  electric  light  and  railway  companies  is 
by  a  bill  of  injunction,  or  an  action  for  damages.  In  order  to  suc- 
cessfully maintain  a  bill  of  injunction,  there  should  be  alleged 
therein  the  fact  that  the  use  of  the  telephone  line  is  being  interfered 
with,  or  the  transmission  of  messages  over  the  same  has  been  and 
is  being  obstructed,  or  is  being  disturbed  by  the  intense  and  varying 
electric  current  passing  over  the  feed  wire  of  these  companies 
which  is  running  near  to  and  parallel  with  the  line  wire  of  the  tele- 
phone company.  It  must  be  further  shown,  in  order  for  the  tele- 
phone company  to  recover  damages  or  to  sustain  a  bill  of  injunc- 
tion, that  the  loss  caused  by  the  conflict  of  poles  and  wires  is  be- 
cause of  defendant's  fault  or  want  of  care.  The  loss  of  induction, 
unlike  that  caused  by  conduction,  occurs  upon  and  within  the  streets 
and  is  a  direct  and  immediate  result  of  the  occupation  and  use  of  the 
streets,  by  a  telephone  company,  simultaneously  with  these  other 
companies,  and  would  be  obviated  or  remedied  by  the  withdrawal 
of  either  company  from  the  streets.  It  cannot  be  said  that  the  rights 
of  one  to  use  and  occupy  the  streets  are  greater  than  those  of  the 
other,  nor  that  one  is  subservient  to  the  other,  for  they  are  both 
quasi-public  corporations,  created  by  the  same  person  and  exer- 
cising their  rights  and  privileges  by  permission  of  the  same  city 
authority.  They  both  serve  important  public  functions,  and  are 
equal  candidates  for  public  favor.  Their  respective  rights  to  oc- 
cupy and  use  the  streets  are  co-ordinate.  It  is  further  clear  that  no 
conflict  can  occur  between  these  companies  in  the  use  of  the  streets, 
if  each  shall  remain  in  its  proper  sphere  and  exercise  its  power  with 
that  careful  and  prudent  regard  for  the  rights  of  others  which  the 
law  enjoins.'*'*  It  therefore  follows  that  the  electric  railway  or 
light  companies  must  be  guilty  of  negligence,  or  a  want  of  care, 
before  they  will  become  liable.    If  they,  for  instance,  have  their  feed 

2*0  Cumberland  Tel.,  etc.,  Co.  v.  United  Electric  Railway  Co.  (C.  C.)  42  Fed- 
273,  12  L.  R.  A.  544. 


300  TELEGRAPH   AND   TELEPHONE   COMPANIES  (§    221c 

wire  suspended  in  a  proper  manner  over  a  track,  or  on  the  opposite 
side  of  the  street  to  that  on  which  the  telephone  wire  is  strung,  the 
company  will  not  be  liable.  In  other  words,  the  telephone  company 
must  exercise  due  care  toward  these  companies,  and  if  it  obstructs 
the  streets  in  anywise  as  to  prevent  these  companies  from  carrying 
on  their  business  uninterruptedly,  it  cannot  maintain  this  suit. 

§  221c.  Same  continued — reason  for  injunction. — The  court,  in 
one  of  the  most  able  decisions  ever  rendered  in  sustaining  an  in- 
junction suit  against  electric  railway  companies  from  using  its  feed 
wire — the  same  having  been  constructed  immediately  over  its  track 
— in  such  a  manner  as  to  interfere  with  the  use  of  the  streets  by  a 
telephone  company,  has  the  following  to  say :  "The  loss  caused  by 
conflict  of  poles  and  wires  is  imputable  to  defendant's  fault  or  want 
of  care.  Having  power  to  have  avoided  this  conflict  without  injury 
to  its  plant,  it  was  the  defendant's  duty  to  do  so.  The  conflict  was 
the  result  of  defendant's  unnecessary  act.  On  the  other  hand,  the 
loss  by  induction  cannot  be  imputed  to  any  fault  or  negligence  of 
defendant.  Its  plant  was,  as  regards  this  niatter,  properly  con- 
structed and  operated.  Defendant  could  not  obviate  induction  with- 
out abandoning  the  streets  where  it  occurred.  Induction  is  such 
obstruction  of  the  streets  as  plaintiff  is  forbidden  to  create.  The 
objection  that  induction  is  not  an  obstruction  of  the  streets  'sticks 
in  the  bark.'  True,  it  did  not  arrest  the  construction  and  operation 
of  defendant's  plant,  but  that  results  not  for  the  reason  that  induc- 
tion is  not  an  obstruction,  but  because  defendant  was  sufficiently 
powerful  to  disregard  and  override  it.  A  child  upon  defendant's 
track,  in  front  of  its  moving  car,  is  not  in  a  strict  sense  an  obstruc- 
tion;  but  who  will  say  that  the  fact  does  not  seriously  interfere 
with  defendant's  free  and  unembarrassed  use  of  the  street?  The 
constraint  caused  by  liability  for  legal  penalties,  if  the  child  is 
crushed,  operates  as  a  very  substantial  obstruction.  Defendant 
must  stop  the  car  or  incur  serious  liability.  It  is  vain  to  say  that 
induction  is  not  an  obstruction  if  defendant  shall  be  held  for  the 
unavoidable  damage  caused  by  it.  It  is  true  induction  implies  no 
physical  contact  of  the  two  plants,  but  is  a  direct  and  immediate 
result  of  plaintiff's  use  and  occupation  of  the  streets.  The  presence 
of  plaintiff's  poles  and  wires  upon  the  street  causes  induction  and 
their  removal  would  obviate  it.  The  plaintiif  cannot  recover  for 
the  loss  sustained  from  induction.  It  results  from  its  unlawful  ob- 
struction of  defendant's  use  of  the  streets."  ^^^ 

241  Cumberland  Tel.,  etc.,  Co.  v.  United  Electric  Railway  Co.  (C.  C.)  42  Fed. 
273,  12  L.  R.  A.  544. 


§    221e)  LIABILITY   FOR   INJURIES  301 

§  22 Id,  Same  continued — distinction  between  induction  and 
conduction. — The  same  court  draws  a  distinction  between  the  lia- 
bility of  these  electric  railway  companies  for  the  interference  of  the 
use  of  the  streets  by  telephone  companies  by  "induction"  and  "con- 
duction," and  shows  how  they  may  be  liable  for  "conduction."  The 
court  says :  "Is  defendant  liable  for  loss  sustained  by  plaintiff  from 
the  effect  of  conduction?  The  loss  by  conduction,  unlike  that 
caused  by  induction  does  not  result  from  plaintiff's  obstruction  of 
defendant's  use  of  the  streets  for  an  ordinary  purpose.  This  inter- 
ference would  occur  and  cause  precisely  the  same  loss  to  plaintiff, 
and  in  precisely  the  same  manner.  If  plaintiff  had  no  poles  or  wires 
upon  the  street,  loss  by  conduction  does  not  result  in  the  slightest 
degree  from  the  presence  of  the  plaintiff's  poles  and  wires  upon  the 
streets,  and  would  not  be  to  any  extent  remedied  by  their  removal. 
The  contact  between  the  two  plants,  caused  by  conduction  and  the 
consequent  injury,  does  not  occur  upon  or  within  the  streets  or 
through  the  medium  of  plaintiff's  poles  and  wires  located  upon  the 
streets,  but  upon  plaintiff's  private  property  and  that  of  its  sub- 
scribers, lying  outside  of  the  streets  and  within  half  a  mile  on 
either  side.  The  fact  of  plaintiff's  occupation  and  use  of  the  streets, 
a  controlling  factor  in  determining  defendant's  inability,  for  loss  by 
induction,  is  irrelevant  in  the  consideration  of  the  question  of  de- 
fendant's liability  for  loss  by  conduction.  This  question  must  be 
determined  as  if  the  plaintiff  had  no  poles  or  wires  upon  the  streets. 
The  proviso  in  the  statute  of  1885  forbidding  plaintiff  by  the  use 
of  the  streets  to  obstruct  their  ordinary  use  has  no  application  to  the 
question  under  consideration.  That  statute  limits  plaintiff's  use 
of  the  streets,  but  it  does  not  abridge  its  right  to  private  property 
outside  the  street  and  wholly  detached  from  their  use.  That  stat- 
ute confers  upon  plaintiff  the  use  of  the  streets  and  limits  that  use. 
It  does  not  confer  upon  plaintiff  any  rights  of  private  propert}'"  out- 
side the  streets,  and  does  not  undertake  to  abridge  any  such  rights. 
The  proviso  pertains  wholly  and  exclusively  to  the  use  of  the 
streets.  The  defendant's  claim  to  the  dominant  use  of  the  streets, 
if  conceded,  has  no  place  in  the  consideration  of  this  question  in- 
volving the  rights  of  the  parties  outside  the  streets."  -*^ 

§  22 le.  Same  continued — priority  of  time — induction. — The 
right  of  relief  by  injunction  depends  in  a  measure  upon  the  fact  as 
to  whether  the  telephone  company  has  a  prior  right  of  occupancy 
to  the  space  covered  by  its  wires  as  against  the  railway  and  electric 

242  Cumberland  Tel.,  etc.,  Co.  v.  United  Electric  Railway  Co.  (C.  C.)  42  Fed. 
273,  12  L.  R.  A.  544.  ' 


302  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  221f 

companies.  In  a  case  where  a  telephone  company  sued  for  an  in- 
junction to  restrain  the  electric  light  company  from  occupying  cer- 
tain streets,  and  from  placing  its  wires  too  close  to  its  own,  there 
was  some  contest  as  to  which  had  the  prior  right  of  occupancy. 
The  bill  alleged  that  incandescent  light  wires  could  not  be  operated 
parallel  to  telephone  wires  at  a  less  distance  than  three  feet,  nor  arc 
light  wires  at  a  less  distance  than  two  feet,  without  seriously  in- 
terfering with  the  telephone,  and  that  if  the  arc  light  wires  crossed 
the  telephone  wires  at  a  less  distance  than  ten  feet  without  being 
securely  boxed,  there  was  danger  of  accident.  The  trial  court  en- 
joined the  light  company  from  using,  for  arc  light  purposes,  any 
wires  running  parallel  and  on  the  same  side  of  the  street  with  the 
telephone  wires,  and  from  using  for  incandescent  light  purposes 
any  wires  running  parallel  with  the  telephone  wire  on  the  same 
side  of  the  street  within  a  less  distance  than  eight  feet,  and  in  any 
case  for  a  distance  greater  than  three  hundred  feet.  It  was  further 
provided  in  the  decree  that  in  all  cases  wires  must  cross  each  other 
at  an  angle  of  not  less  than  forty-five  degrees,  and  a  strong  guard 
wire  should  be  suspended  between  the  wires  of  the  two  companies 
to  prevent  the  upper  wires  from  falling  on  the  lower.  The  injunc- 
tion was  confined,  however,  to  those  streets  in  which  the  telephone 
company  had  a  prior  right  of  occupancy,  and  was  refused  as  to 
streets  in  which  the  electric  light  company  had  been  the  first  occu- 
pant. The  court  also  enjoined  the  telephone  company  from  placing 
its  wires  too  near  those  of  the  light  company.  The  decision  of  the 
trial  court  was  sustained  on  appeal,  except  as  to  the  injunction 
against  the  telephone  company;  that  part  of  the  injunction  was  set 
aside  on  the  ground  that  the  answer  had  asked  for  no  affirmative 
relief,  and  that  it  did  not  appear  that  the  telephone  wires  could 
exert  the  slightest  influence  upon  those  of  the  light  company.-*^ 

§  22 If.  Same  continued — priority  of  time — conduction. — There 
is  a  different  rule  held  by  the  courts  with  respect  to  the  priority  of 
time  in  the  occupancy  of  streets  where  a  telephone  company  at- 
tempts to  enjoin  other  companies  for  injuries  caused  by  "conduc- 
tion" or  "leakage."  In  a  case  on  this  point  it  appeared  from  the 
evidence  that  the  use  of  the  metallic  circuit  by  either  company 
would  prevent  any  interference  between  the  two  currents.  The 
telephone  company  could  use  such  a  circuit  by  the  adoption  of  a 
safe  and  comparatively  inexpensive  device,  while  the  railway  com- 
pany could  do  so  only  at  a  great  expense  and  annoyance.    The  ques- 


24  3  Nebraska  Tel.  Co.  v.  York  Gas  Light  Co.,  27  Neb.  284,  43  N.  W.  126; 
West.  U.  Tel.  Co.  v.  Champion  Electric  Light  Co.,  14  Wkly.  Law  Bui.  327. 


1 


§    22lg)  LIABILITY   FOR   INJURIES  303 

tion  was  practically  as  to  which  company  should  undergo  the  ex- 
pense of  such  a  circuit.  The  denial  of  the  injunction  was  placed  by 
Brown,  J.,  upon  the  following  grounds:  "First,  that  the  defendants 
are  making  lawful  use  of  the  franchise  conferred  upon  them  by  the 
state  in  a  manner  contemplated  by  the  statute,  and  that  such  act 
cannot  be  considered  as  a  nuisance  in  itself.  Second,  that  in  the 
exercise  of  such  franchise,  no  negligence  has  been  shown,  and  no 
wanton  or  unnecessary  disregard  of  the  rights  of  the  complainant. 
Third,  that  the  damages  occasioned  to  the  complainant  are  not  the 
direct  consequence  of  the  construction  of  defendant's  roads,  but 
are  incidental  damages  resulting  from  their  operation,  and  are  not 
recoverable."  ^**' 

§  22  Ig.  Same  continued — causes  of  interference — electrolysis — 
effect  of. — While  the  business  of  an  electric  lighting  or  heating 
company  is  not  the  same  as  that  of  an  electric  railway  company, 
yet  the  means  of  generating  and  transmitting  the  electric  current 
for  lighting  and  heating  is  done  in  practically  the  same  manner  as 
that  by  which  electric  cars  are  propelled.  To  have  a  clear  under- 
standing of  the  manner  in  which  the  latter  is  operated  will  be  sufB- 
cient  to  explain  how  telephone  companies  may  be  interfered  with 
by  induction,  conduction,*  or  electrolysis.  Under  the  old  method,  a 
telephone  had  a  wire  running  from  the  exchange  to  the  subscriber's 
receiver,  which  was  also  connected  with  a  ground  wire  or  the  earth. 
The  ground  wire  was  connected  with  the  exchange,  thereby  mak- 
ing a  complete  circuit.  The  earth  answered  the  same  purpose  as 
this  ground  wire  where  none  was  used.  This  method  of  making 
the  circuit  is  used  very  little  now,  and  instead  of  the  ground  or 
ground  wire  for  the  return  circuit,  there  is  in  use  metallic  conduc- 
tors, such  as  iron  and  copper  wires,  rails,  iron  and  lead  pipes,  tele- 
graph and  telephone  cables,  constructed  alongside  the  wire  leading 
from  the  exchange  to  the  subscriber's  telephone.  There  are,  so  far, 
two  methods  by  which  electric  railway  cars  are  operated,  with  re- 
spect to  this  circuit :  First,  the  electricity,  which  is  produced  at  the 
power  house,  is  conducted  around  the  line  on  wires  supported  by 
some  means  immediately  over  the  center  of  the  track,  or  on  a  third 
insulated  rail,  located  underneath  or  near  the  track.  It  is  then 
conducted  from  the  trolley  wire  or  third  rail  to  the  motor  on  the 

244  Cumberland  Tel.,  etc.,  Co.  v.  United  Electric  Railway  Co.  (C.  C.)  42  Fed. 
273,  12  L.  R.  A.  544 ;  Hoyt  v.  Jeffers,  30  Mich.  181 ;  Hudson  River  Tel.  Co.  v. 
Watervliet  Turnpike,  etc.,  Co.,  135  N.  Y.  393,  32  N,  E.  148,  31  Am.  St.  Rep. 
838,  17  L.  R,  A.  674;  Postal,  etc.,  Co.  v.  Chicago,  etc.,  Ry.  Co.,  49  Ind.  App. 
697,  97  N.  E.  20 ;  Lake  Shore,  etc.,  Ry.  v.  Chicago,  etc.,  Ry.,  48  Ind.  App.  584, 
92  N.  E.  989,  95  N.  E.  596. 


304  TELEGRAPH  AND  TELEPHONE   COMPANIES  (§    221g 

car  by  means  of  a  trolley  or  shoe.  It  then  escapes  through  the 
wheels  to  the  track,  and  thence  over  the  track  back  to  the  power 
house,  thereby  making  an  entire  circuit.  This  method  is  called  the 
single-trolley  system.-*^  The  other  way  is  the  same  as  this,  with 
this  exception,  viz. :  Instead  of  the  track  and  the  ground  being 
used  for  the  return  circuit,  there  is  another  wire  placed  directly 
beside  the  trolley  wire,  for  the  purpose  of  connecting  the  circuit. 
This  is  the  double-trolley  system.^"  The  first  of  these  is  consid- 
ered by  experienced  electricians  to  be  the  most  simple,  convenient 
and  cheaper  of  the  two,  and  for  these  reasons  it  is  the  system  most 
generally  used.-*''  It  will  be  seen  that  there  is  a  complete  circuit 
made  by  all  of  these  companies,  having  the  central  office  or  the 
power  house  as  the  beginning  of  the  circuit,  and  at  which  point  the 
current  is  transmitted  to  the  circuit;  and  it  is  the  current  on  the 
circuit  which  may  be  interfered  with.  The  telephone,  in  order  to  be 
successfully  operated,  requires  a  delicate,  sensitive  electric  current 
with  accurate  pulsations,  and  whenever  this  current  is  strengthened, 
or  its  pulsations  interfered  with  by  the  addition  of  electric  force 
from  extrinsic  sources,  its  usefulness  is  impaired  or  destroyed.  The 
interfering  currents  cause  a  buzzing  sound,  which  almost  drowns 
the  voice  and  makes  the  enunciators  ring,  thus  materially  interfer- 
ing with  the  successful  working  of  the  apparatus  at  the  central 
office.  The  current  of  the  telephone  company  may  be  interfered 
with  when  on  the  wires  and  poles  above  the  ground,  by  powerful 
currents  conveyed  over  the  wires  employed  by  electric  light  and 
railway  companies,  and  is  produced  by  "inductive"  electricity;^*® 
or  it  may  be  interfered  with  on  the  return  circuit  underneath  the 
ground  by  "conduction"  ^*®  or  "leakage"  where  the  old  system  is 
used.  There  is  another  effect  of  conduction  known  as  "electroly- 
sis." ^^°     Thus,  where  the  single-trolley  system  is  used,  and  the 

245  Cincinnati  Inclined  Plane  Ry.  Co.  v.  City,  etc.,  Tel.  Ass'n,  48  Ohio  St. 
390,  27  N.  E.  S90,  29  Am.  St.  Rep.  559,  12  L.  R.  A.  534. 

24G  Cincinnati  Inclined  Plane  Ry.  Co.  v.  City,  etc.,  Tel.  Ass'n,  48  Ohio  St. 
390,  27  N.  E.  890,  29  Am.  St.  Rep.  559,  12  L.  R.  A.  534. 

247  Cumberland  Tel.,  etc.,  Co.  v.  United  Electric  Railway  Co.,  93  Tenn.  492, 
29  S.  W.'  104,  27  L.  R.  A.  236;  Cumberland  Tel.,  etc.,  Co.  v.  United  Electric 
Railway  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544. 

248  See  §  221a. 

249  See  §  221d. 

250  Definition. — "When  the  passage  of  an  electric  current  through  a  sub- 
stance is  accompanied  by  definite  chemical  changes  which  are  independent  of 
the  heating  effects  of  the  current,  the  process  is  known  as  electrolysis,  and  the 
substance  is  called  an  electrolyte."  9  Ency.  Britannica  (11th  Ed.)  217.  "Elec- 
trolysis is  a  chemical  dissolution  caused  by  an  electric  current.    Whenever  a 


§    ^2lg)  LIABILITY  FOR   INJURIES  305 

volume  of  electricity  on  the  return  circuit  is  too  great  for  the  size 
or  capacity  of  the  rail,  and  the  resistance  is  too  high  to  properly 
return  the  electricity  to  the  power  house,  the  electric  current  will 
escape  to  other  metallic  substances  which  offer  less  resistance  and  a 
better  path  for  its  return.  In  other  words,  where  telephone  and 
telegraph  cables,  and  other  underground  metallic  structures  are  run- 
ning parallel  with  or  near  the  electric  railway  track,  which  is  used 
for  the  return  current  for  the  latter  company,  but  which  is  inade- 
quate to  convey  the  electric  current  to  the  power  house  in  the 
proper  manner,  the  electricity  will  escape  to  such  telephone  and 
telegraph  cables,  or  other  underground  metallic  substances,  and 
at  such  points  electrolytic  actions  or  disintegration  takes  place,.- 
and  causes  the  cable  to  be  pitted  and  eaten.  Pipes  of  water  com- 
panies have  suffered  more  than  any  other  from  electrolysis  caused 
by  the  escape  of  electricity  from  the  return  circuit  of  electric 
railway  tracks,  but  telephone,  telegraph,  and  electric  companies' 
wires  may  also  be  affected  thereby.  Heavily  charged  wires  of 
electric  companies  may  also  be  the  producing  cause  of  electrolysis. 
So  far  there  has  been  little  litigation  on  electrolysis,^"^  and,  as 
means  can  be  provided  to  prevent  injuries  arising  therefrom, -^- 
there  will  not  likely  be  much  litigation  thereon.  While  the  courts 
cannot  require  the  use  of  certain  devices  to  prevent  electrolysis, ^^^ 
they  can  enjoin  the  escape  of  electricity  which  causes  electrolysis 
where  the  party  against  whom  the  complaint  is  made  has  been  negli- 

current  of  sufficient  quantity  and  intensity  is  passed  through  a  chemical  com- 
pound in  a  fluid  condition,  it  will  cause  a  chemical  disruption,  and  one  of  the 
elements  will  go  to  the  anode,  or  the  place  at  which  the  current  enters  the 
fluid  mass,  and  the  other  will  go  to  the  cathode,  or  the  place  where  the  cur- 
rent loaves  it."  Lowrey  v.  Cowles  Elec,  etc.,  Co.  (C.  C.)  68  Fed.  354.  "As 
applied  to  water  pipes,  electrolysis  is  the  stripping  off  of  small  particles  of 
the  iron  when  a  suitable  electrolytic  solution  is  present,  leaving  the  carbon  of 
which  the  pipe  is  partly  composed  intact.  What  the  cathode  is  in  this  process 
of  decomposition  does  not  clearly  appear,  but  it  may  be  assumed  to  be  the  ad- 
joining water  pipe,  a  gas  pipe,  lead  water  service  pipe,  street  car  rail,  or 
some  metallic  deposit  in  the  soil ;  one  or  more  of  these  being  part  of  the  cir- 
cuit of  the  current  operating  on  the  water  main,  and  flowing  toward  1;he  nega- 
tive side  of  the  dynamo  in  the  railway  power  station."  Peoria  Waterworks 
Co.  v.  Peoria  Ry.  Co.  (C.  C).  181  Fed.  990. 

251  Peoria  Waterworks  Co.  v.  Peoria  Ry.  Co.  (C.  C.)  181  Fed.  990;  City  of 
Dayton  v.  City  Ry.  Co.,  26  Ohio  Cir.  Ct.  R.  736 ;  Townsend  v.  Norfolk  Ry.,  etc., 
Co.,  105  Va.  22,  52  S.  E.  970,  4  L.  R.  A.  (N.  S.)  87,  115  Am.  St.  Rep.  842,  8- 
Ann.  Cas.  55S. 

^5  2  See  Cravath-Trow,  Electric  Railways,  pp.  66  and  98. 

253  City  of  Dayton  v.  City  Ry.  Co.,  26  Ohio  Cir.  Ct.  R.  736. 

Jones  Tel. (2d  Ed.) — 20 


306  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  221g 

gent  in  this  respect;^®*    and  the  latter  would  also  be  liable,  under 
the  same  circumstances,  for  damages  for  such  injury.^^^ 

254  "At  the  outset  it  may  be  said  that  the  court  has  no  power  to  prescribe 
by  injunction  the  use  of  any  particuhar  system  of  circuit  or  negative  return. 
It  is  doubtful,  indeed,  whether  the  judicial  power  would  extend  to  the  making 
of  a  decree  restraining  the  defendant  from  continuing  to  serve  the  public  un- 
less it  shall  cease  injuring  complainants'  water  system.  The  utmost  possible 
relief  is  to  restrain  defendant  from  continuing  the  injury,  assuming  for  the 
present  that  sufficient  damage  is  shown,  and  punishing  it  and  its  officers  for 
contempt  in  case  of  disobedience,  leaving  the  means  of  curing  the  injury  en- 
tirely to  its  discretion.  In  case  of  such  a  result,  a  decree  might  be  rendered 
in  contempt  proceedings  brought  in  this  suit  on  the  equitable  side,  awarding 
compensation  for  such  injury  as  might  be  shown,  with  incidental  punishment. 
Or  a  proceeding  for  a  criminal  contempt  might  be  brought  in  case  of  deliber- 
ate disobedience  in  which  a  fine  or  imprisonment  might  be  imposed.  Bessette 
V.  Conkey  Co.,  194  U.  S.  324,  24  Sup.  Ct.  665,  48  D.  Ed.  997.  That  no  system 
can  be  imposed  by  the  court  is  settled  by  general  decisions,  passing  on  the  es- 
sential distinctions  between  legislative  and  judicial  power."  Peoria  Water- 
works Co.  V.  Peoria  Ry.  Co.  ,(0.  C.)  181  Fed.  990. 

25  5  Peoria  Waterworks  Co.  v.  Peoria  Ry.  Co.  (C.  C.)  181  Fed.  990. 


§  222)  EEGULATION  AND  CONTROL  307 


CHAPTER  X 

REGULATION  AND  CONTROL 

§  222.  Federal  control. 

223.  Same  continued — concurrent  state  rights. 

224.  Telegraph  lines  over  subsidized  railroads. 

225.  State  control. 

226.  State  may  control  the  construction. 

227.  Same  continued — taxing  power. 

228.  Same  continued — penalty  for  delay  in  delivering  messages. 

229.  Same  continued — the  Pendleton  Case — what  embraced. 

230.  Same  continued — must  fall  within  meaning  of  statute. 

231.  Same  continued — offices  established — must  keep  open. 

232.  Same  continued — other  regulations.  \ 

233.  Same  continued — limitation — impairment  of  contract. 

234.  Regulate  charges. 

235.  Same  continued — constitutionality  of  statutes. 

236.  Same  continued — right  to  fix  charges — reason — enforcement. 

237.  Same  continued— cannot  evade  statutes — charged  in  two  items — pat- 

ents. 

238.  Statute  rates  must  be  reasonable. 

239.  As  to  interstate  messages — cannot  fix  maximum  charges. 

240.  Must  furnish  services  notwithstanding  charges. 

241.  Municipal  control. 

242.  Powers  limited — generally  specified. 

243.  Power  to  revoke  franchise — alter  rates. 

244.  Cannot  impose  tax  or  license — not  police  power. 

245.  Cannot  regulate  rate — without  express  authority. 

246.  State  may  delegate  power  to  commission. 

247.  Control  of  wireless  telegraph. 

§  222.  Federal  control. — Where  telegraph  and  telephone  com- 
panies extend  into  several  states,  they  become  instruments  of  in- 
terstate commerce,  and  messages  sent  over  these  lines  are  com- 
merce between  the  states,^  subject  to  the  control  of  Congress,  so  far 
as  regards  matters  connected  with  commerce  among  the  states  or 

iln  re  Pennsylvania  Tel.  Co.,  48  N.  J.  Eq.  91,  20  Atl.  846,  27  Am.  St. 
Rep.  462;  Central,  etc.,  Tel.  Co.  v.  Falley,  118  Ind.  194,  19  N.  E.  604,  10 
Am.  St.  Rep.  114;  Daily  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  46  Am. 
St.  Rep.  578,  24  L.  R.  A.  724 ;  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26 
L.  Ed.  1007;  West.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126, 
30  L.  Ed.  1187,  1  Interst.  Com.  R.  306;  West.  U.  Tel.  Co.  v.  Commercial 
Milling  Co.,  218  U.  S.  406,  54  L.  Ed.  lOSS,  31  Sup.  Ct.  59,  36  L.  R.  A.  (N.  S.) 
220,  21  Ann.  Cas.  815.  See  §  227.  See,  also,  West.  U.  Tel.  Co.  v.  Atlantic  & 
Pacific  States  Tel.  Co.,  5  Nev.  102;  Postal  Tel.  Co.  v.  Richmond,  99  Va. 
102,  37  S.  E.  789,  86  Am.  St.  Rep.  877;  Tel.  Co.  v.  Hall,  118  Fed.  382,  55 
C.  C.  A.  208;  Tel.,  etc.,  Co.  v.  Eureka  (C.  C.)  172  Fed.  755;  Tel.  Cable  Co. 
v.  Mobile  (C.  C.)  179  Fed.  955. 


r^08  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  222 

with  foreign  countries.^  Although  the  fact  that  a  telephone  or  tele- 
graph company  has  extended  its  lines  through  different  states,  and 
is  engaged  in  interstate  commerce,  will  not  relieve  it  from  the  opera- 
tion of  state  statutes  upon  business  conducted  wholly  within  the 
state,  nor  justify  the  refusal  of  such  a  company  to  furnish  the  best 
connections  and  facilities  to  persons  doing  business  in  such  state, 
on  the  terms  prescribed  by  such  statute,^  nor  will  a  state  be  pro- 
hibited from  enacting  laws  subjecting  such  companies  to  penalties 
for  acts  of  negligence  occurring  entirely  within  the  limits  of  that 
state,  although  such  acts  may  be  committed  in  the  delaying  of  the 
transmission  of  messages  to  points  in  other  states.*  The  object  of 
vesting  the  power  to  regulate  commerce  in  Congress  was  to  secure, 
with  reference  to  its  subjects,  uniform  regulations,  where  practica- 
ble, against  conflicting  state  legislation.  Such  conflicting  legislation 
would  inevitably  follow  with  reference  to  communications  between 
citizens  of  different  states,  if  each  state  was  vested  with  the  power 
to  control  them  beyond  its  own  limits.  The  manner  and  order  of 
the  delivery  of  telegrams,  as  well  as  their  transmission,  would  vary 
according  to  the  judgment  of  each  state.  Thus  the  Indiana  statute 
requires  telegrams  to  be  delivered  by  messengers  to  persons  to 
whom  they  are  addressed,  if  they  reside  within  one  mile  of  the  tele- 
graph station,  or  within  the  city  or  town  in  which  such  station  is ; 
and  the  requirement  applies  according  to  the  decision  of  the  su- 
preme court  in  this  case  when  the  delivery  is  to  be  made  in  another 
state.  Other  states  might  consider  that  the  delivery  by  messengers 
to  a  person  living  in  a  city  many  miles  in  extent  was  an  unjust  bur- 
den, and  require  the  duty  within  less  limits;  so,  if  the  law  of  one 
state  could  prescribe  the  order  and  manner  of  delivery  in  another 
state,  the  receiver  of  the  message  would  often  find  himself  incurring 
a  penalty  because  of  conflicting  laws,  both  of  which  he  could  not 
obey.  Conflict  and  confusion  would  only  follow  the  attempted  exer- 
cise of  such  a  power.^ 

2  Galium  V.  District  of  Columbia,  15  App.  D.  0.  529.  See  State  v.  Chicago, 
etc.,  R.  Co.,  136  Wis.  407,  117  N.  W.  6S6,  19  L.  R.  A.  (N.  S.)  326,  regulation  of 
working  hours  of  employes ;  Lawrence  v.  Rutland  R.  Co.,  80  Vt.  370,  67  Atl. 
1091,  15  L.  R.  A.  (N.  S.)  350,  13  Ann.  Cas.  475,  requiring  payment  of  weekly 
salaries  of  employes. 

3  Central,  etc.,  Tel.  Co.  v.  Falley,  118  lud.  194,  19  N.  E.  604,  10  Am.  St. 
Rep.  114. 

4  West.  U.  Tel.  Co.  v.  Howell,  95  Ga.  194,  22  S.  E.  286,  51  Am,  St.  Rep. 
68,  30  L.  R.  A.  158. 

5  West.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  30  L.  Ed.  1187,  7  Sup.  Ct. 
1126. 


§  224)  REGULATION  AND  CONTROL  309 

§  223.  Same  continued — concurrent  state  rights. — The  power  to 
regulate  commerce  is  manifestly  a  dormant  power  until  brought 
into  activity.  It  covers  a  wide  field  and  embraces  many  subjects, 
and  to  the  extent  that  Congress  fails  to  exercise  it  in  any  given 
case,  it  seems  to  be  conceded  that  it  is  a  concurrent  power  and  may 
be  exercised  by  any  state.®  Until  this  dormant  power  of  the  con- 
stitution is  awakened  and  made  effective  by  appropriate  legislation, 
the  reserved  power  of  the  state  is  plenary,  and  its  exercise  in  good 
faith  cannot  be  made  the  subject  of  review  by  the  United  States 
Supreme  Court.''  Thus  the  states  may  require  foreign  telegraph 
and  telephone  companies  to  have  a  known  place  of  business  within 
their  jurisdiction,  and  an  agent  or  agents  thereat  on  whrtm  sum- 
mons may  be  served ;  or  they  may  require  a  prompt  delivery  of 
messages  received  from  another  state  and  impose  a  penalty  for  a 
failure  to  do  so;  ^  or  they  may  provide  a  limited  time  within  which 
suits  must  be  brought  and  a  notice  of  same  given  prior  thereto.^ 
Because  the  company  is  a  foreign  corporation  and  carrying  on  in- 
terstate commerce  will  not  deprive  the  state  of  any  of  its  police 
regulations. ^° 

§  224.  Telegraph  lines  over  subsidized  railroads. — In  order  to 
have  connection  between  the  East  and  the  West,  Congress  granted 
rights  of  ways  to  the  Pacific  railroads  and  aided  and  assisted  them 
in  the  construction  of  their  roads. ^^  In  connection  with  their  rail- 
road business,  Congress  also  granted  to  them  franchises  for  the  con- 
struction and  operation  of  telegraph  lines  along  their  roads.  Con- 
gress, nevertheless,  has  control  over  these  lines,  and  the  railroads 
cannot  evade  the  federal  control  of  these  lines  by  any  agreement 
with  a  telegraph  company,^^  as  they  may  be  compelled  to  so  oper- 
ate their  lines  as  to  give  equal  facilities  to  all,  without  any  discrimi- 

6  Steamship  Co.  v.  Joliffe,  2  Wall.  450,  17  L.  Ed.  805 ;  American  U.  Tel. 
Co.  V.  West.  U.  Tel.  Co.,  67  Ala.  26,  42  Am.  Rep.  90. 

7  Oilman  v.  Philadelphia,  3  Wall.  713,  18  L.  Ed.  96. 

8  Gray  v.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1063,  91  Am.  St.  Rep.  706,  56 
L.  R.  A.  301n. 

»  Burgess  v.  West.  U.  Tel.  Co.,  92  Tex.  125,  46  S.  W.  794,  71  Am.  St.  Rep. 
833. 

10  West.  U.  Tel.  Co.  v.  Mississippi  R.  Co.,  74  Miss.  80,  21  South.  15;  Postal 
Tel.  Cable  Co.  v.  Chicopee,  207  Mass.  341,  93  N.  E.  927,  32  L.  R.  A.  (N.  S.) 
997. 

"U.  S.  V.  West.  U.  Tel.  Co.  (C.  C.)  50  Fed.  28.  See,  also,  U.  S.  v.  Union 
Pac.  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed.  319;  U.  S.  v.  Northern 
Pac.  R.  Co.  (C.  C.)  120  Fed.  546. 

12  U.  S.  V.  Union  Pac.  R.  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed.  319. 
See.  also,  U.  S.  v.  Union  Pac.  R.  Co.,  163  U.  S.  710,  16  Sup.  Ct.  1207,  41 


310  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  225- 

nation  in  favor  of  any  person  or  corporation,  and  to  receive  any 
exchange  business  w^ith  connecting  lines. ^^  One  of  the  require- 
ments imposed  upon  these  companies  as  to  the  franchise  to  operate 
a  telegraph  line  along  their  roads  is  that  they  cannot  alienate  the 
franchise ;  and  it  has  been  held  that  this  right  of  control  extends  to 
any  telegraph  company  exercising  these  franchises  under  an  agree- 
ment with  the  railroad  company.^* 

§  225.  State  control. — Under  its  inherent  power  of  police  regu- 
lation over  persons  and  property  within  its  limits,  the  state  may 
regulate  the  manner  in  which  telegraph,  telephone,  and  electric 
companies  shall  be  constructed  and  maintained  within  its  borders. ^^ 
The  police  power  is  one  of  the  fundamental  principles  upon  which 
the  government  was  founded,  and  is  absolutely  essential  to  its  gen- 
eral welfare.  Upon  this  power  rests  the  peace  and  tranquillity  of 
all  society,  the  enjoyment  of  health,  the  upbuilding  of  good  morals, 
and  the  security  and  protection  of  property.^ ^  No  government  can 
advance  in  civilization,  in  wealth,  and  in  influence  without  an  en- 
forcement of  these  poAvers.  When  any  corporation  acquires  a  fran- 
chise for  the  purpose  of  carrying  on  a  corporate  business  within  a 
state,  it  is  accepted  subject  to  the  police  power.  By  giving  the 
franchise,  the  state  did  not  abrogate  its  power  over  the  public  high- 
ways, nor  in  any  way  curtail  its  power  to  be  exercised  for  the  gen- 
eral welfare  of  the  people ;  nor  do  the  states  absolve  themselves 
from  their  primary  duties  to  maintain  the  highways  of  the  respec- 
tive states  in  a  safe  and  proper  condition  for  public  travel  and  other 
necessary  purposes. ^^  Neither  can  this  power  be  alienated,  surren- 
dered, nor  abridged  by  the  legislature  by  any  grant,  contract,  or 

L.  Ed.  316;  U.  S.  v.  West.  U.  Tel.  Co.,  160  U.  S.  53,  16  Sup.  Ct.  210,  40  L. 
Ed.  337. 

13  U.  S.  V.  Northern  Pac.  R.  R.  Co.  (C.  C.)  120  Fed.  546. 

i-tU.  S.  V.  West.  U.  Tel.  Co.  (C.  C.)  50  Fed.  28;  U.  S.  v.  Union  Pac.  R. 
Co.,  160  U.  S.  1,  16  Sup.  Ct.  190,  40  L.  Ed.  319;  U.  S.  v.  Northern  Pac.  R. 
R.  Co.  (C.  C.)  120  Fed.  546. 

15  State  V.  West.  U.  Tel.  Co.,  172  Ind.  20,  87  N.  E.  641;  Hockett  v.  State, 
105  Ind.  2.50,  5  N.  E.  178,  55  Am.  Rep.  201;  State  v.  West.  U.  Tel.  Co.,  75 
Kan.  609,  90  Pac.  299;  Michigan  Tel.  Co.  v.  Charlotte  (C.  C.)  93  Fed.  11. 
See  chapter  V ;  State  ex  rel.  v.  Superior  Court,  67  Wash.  37,  120  Pac.  861, 
L.  R.  A.  1915C,  287,  Ann.  Cas.  1913D,  78,  citing  text ;  People  v.  Squire,  107 
N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893 ;  New  York  v.  Squire,  145  U.  S. 
175,  12   Sup.  Ct.  880,  36  L.  Ed.  666. 

10  State  V.  Superior  Court,  67  Wash.  37,  120  Pac.  861,  L.  R.  A.  1915C. 
287,  Ann.  Cas.  1913D,  78,  quoting  Jones  on  T.  &  T.  Co.  See  Cooley  on  Const. 
Lim.  572. 

17  American  Rapid  Tel.  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  21  Am. 
St.  Rep.  764,  13  L.  R.  A.  454,  note;    Sheldon  v.  West.  U.  Tel.  Co.,  121  N.  Y 


i 


§  226)  REGULATION  AND  CONTROL  311 

delegation  whatsoever;  because  it  constitutes  the  exercise  of  a 
governmental  function  without  which  it  would  become  powerless 
to  do  those  things  which  it  was  especially  designed  to  accom- 
plish.^* It  therefore  follows  that  under  its  inherent  power  of  police 
regulation  the  state  may  regulate  the  manner  in  which  domestic 
telegraph,  telephone,  and  electric  companies  shall  be  constructed 
and  carried  on  within  its  borders ;  ^^  and  it  may  also  regulate  and 
control,  to  a  certain  extent,  foreign  corporations  doing  business 
within  the  state. ^°  While  the  telegraph  and  telephone  companies 
may,  and  generally  do,  fall  under  the  laws  pertaining  to  interstate 
commerce,  and  therefore  regulated  by  Congress,  yet  the  states  ma)' 
prescribe  certain  conditions  for  them  to  perform  before  they  will 
be  protected  and  recognized  under  the  state  laws.  For  instance,  a 
foreign  telegraph  company,  which  has  failed  to  locate  an  office  and 
place  an  agent  thereat,  on  whom  a  summons  may  be  served,  in  a 
state  whose  constitution  provides  that  such  must  be  done,  will  not 
be  protected  in  an  injunction  suit  instituted  by  such  a  company.-^ 
They  cannot  be  prevented  from  coming  into  a  state — and  they  may, 
upon  the  principles  of  comity,  do  business  therein,  unless  it  is  in 
conflict  with  the  laws  thereof  or  unjustly  interferes  with  the  rights 
of  some  of  its  citizens — yet  they  will  not  be  protected  by  the  state 
laws.^- 

§  226.  State  naay  control  the  construction. — The  state  in  grant- 
ing to  a  telegraph,  telephone,  or  electric  company  a  license  to  con- 
struct its  line  upon  the  streets  or  public  highways  does  not  relin- 
quish its  control  over  the  streets  and  highways ;  nor  does  it  divest 
itself  of  the  right  to  exercise  the  police  power  in  any  way.  But 
even  if  the  state  had  granted  some  interest  in  the  streets,  it  could 
nevertheless  regulate  the  size  and  location  of  the  poles,  the  height 
of  the  wires,  and  their  location ;  ^^  and  should  they  become  an  ob- 
struction and  a  nuisance,  the  state  could  remove  them  or  require 
them  to  be  placed  underground.^*     The  company  may  be  required 

697,  24  N.  E.  1099.  See  §  87 ;  State  ex  rel.  v.  Superior  Court,  67  Wash.  37, 
120  Pac.  861,  L.  R.  A.  1915C,  287,  Ann.  Cas.  1913D,  78,  quoting  text. 

18  People  V.  Squire,  107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893; 
Presbyterian  Church  v.  New  York  City,  5  Cow.  (N.  Y.)  540;  State  v.  Su- 
perior Court,  67  Wash.  37,  120  Pac.  861,  L.  R.  A.  1915C,  287,  Ann.  Cas. 
1913D,  78,  quoting  Jones  on  T.  &  T.  Co. 

19  See  chapter  V. 

20  American  U.  Tel.  Co.  v.  West.  U.  Tel.  Co.,  67  Ala.  26,  42  Am.  Rep.  90. 

21  American  U.  Tel.  Co.  v.  West.  U.  Tel.  Co.,  67  Ala.  26,  42  Am.  Rep.  90. 

22  American  U.  Tel.  Co.  v.  West.  U.  Tel.  Co.,  67  Ala.  26,  42  Am.  Rep.  90. 
2  3  See  §  89  et  seq. 

2  4  See  §  93  et  seq. 


312  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  227 

to  furnish  a  map  showing  the  street  or  highway  desired  to  be  used 
and  designate  thereon  the  general  course  of  the  underground  conduit 
to  be  used,  with  a  description  of  its  size  and  depth. -^  The  primary 
and  fundamental  object  of  all  public  highways  is  to  furnish  a  pas- 
sageway for  travelers  in  vehicles,  or  on  foot,  through  the  coun- 
try.^^  They  were  originally  designed  for  the  use  of  the  travelers 
alone,  but  in  the  course  of  time  and  in  the  interest  of  the  general 
prosperity  and  comfort  of  the  public,  they  have  been  put,  especially 
in  large  cities,  to  numerous  other  uses,  and  yet  such  uses  have 
always  been  held  to  be  subordinate  to  the  original  design  and  use.^^ 
It  is,  therefore,  the  duty  of  the  goverhmental  power  to  secure  a  safe 
highway  for  the  protection  of  life ;  and  any  control  over  the  con- 
struction and  maintenance  of  these  companies  which  will  enhance 
the  interest  of  good  morals  and  health,  and  protection  to  life,  can 
and  ought  to  be  exercised  under  the  police  power.  "The  state  may 
exercise  any  other  general  control  in  the  construction  of  these  com- 
panies as  the  public  interest  may  require.  The  subjects  upon  which 
the  state  may  act  are  almost  infinite,  yet  in  its  regulations  with  re- 
spect to  all  of  them,  there  is  this  necessary  limitation :  The  state 
cannot  thereby  encroach  upon  the  free  exercise  of  the  power  vested 
in  Congress  by  the  constitution.^®  Within  that  limitation  it  may 
undoubtedly  make  all  necessary  provisions  with  respect  to  the  con- 
struction of  poles  and  wires  of  telegraph  companies  in  its  jurisdic- 
tion which  the  comfort  and  convenience  of  the  community  may  re- 
quire." ^^ 

§  227.  Same  continued — taxing  power. — The  state,  under  the 
police  power,  may  tax  a  foreign  telegraph  company  doing  business 
within  its  borders.  This  brings  us  to  a  subject  of  much  interest 
and  one  to  be  further  discussed — that  is  whether  such  companies 
fall  within  the  laws  of  interstate  commerce,  and  thereby  to  be  con- 

25  See  §  89. 

2  6  Bouvier's  Institute,  §  442. 

27  New  York  v.  Squire,  145  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  Ed.  666,  affirm- 
ing 107  N.  Y.  593,  14  N.  E.  820,  1  Am.  St.  Rep.  893;  Allentown  v.  West. 
U.  Tel.  Co.,  148  Pa,  117,  23  Atl.  1070,  33  Am.  St.  Rep.  820;  West.  U.  Tel. 
Co.  V.  riiilarlelphia  (Va.)  12  Atl.  144;  Forsythe  v.  Baltimore,  etc.,  Tel. 
Co.,   12  Mo.   App.  494. 

2  8  See  chapter  IV. 

2  9  West.  JJ.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed. 
1187.  See  chapter  V.  See,  also,  Cooley  v.  Board  of  Port  Wardens,  12  How. 
299,  13  L.  Ed.  996;  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup. 
Ct.  961,  31  L.  Ed,  790;  American  U.  Tel.  Co.  v.  West.  U.  Tel.  Co.,  67  Ala. 
31,  42  Am.  Rep.  90;  Pacific,  etc.,  Tel.  Co.  v.  Eshleman,  166  Cal.  640,  137 
Pac.  1119.  50  L.  R.  A,  (N.  S.)  652,  and  note,  Ann.  Cas.  1915C,  822. 


§    228)  REGULATION  AND   CONTROL  313 

trolled  by  Congress ;  or  whether  the  state  can  have  such  control.^" 
Congress  is  vested,  to  a  limited  extent,  for  special  purposes,  with 
the  exercise  of  the  police  power.  One  of  these  special  purposes  in 
which  it  may  exercise  this  right  is  the  power  of  regulating  and 
controlling  interstate  commerce,  and  this  power  is  within  the 
exclusive  control  of  Congress.  The  state  has  the  like  exclusive 
power,  subject  to  no  limitation  save  that  of  the  constitution  of  the 
United  States,  to  control  all  of  the  commerce  carried  on  within  its 
borders.  Intelligence  transmitted  by  means  of  electricity  is  com- 
merce, and  when  it  is  being  transmitted  from  one  state  to  foreign 
states,  to  any  of  the  territories,  or  within  the  District  of  Columbia, 
it  is  exclusively  under  the  control  of  Congress.^^  All  telegraph  lines 
running  from  one  state  to  any  other,  and  all  connecting  lines,  even 
though  they  may  be  wholly  within  the  state,  are  subject  to  the  con- 
trol of  Congress. ^^  But  if  any  business  is  carried  on  over  these 
lines  within  the  boundary  of  any  state,  and  the  same  is  not  business 
•of  a  governmental  nature,  it  is  subject  to  the  control  of  the  state 
and  may  be  taxed  as  any  other  property  therein. "•'*  "Considered 
purely  as  a  foreign  corporate  body,  deriving  its  powers  from  a 
charter  granted  by  the  state  of  New  York,  the  state  of  Alabama 
has  the  power  to  prescribe  police  regulations  for  its  government 
within  its  boundaries,  and  to  tax  its  property  situated  there  for 
purposes  of  revenue,  having  due  regard  that  no  unjust  discrimina- 
tion be  made."  ^*  The  state  has  the  same  power  to  tax  domestic 
telephone  companies  for  the  purpose  of  obtaining  revenue  as  it  has 
to  tax  any  other  property  in  the  state. ^^  The  police  power  to  raise 
revenue  by  taxation  may  be  vested  in  municipalities.^^  They  have 
the  power  under  an  ordinance  to  tax  domestic  telephone  companies 
doing  business  within  the  city  limits.^' 

§  228.  Same  continued — penalty  for  delay  in  delivering  mes- 
sages.— The  state  may,  under  its  police  power,  impose  a  penalty  on 

30  See  chapter  XXVI.  si  See  §  222. 

32  See  §  55  et  seq. 

33  Osborne  v.  State,  33  Fla.  162,  14  South.  5SS,  39  Am.  St.  Rep.  99,  25  L. 
R.  A.  120 ;  People  v.  Wemple,  131  N.  Y.  64,  29  N.  E.  1002,  27  Am.  St.  Rep. 
54711.  See  Com.  v.  Smith,  92  Ky.  38,  17  S.  W.  187,  36  Am.  St.  Rep.  578; 
City  of  Bloomington  v.  Bourland,  137  111.  534,  27  N.  E.  692,  31  Am.  St.  Rep. 
382 ;  State  v.  French,  109  N.  C.  722,  14  S.  E.  383,  26  Am.  St.  Rep.  590.  See 
West.  U.  Tel.  Co.  v.  Sharp  (Ark.)  180  S.  W.  504. 

34  Moore  v.  Eufaula,  97  Ala.  670,  11  South.  921. 
8  5  See  chapter  XXVI. 

36  See  chapter  XXVI. 

3T  Southern  Bell,  etc.,  Tel.  Co.  v.  D'Alemberte,  39  Fla.  25,  21  South.  570. 
See,  also,  chapter  XXVI. 


314  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  229 

a  telegraph  company  for  a  failure  to  deliver  a  message  promptly 
when  properly  tendered.  These  statutes  are  penal  and  must  be 
strictly  construed  in  the  same  manner  as  all  other  penal  statutes. 
Thus  the  penalty  imposed  cannot  ordinarily  be  enforced  where  the 
failure  of  duty  on  the  part  of  the  company  occurs  beyond  the  juris- 
diction of  the  state.^^  The  court,  speaking  on  this  subject,  said: 
"The  attempted  regulation  by  Indiana  of  the  mode  in  which  mes- 
sages sent  by  telegraphic  companies  doing  business  within  her  lim- 
its shall  be  delivered  in  other  states  cannot  be  upheld.  It  is  an  im- 
pediment to  the  freedom  of  that  form  of  interstate  commerce  which 
is  as  much  beyond  the  power  of  Indiana  to  interpose  as  the  im- 
position of  a  tax  by  the  state  of  Texas  upon  every  message  trans- 
mitted by  a  telegraph  company  within  her  limits  to  other  states  was 
beyond  her  power.  Whatever  authority  the  state  may  possess  over 
the  transmission  and  delivery  of  messages  by  telegraph  companies 
within  her  limits,  it  does  not  extend  to  the  delivery  of  messages  in 
other  states."  These  penalties  may  be  enforced  for  a  failure  to  de- 
liver within  a  reasonable  time  a  message  which  has  been  sent  from 
without  a  state,^"  or  sent  through  other  states  to  points  within.*" 
§  229.  Same  continued — the  Pendleton  Case — what  embraced. — 
The  decision  of  the  United  States  Supreme  Court  in  the  Pendleton 
Case  was  confined  to  the  particular  point  at  issue  and  is  not  to  be 
given  too  extensive  an  application.  Thus,  where  there  is  a  refusal 
or  total  failure  to  transmit,  the  sender  may  enforce  the  statutory 
penalty,  although  the  point  of  destination  was  in  another  state. ''^ 
So  also,  where  the  wrong  complained  of  is  a  refusal  to  deliver,  or  a 
delay  in  delivery,  the  addressee,  if  the  statute  allows  an  action  by 
him,,  may  enforce  the  penalty  though  the  message  is  sent  from  a 
foreign  state.*^  All  that  was  decided  in  the  Pendleton  Case  was 
that  a  state  cannot  enforce  the  performance  of  a  duty  beyond  its 
borders,  and  the  fact  that  the  message  is  sent  from  one  state  into 
another  does  not  deprive  either  state  of  the  right  to  enforce  the 

38  Alexander  v.  West.  U.  Tel.  Co.,  67  Miss.  386,  7  South.  280;  West.  U. 
Tel.  Co.  V.  Pendleton,  122  U.  S.  347,  30  L.  Ed.  1187,  7  Sup.  Ct.  1126 ;  Little 
Rock,  etc.,  R.  Co.  v.  Davis,  41  Ark,  79.  See  West.  U.  Tel.  Co.  v.  Commercial 
Milling  Co.,  218  U.  S.  406,  31  Sup.  Ct.  59,  54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.) 
220,  and  note,  21  Ann.  Cas.  815. 

3  9  West.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  30  L.  Ed.  1187,  7  Sup. 
Ct.  1126,  reversed  95  Ind.  12,  48  Am.  Rep.  698. 

40  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391,  47  Am.  St. 
Rep.  798,  27  L.  R.  A.  843. 

41  See  chapter  XVIII. 

4  2  See  chapter  XVIII. 


§  231)   ,  REGULATION  AND  CONTROL  315 

performance,  within  its  borders,  of  the  duties  of  the  company  en- 
gaging to  transmit  it.*^  This  view  would  follow  from  the  accepted 
principles  that  a  state  may  enforce  the  performance  of  the  obliga- 
tions of  a  public  company  though  it  is  engaged  in  interstate  com- 
merce, and  that  a  state  law  is  not  invalid  merely  because  it  inci- 
dentally affects  interstate  commerce.** 

§  230.  Same  continued — must  fall  within  meaning  of  statute. — 
These  statutes  are  penal  and  subject  to  the  rules  of  construction 
which  obtain  in  respect  to  same,  and  which  require  that  "no  case 
shall  be  held  to  fall  within  it  which  does  not  fall  both  within  the 
reasonable  meaning  of  its  terms  and  within  the  spirit  and  scope  of 
the  enactment."  *^  Thus,  where  a  statute  imposed  a  penalty  for 
failure  to  "receive  and  transmit  a  message  promptly,  and  with  im- 
partiality and  good  faith,  the  company  could  not  be  held  liable  un- 
der this  statute  on  the  sole  ground,  as  alleged,  to  transmit  and  de- 
liver it."  *®  "There  is  no  doubt  but  that  the  company  undertakes 
to  deliver,  under  reasonable  rules  and  regulations,  messages  trans- 
mitted over  its  wires,  and  it  must  respond  in  damages  to  those  who 
are  injured  by  its  neglect  of  duty.  But  the  question  is.  Has  the 
legislature  imposed  a  penalty  for  the  refusal  to  perform  that  duty  as 
it  has  for  the  refusal  to  perform  the  duty  of  transmitting  a  message? 
The  terms  of  the  act  are  confined  to  a  refusal  to  transmit  over  the 
wires,"  "  and  the  act  is  confined  strictly  to  these  words  and  not 
to  any  which  might  be  inferred.  The  sendee  of  a  message  is  not, 
under  these  statutes  entitled  to  recover  the  penalty  therein  named 
for  a  failure  by  the  company  to  deliver  such  message  with  due  dili- 
gence, unless  the  charges  thereon  were  prepaid  or  tendered  by  the 
sender,  or  unless  there  was  a  failure  to  deliver,  or  delay  in  deliver- 
ing, on  or  after  payment  or  tender  by  the  sendee  or  his  agent.** 

§  231.  Same  continued — offices  established — must  keep  open. — 
When  a  telegraph  company  once  estalilishes  an  office,  it  must  not 
discontinue  the  same  without  the  consent  of  the  state,***  and  the  fact 

4  3  See  chapter  XVTII. 

44  West.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  30  L.  Ed.  1187,  7  Sup.  Ct. 
1126;  Peck  v.  Chicago,  etc.,  R.  Co.,  94  U.  S.  164,  24  L.  Ed.  97;  Louisville, 
etc.,  R.  Co.  V.  Railroad  Com.  (C.  C.)  19  Fed.  679.  See  West.  U.  Tel.  Co. 
V.  Commercial  Milling  Co.,  218  U.  S.  406,  54  L.  Ed.  1088,  31  Sup.  Ct.  59,  36 
L.  R.  A.   (N.  S.)  220,  note,  21  Ann.  Cas.  815. 

45  Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599. 

4c  Brooks  V.  West.  U.  Tel.  Co.,  ,56  Ark.  224,  19  S.  W.  572. 

47  Brooks  V.  West.  U.  Tel.  Co.,  56  Ark.  224,  19  S.  W.  572. 

48  Langley  v.  West.  U.  Tel.  Co.,  88  Ga.  777,  15  S.  E.  291. 

49  Atchison,  T.  &  S.  F.  R.  Co.  v.  State,  23  Okl.  210,  100  Pae.  11,  21  L. 
R.  A.  (N.   S.)  908,  a  telephone  is  a  facility  and  convenience  which  a  rail- 


316  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  232 

that  the  income  from  such  office  is  not  sufficient  to  defray  the  ex- 
pense in  keeping  it  up  will  not  be  grounds  for  the  company  to  close 
same.^°  A  case  involving  this  point  was  that  of  a  foreign  company, 
it  being  claimed  that  it  had  never  asked  or  received  from  the  state 
in  which  it  was  being  prosecuted  any  grant,  franchise,  privilege  or 
immunity,  but  that  it  secured  its  rights  to  erect  its  lines  along  the 
post  roads  in  the  state  by  virtue  of  authority  derived  from  an  act 
of  Congress;  yet  the  court  held  that  it  was  subject  to  such  reason- 
able police  regulations  as  the  state  saw  proper  to  impose  for  secur- 
ing conveniences  to  the  people ;  and  the  fact  that  it  does  receive  its 
powers  from  Congress,  does  not  release  it  from  any  and  all  local 
public  regulations.^^ 

§  232.  Same  continued — other  regulations. — The  state  may  pro- 
vide such  other  regulations  for  these  companies  as  the  necessities 
of  the  state  may  require.  It  may  provide  the  rates  to  be  charged 
for  all  messages  sent  to  all  points  within  the  state ;  ^^  that  they 
shall  not  discriminate  among  its  patrons ;  ^^  that  they  shall  furnish 
equal  facilities  to  all ;  ^*  and  that  all  foreign  companies  shall  com- 
ply with  all  the  requirements  exacted  of  domestic  concerns,  and 
also  with  all  the  conditions  required  of  other  foreign  corporations ; 
for  instance,  they  must  file  their  charter  with  the  secretary  of  state 
and  have  an  agent  within  the  state  upon  whom  process  may  be 
served.  The  constitution  of  Alabama  provided  that  no  corporation 
should  do  business  within  the  state  "without  having  at  least  one 
known  place  of  business  and  an  authorized  agent  or  agents  therein." 
In  this  state,  one  telegraph  company  attempted  to  enjoin  another 
from   interfering  with  the  construction  and  operation  of  its  line. 

road  compauy  may  be  required  to  install,  under  Oklahoma  Const,  art.  9,  §  18. 
But  see,  Duncan  v.  Toledo,  etc.,  R.  Co.,  P.  U.  R.  1916B,  751,  where  same 
cannot  be  done  in  Indiana  by  commission. 

5  0  Chicago,  R.  I.  &  P.  R.  Co.  v.  State,  24  Okl.  .370,  103  Pac.  617,  24  L.  R. 
A.  (N.  S.)  393,  holding  that  a  railroad  company  cannot  be  reasonably  and 
justly  required  by  the  state  corporation  commission  to  install  and  main- 
tain a  telegraph  operator  at  a  station,  unless  it  is  reasonably  necessary  for 
the  safety  and  expedition  of  the  train  service,  both  freight  and  passenger, 
or  either,  and  the  convenience  of  the  public  in  the  conduct  of  the  freight 
and  passenger  service,  or  either.  See  also  St.  Louis,  etc.,  R.  Co.  v.  Newell, 
25  Okl.  502,  106  Pac.  818;  State  v.  Postal  Tel.  Cable  Co.,  96  Kan.  298,  150 
Pac.  544. 

51  West.  U.  Tel.  Co.  v.  Railroad  Co.,  74  Miss.  80,  21  South.  16;  Railroad 
Com'rs  V.  West.  U.  Tel.  Co.,  113  N.  C.  213,  18  S.  E.  389,  22  L.  R.  A.  570. 
See,  also.  Mayo  v.  West.  U.  Tel.  Co.,  112  N.  C.  343,  16  S.  E.  1006. 

5  2  See  §  234.     See  cases  cited  in  note  82. 

5  3  See  chapter  II.  See,  also,  Central  U.  Tel.  Co.  v.  State,  118  Ind.  194,  19 
N.  E.  604,  10  Am.  St.  Rep.  114. 

5  4  See  chapter  II.    See  Butner  v.  West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087. 


8  233)  REGULATION  AND  CONTROL  BIT 

The  former  company  had  not  complied  with  this  condition  and  the 
injunction  was  therefore  denied,  although  it  was  denied  on  the 
ground  that  no  right  to  such  relief  was  shown  to  exist.  The  court 
further  held  that  the  constitutional  provision  quoted  did  not  conflict 
with  the  federal  constitution,  saying:  "The  mandate  of  section  4, 
art.  14,  of  the  constitution  of  Alabama,  which  requires  foreign  cor- 
porations to  have  a  known  place  of  business  and  an  authorized 
agent,  is  just  as  much  a  police  regulation  for  the  protection  of  the 
property  interest  of  the  citizens  as  a  law  forbidding  vagrancy  among  \^ 
its  inhabitants.  It  does  not  impede  or  obstruct  unreasonably  any 
right  conferred  on  foreign  telegraph  corporate  companies  by  the  act 
of  Congress  and  is  therefore  free  from  constitutional  objections."  ^^ 
The  state  may  also  restrict  the  company's  power  to  limit  its  liabil- 
ity, by  declaring  invalid  stipulations  in  the  contract  of  sending  in 
so  far  as  such  stipulations  operate  to  relieve  the  company  from  lia- 
biHty  for  negligence.^*' 

§  233.  Same  continued — limitation — impairment  of  contract. — 
The  state  is  limited  in  its  control  over  these  companies,  in  that  it 
cannot  exercise  a  power  which  is  exclusively  within  the  rights  of 
Congress;"  nor  can  it  make  provisions  which,  would  impair  the 
obligations  of  a  contract  and  the  same  to  be  in  favor  of  a  vested 
right.^^  Thus  a  municipal  ordinance  granting  to  a  particular  com- 
pany authority  to  construct  and  maintain  telegraph  lines  along  the 
streets  without  limitation  as  to  time,  and  for  a  stipulated  considera- 
tion, when  accepted  and  acted  on  by  the  company  by  a  compliance 
with  all  conditions,  and  by  the  construction  of  an  expensive  plant, 
acquires  the  feature  of  a  contract,  which  the  city  cannot  afterwards 

5  5  American  U.  Tel.  Co.  v.  West.  U.  Tel.  Co.,  67  Ala.  26,  42  Am.  Rep.  90. 
See,  also,  Singer  Mfg.  Co.  v.  Hardee,  4  N.  M.  (Johns.)  175,  16  Pac.  605; 
Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S.  727,  5  Sup.  Ct.  739,  28  L.  Ed.  1137 ; 
Philadelphia  Fire  Assoc,  v.  N.  Y.,  119  U.  S.  110,  7  Sup.  Ct.  108,  30  L.  Ed. 
342. 

66  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep. 
363;  West.  XJ.  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S.  406,  31  Sup. 
Ct.  59.  .54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.)  220,  note,  21  Ann.  Cas.  815. 

5  7  state  V.  Chicago,  etc.,  R.  Co.,  136  Wis.  407,  117  N.  W.  686,  19  L.  R.  A. 
(N.  S.)  326,  a  regulation  by  Congress  of  the  number  of  hours  per  day  for 
which  telegraph  operators  and  train  dispatchers  on  interstate  railroads  may 
be  employed  inhibits  state  legislation  upon  the  same  subject,  especially  such 
as  limits  such  employment  to  fewer  hours  per  day  than  allowed  by  Congress, 
and  puts  the  regulation  in  force  sooner  than  the  time  provided  by  the  con- 
gressional act. 

5  8  Dartmouth  College  v.  Woodward,  4  Wheat,  518,  4  L.  Ed.  629.  See  §§ 
44  and  84. 


318  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  234 

annul  or  alter  in  its  essential  terms  without  the  company's  con- 
sent.^^ 

§  234.  Regulate  charges. — Telegraph,  telephone,  and  electric 
light  companies  are  engaged  in  a  "business  affected  with  a  public 
interest"  within  the  meaning  of  the  rule  laid  down  in  a  leading 
case,^°  and  the  state  in  the  exercise  of  the  police  power  may,  there- 
fore, regulate  the  rates  and  charges  for  such  companies,  and  provide 
a  maximum  rate  which  these  charges  shall  not  exceed.®^  One  of 
the  fundamental  principles  of  law  is  that,  when  individuals  invest 
their  money  in  an  enterprise  in  which  the  public  has  an  interest,  the 
enterprise  must  be  regulated  by  the  government  in  such  a  manner 
as  to  prevent  its  general  welfare  from  being  interfered  with.  Tele- 
graph, telephone,  and  electric  light  companies — whether  they  have 
become  incorporated  or  whether  they  are  being  conducted  by  pri- 
vate citizens  as  a  private  enterprise  **- — are  carrying  on  a  business 

5  9  New  Orleans  v.  Great  Southern  Tel.  Co.,  40  La.  Ann.  41,  3  South.  533, 
8  Am.  St.  Rep.  502;  Hudson  Tel.  Co.  v.  Jersey  City.  49  N.  J.  Law,  303,  8 
Atl.  123,  60  Am.  Rep.  619;  Northwestern  Tel.  Exch.  Co.  v.  Anderson,  12 
N.  D.  585,  98  N.  W.  706,  102  Am.  St.  Rep.  580,  65  L.  R.  A.  771,  1  Ann.  Cas. 
110;  City  of  Plattsmouth  v.  Nebraska  Tel.  Co.,  80  Neb.  460,  114  N.  W.  588, 
14  L.  R.  A.  (N.  S.)  654,  127  Am.  St.  Rep.  779.     See,  also,  §§  44,  84. 

60  Munn  v.  Illinois,  94  U.  S.  113,  24  L.  Ed.  77,  affirming  69  111.  80;  Cooley's 
Const.  Lim.  (4th  Ed.)  p.  (594)  743 ;  People  v.  Budd,  117  N.  Y.  1,  22  N.  E.  670, 
5  L.  R.  A.  559n,  15  Am.  St.  Rep.  460. 

61  Chesapeake,  etc.,  Tel.  Co.  v.  Manning,  186  U.  S.  238,  22  Sup.  Ct.  881, 
46  L.  Ed.  1144 ;  Hockett  v.  State,  105  Ind.  2.59,  5  N.  E.  178,  55  Am.  Rep.  207 ; 
Central  U.  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  721;  Johnson  v.  State, 
113  Ind.  143,  15  N.  B.  215;  Central  U.  Tel.  Co.  v.  State,  118  Ind.  194,  19 
N.  E.  604,  10  Am.  St.  Rep.  114;  Railroad  Com'rs  v.  West.  U.  Tel.  Co.,  113 
N.  C.  213,  18  S.  E.  389,  22  L.  R.  A.  570;  St.  Louis  v.  Bell  Tel.  Co.,  96 
Mo.  623,  10  S.  W.  197,  9  Am.  St.  Rep.  370,  2  L.  R.  A.  278,  note;  Nebraska 
Tel.  Co.  V.  State,  55  Neb.  627,  76  N.  W.  171,  45  L.  R.  A.  113 ;  Mayo  v.  West. 
U.  Tel.  Co.,  112  N.  C.  343,  16  S.  E.  1006;  Central  U.  Tel.  Co.  v.  State,  123 
Ind.  113,  24  N.  E.  215;  Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U.  S.  265, 
29  Sup.  Ct.  50,  53  L.  Ed.  176;  Cumberland  Tel.  Co.  v.  Louisville  (C.  C.)  187 
Fed.  637  ;  Pioneer  Tel.,  etc.,  Co.  v.  AVestenhaver,  29  Okl.  429, 118  Pac.  354,  38  L.  R, 
A.  (N.  S.)  1209;  State  v.  Superior  Ct.,  67  Wash.  37,  120  Pac.  861,  L.  R.  A. 
1915C,  287,  Ann.  Cas.  1913D,  78 ;  Williams  v.  Tel.  Co.  (D.  C.)  203  Fed.  140 ; 
Ex  parte  Goodrich,  160  Cal.  410,  117  Pac.  451,  Ann.  Cas.  1913A,  56,  electric 
light  company;  Horner  v.  Oxford  Water,  etc.,  Elec.  Co.,  153  N.  C.  535,  69 
S.  E.  607,  138  Am.  St.  Rep.  681.     See  §  2.54  et  seq. 

6  2  Hockett  V.  State,  105  Ind.  250.  5  N.  E.  178,  55  Am.  Rep.  201.  But  in 
Chesapeake,  etc.,  Tel.  Co.  v.  Manning,  186  U.  S.  238,  22  Sup.  Ct.  881,  46 
L.  Ed.  1144,  it  was  held  that  a  local  telephone  plant  installed  in  a  building 
so  that  parties  in  different  rooms  could  communicate  with  each  other,  but 
having  no  connection  or  means  of  communicating  with  the  general  public, 
and  intended  solely  as  a  local  convenience  for  the  occupants  of  the  building 


i 


§  235)  REGULATION  AND  CONTROL  31& 

in  which  the  public  has  an  interest,  and  to  such  an  extent  of  public 
interest  they  must  be  controlled  by  the  public.^^  It  is  an  undis- 
puted fact,  and  one  which  it  is  unnecessary  to  discuss,  that  the 
states  may  regulate  the  charges  on  all  common  carriers  which  are 
carrying  on  a  business  to  all  points  within  their  jurisdiction.''*  Un- 
der some  statutory  enactments,  telegraph  and  telephone  companies 
have  become  common  carriers  of  intelligence  and  are,  therefore,  to 
be  governed  and  controlled  by  the  laws  applicable  to  other  common 
carriers ;  however,  it  is  not  necessary  in  order  to  give  the  state  con- 
trol over  the  charges  of  these  companies,  for  statutes  to  be  passed, 
declaring  them  common  carriers. 

§  235.  Same  continued — constitutionality  of  statutes. — It  has 
been  attempted  to  be  shown  that  these  statutes  which  regulate  the 
charges  of  these  and  other  similar  institutions  are  unconstitutional, 
in  that  they  attempt  to  divest  persons  of  property  without  due  pro- 
cess of  law,  which  is  prohibited  under  the  fourteenth  amendment  of 
the  constitution  of  the  United  States."^  The  case  of  Munn  v.  Illi- 
nois ®^  is  a  direct  authority  upon  this  question.  This  case  was  car- 
ried to  the  United  States  Supreme  Court  on  a  writ  of  error,  to  re- 
view a  judgment  of  the  supreme  court  of  the  State  of  Illinois,  which 
affirmed  the  constitutionality  of  a  statute  of  that  state  fixing  a 
maximum  charge  for  the  elevation  and  storage  of  grain  in  ware- 
houses in  that  state.  The  act  was  challenged  as  a  violation  of  the 
constitutional  guaranty  in  the  constitution  of  Illinois  protecting  life, 
liberty  and  property,  and  which  was  expressed  in  substantially  the 
same  language  as  that  found  in  the  constitutions  of  almost  all  other 
states.    The  supreme  court  of  the  United  States  affirmed  the  judg- 

was  not,  although  installed  by  a  public  telephone  company,  a  part  of  its 
public  business,  and  the  rates  to  be  charged  for  such  services  were  not  sub- 
ject to  legislative  regulation. 

6  3Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201;  State  v. 
Superior  Court,  67  Wash.  37,  120  Pac.  861,  L.  R.  A.  1915C,  287,  Ann.  Cas. 
1913D,  78;  Horner  v.  Oxford  Water,  etc.,  Co.,  153  N.  C.  535,  69  S.  E.  607, 
138  Am.  St.  Rep.  681;  Bluefield  Waterworks,  etc.,  Co.  v.  Bluefield,  69  W. 
Va.  1,  70  S.  E.  772,  33  L.  R.  A.  (N.  S.)  759;  Home  Tel.  Co.  v.  Carthage,  235 
Mo.  644,  139  S.  W.  547,  48  L.  R.  A.  (N.  S.)  1055,  Ann.  Cas.  1912D,  301. 

64  People  V.  Budd,  117  N.  Y.  1,  22  N.  E.  670,  682,  15  Am.  St.  Rep.  460,  5 
L.  R.  A.  559,  note;  State  v,  Superior  Court,  67  Wash.  37,  120  Pac.  861, 
L.  R.  A.  1915C,  287,  Ann.  Cas.  1913D,  78. 

65  Home  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W.  547,  48  L.  R.  A. 
(N.  S.)  1055,  Ann.  Cas.  1912D,  301 ;  West.  U.  Tel.  Co.  v.  Myatt  (C.  C.)  98  Fed. 
335;  State  ex  rel.  v.  Superior  Court,  67  Wash.  37,  120  Pac.  861,  Ann.  Cas. 
1913D,  78,  L.  R.  A.  1915C,  287. 

6«94  U.  S.  113,  24  L.  Ed.  77. 


320  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  236 

ment  of  the  state  court,  on  the  ground  that  the  legislation  in  ques- 
tion was  a  lawful  exercise  of  legislative  power,  and  did  not  infringe 
upon  this  clause  of  the  federal  constitution.  As  was  said  by  an 
eminent  jurist  on  this  subject:  "There  is  no  doubt  that  the  general 
principle  is  favored,  both  in  law  and  justice,  that  every  man  may  fix 
what  price  he  pleases  upon  his  own  property  or  the  use  of  it;  but 
if,  for  a  particular  purpose,  the  public  have  a  right  to  resort  to  his 
premises,  and  make  use  of  them,  and  he  have  a  monopoly  in  them 
for  the  purpose,  if  he  will  take  the  benefit  of  that  monopoly  he  must, 
as. an  equivalent,  perform  the  duty  attached  to  it  on  reasonable 
terms."  '^'^  "Where  an  employment  becomes  a  matter  of  such  pub- 
lic interest  and  importance  as  to  create  a  common  charge  or  burden 
upon  the  citizen ;  in  other  words,  when  it  becomes  a  practical  mo- 
nopoly, to  which  the  citizen  is  compelled  to  resort,  and  by  means  of 
which  a  tribute  can  be  exacted  from  the  community,  it  is  subject  to 
regulation  by  the  legislative  power."  ®^ 

§  236.  Same  continued — right  to  fix  charges — reason — enforce- 
ment.— From  the  earliest  period  of  the  common  law  it  has  been 
held  that  common  carriers  were  under  obligations  to  transfer  prop- 
erty for  a  reasonable  compensation.  They  were  not  at  liberty  to 
charge  whatever  sum  they  pleased ;  but  where  the  price  of  carriage 
was  fixed  by  the  contract  or  convention  of  the  parties,  the  contract 
was  not  enforceable  beyond  the  point  of  a  reasonable  compensation. 
It  is  said  that  the  control  which  the  legislature  is  permitted  to  exer- 
cise over  the  business  of  common  carriers  is  a  survival  of  that  class 
of  legislation  which,  in  former  times,  extended  to  the  details  of  per- 
sonal conduct  and  assumed  to  regulate  the  private  affairs  and  busi- 
ness of  men  in  the  minutest  particulars.'^''  The  principle  of  the 
common  law  that  telegraph  and  telephone  companies  must  serve 
the  public  for  a  reasonable  compensation  becomes  a  part  of  the  law 
of  the  states,  when  they  were  declared  common  carriers  by  statutes. 
As  it  is  within  the  power  of  the  legislature  to  enforce  upon  these 
companies  the  duty  to  make  only  reasonable  charges,  it  is  but  rea- 
sonable that  it  may  fix  and  define  the  maximum  charges  for  their 
services,  and  punish  the  wrongdoer  for  exceeding  them.'^'^  When- 
ever there  is  a  general  right  on  the  part  of  the  public,  and  a  gen- 

6  7  Almitt  V.  Ingles,  12  East,  527. 

6  8  Sinking  Fund  Case,  99  U.  S.  747,  25  L.  Ed.  504. 

6  9  People  V.  Budd,  117  N.  Y.  1,  22  N.  E.  670,  682,  15  Am.  St.  Rep.  4G0, 
5  L.  R.  A.  559,  note. 

7  0  People  V.  Budd,  117  N.  Y.  1,  22  N.  E.  670,  682,  15  Am.  St.  Rep.  460,  5 
L.  R.  A.  559,  note.  See  cases  cited  in  note  61.  See,  also,  Colorado  Tel.  Co.  v. 
Fields,  15  N.  M.  431,  110  Pac.  571,  30  L.  R.  A.  (N.  S.)  1088. 


§    237)  REGULATION  AND   CONTROL  •  -      321 

eral  duty  cast  upon  any  other  with  respect  to  such  right,  we  think 
it  is  competent  for  the  legislature,  by  a  specific  enactment,  to  pre- 
scribe a  precise  and  practical  rule  for  declaring,  establishing,  and 
securing  such  right  and  enforcing  respect  for  such.''^ 

§  237.  Same  continued — cannot  evade  statutes — charged  in  two 
items — patents. — Where  a  statute  exists  which  regulates  such 
charges,  the  telephone  company  cannot  indirectly  evade  its  opera- 
tion. Thus  it  cannot  exceed  the  maximum  rate  by  pretending  to 
divide  the  charges  into  two  items,  one  being  designated  as  the 
regular  rental  and  the  other  as  a  monthly  charge  for  the  use  of  the 
instruments  by  nonsubscribers.  This  evasion  was  attempted  to  be 
made  under  an  Indiana  statute  which  provided  that  any  person 
owning  or  operating  a  telephone  line  who  charges  and  collects  for 
the  use  of  a  telephone  only  a  sum  in  excess  of  three  dollars  per 
month  shall  be  punished  by  fine.  It  was  held  that  a  person  who 
charges  and  collects  the  sum  of  three  dollars  per  month  as  rental 
for  the  subscriber's  use,  and  the  sum  of  one  dollar  per  month  as 
rental  for  the  use  of  nonsubscribers,  is  guilty  of  the  offense  pro- 
hibited. "For,  divide  the  four  dollars  as  he  might,  and  designate 
the  items  as  he  might,  the  fact  remains  and  is  apparent,  that  de- 
fendant did  thereby  charge,  collect,  or  receive,  for  the  use  of  one 

71  Com.  V.  Alger,  7  Cusli.  (Mass.)  53.  A  telephone  company  will  be  en- 
joined from  charging  rates  in  excess  of  those  prescribed  by  the  ordinance 
granting  its  franchise  to  do  business  within  the  municipality.  Cumberland 
Tel.,  etc.,  Co.  v.  Hickman,  129  Ky.  220,  111  S.  W.  311,  33  Ky,  Law  Rep.  730. 
A  citizen  of  a  city  is  entitled  to  insist  on  the  enforcement  of  a  contract 
between  the  city  and  a  telephone  company  limiting  the  rate  to  be  charged 
subscribers  for  services.  Rochester  Tel.  Co.  v.  Ross,  125  App.  Div.  76,  109 
N.  Y.  Supp.  381,  affirming  in  195  N.  Y.  429,  88  N.  E.  793.  But  it  was  held 
in  Buffalo  Merchants'  Delivery  Co.  v.  Frontier  Tel.  Co.  (Sup.)  112  N.  Y.  Supp. 
862,  that  where  a  private  citizen,  for  whose  benefit  a  contract  is  made  be- 
tween a  city  and  telephone  company  fixing  maximum  rates  for  telephone 
service,  voluntarily  and  with  knowledge  of  the  facts  contracts  with  the  com- 
pany for  service  at  a  different  rate  than  that  prescribed  by  the  municipal 
franchise,  he  cannot  repudiate  his  contract  and  demand  a  different  service 
at  a  different  rate  by  virtue  of  the  franchise,  on  the  ground  that  the  company 
is  bound  by  the  franchise  to  render  the  service  demanded.  Emporia  v.  Tel. 
Co.,  87  Kan.  465,  124  Pac.  895,  telephone  will  be  enjoined.  See  State  v.  Su- 
perior Court,  67  Wash.  .37,  120  Pac.  861,  Ann.  Cas.  1913D,  78,  L.  R.  A.  1915C, 
287,  city  cannot  change  rates  made  by  commissioner  and  collect  same  from 
a  telephone  company.  Home  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W.  547, 
Ann.  Cas.  1912D,  301,  48  L.  R.  A.  (N.  S.)  1055.  Courts  will  not  interfere  with 
rates  fixed.    See  §  236  et  seq. 

Jones  Tel.(2d  Ed.)— 21 


322  ^  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  238 

telephone  only,  a  sum  in  excess  of  three  dollars  per  month."  '^^  Nor 
can  it  exceed  the  rate  prescribed  by  attempting  to  charge  a  certain 
sum  for  each  conversation,  instead  of  charging  a  regular  rental  as 
where  what  is  known  as  the  exchange  and  rental  system  is  aban- 
doned and  another  system  is  substituted  therefor,  under  which  all 
persons  must  resort  to  stations  fixed  by  the  companies  where  tele- 
phones are  kept  to  be  used  upon  payment  of  a  certain  toll.'^  Nor 
can  it  be  evaded  by  making  separate  charges  for  the  use  of  various 
parts  of  the  instruments ;  as  where  the  telephone  company  at- 
tempted to  collect  for  the  rental  of  one  magnetic  telephone  and 
battery  transmitter  and  for  labor  and  service  charges  for  switch- 
ing, construction  and  maintenance  charges  for  lines,  batteries,  cen- 
tral office  apparatus,  magnetic  bell  and  other  appurtenances,  and 
the  same  exceeding  the  maximum  sum  prescribed  by  statute.  It 
was  held  that  all  these  separate  instruments  fell  under  and  were 
comprehended  by  the  term  "telephone,"  and  could  be  charged  for 
only  in  the  aggregate. ''■*  But  it  has  been  held  that,  where  the  law 
fixes  the  maximum  rate  for  a  telephone  on  a  separate  wire,  the 
statute  is  not  violated  by  additional  charges  for  equipments,  such 
as  auxiliary  bells. '^^  The  fact  that  telephone  lines  are  operated 
under  patents  granted  by  the  general  government  in  no  way  affects 
the  right  of  the  states  to  regulate  the  charges  on  these  companies. 
As  was  said  by  the  court :  "We  are  of  the  opinion  that  the  right 
conferred  upon  the  patentee  and  his  assigns  to  use  and  vend  the 
corporal  thing  brought  into  existence  by  the  application  of  the 
patented  discovery  must  be  exercised  in  subordination  of  the  police 
regulation  which  the  state  established  by  statute."  ^® 

§  238.  Statute  rates  must  be  reasonable. — The  maximum  rate 
prescribed  by  these  statutes  must  not  be  unreasonable.''^  So,  if  it 
appears  that  the  maximum  rate  allowed  is  less  than  the  actual  cost 

7  2  Johnson  v.  State,  113  Ind.  143,  15  N.  E.  215. 

Partnership  rate. — Physicians  using  connecting  offices  and  conducting  a 
copartnership  as  to  "minor  surgery,"  although  having  a  private  individual 
practice  in  other  lines,  are  copartners  within  the  schedule  of  rates  author- 
izing a  telephone  company  to  charge  copartnerships  for  the  use  of  one  tele- 
phone three  dollars  and  fifty  cents  per  month.  Manning  v.  Interstate  Tel., 
etc.,  Co.,  147  N.  C.  298,  60  S.  E.  1184. 

7  3  Central  U.  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  E.  604,  10  Am,  St.  Rep.  114. 

7  4  Hockett  V.  State,  105  Ind.  259,  5  N.  E.  178,  55  Am.  Rep.  209.     See  §  260. 

7  5  Chesapeake,  etc.,  Tel.  Co.  v.  Manning,  186  U.  S.  238,  22  Sup.  Ct.  881, 
46  L.  Ed.  1144. 

7  6  Hockett  V.  State,  105  Ind.  2.59.  5  N.  E.  178,  55  Am.  Rep.  209. 

7  7  West.  U.  Tel.  Co.  v.  Myatt  (C.  C.)  98  Fed.  335.  See,  also,  Chesapeake, 
etc.,  Tel.  Co.  v.  Manning,  186  U.  S.  238,  22  Sup.  Ct.  881,  46  L.  Ed.  1144; 
Tel.   Co,  V.   State,  31  Okl.  415,  121  Pac.  1069;    Home  Tel.   Co.   v.  Carthage, 


§  239)  REGULATION  AND  CONTROL  323 

of  service,  the  regulation  is  unconstitutional  as  denying  to  these 
companies  the  equal  protection  of  the  law.^*  A  law  which  is  not 
reasonable  in  its  purposes  is  no  law ;  so,  if  the  legislative  power 
grants  to  a  corporation  the  franchise  to  carry  on  a  legitimate  cor- 
porate business,  and  then  prescribes  for  them  certain  duties  to  per- 
form and  a  compliance  with  them  would  necessitate  its  carrying  on 
the  business  at  a  constant  loss,  the  requirements  would  be  unrea- 
sonable at  the  outset  and  of  course  not  binding.  The  charges  must 
be  such  as  that  the  company  may  be  enabled  to  pay  all  expenses 
for  carrying  on  the  telephone  business,  with  a  reasonable  margin 
above  this  to  pay  the  company  a  sufficient  income  on  the  money 
invested.'^®  Of  course,  this  statement  has  reference  to  a  paying 
concern,  and  not  to  such  as  is  carrying  on  an  unprofitable  or  losing 
business ;  the  charges  must,  however,  be  the  same  on  both,  as  there 
can  be  no  discrimination  in  charges.^"  It  is  rather  difficult  to  esti- 
mate what  would  be  a  reasonable  rate  to  be  charged,  but  a  great 
number  of  statutes  have  been  enacted — and  the  same  have  been 
held  to  be  constitutional  in  this  respect — which  fix  the  maximum 
rate  at  three  dollars  per  month  for  each  subscriber.^ ^ 

§  239.  As  to  interstate  messages — cannot  fix  maximum  charges. 
The  state  is  without  power  to  regulate  the  charges  on  interstate  mes- 
sages.    Such  messages   fall  under  the  head  of  interstate  commerce, 

235  Mo.  644,  139  S.  W.  .547,  48  L.  R.  A.  (N.  S.)  1055,  Ann.  Cas.  1912D,  301, 
evidence  of  circulars  issued  by  an  investment  comjjany  not  admissible. 

-8  West.  U.  Tel.  Co.  v.  Myatt  (C.  C.)  98  Fed.  335;  Chesapeake,  etc.,  Tel. 
Co.  V.  Manning.  186  U.  S.  238,  22  Sup.  Ct.  881,  46  L.  Ed.  1144. 

7  8  State  V.  Superior  Court,  67  Wash.  87,  120  Pac.  861,  Ann.  Cas.  1913D, 
78 ;  L.  R.  A.  1915C,  287 ;  Home  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W. 
547,  48  L.  R.  A.  (N.  S.)  1055,  Ann.  Cas.  1912D,  .301. 

Where  a  rate,  reasonable  in  the  beginning,  has,  because  of  changed  condi- 
tions, become  unreasonable  and  confiscatory,  it  will  not  be  specifically  en- 
forced, even  though  it  was  originally  accepted  by  the  company  as  a  matter 
of  contract,  in  exchange  for  its  franchise  or  other  privileges.  Maryland  Tel., 
etc.,  Co.  V.  Charles  Simons  Sons  Co.,  103  Md.  136,  63  Atl.  314,  115  Am.  St. 
Rep.  346. 

«"  But  a.  municipality  authorized  to  regulate  rates  prescribing  different 
rates  for  different  companies  doing  business  within  its  limits  does  not  neces- 
sarily constitute  an  illegal  discrimination  or  denial  of  the  equal  protection 
of  the  laws,  since  a  just  ground  for  such  classification  may  exist  by  reason 
of  the  difference  in  the  territory  occupied,  facilities  furnished,  and  services 
rendered  by  the  different  companies.  Home  Tel.,  etc.,  Co.  v.  Los  Angeles, 
211  U.  S.  265,  29  Sup.  Ct.  50,  53  L.  Ed.  176. 

81  See  Home  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W.  547,  48  L.  R.  A. 
(N.  S.)  10.5.5n,  Ann.  Cas.  1912D,  301n;  Tel.,  etc.,  Co.  v.  Memphis  (C.  C.)  183 
Fed.  875,  defining  reasonable  and  unreasonable  rates ;  Tel.,  etc.,  Co.  v.  Louis- 
ville (C.  C.)  187  Fed.  637,  factors  in  determining  reasonableness  of  rates  ini- 


324  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  239 

and  the  charges  therefore  are  subject  alone  to  regulations  prescribed 
by  Congress.*^  A  statute  ®^  in  Indiana  provided  that  every  tele- 
graph company  in  the  state  should  receive  dispatches  from  persons 
or  from  other  lines,  and  on  payment  of  the  usual  charges  "transmit 
the  same  with  impartiality  and  good  faith,  in  the  order  of  time  in 
which  they  were  received,  under  penalty"  of  one  hundred  dollars. 
The  statute  also  provided  for  the  preference  of  certain  messages, 
and  for  the  delivery  of  all  messages  by  a  messenger  of  the  receiving 
office.     When  the  validity  of  the  statute  was  tested  in  the  state 

posed  by  ordinance ;  Tel.,  etc.,  Co.  v.  Westenhaver,  29  Okl.  429,  118  Pac.  354, 
38  L.  E.  A.  (N.  S.)  1209. 

In  determining  the  unreasonableness  of  rates,  it  must  be  taken  into  con- 
sideration that  a  decrease  in  rates  does  not,  as  in  ttie  case  of  some  other 
businesses,  increase  the  volume  of  business  without  a  corresponding  increase 
in  the  expense  of  conducting  it.  R.  R.  Com.  v.  Cumberland  Tel.,  etc.,  Co.,  212 
U.  S.  414,  29  Sup.  Ct.  357,  53  L.  Ed.  577. 

Ordinance  requiring  electric  companies  to  'furnish  lamps  free — validity. — 
A  corporation  engaged  in  supplying  electricity  for  light  and  power  to  the 
general  public  cannot  be  required  by  a  municipal  ordinance  to  furnish  elec- 
tric lamps  free  of  charge  to  its  customers,  where  such  ordinance  is  not  an 
exercise  of  the  power  of  the  city  to  fix  the  rates  for  supplying  current,  but 
was  passed  after  and  in  no  way  depended  on  or  referred  to  a  prior  ordi- 
nance fixing  rates.  Ex  parte  Goodrich,  IGO  Cal.  410,  117  Pac.  451,  Ann.  Cas. 
1913A,  56.  See  Postal  Tel.  Cable  Co.  v.  Chicopee,  207  Mass.  341,  93  N.  E.  927, 
32  L.  R.  A.  (N.  S.)  997,  poles  for  fire  alarms. 

Reasonableness  of  presumed. — It  will  be  presumed  that  the  rate  estab- 
lished is  reasonable  and  valid,  and  the  burden  is  upon  the  telegraph  or  tele- 
phone company  to  show  the  contrary.  Railroad  Com.  v.  Cumberland  Tel., 
etc.,  Co.,  212  U.  S.  414,  29  Sup.  Ct.  857,  53  L.  Ed.  577. 

Proceedings  to  determine  reasonahlcness  of  rates. — See  Home  Tel.  Co.  v. 
Carthage,  supra,  and  Tel.,  etc.,  Co.  v.  Westenhauer,  supra,  both  cases  con- 
sidering what  property  or  assets  of  the  company  may  be  used  as  the  basis 
upon  which  to  determine  or  of  fixing  the  rates.  For  instance,  the  number  of 
subscribers,  the  lines  and  plants  and  other  similar  property  and  the  deprecia- 
tion of  which  may  be  considered.  See,  also,  §  254.  See,  also.  Peck  v.  In- 
dianapolis, etc..  Heat  Co.,  P.  U.  R.  1916B,  445,  what  constitutes  working  capi- 
tal;  Re  Omaha,  etc.,  L.  Co.,  P.  IT.  R.  1916B,  564,  right  to  allowance  for  in- 
crease cost  due  to  weather  conditions. 

8  2  The  state  may  regulate  telegraph  rates  between  points  in  the  state,  al- 
though the  connecting  line  passes  out  of  the  state,  it  all  being  owned  by  one 
corporation.  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391,  47 
Am.  St.  Rep.  798,  27  L.  R.  A.  843 ;  State  v.  West.  U.  Tel.  Co.,  113  N.  C.  213, 
18  S.  E.  389,  22  L.  R.  A.  570.  And  it  has  been  held  that  a  telegraph  com- 
pany may  be  amenable  to  common-law  principles  relative  to  discrimination 
in  rates  of  public  service  corporations,  even  as  to  its  interstate  business,  in 
the  absence  of  federal  action.  West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  58  Neb. 
192,  78  N.  W.  519.  See  Tel.  Co.  v.  State,  31  Okl.  415,  121  Pac.  1009,  regula- 
tion affecting  messages  from  without  the  state. 

83  Rev.  St.  ISSl,  §§  4170-4178. 


§  241)  REGULATION  AND  CONTROL  325 

court,  upon  the  issue  as  to  whether  the  sender  of  a  dispatch  from  a 
place  in  Indiana  to  a  place  in  Iowa  could  recover  the  penalty  be- 
cause the  company's  agent  in  the  former  state  failed  to  deliver  the 
dispatch  by  a  messenger  as  required,  it  was  held  by  an  undivided 
bench  that  the  statute  was  valid  and  constitutional,  and  that  the 
plaintiff  might  recover  the  penalty.^*  But  the  decision  of  the  state 
court  was  reversed  on  a  writ  of  error  in  the  United  States  Supreme 
Court,  which  held  that  such  statute  could  be  enforced  only  as  to 
messages  sent  between  points  both  of  which  were  within  the 
state. ^^ 

§  240.  Must  furnish  services  notwithstanding  charges. — Where 
statutes  have  been  passed  fixing  the  maximum  rates  on  telephone 
companies  and  the  same  are  reasonable  charges,  and  a  penalty  is 
prescribed  for  the  violation  of  its  provision,  these  facts  do  not 
abridge  the  right  of  an  aggrieved  party  to  compel  the  telephone 
company  to  furnish  him  with  the  service  to  which  he  is  entitled. 
The  remedy  for  the  aggrieved  party  is  generally  by  a  writ  of  man- 
damus.^"^ 

§  241.  Municipal  control. — After  having  discussed  at  some 
length  the  control  which  the  federal  and  state  governments  have 
over  the  construction  and  maintenance  of  telegraph,  telephone  and 
electric  light  companies,  and  the  manner  and  extent  to  which  they 
may  exercise  this  power,  we  now  take  up  the  subject  with  respect 
to  the  powers  of  municipalities  exercising  this  authority  over  these 
companies  doing  business  within  their  limits.  The  power  to  regu- 
late and  control  the  management  of  streets  rests  primarily  in  the 
state  as  one  of  its  inherent  police  powers.®^  It  may  prescribe  the 
manner  in  which  all  the  streets  shall  be  laid  out  and  the  uses  to 
which  they  may  be  put.  In  fact,  it  may  make  all  such  regulations 
with  respect  to  the  control  over  these  as  will  tend  to  the  protection 
of  health,  the  security  of  property  and  safety  of  life.  It  has  been 
contended  by  many  learned  in  the  law  that  this  power  could  only  be 
exercised  by  the  state  ;®^  but  it  is  now  held  by  the  greater  pre- 
ponderance of  authority  that  the  power  may  be  delegated  to  the 

84  West.  U.  Tel.  Co.  v.  Pendleton,  95  Ind.  12,  48  Am.  Rep.  G92;  West.  U. 
Tel.  Co.  V.  Meredith,  95  Ind.  93. 

8  5  West.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed. 
1187. 

80  Central  U.  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  121 ;  State  v.  Tel. 
Co.,  36  Ohio  St.  296,  38  Am.  Rep.  583 ;   Bell  Tel.  Co.  v.  Com.  (Pa.)  3  Atl.  825. 

87  §  86  et  seq. 

8  8  Ingersoll,  230. 


326  TELEGRAPH  AND  TELETnONE  COMPANIES         (§  242 

municipality.®*^  There  can  be  no  doubt  that  it  is  competent  for  the 
general  assembly  to  delegate  to  municipalities  the  power  to  enact 
ordinances  which,  when  authorized,  have  the  force  and  effect  of 
laws  passed  by  the  legislature  of  the  state,  within  the  corporate 
limits ;  ^^  and  within  the  sphere  of  their  delegated  powers,  munici- 
pal corporations  have  as  absolute  control  as  the  general  assembly 
would  have,  if  it  had  not  delegated  such  powers.®^ 

§  242.  Powers  limited — generally  specified. — Of  course,  the 
class  of  powers  which  it  is  competent  for  the  legislature  to  delegate 
to  municipal  corporations  is  limited  to  such  as  have  reference  to 
matters  which  form  appropriate  subjects  for  municipal  regulation. 
The  power  granted  must  be  one  which  relates  to  legitimate  and 
proper  municipal  purposes.  It  must  be  local  in  its  general  character 
as  well  as  in  its  operation. ^^  The  powers  delegated  to  municipal 
corporations  to  control  their  streets  are  generally  prescribed  in  the 
municipal  charter  or  in  the  general  statutes,  and  the  limit  of  au- 
thority may  be  delegated  in  a  general  way ;  or  the  powers  dele- 
gated may  be  specifically  given ;  and  where  this  is  the  case,  the 
municipality  cannot  exceed  these  powers."^  Thus  the  state  may 
delegate  to  municipalities  a  general  power  to  manage  and  regulate 
the  construction  and  maintenance  of  telegraph,  telephone,  and  elec- 
trical lines  within  their  limits,  and  this  power  is  generally  held  to 
be  included  in  the  delegation  of  a  general  power  of  police  control 
over  streets.®*  Often  the  streets  are  lined  with  an  intricate  web 
of  wires,  actually  or  potentially  charged  with  electric  currents, 
which  are  dangerous  unless  approached  with  caution.  These  wires 
are  not  for  telephone  purposes  alone,  but  also  for  the  transmission 
of  electricity,  and  as  a  source  of  motive  power  and  illumination. 
To  permit  these  wires  to  be  indefinitely  increased  upon  the  streets, 
without  some  power  to  regulate  the  manner  of  their  construction, 
would  be  a  source  of  annoyance  and  inconvenience  to  the  munici- 
pality.   So,  when  the  general  power  of  police  regulation  is  delegated 

89  Id.  See  State  v.  Superior  Court,  67  Wash.  37,  120  Pae.  S61,  L.  R.  A,  1915U, 
287,  Ann.  Cas.  1913D,  78. 

90  1  Dill,  on  Mun.  Corp.  §  245. 

91  Taylor  v.  Carondelet,  22  Mo.  110;  Heland  v.  Lowell,  3  Allen  (Mass.)  408, 
81  Am.  Dec.  670. 

9  2  Howe  V.  Plainfield,  37  N.  J.  Law,  146. 

93  Ingersoll,  377 ;  1  Dill,  on  Mun.  Corp.  (3d  Ed.)  §  89;  St.  Louis  v.  McLaugh- 
lin, 49  Mo.  559 ;  St.  Louis  v.  Herthel,  88  Mo.  128 ;  Home  Tel.  Co.  v.  Carthage, 
235  Mo.  644,  139  S.  W.  547,  48  L.  R.  A.  (N.  S.)  1055,  Aim.  Cas.  1912D,  301. 

9*Allentown  v.  West.  IJ.  Tel.  Co.,  148  Pa.  St.  117,  23  Atl.  1070,  33  Am.  St. 
Rep.  820 ;  West.  U.  Tel.  Co.  v.  Philadelphia  (Pa.)  12  Atl.  144. 


fi 


§  243)  REGULATION  AND  CONTROL  327 

to  a  city,  the  power  to  regulate  the  construction  and  maintenance 
of  these  Hues  will  be  included  therein. ^^  The  municipality  may, 
under  the  police  power  delegated  to  it,  prescribe  the  exact  location 
of  poles.  In  granting  a  franchise  to  one  of  these  companies  to  con- 
struct a  line  upon  the  streets,  it  may  require  the  company  to  fur- 
nish a  map  showing  the  exact  location  for  the  poles. *'*'  It  may  re- 
quire that  the  poles  shall  be  of  such  size  and  character  as  not  to  en- 
danger persons  using  the  streets,  and  that  they  shall  not  be  un- 
sightly.^^ It  may  require  that  the  wires  shall  be  a  certain  height 
above  the  surface  of  the  streets,  and  to  cross  other  wires  at  a  certain 
angle.  And  in  certain  cases,  where  the  conditions  are  such  as  war- 
rant their  removal  entirely,  the  city  may  compel  the  company  to  dis- 
pense with  their  use  and  to  place  them  underground.^®  All  restric- 
tions imposed  by  a  city  must  be  reasonable. ^^ 

§  243.  Power  to  revoke  franchise — alter  rates. — The  municipal 
authority  very  clearly  has  the  right  to  couple  with  the  permission 
to  use  the  streets,  such  conditions  as  the  occupancy  of  the  streets 
by  the  company's  posts  and  wires  suggest;  ^*^"  but  this  authority 
cannot  at  its  mere  will  annul  the  act  ^°^  which  has  legalized  the 
occupation  of  the  streets,  and  so  leave  the  company's  property  im- 
pressed with  the  character  of  a  nuisance  which  could  be  at  any  time 
abated. ^°"  For  instance,  if  the  power  to  regulate  and  control  the 
construction  and  maintenance  of  these  companies  has  been  dele- 

9  5  See  §  86  et  seq.    See,  also,  §  61. 

9  6  Auerbach  v.  Cuyahoga  Tel.  Co.,  9  Ohio  Dec.  3S9,  7  Ohio  N.  P.  633.  See, 
also,  §  86  et  al. 

97  Forsythe  v.  Baltimore,  etc.,  Tel.  Co.,  12  Mo.  App.  494;  Hardwick  v.  Ver- 
mont, etc.,  Tel.  Co.,  70  Vt.  180,  49  Atl.  169.     See  §  89. 

08  §  92  et  seq. 

99  Summit  Tp.  v.  New  York,  etc.,  Tel.  Co.,  57  N.  J.  Eq.  123,  41  Atl.  146; 
Northwestern  Tel.  Exch.  Co.  v.  Minneapolis,  81  INIinn.  140,  83  N.  W.  527,  86  N. 
W.  69,  53  L.  R.  A.  175 ;  Matter  of  Seaboard  Tel.,  etc.,  Co.,  68  App.  Div.  283, 
74  N.  T.  Supp.  15 ;  American  U.  Tel.  Co.  v.  Harrison,  31  N.  J,  Eq.  627.  See, 
also,  §  98. 

Grant  of  one  company  to  another. — An  electric  light  company  having  a  fran- 
chise to  use  the  streets  of  a  city  may  not  grant  the  right  to  a  telephone  com- 
pany to  occupy  a  street  with  its  poles  and  wires,  for  the  privilege  of  using  the 
streets  of  a  city  can  only  be  acquired  in  the  manner  prescribed  by  constitu- 
tion. East  Tennessee  Tel.  Co.  v.  Paris  Elec.  Co.,  156  Ky.  762,  162  S.  W.  530, 
Ann.  Cas.  1915C,  543. 

100  1  Dill,  on  Mun,  Corp.  §§  5-55,  558,  575. 

101  Northwestern  Tel.  Exch.  Co.  v.  Anderson,  12  N.  D.  585,  98  N.  W.  706,  102 
Am.  St.  Rep.  580,  65  L.  R.  A.  771,  1  Ann.  Cas.  110.    See  §  44. 

102  Hudson  Tel.  Co.  v.  Jersey  City,  49  N.  J.  Law,  303,  8  Atl.  123,  60  Am. 
Rep.  619 ;  State  v.  Brainerd,  126  Minn.  90,  147  N.  W.  712. 


328  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  241 

gated  to  a  municipality  and  permission  has  been  given  to  the  for- 
mer, under  such  authority,  to  construct  their  lines  along  the  streets 
after  complying  with  all  the  conditions  required,  the  same  cannot 
be  revoked  without  good  cause,  when  the  franchise  or  license  has 
been  accepted,  great  expense  has  been  incurred  and  all  conditions 
have  been  complied  with.^"^  But,  under  the  power  of  police  au- 
thority, these  municipalities  may  make  such  changes  in  the  grant 
to  these  companies  when  the  same  is  for  the  interest  of  the  public; 
provided  vested  rights  are  not  impaired.  Thus  a  city  may  require 
the  wires  to  be  placed  underground  where  the  condition  or  circum- 
stances require  that  the  same  be  done.^"*  When  permission  has 
been  granted  to  these  companies  to  construct  a  line  of  wires  along 
the  streets,  they  will  not  be  treated  as  trespassers,  and  their  works 
declared  a  nuisance,  if  they  are  so  constructed  as  not  to  interfere 
with  the  use  of  the  streets  by  the  pviblic.^"^  But  if  they  should  be- 
come a  nuisance  for  any  reason,  the  city  authority  has  a  right  to 
abate  their  works  by  virtue  of  its  general  power  to  protect  the 
public  interest  in  the  streets.^"®  Where  municipal  charters  are 
subject  to  general  laws  the  legislature  may  direct  a  telephone  com- 
pany to  raise  its  service  rates  from  those  fixed  in  the  franchise 
granted  it  by  the  municipality,  if  it  is  necessary  to  secure  effective 
service,  and  no  unconstitutional  impairment  of  a  contract  results 
thereby.^"' 

§  244.  Cannot  impose  tax  or  license — not  police  power.— It  has 
been  held  that  a  telegraph  company  whose  business  is  the  trans- 
mission of  messages  from  one  state  to  another,  and  which  is  in- 

103  Hudson  Tel.  Co.  v.  Jersey  City,  49  N.  J.  Law,  303,  8  Atl.  123,  tJO  Am.  Rep. 
619;  Northwestern  Tel.  Exch.  Co.  v.  Anderson,  12  N.  D.  585,  98  N.  W.  706,  102 
Am.  St.  Rep.  580,  65  L.  R.  A.  771,  1  Ann.  Cas.  110.  See  §  44.  See,  also,  L.  ,& 
N.  R.  Co.  V.  Russellville  Home  Tel.  Co.,  163  Ky.  415,  173  S.  W.  1105,  L.  R.  A. 
1915E,  138;  East  Tennessee  Tel.  Co.  v.  Paris  Elec.  Co.,  156  Ky.  762,  162  S.  W. 
530,  Ann.  Cas.  1915C,  543. 

104  See  §  93   et  seq. 

105  Southern  Bell  Tel.  Co.  v.  Francis,  109  Ala.  224,  19  South.  1,  55  Am.  St. 
Rep.  930,  31  L.  R.  A.  193. 

lOGNew  York,  etc.,  Tel.  Co.  v.  East  Orange,  42  N.  J.  Eq.  490,  8  Atl.  289; 
Mut.  U.  Tel.  Co.  V.  Chicago  (C.  C.)  16  Fed.  309. 

107  State  V.  Superior  Court,  67  Wash.  37,  120  Pac.  861,  Ann.  Cas.  1913D,  78, 
L.  R.  A.  1915C,  287;  Dawson  v.  Dawson  Tel.  Co.,  137  Ga.  62,  72  S.  E.  508. 
See,  also,  Manitowoc  v.  Manitowoc,  etc.,  T.  Co.,  145  Wis.  13,  129  N.  W.  925, 
140  Am.  St.  Rep.  1056 ;  Turtle  Creek  v.  Pennsylvania  Water  Co.,  243  Pa.  415, 
90  Atl.  199 ;  Bellevue  v.  Ohio  Valley  Water  Co.,  245  Pa.  114,  91  Atl.  236 ;  White 
Haven  v.  White  Haven  Water  Co.,  209  Pa.  166,  58  Atl.  159. 

May  be  authorized  to  reduce  rates  to  meet  competition.  Re  Flat  Creek  Tel. 
Co.,  P.  U.  R.  1916B,  80. 


I 


§  244)  REGULATION  AND  CONTROL  329 

vested  with  the  powers  and  privileges  conferred  by  Congress,  can- 
not be  forced  by  the  state,  as  a  condition  of  doing  business  in  its 
jurisdiction,  to  pay  a  license  tax,  the  same  being  free  from  the  con- 
trol of  state  regulations,  except  such  as  are  strictly  of  a  police  char- 
acter.^"^ It  therefore  follows  that  a  city  which  derives  all  its  pow- 
ers from  the  state  has  no  authority,  under  the  power  to  regulate 
the  control  of  the  streets,  to  impose  a  license  on  these  companies. 
Licenses  for  this  purpose  do  not  fall  under  the  head  of  police  power 
and  subjected,  therefore,  to  the  state  control. ^°^  But  a  municipal 
corporation  has  a  right,  and  it  is  its  duty  in  the  exercise  of  the 
police  power,  to  supervise  and  control  the  erection  and  maintenance 
of  telegraph  and  telephone  poles  and  wires  within  its  limits,  and 
if  the  license  is  imposed  for  the  purpose  of  inspecting  this  work,  it 
will  fall  under  the  police  power  and  therefore  subject  to  such  li- 
cense ;  ^"  or,  if  the  imposition  is  in  the  nature  of  a  rental,  it  may  be 
enforced.^^^    Thus  where  an  ordinance  compelling  a  telegraph  com- 

108  Leloup  V.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311,  reversed 
76  Ala.  401,  where  the  company  had  accepted  the  act  of  Congress ;  Postal  Tel. 
Cable  Co.  v.  Richmond,  99  Va.  102,  37  S.  E.  789,  86  Am.  St.  Rep.  877,  where 
the  tax  was  held  bad,  although  it  was  recited  to  be  in  lieu  of  a  property  ad 
valorem  tax;  Tel.  Co.  v.  Wakefield,  69  Neb.  272,  95  N.  W.  659;  Tel.  Co.  v. 
Troy,  7  Ala.  App.  315,  61  South.  488.  See  Tel.  Co.  v.  Kansas,  216  U.  S.  1,  30 
Sup.  Ct.  190,  54  L.  Ed.  355 ;  Ludwig  v.  Tel.  Co.,  216  U.  S.  146,  30  Sup.  Ct.  280, 
54  L.  Ed.  423 ;  State  v.  Tel.  Co.,  43  Mont.  445,  117  Pac.  93. 

109  New  Orleans  v.  Great  Southern  Tel.  etc.,  Co.,  40  La.  Ann.  41,  3  South. 
533,  8  Am.  St.  Rep.  502. 

110  Ft.  Smith  v.  Hunt,  72  Ark.  556,  82  S.  W.  163,  105  Am.  St.  Rep.  51,  66  L. 
R.  A.  238;  Southern  Bell,  etc.,  Tel.  Co.  v.  D'Alemberte,  39  Fla.  25,  21  South. 
570 ;  West.  U.  Tel.  Co.  v.  Wakefield,  69  Neb.  272,  95  N.  W.  659 ;  Borough  of 
New  Hope  v.  Postal  Tel.,  etc.,  Co.,  202  Pa.  532,  52  Atl.  127 ;  Borough  of  Taylor 
V.  Postal  Tel.,  etc.,  Co.,  202  Pa.  583,  52  Atl.  128 ;  Delaware,  etc.,  Tel.  Co.'s  Peti- 
tion, 224  Pa.  55,  73  Atl.  175,  132  Am.  St.  Rep.  750 ;  Postal  Tel.  Co.  v.  City  of 
Richmond,  99  Va.  102,  37  S.  E.  789,  86  Am.  St.  Rep.  877 ;  Philadelphia  v.  West. 
U.  Tel.  Co.  (C.  C.)  81  Fed.  948 ;  Philadelphia  v.  West.  U.  Tel.  Co.,  89  Fed.  454, 
32  C.  C.  A.  246 ;  Philadelphia  v.  Atlantic,  etc.,  Tel.  Co.,  102  Fed.  254,  42  C.  C. 
A.  325 ;  Sunset  Tel.,  etc.,  Co.  v.  Medford  (C.  C.)  115  Fed.  202 ;  Lelonp  v.  Mo- 
bile, 127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311 ;  Wisconsin  Tel.  Co.  v.  Oshkosh, 
62  Wis.  32,  21  N.  W.  828.  See  Wisconsin  Tel.  Co.  v.  Milwaukee,  126  Wis.  1, 
104  N.  W.  1009,  1  L.  R.  A.  (N.  S.)  581,  110  Am.  St.  Rep.  886;  Ex  parte  Cramer, 
62  Tex.  Cr.  App.  11,  136  S.  W.  61,  36  L.  R.  A.  (N.  S.)  78,  Ann.  Cas.  1913C,  588, 
cost  may  be  placed  on  party  inspecting. 

111  Nebraska  Tel.  Co.  v.  Lincoln,  82  Neb.  59,  117  N.  W.  284,  28  L.  R.  A.  (N. 
S.)  221 ;  Allentowu  v.  West.  U.  Tel.  Co.,  148  Pa.  117,  23  Atl.  1070,  33  Am.  St. 
Rep.  820 ;  Philadelphia  v.  Postal  Tel.  Cable  Co.,  66  Hun,  633,  67  Hun,  21,  21 
N.  Y.  Supp.  556 ;  Chester  v.  West.  U.  Tel.  Co.,  154  Pa.  464,  25  Atl.  1134 ;  West. 
V.  Tel.  Co.  V.  Philadelphia  (Pa.)  12  Atl.  144 ;  New  Hope  v.  West.  U.  Tel.  Co.,  16 
Pa.  Super  Ct.  306 ;  St.  Louis  v.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485, 


330  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  244 

pany  to  pay  five  dollars  per  annum  for  every  pole  within  the  city 
"for  the  privilege  of  using  the  streets,  alleys  and  public  places" 
is  a  charge  in  the  nature  of  a  rental,  and  it  makes  no  difference  that 
these  companies  are  doing  interstate  business ;  but  the  charges  im- 
posed must  be  reasonable,  which  is  a  subject  open  to  judicial  inves- 
tigation.^^- It  has  been  held  that  five  dollars  for  each  pole  per  an- 
num was  not  an  unreasonable  charge. ^^^  The  legislature  may,  in  ex- 
press terms,  delegate  the  power  to  a  city  to  impose  a  tax  or  license 
on  these  companies,  where  the  same  is  not  done  by  the  state, ^^* 
yet  this  delegated  power  will  not  give  the  city  the  power  to  make 
such  an  imposition  on  the  business  of  interstate  commerce :  and 
while  these  companies  may  be  doing  an  interstate  commerce  busi- 
ness, yet  business  which  is  carried  on  exclusively  within  the  state 
may  be  subject  to  such  taxes. ^^^  The  same  rule  which  applies  to 
the  reasonableness  of  charges  as  rental  of  the  space  occupied  by 

37  L.  Ed.  380,  reversing  (C.  C.)  39  Fed.  59 ;  Cable  Co.  v.  Newport,  76  S.  W. 
159,  25  Ky.  Law  Rep.  635 ;  Taylor  v.  Cable  Co.,  202  Pa.  583,  52  Atl.  128 ;  Tel. 
Co.  V.  BaltiDiore,  79  Md.  502,  29  Atl.  819,  24  L.  R.  A.  161 ;  Ogden  City  v.  Cross- 
man,  17  Utah,  66,  53  Pac..  9S5 ;  West.  U.  Tel.  Co.  v.  New  Hope,  187  U.  S.  419, 
23  Sup.  Ct.  204,  47  L.  Ed.  240.  See  Carterville  v.  Gibson,  259  Mo.  499,  168  S. 
W.  673,  L.  R.  A.  1915A,  106 ;  New  York  Tel.  Co.  v.  Siegel,  202  N.  Y.  502,  96  N. 
E.  109,  36  L.  R.  A.  (N.  S.)  560. 

Poles  for  fire  alarms. — City  may  require  of  company,  as  a  condition  to  use  of 
streets,  the  use  of  poles,  free  of  charge,  for  wires  for  fire  alarms.  Postal 
Tel.-Cable  Co.  v.  Chicopee,  207  ^lass.  341,  93  N.  E.  927,  32  L.  R.  A.  (N.  S.)  997. 

112  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380,  reversing  (C.  C.)  39  Fed.  59 ;  Nebraska  Tel.  Co.  v.  Lincoln,  82  Neb.  59,  117 
N.  W.  284,  28  L.  R.  A.  (N.  S.)  221. 

113  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380,  reversing  39  Fed.  59. 

114  Ogden  City  v.  Crossman,  17  Utah,  66,  53  Pac.  985,  occupation  tax  imposed 
on  each  telegraph  instrument  used  in  the  city  ;  Wisconsin  Tel.  Co.  v.  Milwaukee, 
126  Wis.  1,  104  N.  W.  1009,  110  Am.  St.  Rep.  886,  1  L.  R.  A.  (N.  S.)  581 ;  Pen- 
sacola  V.  Southern  Bell  Tel.  Co.,  49  Fla.  161,  37  South.  820,  may  impose  a  rea- 
sonable charge  in  the  nature  of  a  rental,  and  may  also  impose  a  rea- 
sonable charge  in  the  enforcement  of  local  government  supervision,  the  latter 
being  a  police  power;  Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160,  23 
Sup.  Ct.  817,  47  L.  Ed.  995,  imposition  of  license  fee  for  supervisory  inspec- 
tion. 

115  Moore  v.  Eufaula,  97  Ala.  670,  11  South.  921;  Atlantic,  etc.,  Tel.  Co.  v. 
Philadelphia,  190  U.  S.  160,  23  Sup.  Ct.  817,  47  L.  Ed.  995,  holdiug  that  if  a 
corporation,  although  engaged  in  the  business  of  interstate  commerce,  so  car- 
ries on  its  business  as  to  justify,  at  the  hands  of  any  municipality,  a  police 
supervision  of  the  property  and  instrumentalities  used  therein,  the  mimicipal- 
ity  is  not  bound  to  furnish  such  supervision  for  nothing,  and  may,  in  addi- 
tion to  ordinary  property  taxation,  subject  the  corporation  to  a  charge  for  the 
expense  of  the  supervision. 


§  245)  REGULATION  AND  CONTROL  331 

the  poles  of  these  companies  applies  to  the  taxes  which  the  munici- 
pality has  the  power  to  impose  under  the  delegated  authority.  In 
other  words,  the  taxes  imposed  on  these  companies  as  a  purpose  of 
revenue  must  not  be  excessive. ^^^^  What  is  a  reasonable  charge  is 
a  question  of  fact,  and  what  would  be  reasonable  in  one  instance 
might  not  be  in  another.  For  instance,  if  the  poles  were  in  a  crowd- 
ed and  busy  part  of  the  city,  the  amount  to  be  charged  should  not 
be  the  same  as  that  which  should  be  imposed  in  a  small  country 
town  where  the  property  is  not  so  expensive. ^^'^ 

§  245.  Cannot  regulate  rate — without  express  authority.-r-A 
municipal  corporation  cannot  regulate  the  charges  of  telephone  and 
electric  companies  for  services  unless  the  right  has  been  expressly 
delegated  to  it,  as  this  right  is  not  embraced  in  the  general  police 
power  of  the  city.  There  is  no  question  that  this  power  may  be 
delegated  to  the  municipality,  yet  it  must  be  done  in  express 
terms.^^®    As  the  city  government  is  only  a  part  of  the  whole  gov- 

116  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  1.3  Sup.  Ct.  4S5,  37  L.  Ed. 
380. 

117  St.  Louis  V.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed. 
380;   Chester  v.  West.  U.  Tel.  Co.,   154  Pa.  4G4,  25  Atl.  1134. 

lis  Florida. — See  Jacksonville  v.  Southern  Bell  Tel.  Co.,  57  Fla.  374,  49 
South.  509. 

Kentucky.See  Moberly  v.  Richmoud  Tel.  Co.,  126  Ky.  369,  103  S.  W.  714. 

Maryland. — Compare  Charles  Simons  Sons  Co.  v.  Maryland  Tel.,  etc.,  Co.,  99 
Md.  141,  57  Atl.  193,  63  L.  R.  A.  727,  and  Maryland  Tel.,  etc.,  Co.  v.  Chas.  Si- 
mons Sons  Co.,  103  Md.  136,  63  Atl.  314,  115  Am.  St.  Rep.  346. 

Mis.<iouri.—i>t.  Louis  v.  Bell  Tel.  Co.,  96  Mo.  623,  10  S.  W.  197,  9  Am.  St.  Rep. 
370,  2  L.  R.  A.  278 ;  Home  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W.  547, 
Ann.  Cas.  1912D,  301,  48  L.  R.  A.  (N.  S.)  1055.  See,  also,  State  v.  Missouri, 
etc.,  Tel.  Co.,  1S9  Mo.  S3,  88  S.  W.  41. 

Netv  York. — See  Buffalo  Merchants'  Delivery  Co.  v.  Frontier  Tel.  Co.  (Sup.) 
112  N.  Y.  Supp.  862.  Compare  Wright  v.  Glen  Tel.  Co.,  112  App.  Div.  745, 
99  N.  Y.  Supp.  85. 

Ohio. — Farmer  v.  Columbiana  County  Tel.  Co.,  72  Ohio  St.  526,  74  N.  E. 
1078 ;  State  v.  Central  U.  Tel.  Co.,  7  Ohio  Cir.  Dec.  536 ;  IMackliu  v.  Home  Tel. 
Co.,  24  Ohio  Cir.  Ct.  R.  446. 

Tcras.— Southwestern  Tel.  Co.  v.  Dallas  (Civ.  App.)  131  S.  W.  80. 

Washington.— atate  v.  Superior  Court,  67  Wash.  37,  120  Pac.  861,  L.  R.  A. 
1915C,  287,  Ann.  Cas.  1913D,  78. 

West  Ftr.(7imo.— Blueheld  Water,  etc.,  Co.  y.  Bluefield,  69  W.  Va.  1,  70  S  Ei 
772,  33  L.  R.  A.  (N.  S.)  759. 

Wisconsin.— State  v.  Sheboygan,  111  Wis.  23,  86  X.  W.  657;  State  v.  Mil- 
waukee Independent  Tel.  Co.,  133  Wis.  588,  114  N.  W.  108,  315. 

United  States.— Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U.  S.  265,  29  Sup.  Ct. 
50,  53  L.  Ed.  176 ;  Cumberland  Tel.,  etc.,  Co.  v.  Memphis  (C.  C.)  183  Fed.  875. 

In  Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  supra,  the  court  said:  "The  power  to 
fix,  subject  to  constitutional  limits,  the  charges  of  such  a  business  as  the  fur- 


332  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  245 

ernment  which  constitutes  the  commonwealth,  and  is,  therefore, 
subservient  to  the  management  of  the  whole,  it  cannot  enforce  any 

uishing  to  the  public  of  telephone  service  is  among  the  powers  of  government, 
is  legislative  in  its  character,  continuing  in  its  nature,  and  capable  of  being 
vested  in  a  municipal  corporation." 

In  State  v.  Missouri,  etc.,  Tel.  Co.,  supra,  the  statute  conferred  on  the  mu- 
nicipalitj'  "exclusive  control  over  its  public  highways,  streets,  avenues,  alleys 
and  public  places,"  etc.,  and  another  section  authorized  the  city  to  provide 
"for  regulating  and  controlling  the  exercise  by  any  person  or  corporation  of 
any  public  franchise  or  privilege  in  any  of  the  streets  or  public  places  of  such 
city,  whether  such  franchises  or  privileges  have  been  granted  by  said  city,  or 
by  or  under  the  state  of  Missouri,  or  any  other  authority."  Under  the  above 
section  it  was  held  that  the  city  did  not  have  power  to  regulate  telephone 
rates.  The  court  said:  "It  is  not  questioned  that  the  state  has  power  to  keep 
telephone  corporations  in  this  state  within  reasonable  bounds  in  respect  of 
charges  for  their  service,  nor  can  it  be  questioned  that  the  state  may  delegate 
that  power  to  be  exercised  by  a  municipal  corporation  within  its  limits,  but 
the  question  is,  Has  the  state  delegated  that  authority  to  this  city?  *  *  * 
The  regulation  of  prices  to  be  charged  by  a  corporation  intrusted  with  a  fran- 
chise of  a  public  utility  character  is  within  the  sovereign  power  of  the  state 
that  grants  the  franchise  or  that  suffers  it  to  be  exercised  within  its  borders 
and  that  power  may  be  with  wisdom  and  propriety  conferred  on  a  municipal 
corporation,  but  it  is  not  a  power  appertaining  to  the  government  of  the  city 
and  does  not  follow  as  an  incident  to  a  grant  of  power  to  frame  a  charter  for 
a  city  government."  The  court  further  said  that,  under  the  power  conferred 
in  this  case,  "the  city  may  regulate  the  planting  of  poles,  wires,  etc.,  or  re- 
quire the  wires  to  be  put  under  ground,  or  do  anything  within  reason  to  ren- 
der the  use  of  the  street  by  the  private  corporation  as  little  of  injury  to  the 
public  as  may  be.  But  the  section  does  not  confer  on  the  city  the  power  to 
regulate  the  prices  to  be  charged  by  the  telephone  company  for  its  service  to 
the  inhabitants  of  the  city." 

In  Macklin  v.  Home  Tel.  Co.,  supra,  it  was  held  that,  in  the  absence  of 
statutory  authorization,  a  municipality  had  no  power  to  regulate  telephone 
rates,  the  court  saying:  "There  appears  to  be  nothing  in  the  constitution 
or  the  laws  made  in  pursuance  thereof  that  confers  upon  the  council  of  the 
city  power  to  fix  the  price  of  telephone  service  in  the  city  of  Findlay.  We 
think  the  city,  under  the  law  of  the  state,  has  no  more  right  or  power  to 
set  a  price  on  telephone  service  than  it  has  to  regulate  and  fix  the  price 
of  dry  goods,  groceries  or  other  commodities  in  the  same  city.  Perhapsi 
the  legislature  of  Ohio  might  confer  such  power  on  a  municipality,  but  it  has 
not  done  so,  and  the  city  is  destitute  of  power  in  that  respect." 

Electric  companies. — In  the  absence  of  a  delegation  thereof  by  the  legisla- 
ture, express  or  necessarily  implied,  a  municipal  corporation  has  no  power  to 
regulate  or  control  rates  for  public  service,  such  as  the  furnishing  of  elec- 
tricity, or  the  terms  and  conditions  of  contracts  thereof,  otherwise  than 
by  contract  with  the  corporation  or  person  rendering  such  service.  Bluefield 
Waterworks,  etc.,  Co.  v.  Bluefield,  69  W.  Va.  1,  70  S.  W.  772,  33  L.  R.  A. 
(N.  S.)  759.  Where  it  is  delegated,  the  city  has  the  power  to  fix  upon  max- 
imum rates  for  electricity  to  be  consumed,  which  rates  the  company  has 
no  right  to  disregard,  where  they  are  reasonable  in  their  terms  and   are 


§  245)  REGULATION  AND  CONTROL  333 

rule  of  law  which  would  be  mconsistent  with  the  whole,  but  can 
exercise  only  such  powers  as  may  be  delegated  to  it,  in  clear  and  in 
expressed  terms.  The  question  as  to  whether  the  municipal  cor- 
poration has  the  right  to  regulate  the  charges  for  telephone  services 
doing  business  within  its  limits  was  declared  in  a  case  which  went 
up  from  the  city  of  St.  Louis.  The  charter  of  this  city  gave  the 
mayor  and  the  assembly  power  "to  license,  tax,  and  regulate  tele- 
graph companies  or  corporations,"  and  it  might  "pass  all  such  ordi- 
nances, not  inconsistent  with  the  provisions  of  this  charter  or  the 
laws  of  the  state,  as  may  be  expedient,  in  maintaining  the  peace, 
good  government,  health,  and  welfare  of  the  city,  its  trade,  com- 
merce and  manufactures."  The  court  held  in  that  case  that  the 
fact  that  the  city  had  the  right  to  regulate  the  use  of  the  streets 
with  respect  to  the  construction  of  the  telephone  lines  thereon  did 
not  give  it  the  right  to  regulate  the  charges  for  telephone  services, 
nor  did  it  have  the  power,  under  its  charter,  to  regulate  the  rate 
under  its  general  police  power  but  that  the  state  had  the  power  to 
fix  and  prescribe  a  maximum  rate,  and  that  the  state  may  delegate 
such  power  to  municipal  corporations. ^^^  The  rates  which  the  city 
may  fix  must  be  reasonable  and  fair,  and  not  confiscatory,  which 
should  be  regulated  according  somewhat  to  the  conditions  of  the 
particular  city  exercising  such  delegated  power.^-° 

without  discrimination  as  between  citizens  receiving  the  same  kind  and  de- 
gree of  service;  and,  in  the  absence  of  more  specific  legislative  regulation, 
such  rates  may,  under  some  circumstances,  be  made  the  subject  of  judicial 
scrutiny  and  control.  Horner  v.  Oxford,  etc.,  Elee.  Co.,  1.5.3  N.  C.  535,  69 
S.  E.  607,  138  Am.  St.  Rep.  681.  See  Ex  parte  Goodrich,  160  Cal.  410,  117 
Pac.  451,  Ann.  Cas.  1913A,  56,  rate  fixed  by  ordinance. 

119  St.  Louis  V.  Bell  Tel.  Co.,  96  Mo.  623,  10  S.  W.  197,  9  Am.  St.  Rep.  370, 
2  L.  R.  A.  278.     See  State  v.  Sheboygan.  Ill  Wis.  23,  86  N.  W.  657. 

120  In  Cumberland  Tel.,  etc.,  Co.  v.  Memphis  (C.  C.)  183  Fed.  875,  it  was  said  : 
"Assuming  that  the  city  of  Memphis,  notwithstanding  any  contract  it  may 
have  with  the  complainant,  has  the  right  and  power  to  fix  the  rates  which 
the  latter  may  charge  its  customers  in  Memphis,  this  general  power  must 
nevertheless  be  exercised  in  such  manner  as  not  to  violate  the  constitu- 
tional rights  of  the  complainant.  The  rates  which  the  city  may  fix  must 
be  reasonable  and  fair,  and  not  confiscatory.  I  do  not  understand  this 
proposition  to  be  controverted.  *  *  *  The  conditions  in  no  two  cities  may 
be  alike,  and  it  seems  reasonable  to  say  that  questions  as  to  telephone  rates 
may  in  large  measure  be  local  questions  to  be  determined  upon  factors,  among 
which  the  most  important  may  be :  (1)  The  cost  of  the  plant ;  (2)  the  cost 
of  operation  and  maintenance;  (3)  the  amount  of  taxes  and  other  dues 
exacted  by  the  local  government;  and  (4)  the  rapidity  of  deterioration  due 
to  climatic  or  other  causes."  See,  also.  State  ex  rel.  v.  Superior  Court,  67 
Wash.  37,  120  Pac.  861,  Ann.  Cas.  1913D,  78,  L.  R.  A.  1915C,  287. 


334  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  246 

§  246.  State  may  delegate  power  to  commission. — The  state 
may  also  delegate  its  power  of  regulation  and  control  over  tele- 
graph, telephone,  and  electric  companies  to  a  board  or  body,  such 
as  a  railroad  commission. ^-^  Under  this  power  such  commission 
may  have  supervision  over  the  construction  and  maintenance  of  the 
lines  in  the  state, ^"-  and  the  right  to  regulate  the  rates  and  charges 
for  service;  ^-^  and  when  such  charges  are  made,  if  constitutional, 
they  are  binding  on  the  companies,  and  also  on  municipalities.^^* 

§  247.  Control  of  wireless  telegraph. — Congress  has  assumed  ju- 
risdiction over  all  wireless  telegraphs  engaged  in  interstate  or  for- 
eign commerce,  whether  the  system  is  operated  by  an  individual, 
company  or  corporation,  and  has  thereby  provided  all  of  the  con- 
ditions under  which  said  system  shall  be  carried  on,  and  the  reme- 
dies for  the  violation  of  said  conditions. ^^°  This  does  not,  how- 
ever, prevent  the  state  from  regulating  wireless  telegraph  carrying 

121  West.  U.  Tel.  Co.  v.  Myatt  (C.  C.)  98  Fed.  33.5;  Emporia  v.  Tel.  Co., 
90  Kan.  118,  133  Pac.  858 ;  Tel.  Co.  v.  State,  38  Okl.  412,  133  Pac.  476 ;  Tel., 
etc.,  Co.  V.  Beach,  8  Ga.  App.  720,  70  S.  E.  137,  construing  order  of  commis- 
sion ;  Tel.  Co.  v.  State,  31  Okl.  415,  121  Pac.  1069 ;  State  v.  Superior  Court, 
67  Wash.  37,  120  Pac.  861,  Ann.  Cas.  1913D,  78,  L.  R.  A.  1915C,  287 ;  Pacific 
Tel.,  etc.,  Co.  v.  Eshleman,  166  Cal.  640,  137  Pac.  1119,  Ann.  Cas.  1915C, 
822,  50  L.  R.  A.  (N.  S.)  6-52,  jurisdiction  of  commissioners;  People  v.  Willcox, 
207  N.  Y.  86,  100  N.  B.  705,  45  L.  R.  A.  (N.  S.)  629,  burden  on  company  to 
show  it  has  consent  of  commission. 

122  Under  the  Oklahoma  laws,  the  commission  has  the  authority  to  super- 
vise, regulate,  and  control  a  telephone  company  owned  solely  by  an  individ- 
ual in  all  matters  relating  to  the  performance  of  its  public  duties  and  charges. 
Hine  v.  Wadlington,  26  Okl.  389,  109  Pac.  301.  See  St.  Louis,  etc.,  R.  R.  Co. 
V.  Newell,  25  Okl.  502,  106  Pac.  818. 

123  Railroad  Com'rs  v.  West.  U.  Tel.  Co.,  113  N.  C.  213,  18  S.  E.  389,  22 
L.  R.  A.  570 ;  Mayo  v.  West.  U.  Tel.  Co.,  112  N.  C.  343,  16  S.  E.  1006 ;  West. 
U.  Tel.  Co.  v.  State  R.  Com.,  120  La.  758,  45  South.  598;  State  v.  Superior 
Court,  67  Wash.  37,  120  Pac.  861,  Ann.  Cas.  1913D,  78,  L.  R.  A.  1915C,  287; 
Dry  Goods  Co.  v.  Pub.  Service  Corp.,  142  Ga.  841,  83  S.  E.  946. 

124  The  Washington  Public  Utilities  Act  confers  jurisdiction  on  the  public 
service  commissioners  to  raise  rates  for  telephone  service  in  a  city  above  the 
rates  fixed  by  ordinance  granting  the  franchise  to  operate  a  telephone  sys- 
tem, where  such  increased  rates  are  necessary  to  give  the  telephone  com- 
pany a  fair  return  on  its  capital,  and  enable  it  to  maintain  the  system  in  a 
proper  condition  so  as  to  render  efficient  service.  State  v.  Superior  Court,  67 
Wash.  37,  120  Pac.  861,  Ann.  Cas.  1913D,  78,  L.  R.  A.  1915C,  287.  Compare 
Dawson  v.  Dawson  Tel.  Co.,  137  Ga.  62,  72  S.  E.  508;  Manitowoc  v.  Mani- 
towoc, etc.,  Tr.  Co.,  145  Wis.  13,  129  N.  W.  925,  140  Am.  St.  Rep.  1056.  See 
Home  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W.  547,  Ann.  Cas.  1912D,  391, 
48  L.  R.  A.  (N.  S.)  1055. 

125  An  act  to  regulate  radio  communication.  No.  264,  S.  6412,  approved 
August  13,  1912,  c.  287,  37  Stat.  302  (U.  S.  Comp.  St.  1913,  §§  10100-10109). 


§    247)  REGULATION  AND   CONTROL  335 

on  an  exclusive  intrastate  business.^-*'  The  regulation  of  wireless 
telegraph  on  steamers  of  the  United  States  or  of  any  foreign  coun- 
try navigating  the  ocean  or  the  Great  Lakes  is  under  the  control  of 
Congress.  Under  the  act/-'^  assuming  such  control,  it  is  prescribed 
what  steamers  shall  be  provided  with  apparatus  for  radio  communi- 
cation, the  efficiency  thereof,  and  the  number  and  qualifications  of 
the  operators  in  charge  of  same,  and  provides  a  remedy  for  the 
violation  of  these  requirements.  The  International  Radiotele- 
graphic  Convention,  signed  at  London  on  July  5,  1912,^-^  by  nearly 
all  the  nations  of  the  world,  also  adopted  certain  resolutions  for  the 
regulation  of  all  radio  stations,  both  coastal  stations  and  stations 
on  shipboard,  which  are  established  or  worked  by  the  several  na- 
tions and  open  to  public  service  between  the  coast  and  vessels  at 
sea.  The  London  Convention  and  Regulations  do  not,  however, 
modify  or  repeal  the  acts  of  Congress  hereinbefore  mentioned. ^-^ 

126 /jj,  time  of  tear. — The  principles  which  should  regulate  the  control  of 
radio-telegraph  in  time  of  war  are  not  yet  fully  established.  Certain  regu- 
lations were  adopted  by  The  Hague  Conference  in  1907.  By  these  belliger- 
ents are  forbidden  to : 

"(a)  Erect  on  the  territory  of  a  neutral  power  a  wireless  telegraphy  sta- 
tion or  other  apparatus  for  the  purpose  of  communicating  with  belligerent 
forces  on  land  or  sea. 

"(b)  Use  any  installation  of  this  kind  established  by  them  before  the 
war  on  the  territory  of  a  neutral  power  for  purely  military  purposes,  and 
which  has  not  been  opened  for  the  service  of  public  messages." 

"From  practice,  as  shown  in  various  states,  from  the  opinions  of  the 
courts  and  of  writers,  from  the  votes  of  conferences,  and  from  international 
agreements,  it  is  evident  that  the  state  within  whose  jurisdiction  a  wireless 
telegraph  apparatus  is  or  passes  is  and  will  be  authorized  to  exercise  a 
degree  of  control  over  its  use.  The  responsibility  resting  upon  such  state 
will  be  large.  In  order  to  avoid  possible  complications  in  time  of  war,  it 
will  be  expedient  in  time  of  war  for  state,  whether  neutral  or  belligerent, 
to  exercise  control  over  wireless  telegraphy  as  circumstances  seem  to  re- 
quire."    Int.  Law  Situations,  U.  S.  Naval  War  College,  1907,  p.  175. 

i2TAct  approved  July  23,  1912,  c.  250,  37  Stat.  199,  amending  section  1 
of  act  approved  June  24,  1910,  c.  379,  36  Stat.  629  (U.  S.  Comp.  St.  1913, 
§  8262). 

128  Ratified  by  the  Senate  of  the  United  States  on  January  22,  1913. 

129  Official  statement  of  Commissioner  of  Navigation. 


336  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§    248 

CHAPTER  XI 
DUTIES  TO  FURNISH  EQUAL  FACILITIES  TO  ALL 

g  248.  Must  serve  all  impartially. 

249.  Must  have  sufficient  facilities. 

250.  Must  transmit  in  order  in  which  received. 

251.  Cannot  discriminate. 

252.  Same  continued — discrimination — must  be  just. 

253.  Same  continued — reasonable  discrimination. 

254.  Reasonableness  of  rates — how  determined. 

255.  Statutes — declaratory  of  common  law. 

256.  Duties  peculiarly  applicable  to  the  telephone. 

257.  Charges  for  use  of  telephone. 

258.  Whom  to  serve — persons  conducting  legal  business. 

259.  When  may  refuse  to  furnish  services — abusive  language. 

260.  Same   continued — on   refusal   to   pay   charges   or   rent   in   arrears — 

charges  for  removing  instrument — other  reasons. 

261.  Connections  with  extension  systems  privately  owned. 

262.  Same  continued — other  corporations — telegraph  companies. 

263.  Same  continued — rival  companies. 

264.  Being  lessees  of  patents — no  excuse. 

265.  Lessee's  ground  for  refusal. 

266.  Private  unincorporated  companies. 

267.  Electric  companies — discrimination. 

268.  Remedies. 

269.  Measure  of  damages. 
269a.  May  recover  overcharge. 

269b.  Penalty  for  failure  to  furnish  current. 
269c.  Excuses  for  not  rendering  services. 

§  248.  Must  serve  all  impartially. — Telegraph  and  telephone 
companies  are  not  common  carriers  under  the  common  law,  but 
have  been  declared  to  be  such  by  statutes  in  many  of  the  states,  and 
are  thereby  made  subject  to  all  the  laws  applicable  to  common 
carriers.  They  may  or  may  not  become  incorporated,  but  if  they 
have  the  power  to  exercise  some  of  the  rights  of  the  government, 
such  as  the  right  of  eminent  domain,  they  are  then  impressed  with 
a  public  interest  and  are  under  a  legal  obligation  to  serve  with  im- 
partiality all  who  apply  to  them  after  complying  with  their  reason- 
able regulations.^     When  the  government  grants  to  any  corpora- 

1  State  V.  American,  etc.,  Commercial  News  Co.,  43  N.  J.  Law,  381 ;  West. 
U.  Tel.  Co.  V.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506,  27  L.  R,  A.  622,  48 
Am.  St.  Rep.  729;  Id.,  58  Neb.  192,  78  N.  W.  519;  Stewart  v.  Postal  Tel. 
Cable  Co.,  131  Ga.  31,  61  S.  E.  1045,  18  L.  R.  A.  (N.  S.)  692,  127  Am.  St.  Rep. 
205 ;  West.  U.  Tel.  Co.  v.  State  ex  rel.,  165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A. 
(N.  S.)  153,  6  Ann.  Cas.  880. 


§    248)  EQUAL   FACILITIES   TO   ALL  337 

tion  or  person  some  of  its  rights,  it  takes  in  lieu  thereof  an  interest 
in  the  granted  business;  and,  when  one  is  the  owner  of  the  prop- 
erty which  is  devoted  to  a  public  use  and  in  which  the  public  has 
acquired  an  interest,  he,  in  effect,  grants  an  interest  in  such  use 
and  must,  to  the  extent  of  that  interest,  submit  to  be  controlled  by 
the  government  for  the  common  good  as  long  as  such  is  main- 
tained.^ One  of  the  important  requirements  which  the  government 
demands  of  every  institution  impressed  with  a  public  interest — and 
one  which  is  thrown  around  every  citizen  as  a  great  and  protective 
shield — is  the  duty  to  act  impartially  toward  all.^  So  telegraph,, 
telephone  and  electric  companies  enjoying  public  privileges,  or  de- 
voting their  property  to  a  quasi  public  business,  are  under  obliga- 
tions to  extend  their  facilities  to  all  persons,  on  equal  terms,  who 
are  willing  to  comply  with  their  reasonable  regulations,  and  who 
make  or  offer  to  make  such  compensation  as  is  exacted  of  others 
in  like  circumstances.* 

2  Munn  V.  Illinois,  94  U.  S.  113,  24  L.  Ed.  77 ;  Inter-Ocean  Pub.  Co.  v. 
Associated  Press,  184  111.  438,  56  N.  E.  822,  75  Am.  St.  Rep.  184,  48  L.  R.  A. 
568. 

3  Reed  V.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609, 
34  L.  R.  A.  492.  See  cases  in  following  note.  See  State  v.  Atlantic  Coast, 
etc.,  R.  Co.,  52  Fla.  646,  41  South.  705,  12  L.  R.  A.  (N.  S.)  506,  holding  rail- 
road cannot  discriminate  against  telegraph  companies. 

i  Alahuma.— West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  IS 
Am.  St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  2a 
L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058;  Vinson  v.  Southern  Bell.  Tel.,  etc., 
Co.,  188  Ala.  292,  66  South.  100,  L.  R.  A.  1915C,  450,  burden  on  company. 

Arkansas.— Tel.,  etc.,  Co.  v.  Danaher,  102  Ark.  547,  144  S.  W.  925. 

FJorida.— Gainesville  v.  Gainesville,  etc.,  Elec.  P.  Co.,  65  Fla.  404,  62  South. 
919,  46  L.  R.  A.  (N.  S.)  1119. 

Georfiria.— Stewart,  etc.,  Co,  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E. 
1045,  18  L.  R.  A.  (N.  S.)  692,  127  Am.  St.  Rep.  205;  Tel.,  etc.,  Co.  v.  Beach, 
8  Ga.  App.  720,  70  S.  E.  137. 

7«inois.— Inter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  438,  56  N.  E. 
822,  75  Am.  St.  Rep.  184,  48  L.  R.  A.  568. 

Indiana.— Central  U.  Tel.  Co.  v.  Fehring,  146  Ind.  189,  45  N.  E.  64;  Central 
U.  Tel.  Co.  V.  Bradbury,  106  Ind.  1,  5  N.  E.  721 ;  Central  U.  Tel.  Co.  v.  Falley, 
118  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep.  114. 

Kentucky.-West.  U.  Tel.  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  827, 
92  Am.  St.  Rep.  366. 

Maryland.— Chesai:ieake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel  Co.,  66  Md. 
399,  7  Atl.  809,  59  Am.  Rep.  167. 

Minnesota.— State  v.  Power  Co.,  119  Minn.  225,  137  N.  W.  1104,  41  L.  R.  A. 
(N.  S.)  1181,  Ann.  Cas.    1914B,  19. 

Missouri.— B.eed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am. 
Jones  Tel.(2d  Ed.)— 22 


338  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  249 

§  249,  Must  have  sufficient  facilities. — In  order  that  a  telegraph, 
telephone,  or  electric  company  may  be  able  to  carry  out  the  duties 
which  it  owes  to  the  government,  it  must  in  the  first  place  equip 
its  business  so  that  all  unfavorable  emergencies  may  be  dispensed 
with  in  the  shortest  possible  time  and  in  the  most  efficient  and  care- 
ful manner.^  It  is  the  duty  of  a  telegraph  or  telephone  company 
to  have  sufficient  facilities  to  transact  all  business  oltered  to  it  for 
all  points  where  it  has  offices;  ^   and  if  the  press  of  business  offered 

St.  Rep.  609,  34  L.  R.  A.  492;  State  v.  Kinloch  Tel.  Co.,  93  Mo.  App.  349, 
67  S.  W.  684. 

Nebraska.— BuSalo  County  Tel.  Co.  v.  Turner,  82  Neb.  841,  118  N.  W.  1064, 
19  L.  R.  A.  (N.  S.)  693,  130  Am.  St.  Rep.  699 ;  State  v.  Nebraska  Tel.  Co.,  17 
Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404 ;  West.  U.  Tel.  Co.  v.  Call  Pub.  Co., 
44  Neb.  326,  62  N.  W.  506,  48  Am.  St.  Rep.  729,  27  L.  R.  A.  622 ;  Id.,  58  Neb. 
192,  78  N.  W.  519. 

Netc  Jersey. — Trenton,  etc..  Turnpike  Co.  v.  American,  etc..  News  Co.,  43 
N.  J.  Law,  381. 

New  York.—U.  S.  Tel.  Co.  v.  West.  U.  Tel.  Co.,  56  Barb.  (N.  Y.)  46 ;  Fried- 
man V.  Gold,  etc.,  Tel.  Co.,  32  Hun  (N.  Y.)  4 ;  Atlantic,  etc.,  Tel.  Co.  v.  West. 
U.  Tel.  Co.,  4  Daly  (N.  Y.)  527.  See,  also,  People  v,  Hudson  River  Tel.  Co., 
19  Abb.  N.  C.  (N.  Y.)  466. 

N(n-th  Carolina.— Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391, 
47  Am.  St.  Rep.  798,  27  L.  R.  A.  843 ;  Carmichael  v.  Tel.,  etc.,  Co.,  162  N.  C. 
333,  78  S.  E.  507,  Ann.  Cas.  1915A,  983 ;  Woodley  v.  Tel.,  etc.,  Co.,  163  N.  C. 
284,  79  S.  E.  598,  Ann.  Cas.  1914D,  116. 

OMo.— State  V.  Bell  Tel.  Co.,  36  Ohio  St.  296,  38  Am.  Rep.  583. 

Pennsylvania.— Bell  Tel.  Co.  v.  Com.,  2  Sadler,  299,  3  Atl.  825. 

South  Carolina.— Gwynn  v.  Citizens'  Tel.  Co.,  69  S.  C.  434,  48  S.  E.  460, 
104  Am.  St.  Rep.  819,  67  L.  R.  A.  Ill ;  State  v.  Citizens'  Tel.  Co.,  61  S.  C. 
83,  39  S.  E.  257,  85  Am.  St.  Rep.  870,  55  L.  R.  A.  1.39. 

South  Dakota.— Kirhy  v.  West.  U.  Tel.  Co.,  4  S.  D.  105,  55  N.  W.  759,  46 
Am.  St.  Rep.  765,  30  L.  R.  A.  612,  624. 

Tennessee.— \ausht  v.  East  Tennessee  Tel.  Co.,  123  Tenn.  318,  1.30  S.  W. 
1050,  31  L.  R.  A.  (N.  S.)  315,  Ann.  Cas.  1912C,  132. 

Vermont. — Commercial  U.  Tel.  Co.  v.  New  England  Tel.,  etc.,  Co.,  61  Vt. 
241,  17  Atl.  1071,  15  Am.  St.  Rep.  S93,  5  L.  R.  A.  161. 

United  States.— V^' est.  U.  Tel.  Co.  t.  Call  Pub.  Co.,  181  U.  S.  92,  21  Sup. 
Ct.  561,  45  L.  Ed.  765 ;  Cumberland  Tel.,  etc.,  Co.  v.  Kelly,  160  Fed.  316,  87 
C.  C.  A.  268,  15  Ann.  Cas.  1210;  Delaware,  etc.,  Tel.,  etc.,  Co.  v.  Delaware, 
50  Fed.  677,  2  C.  C.  A.  1,  affirmed  (C.  C.)  47  Fed.  633 ;  Missouri  v.  Bell  Tel. 
Co.  (C.  C.)  23  Fed.  539 ;   Tel.  Co.  v.  Tel.,  etc.,  Co.  (C.  C.)  177  Fed.  726. 

5  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391,  47  Am.  St.  Rep. 
798,  27  L.  R.  A,  843 ;  Gwynn  v.  Citizens'  Tel.  Co.,  69  S.  C.  434,  48  S.  E.  460, 
104  Am.  St.  Rep.  819,  67  L.  R.  A.  111.  But  see  Cumberland  Tel.,  etc.,  Co.  v. 
Kelly,  160  Fed.  316.  87  C.  C.  A.  268,  15  Ann.  Cas.  1210,  circumstances  of  the 
particular  case  should  be  considered. 

c  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391,  47  Am.  St.  Rep. 
798,  27  L.  R.  A.  843 ;    Gwynn  v.  Citizens'  Tel.  Co.,  69  S.  C.  434,  48  S.  E.  460, 


§    250)  EQUAL  FACILITIES   TO  ALL  339 

is  so  great  that  one  wire  or  one  operator  at  a  point  is  not  sufficient, 
it  is  the  duty  of  the  company  to  add  another  wire  or  an  additional 
employe.'^  It  must  not  only  have  sufficient  facilities  to  carry  out  its 
business,  but  it  also  must  be  provided  with  competent  servants  ^ 
and  suitable  instruments  for  this  purpose;  and  on  a  failure  to  do 
so,  whereby  injuries  or  losses  are  incurred,  it  must  respond  in  dam- 
ages.^ In  the  case  of  telephone  companies,  each  person  has  the 
right  to  demand  and  receive  a  telephone  and  telephonic  connec- 
tions, facilities  and  services,  and  the  best  in  use  by  such  com- 
panies.^** Not  only  is  it  necessary  that  these  companies  should  fur- 
nish the  best  facilities  which  they  may  have  in  use,  but  they  must 
furnish  the  very  best  equipped  and  most  up-to-date  instruments  to 
be  used  by  any  similar  companies. ^^  These  companies  voluntarily 
engage  in  a  public  duty ;  they  solicit  the  public  to  transact  business 
with  them  on  reasonable  terms,  and  when  they  have  placed  them- 
selves before  the  public  to  perform  such  business  as  may  be  ten- 
dered, they  must  exercise  due  care  to  carry  out  all  such  duties ;  and 
in  order  to  do  this,  they  must  prepare  and  furnish  the  best  instru- 
ments and  extend  impartial  favors  toward  the  public. 

§  250,  Must  transmit  in  order  in  which  received. — One  of  the 
duties  imposed  upon  telegraph  companies  is  that  they  must,  with 
few  exceptions,  transmit  all  messages  tendered  them,  after  a  rea- 

104  Am.  St.  Rep.  819,  67  L.  R.  A.  Ill ;  Cumberland  Tel.,  etc.,  Co.  v.  Kelly, 
160  Fed.  316,  87  C.  C.  A.  268,  15  Ann.  Cas.  1210 ;  Maryland  Tel.,  etc.,  Co.  v. 
Simon  Sons  Co.,  103  Md.  136,  63  Atl.  314,  115  Am.  St.  Rep.  346. 

7  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391,  47  Am.  St.  Rep. 
798,  27  L.  R.  A.  843 ;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South. 
419,  18  Am.  St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10 
S.  W.  734,  13  Am.  St.  Rep.  843.  See  extended  note  in  West.  U.  Tel.  Co.  v. 
Blanchard,  45  Am.  Rep.  487. 

8  Licensed. — Electricians  may  be  required  if  it  is  Imposed  on  all  alike,  State 
V.  Gantz,  124  La.  535,  50  South.  524,  24  L.  R.  A.  (N.  S.)  1072 ;  or  an  occupa- 
tion tax  imposed.  Ex  parte  Cramer,  62  Tex.  Cr.  R.  11,  136  S.  W.  61,  36  L.  R. 
A.  (N.  S.)  78,  Ann.  Cas.  1913C,  588. 

9  Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609, 
34  L.  R.  A.  492. 

10  Central  U.  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  E.  004,  10  Am.  St.  Rep. 
114;  Central  U.  Tel.  Co.  v.  Falley,  118  Ind.  598,  20  N.  E.  145;  Johnson  v. 
State,  113  Ind.  143,  15  N.  E.  215;  Central  U.  Tel.  Co.  v.  Bradbury,  106  Ind. 
1,  5  N.  E.  721 ;  Hockett  v.  State,  105  Ind.  250,  5  N,  E.  178,  55  Am.  Rep.  201 ; 
Gardner  v.  Providence  Tel.  Co.,  23  R.  I.  262,  49  Atl.  10O4 ;  Id.,  23  R.  I.  312, 
50  Atl.  1014,  55  L.  R.  A.  113;  Commercial  U.  Tel.  Co.  v.  New  England  Tel., 
etc.,  Co.,  61  Vt.  241,  17  Atl.  1071,  15  Am.  St.  Rep.  893,  5  L.  R.  A.  161. 

11  Central  U.  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep. 
114. 


340  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  250 

sonable  compliance  with  their  rules  and  regulations,  in  the  order  in 
which  they  are  received. ^^  These  companies  are  under  a  legal 
obligation  to  the  public  to  carry  out  this  part  of  their  duties  to- 
ward the  public  for  obtaining  so  great  a  right  as  that  of  assuming 
public  functions  and  enjoying  public  immunities;  and  the  same 
must  be  observed  unless  the  statutes  of  the  state  or  public  policy 
•demands  that  certain  other  messages  shall  have  precedence  over 
these.  In  many  states  there  have  been  statutes  passed  which  re- 
quire that  messages  be  transmitted  in  the  order  in  which  they  are 
received/^  but  it  seems  that  the  companies  are  under  this  obligation 
€ven  though  there  are  no  statutes  to  this  effect.  If  they  were  per- 
mitted to  exercise  their  own  judgment  with  respect  to  the  time  and 
manner  in  which  the  messages  should  be  delivered,  partiality  would 
in  many  instances  be  shown,  which,  as  we  heretofore  said,  could 
not  be  done.  It  necessarily  follows,  therefore,  that  messages  should 
be  transmitted  in  the  order  in  which  they  are  received,  even  in  the 
absence  of  a  statute  to  that  effect.  There  are  some  messages  which, 
through  legislative  enactments,  are  entitled  to  a  preference  over 
those  which  would  otherwise  have  precedence;  where  such  is  the 
case,  those  messages — such  as  pertain  to  the  government,  those 
for  and  from  officers  of  justice,  and  those  for  publication  of  general 
and  public  interest — have  the  right  of  way.  It  is  considered,  where 
the  public — or  any  of  its  servants — is  the  sender  of  messages,  that 
they  are  always  of  some  consequence,  and  that  not  only  one  but 
many  people  are  directly  or  indirectly  interested  in  the  results,  and 
a  failure  to  promptly  and  immediately  send  same  in  preference  to 
those  otherwise  having  priority  would  inflict  a  loss  not  only  upon 
one  of  its  citizens,  but  on  many ;  for  this  reason  some  of  the  legis- 
latures have  seen  fit  to  give  them  preference.  It  has  also  been  held 
that  these  companies  are  under  obligations  to  give  preference  to 
all  private  messages  where  they  have  been  informed,  either  by  the 
sender  or  by  the  face  of  the  message,  that  their  immediate  trans- 
mission and  delivery  was  of  the  utmost  importance.  It  seems  that 
such  messages  as  these  should  have  precedence  over  those  given 

i2Mackay  v.  West.  U.  Tel.  Co.,  16  Nev.  222;  Davis  v.  West.  U.  Tel.  Co, 
(Ohio)  1  Cin.  R.  100 ;  Daughtery  v.  Amer.  Union  Tel.  Co.,  75  Ala.  168,  51  Am. 
Rep.  4.35 ;  Dorgan  v.  West.  U.  Tel.  Co.,  7  Fed.  Cas.  918,  No.  4004.  See  West. 
Union  Tel.  Co.  v.  Neill,  57  Tex.  283,  44  Am.  Rep.  589;  West.  U.  Tel.  Co.  v. 
Reynolds,  77  Va.  173,  195,  46  Am.  Rep.  715;  Renter  v.  Electric  Tel.  Co.,  6 
E.  etc.  B  341,  2  Jr.  M.  S.  1245,  26  L.  G.  Q.  B.  46,  4  Wkly.  Rep.  564,  88  E.  C.  L. 
341. 

13  See  West.  U.  Tel.  Co.  v.  Penn.  R.  Co.,  195  U.  S.  540,  25  Sup.  Ct.  133,  49 
L.  Ed.  312,  1  Ann.  Cas.  517. 


§    251)  EQUAL   FACILITIES   TO   ALL  341 

preference  by  statute,  should  the  former  clearly  appear  to  be  of 
more  consequence  than  the  latter.  It  is  presumed  that  those  given 
preference  by  statute  are  of  much  importance,  but  the  presumption 
may  be  overcome  if  it  clearly  appears  from  an  inspection  of  the  pri- 
vate message  that  it  is  of  greater  importance  than  the  former.  The 
telegraph  company  is  often  ignorant  of  the  real  meaning  of  a  tele- 
gram ;  and,  while  it  may  be  assured  of  its  meaning,  it  cannot  al- 
ways know  its  full  importance,  as  the  importance  of  a  message 
often  depends  on  other  circumstances  surrounding  the  particular 
message.  The  company  cannot,  therefore,  always  know  what  im- 
portance should  be  given  to  messages,  and  if  this  fact  should  be 
left  to  its  own  consideration,  it  might  often  be  mistaken  in  its  judg- 
ment ;  and  on  this  account  preferences  might  be  given  to  some 
which  would  not  be  thereto  entitled.  It  is  not  a  good  policy  any- 
way to  give  these  companies  this  power;  for  they  might  take  ad- 
vantage of  the  power  and  give  preference,  many  times,  to  messages 
which  should  be  transmitted  in  the  regular  order  in  which  they  are 
received.  It  is,  therefore,  much  the  better  policy  to  demand  of  them 
to  transmit  the  messages  in  the  order  in  which  they  are  received. 

§  251.  Cannot  discriminate. — The  business  of  a  telegraph  or 
telephone  company  is  public  in  its  nature  and  a  public  interest  is 
impressed  thereon  to  such  an  extent  that  no  unjust  discrimination 
can  be  made  against  persons  or  corporations,  either  in  the  business 
of  receiving  and  transmitting  messages,^*  or  in  the  charges  therefor 
where  the  conditions  are  the  same,^^  or  by  refusing  to  serve  or 
furnish  facilities  to  them  when  demanded,  and  in  the  character  and 
quality  generally  given  and  provided  to  others.  \Like  other  quasi- 
public  corporations,  telegraph  and  telephone  companies  may  make 
and  enforce  reasonable  rules  and  regulations  for  the  conduct  of 
their  business ;  and  those  who  refuse  to  comply  with  such  rules 
and  regulations  cannot  demand  the  services  and  facilities  of  these 
companies,^*^  or  a  continuance  of  same  where  there  is  a  substantial 

14  Inter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  438,  56  N.  E.  822,  75 
Am.  St.  Rep.  184,  48  L.  R.  A.  568 ;  West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb. 
326,  62  N.  W.  506,  48  Am.  St.  Rep.  729,  27  L.  R.  A.  622;  Id.,  58  Neb.  192, 
78  N.  W.  519 ;  Stewart,  etc.,  Co.  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E. 
1045,  18  L.  R.  A.  (N.  S.)  692,  127  Am.  St.  Rep.  205. 

15  See  §  252  et  seq.  _- 

isPugh  V.  City,  etc.,  Tel.  Ass'n,  8  Ohio  Dec.  (Reprint)  644,  9  Wkly.  Law 
Bui.  104;  West.  U.  Tel.  Co.  v.  McGuire,  104  Ind.  130,  2  N.  E.  201,  54  Am. 
Rep.  296 ;  Gardner  v.  Providence  Tel.  Co.,  23  R.  I.  262,  49  Atl.  1004 ;  Kirby 
V.  West.  U.  Tel.  Co.,  7  S.  D.  623.  65  N.  W.  37,  46  Am.  St.  Rep.  765,  30  L.  R.  A. 
621,  624 ;    Hewlett  v.  West.  U.  Tel.  Co.  (C.  C.)  ^S  Fed.  181 ;    Tel.,  etc.,  Co.  v. 


342  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  251 

violation  thereof.^''  These  rules  and  regulations  must  be  reason- 
able, and,  if  reasonable,  the  fact  that  they  have  not  been  enforced  in 
particular  cases  does  not  mean  that  they  may  not  be  enforced  in 
other  cases. ^^  These  companies  have  the  right  to  make  reasonable 
charges  for  their  services;  ^°  but  they  must  be  imposed  equally  on 
all,  where  the  circumstances  are  the  same.  This  is  a  common-law 
principle,  and  could  be  enforced  in  the  absence  of  a  statute  to  that 
effect.  Under  their  rules  and  regulations,  tlvey  may  require  charges 
for  services  to  be  paid  in  advance,-*'  or  on  a  certain  day  of  the 

Murphy,  100  Ark.  546,  140  S.  W.  720 ;  Tel.,  etc.,  Co.  v.  Danaher,  102  Ark.  547, 
144  S.  W.  925. 

17  irvin  V.  Rushville  Co-operative  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258;  Pugli 
V.  City  etc.,  Tel.  Ass'n,  8  Ohio  Dec.  (Reprint)  644,  9  Wkly.  Law  Bui.  104; 
Gardner  v.  Providence  Tel.  Co.,  2.3  R.  I.  262,  49  Atl.  1004 ;  Huffman  v.  Tel. 
Co.,  143  Iowa,  590,  121  N.  W.  1033,  23  L.  R.  A.  (N.  S.)  1010. 

18  People  V.  West.  U.  Tel.  Co.,  1G6  111.  15,  46  N.  E.  731,  36  L.  R.  A.  637; 
Irvin  V.  Rushville  Co-operative  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258.  But  see 
Plummer  y.  Hattelsted  (Iowa)  117  N.  W.  680;  Atlantic,  etc.,  Tel.  Co.  v. 
West.  U.  Tel.  Co.,  4  Daly  (N.  Y.)  527. 

19  Minneapolis  Gen.  Elec.  Co.  v.  Minneapolis  (C.  C.)  194  Fed.  215;  Thomp- 
son V.  San  Francisco,  etc.,  Elec.  Co.,  20  Cal.  App.  142,  128  Pac.  347 ;  Marion 
Elec,  etc.,  Co.  v.  Rochester,  149  Ky.  810,  149  S.  W.  977. 

20  Woodley  v.  Carolina  Tel.,  etc.,  Co.,  163  N.  C.  284,  79  S.  E.  598,  Ann.  Cas. 
1914D,  116;  National  Tel.  Co.  v.  Griffin,  2  Ir.  R.  115;  Yancey  v.  Batesville 
Tel.  Co.,  81  Ark.  486,  99  S.  W.  679,  11  Ann.  Cas.  135;  Malochee  v.  Great 
Southern  Tel.,  etc.,  Co.,  49  La.  Ann.  1690,  22  South.  922;  Buffalo  County 
Tel.  Co.  V.  Turner,  82  Neb.  841,  118  N.  W.  1064,  130  Am.  St.  Rep.  699,  19 
L.  R.  A.  (N.  S.)  693;  Vaught  v.  East  Tennessee  Tel.  Co.,  123  Tenn.  318,  130 
S.  W.  1050,  Ann.  Cas.  1912C,  132,  31  L.  R.  A.  (N.  S.)  315;  State  v.  Inde- 
pendent Tel.  Co.,  59  Wash.  156,  109  Pac.  366,  31  L.  R.  A.  (N.  S.)  329 ;  Rushville 
Co-operative  Tel.  Co.  v.  Irvin,  27  Ind.  App.  62,  59  N.  E.  327;  West.  U.  Tel. 
Co.  V.  McGuire,  104  Ind.  130,  2  N.  E.  201,  54  Am.  Rep.  296 ;  Neb.  Tel.  Co.  v. 
State,  55  Neb.  627,  76  N.  W.  171,  45  L.  R.  A.  113. 

See  Ashley  v.  Rocky  Mtn.  Bell  Tel.  Co.,  25  Mont.  286,  64  Pac.  765. 

In  Yancey  v.  Batesville  Tel.  Co.,  supra,  however,  a  telephone  subscriber 
was  compelled  to  go  to  the  central  office  and  pay  in  advance  for  long-distance 
messages,  when  others  could  send  same  from  their  homes  and  places  of  busi- 
ness and  pay  for  the  same  at  the  end  of  each  month.  It  was  held  that  it 
was  an  unreasonable  and  unnecessary  discrimination. 

Reasoiwblcness  of  rule. — A  rule  of  rural  telephone  company  that  telephone 
companies  must  be  paid  six  months  in  advance  is  reasonable,  and  a  subscriber 
refusing  to  comply  therewith  is  not  entitled  to  service.  Buffalo  County  Tel. 
Co.  V.  Turner,  82  Neb.  841,  118  N.  W.  1064,  130  Am.  St.  Rep.  699,  19  L.  R.  A. 
(N.  S.)  693 ;  Minneapolis  General  Electric  Co.  v.  Minneapolis  (C.  C.)  194  Fed. 
215. 

On  the  same  principle,  a  telegraph,  telephone,  and  electric  company  may 
require,  as  a  condition  of  furnishing  services,  a  deposit  of  a  reasonable  amount 
as  security  for  the  payment  of  future  charges.     See  Hewlett  v.  West.  U.  Teh 


§    252)  EQUAL   FACILITIES   TO   ALL  343 

month. ^^  They  cannot  be  required  to  extend  credit  to  any  one, 
although  credit  has  been  extended  to  others.^-  They  may  enforce 
the  payment  of  charges  for  services  to  a  subscriber  to  whom  the 
company  is  indebted."^ 

§  252.  Same  continued — discrimination — must  be  just. — It  is 
not  every  discrimination  which  is  unjust,-'*  since  there  may  be  con- 
ditions surrounding  the  particular  case  which  would  entitle  tele- 
graph and  telephone  companies  to  make  discriminations  among 
their  patrons.  These  companies  certainly  have  the  right  to  demand 
a  reasonable  compensation  for  their  services,  and  wdiere  the  condi- 
tions pertaining  to  the  transmission  and  delivery  of  messages  are 
similar  in  every  respect,  they  should  not  be  permitted  to  discrimi- 
nate in  their  rates;  but  in  many  cases  the  conditions  are  not  simi- 
lar, and  where  this  is  the  case,  it  is  not  unjust  discrimination.-^ 
It  is  not  contrary  to  the  common  law  nor  is  it  contrary  to  the  stat- 

Co.  (C.  C.)  28  Fed.  181 ;  West.  U.  Tel.  Co.  v.  McGuire,  104  Ind.  130,  2  N.  E. 
201,  54  Am.  Rep.  296. 

21  Irvin  V.  Rusliville  Co-operative  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258,  may 
discontinue  without  notice  where  subscriber  knows  of  rule. 

22  Irvin  V.  Rushville  Co-operative  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258; 
Vaught  V.  East  Tennessee  Tel.  Co.,  123  Tenn.  318,  130  S.  W.  1050.  31  L.  R.  A. 
(N.  S.)  315,  Ann.  Cas.  1912C,  132.  But  see  Yancey  v.  Batesville  Tel.  Co.,  81 
Ark,  486,  99  S.  W.  679,  11  Ann.  Cas.  135. 

2  3  Irvin  V.  Rushville  Co-operative  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258,  hold- 
ing that,  where  a  telephone  company  has  made  a  rule  unknown  to  its  sub- 
scribers requiring  rentals  to  be  paid  by  a  certain  day  of  the  mouth,  it  may 
discontinue  the  service  for  nonpayment,  although  it  is  indebted  to  the  sub- 
scriber. 

A  counterclaim  hy  subscriber  for  faulty  services,  a  large  part  of  which  is 
exorbitant  and  illegal,  does  not  justify  him  in  demanding  that  he  be  given  a 
service  without  a  prepayment  of  such  rent  as  other  subscribers  pay.  Buf- 
falo County  Tel.  Co.  v.  Turner,  82  Neb.  841,  118  N.  W.  1004,  130  Am.  St.  Rep. 
699,  19  L.  R.  A.  (N.  S.)  693. 

Failure  to  ottain  franchise. — The  failure  of  a  company  to  obtain  a  fran- 
chise, as  required,  for  the  use  of  highways,  is  no  defense  to  an  action  for 
rental.  Union  Tel.  Co.  v.  Ingersoll,  178  Mich.  187,  144  N.  W.  560,  52  L.  R.  A. 
(N.  S.)  713. 

2  4  Snell  v.  Clinton  Elec.  I*,  etc.,  Co.,  196  111.  626,  63  N.  E.  1082,  89  Am. 
St.  Rep.  341,  58  L.  R.  A.  284,  reversed  95  111.  App.  552;  Cincinnati,  etc.,  R. 
Co.  V.  Bowling  Green,  57  Ohio  St.  336,  49  N.  E.  121,  41  L.  R.  A.  422 ;  Weld 
V.  Com'rs,  197  Mass.  556,  84  N.  E.  101;  State  v.  Elec,  etc.,  Co.,  43  Mont. 
118,  115  Pac.  44;  Horner  v.  Water,  etc.,  Co.,  153  N.  C.  535,  69  S.  E.  607, 
138  Am.  St.  Rep.  681 ;  Kilbourn  City  v.  Power  Co.,  149  Wis.  168,  135  N.  W. 
499 ;  State  v.  Power  Co.,  119  Minn.  225,  137  N.  W.  1104,  41  L.  R.  A.  (N.  S.) 
1181,  Ann.  Cas.  1914B,  19;  Packing  Co.  v.  Illuminating  Co.,  115  App.  Div. 
51,  100  N.  Y.  Supp.  605. 

2  5  West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506,  48  Am. 


344  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  253 

ute  to  make  a  difference  in  the  charges.    It  has  been  held  that  the 
true  rule  on  this  subject  is  that  the  rates  must  not  only  be  reason- 
able in  themselves,  but  must  be  relaitively  reasonable;  that  is,  they 
must  first  be  reasonable,  and  then  they  must  not,  without  a  just  and 
reasonable  ground  for  discrimination,  render  to  one  patron  services 
at  a  less  rate  than  it  renders  to  another,  where  such  discrimination 
operates  to  the  disadvantage  of  that  other.^®     They  must  not  dis- 
criminate in   rates  between  patrons  so  as  to  give  one  an   undue 
preference  over  another.     It  is  not  an  undue  preference,  however, 
to  make  to  one  patron  a  less  rate  than  to  the  other,  when  there  exist 
differences  in  conditions  as  to  the  expense  or  difficulty  of  the  serv- 
ices rendered  which  fairly  justifies  such  a  difference  in   rates. ^^ 
This  question  was  very  elaborately  discussed  in  a  case  in  which  a 
newspaper  company   instituted   an   action  for   damages  against  a 
telegraph  company  which  was  transmitting  news  for  the  Associated 
Press  at  Chicago,  for  unjustly  discriminating  against  the  plaintiff 
and  in  favor  of  another  paper  company  doing  business  in  the  same 
place.    The  Associated  Press  was  furnishing  news  to  both  of  these 
papers,  but  it  was  shown  that  the  plaintiff  was  an  evening  paper — 
the  other  being  a  morning  paper — and  received  its  news  during  the 
day,  when  the  telegraph  company  was  necessarily  very  busily  en- 
gaged in  other  general  telegraphic  business,  and  at  a  time  when  its 
wires  could  easily  have  been  put  to  other  uses.     The  other  paper 
did  not  receive  its  news  until  night,  and  at  a  time  when  the  de- 
fendant was  not  being  rushed  with  work  and  incurring  the  expense 
to  which  it  was  subjected  during  the  day.     The  court  held  in  this 
case  that,  notwithstanding  the  fact  that  the  news  was  transmitted 
over  the  same  wire  of  defendant  company,  from  the  same  place  to 
the  same  place,  and  that  the  same  amount  of  skill  and  care  was 
necessary  in  both  cases,  yet  the  expense  incurred  in  the  transmis- 
sion of  messages  to  the  plaintiff  was  so  much  greater  than  that  in- 
curred in  the  transmission  to  the  other  paper  that  the  defendant 
had  the  right  to  discriminate  in  the  rates  between  the  two,  and 
that  it  was  not  an  unjust  discrimination. ^^ 

§  253.  Same  continued — reasonable  discriminations. — Where 
the  conditions  respecting  the  transmission  of  messages  for  two 
patrons  are  different,  in  that  the  expense  and  trouble  incurred  in 
the  transmission  of  one  is  greater  than  in  the  other,  the  company 
may  discriminate  in  the  charges.     Discriminations  made  in  good 

St.  Rep.  729,  27  L.  R.  A.  622;    Cumberland  Tel.,  etc.,  Co.  v.  Kelly,  160  Fed. 
316,  87  C.  C.  A.  268,  15  Ann.  Cas.  1210. 

26  Id.  87* Id.  28  Id. 


§    253)  EQUAL   FACILITIES   TO   ALL  345 

faith,  because  of  such  differences  in  the  expense  of  transmission — 
and  proportional  with  reference  thereto — are  undoubtedly  just,  but 
it  devolves  upon  these  companies,  relying  upon  such  facts  as  a  de- 
fense to  a  suit  for  unjust  discrimination,  to  prove  them  to  the  satis- 
faction of  the  court. ^'^  Thus,  where  the  same  messages  are  trans- 
mitted by  the  same  company,  from  the  same  place  to  two  patrons 
of  the  same  place,  but  the  messages  are  received  at  different  times 
during  the  day  and  at  times  when  the  expenses  and  trouble  in  the 
transmission  are  different,  the  company  may  discriminate  in  its 
rates. ^*^  A  telegraph  or  telephone  company  may  also,  unless  re- 
strained by  statute,  discriminate  in  favor  of  longer  distances.^^ 
But  these  companies  cannot  discriminate  against  those  who  refuse 
to  patronize  them  exclusively.^-    And  it  is  not  a  legitimate  ground 

29  Compare  People  v.  Wabash,  etc.,  R.  Co.,  104  111.  476 ;  Portsmouth,  etc., 
R.  Co.  V.  Forsaith,  59  N.  H.  122,  47  Am.  Rep.  181 ;  St.  Louis,  etc.,  R.  Co.  v. 
Hill,  14  111.  App.  579. 

30  West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506,  48  Am. 
St.  Rep.  729,  27  L.  R.  A.  622,  holding  that  the  burden  is  upon  the  party 
complaining  to  show  injustice  of  the  amount  thereof ;  Cumberland  Tel., 
etc.,  Co.  V.  Kelly,  160  Fed.  316,  87  C.  C.  A.  268,  15  Ann.  Cas.  1210. 

31  Compare  St.  Louis,  etc.,  R.  Co.  v.  Hill,  14  111.  App.  579;  Hersh  v.  North- 
ern C.  R.  Co.,  74  Pa.  188;  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S. 
E.  391,  47  Am.  St.  Rep.  798,  27  L.  R.  A.  843,  the  difference  in  conditions  must 
not  be  due  to  the  wrongful  or  improper  conduct  of  the  company,  as  by  send- 
ing messages  of  one  customer  by  a  direct  route  and  those  of  another  by  a 
longer  and  more  expensive  route. 

32  Menacho  v.  Ward  (C.  C.)  27  Fed.  529;  Gwynn  v.  Citizens'  Tel.  Co., 
69  S.  C.  434,  48  S.  E.  460,  104  Am.  St.  Rep.  819,  67  L.  R.  A.  Ill,  where  a  con- 
tract was  made  between  a  company  and  a  customer  wherein  the  former  was 
to  put  in  a  telephone  for  the  use  of  the  latter  on  condition  that  he  would 
not  use  any  other  system,  held  to  be  void  as  in  restraint  of  trade,  and 
against  public  policy,  as  tending  to  create  a  monopoly.  See,  also,  State  v. 
Citizens'  Tel.  Co.,  61  S.  C.  83,  39  S.  E.  257,  85  Am.  St.  Rep.  870,  55  L.  R.  A. 
139,  mandamus  the  proper  proceeding  to  compel  a  company  to  furnish  serv- 
ice; Central  Union  Tel.  Co.  v.  Falley,  118  Ind.  194,  19  N.  E.  604,  10  Am. 
St.  Rep.  114;  State  v.  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52 
Am.  Rep.  404.  Mandamus,  however,  does  not  lie  to  compel  the  performance 
of  an  unlawful  act.  See  note  to  Dane  v.  Derby,  89  Am.  Dec.  731.  And 
it  cannot  be  compelled  to  furnish  facilities  to  a  bawdyhouse.  Godwin  v. 
Tel.  Co.,  136  N.  C.  258,  48  S.  E.  636,  103  Am.  St.  Rep.  941,  67  L.  R.  A.  251,  1 
Ann.  Cas.  203.  See  Union  Trust  &  Sav.  Bk.  v.  Kinloch  Long-Distance  Tel. 
Co.,  258  111.  202,  101  N.  E.  535.  45  L.  R.  A.  (N.  S.)  465,  Ann.  Cas.  1914B, 
258;  Central  N.  Y.,  etc.,  Tel.  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206, 
139  Am.  St.  Rep.  878,  32  L.  R.  A.  (N.  S.)  494,  a  contract  giving  a  company 
the  exclusive  right  to  furnish  connections  in  a  hotel  for  a  term  of  years, 
although  only  in  partial  restraint  of  trade,  is  against  public  policy  and 
void,  since  it  injuriously  afCects  the  public  interest.    See  §  49. 


346  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  254 

for  giving  a  preference  to  one  patron  that  he  engages  to  employ 
other  lines  of  the  company  for  the  transmission  of  news  distinct 
from  and  unconnected  with  the  message  in  question. ^^  A  telegraph 
or  telephone  company  cannot  discriminate  in  favor  of  itself  or  any 
of  its  employes  as  against  other  patrons.^*  A  contract  by  which  a 
telegraph  or  telephone  company  agrees  to  transmit  for  one  person 
at  cheaper  rates  than  it  was  transmitting  for  other  patrons  and  the 
public  generally  in  like  circumstances/^  under  the  same  condi- 
tions ^'^  and  for  like  distances,  is  void  as  creating  an  illegal  prefer- 
ence and  making  an  unjust  discrimination.  And  a  contract  by 
which  a  telegraph  company  gives  to  a  railroad  company  a  prefer- 
ence over  its  lines  to  the  exclusion  of  others  is  an  illegal  discrimina- 
tion and  does  not  justify  it  in  exacting  an  extra  tariff  for  sending  a 
message  over  the  line  of  another  company  to  a  point  at  which  it 
also  has  a  line.^'^  These  companies  cannot  discriminate  in  favor  of 
a  patron  having  a  large  amount  of  business  with  them,  as  it  tends 
to  create  monopoly,  to  destroy  competition,  and  is  contrary  to 
public  policy;  ^^  neither  can  they  give  discriminatory  rates  to  a 
particular  person  for  the  purpose  of  obtaining  his  business.^'' 

§  254.  Reasonableness  of  rates — how  determined. — While  the 
general  rule  is  that  the  rates  of  telegraph  and  telephone  companies 

33  Baxendale  v.  Great  Western  R.  Co.,  1  Nev.,  etc.,  Macn.  191 ;  Bellsdyke 
Coal  Co.  V.  North  British  R.  Co.,  2  Id.  105. 

3  4  Cumberland  Valley  R.  Co.'s  App.,  62  Pa.  118. 

35  Indianapolis,  etc.,  R.  Co.  v.  Ervin,  118  111.  2.50,  8  N.  E.  862,  59  Am.  Rep, 
369;  Messenger  v.  Pa.  R.  Co.,  36  N.  J.  Law,  407,  13  Am.  Rep.  457;  Id.,  37 
N.  J.  Law,  531,  18  Am.  Rep.  754 ;  Scofield  v.  R.  Co.,  43  Ohio  St.  571,  3  N.  E. 
907,  54  Am.  Rep.  846 ;  Ivanhoe  Furn.  Co.  v.  Va.,  etc.,  Tel.  Co.,  109  Va.  130, 
63  S.  E.  426;  Cumberland  Tel.,  etc.,  Co.  v.  Kelly,  160  Fed.  316,  87  C.  C.  A. 
268,  15  Ann.  Cas.  1210. 

3  6  West.  U.  Tel.  Co,  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506,  48  Am. 
St.  Rep.  729,  27  L.  R.  A.  622;  Cumberland  Tel.,  etc.,  Co.  v.  Kelly,  160  Fed. 
316,  87  C.  C.  A.  268,  15  Ann.  Cas.  1210. 

3  7  Lea  veil  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391,  47  Am.  St. 
Rep.  798,  27  L.  R.  A.  843;  Gwynn  v.  Citizens'  Tel.  Co.,  69  S.  C.  4.34,  48 
S.  E.  460,  104  Am.  St.  Rep.  819,  67  L.  R.  A.  Ill;  State  v.  Citizens'  Tel.  Co., 
61  S.  C.  83,  39  S.  E.  257,  85  Am.  St.  Rep.  870,  55  L.  R.  A.  139. 

A  telephone  company  cannot  remove  an  instrument  from  the  office  of  a 
subscriber,  engaged  in  the  general  messenger  business,  who  is  not  in  de- 
fault as  to  his  rentals,  because  he  uses  the  instrument  to  notify  persons  who 
are  wanted  at  a  rival  telephone  exchange.  Owensboro-Harrison  Tel.  Co.  v. 
Wisdom,  62  S.  W.  529,  23  Ky.  Law    Rep.  97. 

38  Postal  Cable  Tel.  Co.  v.  Cumberland  Tel.,  etc.,  Co.  (C.  C.)  177  Fed. 
726,  a  telephone  company  is  not  justified  in  charging  a  telegraph  company 
more  for  telephone  ser\T.ce  than  it  charges  other  business  concerns. 

39  West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506,  48  Am. 


§    254)  EQUAL   FACILITIES   TO   ALL  347 

must  not  only  be  reasonable  in  themselves,  but  must  be  relatively 
reasonable,  yet  it  is  rather  difficult  in  many  cases,  where  it  is 
claimed  that  there  is  an  unjust  discrimination  between  two  patrons, 
to  determine  the  reasonableness  of  one  rate  and  the  unreasonable- 
ness of  the  other,  or,  more  strictly  speaking,  the  relatively  reasonable 
rates  of  the  two,  where  a  just  discrimination  can  be  made.*''  It 
has  been  held  by  some  courts  that  no  cause  of  action  can  be  predi- 
cated upon  the  mere  fact  that  another  patron  obtained  services  for 
a  less  rate,  unless  it  be  shown  that  the  rate  charged  complainant  is 
in  itself  unreasonable  and  excessive.*^  There  must  be  some  rate 
which  is  considered  reasonable  within  itself  or  some  standard  of 
measurement  to  be  used  as  a  guide  for  the  jury  in  determining  the 
reasonableness  of  a  rate,  and  whether  or  not  this  is  relatively  rea- 
sonable with  another  rate  imposed,  where  the  conditions  respecting 
the  transmission  of  the  two  are  different.  The  jury  must  have 
some  guide  of  this  kind,  in  order  to  arrive  at  a  proper  conclusion ; 
as  was  said:  "How  can  it  be  said  that  a  jury  acts  upon  evidence 
and  reaches  a  verdict  solely  upon  consideration  thereof  when,  hav- 
ing established  a  difference  in  rates  and  a  difference  in  conditions, 
without  anything  to  show  how  one  difference  affects  the  other,  or 
to  what  extent  it  is  permitted  to  measure  one  against  the  other, 
and  to  say  that  to  the  extent  of  one  dollar  or  to  the  extent  of  one 
thousand  dollars,  the  difference  in  rates  was  disproportionate  to  the 
difference  in  conditions?  It  may  be  said  that  it  would  be  difficult 
to  produce  evidence  to  show  to  what  extent  such  differences  in 
conditions  reasonably  aff'ect  rates.  This  may  be  true,  but  the  an- 
swer is  that,  whatever  may  be  the  difficulties  of  the  proof,  a  verdict 
must  be  based  upon  the  proof,  and  a  verdict  must  be  founded  upon 
evidence,  and  not  upon  the  conjecture  of  the  jury  or  its  general 
judgment  as  to  what  is  fair  without  evidence  whereon  to  found  such 
judgment."  *^ 

St.  Eep.  729,  27  L.  R.  A.  622.  Compare  Hays  v.  Pa.  Co.  (C.  C.)  12  Fed. 
309;  Scofield  v.  Lake  Shore,  etc.,  R.  Co.,  43  Ohio  St.  571,  3  N.  E.  907,  54 
Am.  Rep.  846 ;    London,  etc.,  R.  Co.  v.  Evershed,  L.  R.  3  App.  Cas.  1029. 

40  Compare  Baxendale  v.  Eastern  C.  R.  Co.,  4  Com.  B.  63;  Great  Western 
R.  Co.  V.  Sutton,  4  H.  L.  Cas.  239;  Johnson  v.  Pensacola,  etc.,  R.  Co.,  16 
Fla.  623,  20  Am.  Rep.  731 ;  Fitchburg  R.  Co.  v.  Gage,  12  Gray  (Mass.)  393 ;  Sar- 
gent V.  Boston,  etc.,  R.  Co.,  115  Mass.  416 ;  Ragan  v.  Aiken,  9  Lea  (Tenn.)  009, 
42  Am.  Rep.  684 ;    Menacho  v.  Ward   (C.  C.)  27  Fed.  529.     See  §  234  et  seq. 

41  Compare  Johnson  v.  Pensacola,  etc.,  R.  Co.,  16  Fla.  623,  26  Am.  Rep.  731. 
4  2  West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506,  48  Am. 

St.  Rep.  729,  27  L.  R.  A.  622. 


348  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  255 

§  255.  Statutes — declaratory  of  common  law. — There  are  stat- 
utes in  many  of  the  states  imposing  upon  telegraph  and  telephone 
companies  the  duty  to  furnish  equal  facilities  impartially  to  all  who 
apply  to  them,  offering  to  comply  with  all  of  their  reasonable  regula- 
tions, but  it  has  been  held  that  these  statutes  were  only  declaratory 
of  the  common  law  on  the  subject. ^^  These  obligations  are  imposed 
by  the  demands  of  commerce  and  trade,  and  it  would  be  idle  to 
say  they  existed  only  by  force  of  these  statutes.-**  Thus,  when  a 
statute  imposes  a  penalty  *^  on  any  company  which  refuses  to  re- 
ceive a  message  for  transmission  over  its  wires  from  an  individual 
or  another  company,  the  company,  in  the  absence  of  such  statute, 
could  be  forced  by  a  writ  of  mandamus  to  perform  such  duty.  It 
is  an  obligation  which  a  company  cannot  avoid  by  reason  of  the 
fact  that  there  are  no  penal  statutes  to  that  effect.*^ 

§  256.  Duties  peculiarly  applicable  to  the  telephone. — There 
are  some  duties  peculiarly  applicable  to  the  telephone  which  cannot 
very  well  be  discussed  under  the  joint  title  of  telegraph  and  tele- 
phone, because  of  the  dift'erence  in  the  manner  in  which  each  is 
operated.*^  There  is  no  difference,  however,  between  telegraph 
and  telephone  companies  in  respect  to  those  duties  which  have  been 
discussed  elsewhere.*^  But  the  uses  to  which  a  telephone  may  be 
adapted,  as  a  result  of  its  convenience  in  its  operation,  have  made 
it  more  popular  and  more  generally  used  than  the  telegraph,  and  so 
to  these  uses  and  the  manner  in  which  they  shall  be  performed  par- 
ticular reference  should  and  will  here  be  made.  A  telephone  com- 
pany must  furnish  every  person,  on  request,  as  modern  and  thor- 
oughly equipped  telephone  apparatus,  with  all  the  appurtenances 
thereof,  as  is  furnished  to  any  other  of  its  patrons,*^  of  the  same 

43Vauglit  V.  East.  Tenn.  Tel.  Co.,  12.3  Tenn.  318,  130  S.  W.  1050,  .31  L. 
R.  A.  (N.  S.)  315,  Ann.  Cas.  1912C,  1.32;  Postal  Cable  Tel.  Co.  v.  Cumber- 
land, etc.,  Tel.  Co.  (C.  C.)  177  Fed.  726;  Mooreland  Rural  Tel.  Co.  v.  Mouch, 
48  Ind.  App.  521,  96  N.  E.  193;  Bradford  v.  Citizens'  Tel.  Co.,  161  Mich. 
385,  126  N.  W.  444,  137  Am.  St.  Rep.  513. 

4  4  State  V.  Neb.  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404. 

4  5  In  Brown  v.  Cumberland  Tel.,  etc.,  Co.  (C.  C.)  181  Fed.  246,  an  action 
under  a  penal  statute  imposing  a  penalty  for  discrimination  barred  by  the 
statute  of  limitations  if  not  brought  within  one  year  after  cause  of  action 
accrued. 

4G  Central  Union  Tel.  Co.  v.  Falley,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St. 
Rep.  114. 

4T  Sou.  Tel.  Co.  V.  King,  103  Ark.  160,  146  S.  W.  489,  Ann.  Cas.  1914B, 
780,  39  L.  R.  A.  (N.  S.)  402,  citing  author. 

4  8  See  §  248  et  seq. 

49  Cent.  Union  Tel.  Co.  v.   State,  118  Ind.  194,  19  N.  E.  604,   10  Am.   St. 


§    256)  EQUAL   FACILITIES   TO   ALL  349 

class  and  similarly  situated/"  provided  such  applicant  offers  to  pay 
the  maximum  price  authorized  by  statute  to  be  charged  therefor, 
and  agrees  to  comply  with  the  company's  other  rules  and  regula- 
tions. However,  where  two  patrons  pay  the  same  rate,  one  cannot 
demand  more  than  is  furnished  the  other,^^  if  they  are  of  the  same 
class.^^  A  telephone  company  may,  in  good  faith,  determine  the 
territory  within  which  it  will  carry  on  business,"  and  the  char- 
acter thereof.^*  So  it  is  not  required  to  extend  its  facilities  to  per- 
sons living  outside  of  the  corporate  limits  of  a  municipality  within 
which  it  may  be  doing  business,^^  and  this,  too,  although  it  may 
be  so  furnishing  to  some,'^  especially  where  they  are  not  simi- 
larly situated."  Discriminations  cannot  be  made  either  in  regard 
to  the  public  station  system  of  a  telephone  or  its  so-called  private 
system  of  instruments.^^  And  a  telephone  company  is  not  justified 
in  refusing  to  install  an  instrument  in  an  ofifice,  residence,  or  place 
of  business  by  reason  of  the  fact  that  it  provides  public  stations  for 

Rep.  114 ;  Cent.  Union  Tel.  Co.  v.  Falley,  118  Ind.  598,  20  N.  E.  145 ;  John- 
son V.  State,  113  Ind.  143,  15  N.  E.  215;  Hockett  v.  State,  105  Ind.  250, 
5  N,  E.  178,  55  Am.  Rep.  201;  Cent.  Union  Tel.  Co.  v.  Bradbury,  106  lud. 
1,  5  N.  E.  721 ;  Gardner  v.  Providence  Tel.  Co.,  23  R.  I.  262,  49  Atl.  1004 ; 
Id.,  23  R.  I.  312,  50  Atl.  1014,  55  L.  R.  A.  113;  Commercial  Union  Tel.  Co. 
V.  New  England  Tel.,  etc.,  Co.,  61  Vt.  241,  17  Atl.  1071,  15  Am.  St.  Rep.  893, 
5  L.  R.  A.  161 ;  Colorado  Tel.  Co.  v.  Fields,  15  N.  M.  431,  110  Pac.  571,  30 
L.  R.  A.  (N.  S.)  loss,  telephone  company  cannot  require  a  patron  to  pay  for 
installing  or  transferring  instrument.  See  Hamilton  v.  McKeuna,  95  Kan. 
207,  147  Pac.  1126,  L.  R.  A.  1915E,  455,  mutual  telephone  system. 

soivanhoe  Furnace  Co.  v.  Va.,  etc.,  Tel.  Co.,  109  Va.  130,  63  S.  E.  426, 
individual  subscriber  not  of  the  same  class  as  another  telephone  company; 
Cumberland  Tel.,  etc.,  Co.  v.  Kelly,  160  Fed.  316,  87  C.  C.  A.  268,  15  Ann. 
Cas.  1210,  an  applicant  on  a  party  line,  different  class  from  one  on  direct 
line. 

51  Red  Line  Mutual  Tel.  Co.  v.  Pharris,  82  Neb.  371,  117  N.  W.  995,  one 
subscriber  cannot  demand  a  switchboard  and  two  wires  connecting  different 
lines  where  others  are  so  furnished. 

52  Ivanhoe  Furnace  Co.  v.  Va.,  etc.,  Tel.  Co.,  109  Va.  130,  63  S.  E,  426. 

5  3  Delaware,  etc.,  Tel.  Co.  v.  Delaware,  50  Fed.  677,  2  C.  C.  A.  1,  affirm- 
ing (C.  C.)  47  Fed.  633;  Cumberland  Tel.,  etc.,  Co.  v.  Kelly,  160  Fed.  316, 
87  C.  C.  A.  268,  15  Ann.  Cas.  1210.  But  see  Re  Mountain,  etc.,  Tel.  Co.,  P.  U. 
R.  1916B,  109. 

51  Delaware,  etc.,  Tel.  Co.  v.  Delaware,  50  Fed.  677,  2  C.  C.  A.  1,  affirming 
(C.  C.)  47  Fed.  633. 

5  5  Crouch  V.  Arnett,  71  Kan.  49,  79  Pac.  1086.  But  see  Re  Mountain,  etc., 
Tel.  Co.,  P.  U.  R.  1916B,  169. 

5  6  Younts  V.  Southwestern  Tel.,  etc.,  Co.  (C.  C.)  192  Fed.  200. 

57  Crouch  V.  Arnett,  71  Kan.  49,  79  Pac.  1086. 

5  8  State  V.  Kinloch  Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  684. 


350  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  256 

the  use  of  all  who  will  pay  toll.^^  It  is  the  duty  of  a  telephone 
company  to  furnish  its  subscribers  with  all  the  necessary  instru- 
ments and  conveniences  to  be  had  and  furnished  to  others  similarly 
situated.  Thus,  if  some  subscribers  are  furnished  with  a  directory 
or  telephone  book  containing  their  names  and  telephone  numbers,  it 
must  be  furnished  to  all,  and  must  contain  the  names  and  telephone 
numbers  of  all  who  require  their  names  and  numbers  inserted,  or 
whose  names  and  numbers  are  accustomed  to  be  inserted.''''  It  is 
also  the  duty  of  telephone  companies  to  treat  all  of  their  subscribers 
and  patrons  with  the  greatest  courtesy  and  respect,  and  to  attend 
to  all  business  which  they  may  request  respecting  the  services  to- 
ward them  as  subscribers.  A  subscriber  may  demand  that  his 
"calls"  at  the  exchange  be  properly  attended  to  in  the  regular  order 
in  which  they  are  made ;  that  all  "calls"  made  for  him  be  promptly 
and  properly  looked  after;    and  that  he  be  given  prompt  and  efifi- 

5  9  State  V.  Kinloch  Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  6S4 ;  Cent.  Union  Tel. 
Co.  V.  State,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep.  114 ;  State  v.  Neb.  Tel. 
Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404. 

6  0  State  V.  Sunset  Tel.,  etc.,  Co.,  30  Wash.  676,  71  Pac.  198. 

In  State  v.  Neb.  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  409, 
it  appeared  that  the  relator,  an  attorney  at  law,  applied  to  the  local  com- 
pany for  a  telephone  with  the  usual  connections.  The  instrument  was  fur- 
nished, together  with  all  the  appliances,  excepting  a  directory,  the  absence 
of  which  materially  impaired  the  beneficial  use  of  the  telephone.  After  con- 
tinued application,  a  directory  was  furnished,  but  on  pay  day  the  sub- 
scriber refused  to  pay  except  for  the  time  during  which  he  had  been  fur- 
nished with  the  directory ;  the  company  insisted  on  full  payment.  Neither 
would  yield ;  so  the  company  removed  the  instrument.  Subsequently  the 
relator  applied  for  service,  offering  to  comply  with  their  reasonable  regula- 
tions. He  was  refused.  He  then  applied  for  mandamus  to  compel  the  com- 
pany to  render  the  service.  It  was  held  that  the  mandamus  should  issue. 
The  court,  after  reviewing  the  status  of  the  telephone  company  and  the 
public  character  of  the  obligations  they  assumed,  concluded :  That  the  com- 
pany had  "assumed  the  responsibility  of  a  common  carrier  of  news.  Its 
wires  and  poles  line  our  public  streets  and  thoroughfares.  It  has,  and  must 
be  held  to  have,  taken  its  place  by  the  side  of  the  telegraph  as  such  common 
carriers."  That  the  duty  to  the  relator  was  one  growing  out  of  its  office  as 
a  carrier  and  not  out  of  contract,  and  that  its  relations  with  the  relator  as 
to  the  misunderstanding  between  them  concerning  the  directory  cannot  affect 
the  case.  See,  also,  Delaware  v.  Delaware,  etc.,  Tel.,  etc.,  Co.  (C.  C.)  47  Fed. 
633,  affirming  50  Fed.  677,  2  C.  C.  A.  1 ;  Central  Union  Tel.  Co.  v.  Bradbury, 
106  Ind.  1,  5  N.  E.  721 ;  Budd  v.  N.  Y.,  143  U.  S.  517,  12  Sup.  Ct.  468,  36 
L.  Ed.  247;    People  v.  Manhattan  Gaslight  Co.,  45  Barb.   (N.  Y.)  1.36. 

The  telephone  company  cannot  evade  this  obligation  by  alleging  that  it 
does  not  rent  telephones,  but  furnishes  such  service  by  means  of  public  sta- 
tions only.  Cent.  Union  Tel.  Co.  v.  State,  123  Ind.  113,  24  N.  E.  215 ;  C«nt. 
Union  Tel.  Co.  v.  State,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep.  114. 


§    256)  EQUAL   FACILITIES   TO   ALL  351 

cient  connections  with  other  subscribers."^  The  authorities  are  not 
in  harmony  as  to  the  amount  of  damages  which  may  be  recovered 
from  a  telephone  company  where  it  has  failed  to  make  prompt, 
proper  and  efficient  connections — or  where  it  fails  to  make  any  con- 
nection at  all — with  other  lines  at  the  central  exchange.  If  such 
failure  of  duty  is  the  result  of  mere  negligence  on  the  part  of  the 
company,  only  nominal  damages,  if  any,  should  be  recoverable. 
But  if,  on  the  other  hand,  this  has  been  the  result  of  gross  negli- 
gence, or  that  which  is  tantamount  to  wanton  or  willful  negligence, 
the  injured  subscriber  should  recover  such  fair  compensation  for 
the  loss  and  for  annoyance,  inconvenience  and  humiliation  as  would 
be  fairly  attributable  to  the  wrong  thus  done,"^  or,  as  some  of  the 
authorities  hold,  for  such  special  damages  as  would  be  the  most 
probable  result  thereof,  and  of  which  the  company  would  have  had 
notice  at  the  time  of  the  commission  of  the  said  wrong.*'^ 

eiGlawson  v.  Southern  Bell  Tel.,  etc.,  Co.,  9  Ga,  App.  450,  71  S.  E.  747; 
Southern  Tel.  Co.  v.  King,  103  Ark.  160,  146  S.  W.  489,  39  L.  R.  A.  (N.  S.)  402, 
Ann.  Cas.  1914B,  7S0,  punitive  damages  recoverable;  Vinson  v.  Southern  Bell 
Tel.  etc.,  Co.,  18S  Ala.  292,  66  South.  100,  L.  R.  A.  1915C,  450 ;  Southern  Bell 
Tel.,  etc.,  Co.  v.  Glawson,  13  Ga.  App.  520,  79  S.  E.  488 ;  Cumberland  Tel.,  etc., 
Co.  V.  Sutton,  156  Ky.  191,  160  S.  W.  949 ;  Carmichael  v.  Southern  Bell  Tel., 
etc.,  Co.,  162  N.  C.  333,  78  S.  E.  507,  Ann.  Cas.  1915A,  9S3.  See  other  cases  in 
note  63. 

62  See  §  269.  See,  also.  Southern  Tel.  Co.  v.  King,  103  Ark.  160,  146  S.  W. 
489,  39  L.  R.  A.  (N.  S.)  402,  Ann.  Cas.  1914B,  780,  punitive  damages  not  recov- 
erable in  absence  of  intentional,  willful,  or  conscientious  indifference  to  con- 
sequences ;  Vinson  v.  Southern  Bell  Tel.,  etc.,  Co.,  188  Ala.  292,  66  South.  100, 
L.  R.  A,  19150,  4.50;  Southern  Bell  Tel.,  etc.,  Co.  v.  Glawson,  13  Ga.  App.  520, 
79  S.  E.  488 ;  Cumberland  Tel.,  etc.,  Co.  v.  Sutton,  156  Ky.  191,  160  S.  W.  949. 
See  Southern  Bell  Tel.,  etc.,  Co.  v.  Reynolds,  139  Ga.  385,  77  S.  E.  388 ;  Seifert 
v.  West.  U.  Tel.  Co.,  129  Ga.  181,  58  S.  E.  699,  121  Am.  St.  Rep.  210,  11  L.  R. 
A.  (N.  S.)  1149. 

63  Southern  Tel.  Co.  v.  King,  103  Ark.  160,  146  S.  W.  489,  Ann.  Cas.  191  IB, 
780,  39  L.  R.  A.  (N.  S.)  402,  nominal  damages ;  Lebanon,  etc.,  Tel.  Co.  v.  Lan- 
ham  Lumber  Co.,  131  Ky.  718,  115  S.  W.  824,  21  L.  R.  A.  (N.  S.)  115,  18  Ann. 
Cas.  1066,  loss  by  fire  not  proximate  cause  of  delay  in  making  connections  for 
sending  fire  alarm  ;  Southern  Bell  Tel.,  etc.,  Co.  v.  Reynolds,  139  Ga.  385,  77 
S.  E.  388,  failing  to  respond  to  call,  subscriber  delayed  in  securing  physician 
resulting  in  injury  camiot  recover,  practically  overruling  Glawson  v.  Southern 
Bell,  etc.,  Co.,  9  Ga.  App.  450,  71  S.  E.  747.  Cases  holding  damages  may  be  re- 
covered for  failing  to  respond  to  call:  Cumberland  Tel.,  etc.,  Co.  v.  Sutton, 
156  Ky.  191,  160  S.  W.  949,  compensatory  damages  recovered ;  Southwestern 
Tel.,  etc.,  Co.  v.  Pearson  (Tex.  Civ.  App.)  137  S.  W.  733,  damages  for  mental 
anguish ;  to  same  effect,  Southwestern  Tel.,  etc.,  Co.  v.  Gehring  (Tex.  Civ.  App.) 
137  S.  W.  754 ;  Southwestern  Tel.,  etc.,  Co.  v.  Jarrell  (Tex.  Civ.  App.)  138  S.  W. 
1105,  mental  damages.  With  the  exception  of  the  Kentucky  case,  in  all  the 
foregoing  cases  the  company  had  notice  of  the  urgency  of  the  connection. 


352  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  257 

§  257.  Charges  for  use  of  telephone. — Much  has  been  said,  un- 
der the  joint  title  of  telephone  and  telegraph,  concerning  the  uni- 
form charges  for  the  use  of  these  instrumentalities  as  a  means  of 
communication,®*  and  only  such  as  are  peculiarly  applicable  to  the 
telephone  will  be  discussed  under  this  subject.  A  telephone  com- 
pany is  charged  with  the  duty  of  furnishing  its  services  to  each 
patron  at  the  same  charges  it  makes  to  every  other  patron  for  the 
same  or  substantially  the  same  or  similar  services.®^  Such  charges 
are  usually  regulated  by  statutes;**®  and  where  such  is  the  case, 
it  is  not  the  taking  of  private  property  for  public  use ;  neither  is  it 
in  any  wise  interfering  with  the  constitutional  rights  of  citizens  in 
private  property ;  ®^  nor  does  it  interfere  with  interstate  com- 
merce.®*  And  where  these  statutes  prescribe  a  penalty  for  a  viola- 
tion of  this  duty,  it  is  only  cumulative ;  and  the  company  can  be 
forced  to  comply  with  its  requirements  by  mandamus. ®®    There  are 

Southwestern  Tel.,  etc.,  Co.  v.  Allen  (Tex.  Civ.  App.)  146  S.  W.  1066,  substan- 
tial damages;  to  same  effect  Carmichael  v.  Southern  Bell  Tel.,  etc.,  Co.,  157  N. 
C.  21,  72  S.  E.  619,  Ann.  Cas.  1913B,  1117,  39  L.  R.  A.  (N.  S.),  651 ;  Central 
Union  Tel.  Co.  v.  Fehring,  146  Ind.  189,  45  N.  E.  &4,  penalty  recovered ;  but 
Irvin  V.  Rushville  Co-Operative  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258,  not  allowed 
penalty  for  denying  service  where  rental  unpaid ;  Cumberland  Tel.,  etc.,  Co. 
V.  Jackson,  95  Miss.  79,  48  South.  614 ;  Cumberland  Tel.,  etc.,  Co.  v.  Paine,  94 
Miss.  883,  48  South.  229,  punitive  damages  not  recoverable ;  Haber  Hat  Co.  v. 
Southern  Bell  Tel.,  etc.,  Co.,  118  Ga.  874,  45  S.  E.  696;  Yancey  v.  Batesville, 
etc.,  Tel.  Co.,  81  Ark.  486,  99  S.  W.  679,  11  Ann.  Cas.  135,  requiring  subscriber 
to  go  to  central  office,  violative  of  penal  statutes.  But  see  Cumberland  Tel., 
etc.,  Co.  V.  Baker,  85  Miss.  486,  37  South.  1012 ;  Southwestern  Tel.,  etc.,  Co.  v. 
Taylor,  26  Tex.  Civ.  App.  79,  63  S.  W.  1076 ;  Yolquardsen  v.  Iowa  Tel.  Co.,  148 
Iowa,  77,  126  N.  W.  928,  28  L.  R.  A.  (N.  S.)  554 ;  Southwestern  Tel.,  etc.,  Co.  v. 
Solomon,  54  Tex.  Civ.  App.  306,  117  S.  W.  214 ;  Vinson  v.  Southern  Bell  Tel., 
etc.,  Co.,  188  Ala.  292,  66  South.  100,  L.  R.  A.  1915C,  450,  burden  on  company 
to  show  no  negligence,  question  for  jury. 

64  See  §  251,  et  seq. 

65  Neb.  Tel.  Co.  v.  State,  55  Neb.  627,  76  N.  W.  171,  45  L.  R.  A.  113 ;  Owens- 
boro-Harrison  Tel.  Co.  v.  Wisdom,  23  Ky.  Law  Rep.  97,  62  S.  W.  529. 

6  6  See  chapter  X. 

6  7  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201. 

6  8  Central  Union  Tel.  Co.  v.  Falley,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St. 
Rep.  114. 

6  9  Central  Union  Tel.  Co.  v.  Falley,  118  Ind.  194,  19  N.  E.  604,  10  Am.  St. 
Rep.  114. 

In  Vaught  v.  East  Tennessee  Tel.  Co.,  123  Tenn.  318,  130  S.  W,  1050,  31  L. 
R.  A.  (N.  S.)  315,  Ann.  Cas.  1912C,  132,  it  was  held  that  a  telephone  company 
was  not  chargeable  with  a  penalty  under  the  Acts  of  Tennessee  1885,  c.  66, 
par.  11,  for  discrimination  against  a  prospective  patron  by  requiring  him  to 
pay  three  months'  rental  in  advance,  because  the  general  rule  under  which  the 
requirement  was  made  was  not  uniformly  enforced.    See  Home  Tel.  Co.  v.  Peo- 


§    257)  EQUAL   FACILITIES   TO   ALL  353 

instances  where  a  telephone  company  may  lawfully  discriminate  in 
its  charges,  in  other  ways  than  that  elsewhere  discussed.'"  It  may 
make  a  greater  charge  to  a  subscriber  who  has  a  single  line  than  to 
one  who  is  on  a  party  line.'^  And  a  greater  charge  may  be  imposed 
on  business  lines  than  on  residence  phones ;  but  the  fact  that  a  party 
uses  his  residence  phone  in  his  business  is  not  sufficient  to.  warrant 
applying  the  rate  for  business  phones  to  him,  in  the  absence  of  a 
showing  that  his  use  thereof  is  substantially  different  from  that 
of  other  residence  phones.^"  While  it  is  not  the  general  custom, 
there  is  no  reason  why  a  greater  charge  may  not  be  imposed  on  a 
rural  subscriber  than  on  one  in  the  municipality,  or  require  different 
arrangements  as  to  the  payment  thereof, '^^  as  it  is  necessarily  more 
expensive  and  troublesome  to  keep  this  line  in  repair  than  one 
within  the  corporate  limits  and  nearer  the  exchange.  It  has  been 
held  to  be  an  illegal  discrimination  for  a  telephone  company  to 
charge  a  new  subscriber  a  higher  rate  than  it  does  old  subscribers 
for  the  same  service.^*  The  charges  for  long-distance  phones  must 
be  the  same  to  all  whether  the  patron  be  a  subscriber  or  not;^^ 
and  the  company  could  not  require  such  business  to  be  conducted 
over  lines  on  a  circuitous  route,  and  charge  according  to  the  length 
of  such  route,  if  such  could  be  conducted  on  a  more  direct  line.^*' 
Nor  can  any  charge  be  enforced  for  such  business  unless  the  patron 
or  subscriber  has  agreed  either  expressly  or  impliedly  so  to  be. 
Thus,  when  a  long  distance  call  is  made  on  a  business  telephone, 
the  operator  should  require  the  name  of  the  person  calling,  and,  if 
it  is  different  from  that  of  the  subscriber,  the  latter  must  be  con- 
ferred with  and  his  consent  had  to  a  charge  against  him  before  such 
charge  is  valid;  ^^    however,  the  company  could  not  require  such 

pie's  Tel.,  etc.,  Co.,  125  Tenn.  270,  141  S.  W.  845,  43  L.  R.  A.  (N.  S.)  550,  penal 
statute  not  unconstitutional  as  imposing  an  excessive  fine. 

7  0  See  §  253.  See,  also,  New  York  Tel.  Co.  v.  Siegel,  202  N.  Y.  502,  96  N.  E. 
109,  36  L.  R.  A.  (N.  S.)  560. 

TiHome  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W.  547,  Ann.  Cas.  1912D, 
801,  48  L.  R.  A.  (N.  S.)  1055. 

T2  Mooreland  Rural  Tel.  "Co.  v.  Mouch,  48  Ind.  App.  521,  96  N.  E.  193. 

7  3  See  Buffalo  County  Tel.  Co.  v.  Turner,  82  Neb.  841,  118  N.  W.  1064,  130 
Am.  St.  Rep.  699,  19  L.  R.  A.  (N.  S.)  693. 

7  4  Bradford  v.  Citizens'  Tel.  Co.,  161  Mich.  385,  126  N.  W.  444,  137  Am.  St. 
Rep.  513. 

7  5  See  §  251  et  seq.  Re  Northeast  Kansas  Tel.  Co.,  P.  U.  R,  1916B,  925, 
cannot  be  required  to  furnish  free  long-distance  service. 

7  6  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391.  47  Am.  St.  Rep. 
798,  27  L.  R.  A.  843 ;  West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W. 
506.  48  Am.  St.  Rep.  729,  27  L.  R.  A.  622. 

"  Southern  Ry.  Co.  v.  Cumberland  Tel.,  etc.,  Co.,  127  Tenn.  566,  156  S.  W. 
.Tones  Tel.i2d  Ed.)— 23 


354  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  257 

subscriber  to  first  go  to  the  central  office  and  pay  such  charges  in 
advance,  when  the  same  was  not  required  of  other  subscribers,  but 
who  were  allowed  to  settle  for  same  at  the  end  of  the  month,''^  and 
yet  there  may  be  conditions  which  would  change  this  rule.  It  has 
been  held  that  a  telephone  company  may  make  a  rebate  in  rates  to 
the  municipality  along  whose  streets  its  wires  are  stretched,  and 
which  has  large  powers  of  control  and  regulation  over  the  property, 
as  a  contribution  to  the  expense  and  cost  of  government,  without 
entitling  all  customers  to  the  special  rate  given  it;^^  and  it  may 
make  a  special  rate  to  charitable  institutions  performing  services  of 
special  benefit  to  the  community  as  a  whole,  and  to  clergymen, 
without  entitling  all  customers  to  the  same  rate.®"  Telephone  com- 
panies cannot  discriminate  between  rural  subscribers  under  similar 
circumstances ;  but  if  a  subscriber  in  one  county  desires  to  talk  to 
a  subscriber  in  another  county,  they  may  charge  extra  for  such 
message,  and  yet  this  charge  must  be  the  same  as  that  imposed  on 
a  nonsubscriber  for  the  same  kind  of  message.  Furthermore,  the 
charges  must  be  the  same  between  subscribers  and  nonsubscribers 
in  the  same  county,  where  the  conversation  is  between  a  subscriber 
and  a  nonsubscriber.  In  other  words,  where  conversations  are 
carried  on  between  two  citizens  of  a  county,  where  one  is  a  non- 
subscriber,  the  charges  must  be  the  same  as  that  imposed  on  all 
other  nonsubscribers.  There  may  be  this  apparent  exception,  how- 
ever, when  the  addressee  is  a  subscriber,  the  company  would  not  be 
allowed  to  make  an  extra  charge  for  the  purpose  of  getting  him  to 
the  phone  as  it  would  in  case  he  were  a  nonsubscriber,  and  that,  too, 
whether  he  was  or  was  not  a  nonresident  of  the  county.  A  tele- 
phone company  cannot  charge  a  lower  rate  to  patrons  who  do  a 
larger  share  of  business  with  them,®^  or  who  have  a  number  of  dif- 
ferent phones  in  the  same  place  of  business  or  elsewhere,  but  this 
does  not  apply  where  all  the  phones  are  on  the  same  line,  or  merely 
constitute  an  extension  set,  and  it  does  not  prevent  the  company 
from  dividing  its  subscribers  into  classes  according  to  the  amount 

853,  Ann.  Cas.  1914B,  1187,  45  L.  R.  A.  (N.  S.)  990,  employ^  of  plaintiff;  Jones 
V.  Cumberland  Tel.,  etc.,  Co.,  140  Ky.  165,  130  S.  W.  994.  See  McSorley  v. 
Faulkner,  38  N.  Y.  St.  Rep.  802,  14  N.  Y.  Supp.  789.  But  a  rule  of  the  com- 
pany requiring  a  subscriber  to  pay  for  all  long-distance  messages  originating 
from  his  telephone,  whether  O.  K.'d  by  him  or  not,  is  reasonable.  Southwest- 
ern Tel.,  etc.,  Co.  v.  Sharp,  118  Ark.  541,  177  S.  W.  25,  L.  R.  A.  1915E,  323. 

7  8  See  note  20. 

7  0  N.  Y.  Tel.  Co.  v.  Siegel-Cooper  Co.,  202  N.  Y.  502,  96  N.  E.  109.  36  L.  R.  A. 
(N.  S.)  560. 

80  Td.  81  See  §  253. 


§    258)  EQUAL  FACILITIES  TO  ALL  355 

of  business  done,  and  establishing'  a  different  rate  for  each  class. 
The  classes  must  be  fixed  by  some  reasonable  and  just  rule,  and 
every  person  in  a  given  class  is  entitled  to  the  same  service  at  the 
same  rates  as  every  other  subscriber  in  the  same  class.  Thus  the 
company  may  make  a  different  charge  to  subscribers  residing  more 
than  a  given  distance  from  the  central  office ;  or  it  may  furnish  a 
certain  kind  of  instruments  at  one  rate  and  a  better  kind  at  another 
-rate,  provided  the  latter  did  not  exceed  by  its  rates  the  maximum 
fixed  by  law.  A  telephone  company  may  furnish  party  line  service 
within  a  municipality,  and  the  latter  has  no  inherent  power  to  for- 
bid such.^^  But  where  its  franchise  provided  that  it  should  not 
install  any  party  lines,  the  company  is  not  warrantied  in  installing 
such  lines  because  it  charged  cheaper  toll  rates  for  the  same,  and 
the  service  was  approximately  equal  to  that  of  direct  lines. ®^ 

§  258.  Whom  to  serve — persons  conducting  legal  business. — It 
is  the  duty  of  telephone  companies  to  furnish  equal  facilities  and 
conveniences,  impartially  to  all,  irrespective  of  age,  race  or  habits, 
and  serve  all  these  alike  on  offering  to  comply  with  their  reasonable 
regulations.  While  it  seems  that  they  cannot  be  forced  to  furnish 
their  instruments  to  persons  for  the  purpose  of  using  them  for  an 
illegal  business,  yet  there  is  no  reason  why  they  may  not  be  com- 
pelled to  furnish  their  facilities  to  parties  who  carry  on  an  illegal 
business,  otherwise  than  by  the  operation  or  use  of  the  company. 
In  other  words,  telegraph  and  telephone  companies  cannot  be  com- 
pelled by  mandamus  to  furnish  their  facilities  to  a  "bucket  shop" 
for  the  purpose  of  obtaining  the  market  quotations,*^  or  to  persons 
otherwise  using  them  as  a  means  of  consummating  wagering  con- 
tracts ;  yet  it  is  their  duty  to  furnish  these  people,  at  their  place  of 
business  not  used  for  such  purposes,  with  all  the  facilities  and  con- 

8  2  Home  Tel.  Co.  v.  Carthage,  235  Mo.  644,  139  S.  W.  547,  48  L.  R.  A.  (N.  S.) 
1055,  Ann.  Cas.  1912D,  301. 

8  3  Louisville  v.  Louisville  Home  Tel.  Co.,  149  Ky.  234,  148  S.  W.  13,  Ann. 
Cas.  1914A,  1240.  This  is  a  condition  to  the  granting  of  the  franchise  and 
may  be  enforced  by  the  city.  This  case  also  held  the  rule  to  be  the  same  al- 
though the  operator  might,  by  special  equipment,  signal  one  subscriber  with- 
out the  others. 

8  4  Bryant  v.  West.  Union  Tel.  Co.  (C.  C.)  17  Fed.  825;  Metropolitan  Grain  & 
Stock  Exch.  V.  Chicago  Board  of  Trade  (O.  C.)  15  Fed.  847 ;  West.  Union  Tel. 
Co.  V.  State,  165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.)  153,  6  Ann.  Cas.  880 ; 
Smith  V.  West.  Union  Tel.  Co.,  84  Ky.  604,  2  S.  W.  483 ;  Sterrett  v.  Phil- 
adelphia, etc.,  Tel.  Co.,  18  Wkly.  Notes  Cas.  (Pa.)  77,  no  injunction  will  be 
granted  against  the  removal  of  telegraph  wires  from  a  bucket  shop ;  West.  U. 
Tel.  Co.  V.  Hammond  Elevator  Co.,  165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N. 
S.)  153,  6  Ann.  Cas.  880. 


356  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  259 

veniences  furnished  other  persons,  and  on  the  same  terms,  where 
the  same  is  being  used  for  all  conveniences  otherwise  than  such  as 
may  pertain  to  their  gambling  transactions.  Furthermore,  should 
they  see  fit  to  furnish  their  telephones  and  connections  to  such  per- 
sons for  the  express  purpose  of  carrying  out  their  illegal  or  gam- 
bling contracts,  yet  they  could  not  be  forced  to  furnish  their  facili- 
ties for  such  purposes  to  other  like  persons ;  because,  as  they  could 
not  be  compelled  to  furnish  their  facilities  to  any  person  for  the  pur- 
pose of  carrying  on  a  business  which  is  not  under  the  protection  of 
the  laws,  they  could  not  be  compelled  to  furnish  to  others  conduct- 
ing a  similar  business,  likewise  unprotected.  Among  such  who 
should  claim  to  be  discriminated  against  in  this  respect  there  would 
be  no  ground  in  law  or  equity  on  which  to  base  and  contend  for  the 
right;  there  is  no  principle  within  the  far-reaching  vision  of  juris- 
prudence so  powerful  as  to  compel  any  one  to  carry  on  an  illegal 
business,  or  to  assist  in  lending  a  helping  hand  to  another  for  the 
purpose  of  doing  the  same.  So,  as  the  law  will  not  compel  these 
companies  to  furnish  their  facilities  to  one  person  for  an  illegal 
purpose,  it  surely  will  not  compel  them  to  furnish  one  for  this  kind 
of  a  business  when  the  company  voluntarily  extends  its  services  to 
another  for  like  purposes. 

§  259.  When  may  refuse  to  furnish  services — abusive  language. 
Under  certain  conditions  and  circumstances,  telephone  companies 
may  refuse  to  furnish  their  telephonic  instruments  and  services  to 
certain  persons.  As  mentioned  in  the  preceding  section,  they  may 
refuse  to  furnish  them  to  persons  who  intend  to  use  them  for  illegal 
purposes. ^^    And  while  these  companies  must  deal  fairly  with  their 

8  5  Mandamus  does  not  lie  to  compel  a  telephone  company  to  place  a  tele- 
phone in  a  bawdyhouse.  Godwin  v.  Tel.  Co.,  136  N.  C.  258,  48  S.  E.  636,  103 
Am.  St.  Rep.  941,  67  L.  R.  A.  251,  1  Ann.  Cas.  203.  The  court  in  this  case  said: 
"It  is  argued  that  a  common  carrier  would  not  be  authorized  to  refuse  to  con- 
vey the  plaintiff  because  she  keeps  a  bawdyhouse.  Nor  is  the  defendant  re- 
fusing her  a  telephone  on  that  ground,  but  because  she  wishes  to  place  the 
telephone  in  a  bawdyhouse.  A  common  carrier  could  not  be  compelled  to  haul 
a  car  used  for  such  purpose.  If  the  plaintiff  wishes  to  have  the  phone  placed 
in  some  other  house  used  by  her,  or  even  in  a  house  where  she  resided,  but 
not  kept  as  a  bawdyhouse,  she  would  not  be  debarred  because  she  kept  another 
house  for  such  unlawful  and  disreputable  purpose.  It  is  not  her  character, 
but  the  character  of  the  business  at  the  house  where  it  is  sought  to  have  the 
telephone  placed,  which  required  the  court  to  refuse  the  mandamus.  In  like 
manner,  if  a  common  carrier  knew  that  passage  was  sought  by  persons  who 
are  traveling  for  the  execution  of  an  indictable  offense,  or  a  telegraph  com- 
pany that  a  message  was  tendered  for  a  like  purpose,  both  would  be  justilied 
in  refusing ;  and  certainly  when  the  plaintiff  admits  that  she  is  carrying  on  a 
criminal  business  in  the  house  where  she  seeks  to  have  the  telephone  placed 


§    260)  EQUAL   FACILITIES   TO   ALL  357 

patrons  and  extend  to  them  all  the  courtesy  and  respect  which  is 
due  one  person  toward  another  in  like  circumstances,  yet,  on  the 
other  hand,  they  should  likewise  receive  the  same  treatment  by  all 
who  desire  to  do  business  with  them.  So,  if  any  one  applying  to 
them  for  service  should  use  abusive  language  over  the  wires,  or 
such  as  would  tend  to  create  a  public  disturbance  either  with  any 
employe  of  the  company  or  other  person  with  whom  they  may  be 
conversing,  they  may  refuse  to  furnish  him  service  while  using  such 
language. ^.^  And  should  one  of  their  subscribers  use,  continuously, 
such  language  or  abuse  over  his  telephone,  after  persistent  requests 
by  the  company  not  to  do  so,  they  may,  as  a  last  resort,  remove 
their  instrument  from  his  premises.®'^  It  is  a  well-known  principle 
in  the  law  of  torts  that  any  publisher  of  libelous  or  slanderous 
words  is  as  guilty  of  the  wrong  as  he  who  first  used  the  words ;  so, 
if  these  companies  could  be  forced  to  render  services  to  persons 
who  used  them  for  such  purposes,  the  company,  and  not  the  wrong- 
doer in  fact,  might  thereby  become  liable  in  an  action  for  dam- 
ages.^® So  to  protect  itself  such  company  may  refuse  services  to 
such  persons. ^^ 

§  260.  Same  continued — on  refusal  to  pay  charges  or  rent  in 
arrears — charges  for  removing  instrument — other  reasons. — A  tele- 
graph or  telephone  company  may   refuse  to   serve   or  furnish    its 

the  court  will  not,  by  its  mandamus,  require  that  facilities  of  a  public  nature 
be  furnished  to  a  house  used  for  that  business.  For  like  reason,  a  mandamus 
will  not  lie  to  compel  a  water  company  to  furnish  water,  or  a  light  company 
to  supply  light,  to  a  house  used  for  carrying  on  an  illegal  business.  The 
courts  will  enjoin  or  abate,  not  aid,  a  public  nuisance." 

86  Pugh  V.  City,  etc.,  Tel.  Co.,  8  Ohio  Dec.  644,  affirmed  without  opinion  in 
13  Wkly.  Law  Bui.  (Ohio)  190,  "If  you  can't  get  the  party  I  want,  you  can 
shut  up  your  damned  old  telephone,"  was  sufficient  to  justify  the  telephone 
company  in  discontinuing  the  service.  There  was  a  dissenting  opinion,  ap- 
parently inspired  by  a  doubt  whether  the  word  "damned"  was  to  be  regarded  as 
a  profane,  or  even  an  improper,  word  under  the  circumstances.  Huffman  v. 
Marcy  Mutual  Tel.  Co.,  143  Iowa,  590,  121  N.  W.  1033,  23  L.  R.  A.  (N.  S.)  1010. 
See  Kramer  v.  Ricksmeier,  159  Iowa,  48,  139  N.  W.  1091,  45  L.  R.  A.  (N.  S.) 
928,  holding  that  abusing  and  threatening  a  woman  over  the  telephone  is  not 
an  assault. 

"  Pugh  V.  City,  etc.,  Tel.  Co.,  8  Ohio  Dec.  644;  Huffman  v.  Marcy  Mutual 
Tel.  Co.,  143  Iowa,  590,  121  N.  W.  1033,  23  L.  R.  A.  (N.  S.)  1010.  cannot  dis- 
continue the  service  two  months  after  customer  has  been  warned  for  using 
profane  and  indecent  language. 

8  8  Grisham  v.  West.  Union  Tel.,  etc.,  Co.,  238  Mo.  480,  142  S.  W.  271,  37  L. 
R.  A.  (N.  S.)  861,  Ann.  Cas.  1913A,  535 ;  West.  Union  Tel.,  etc.,  Co.  v.  Cash- 
man,  149  Fed.  367,  81  C.  C.  A.  5,  9  L.  R.  A.  (N.  S.)  140,  9  Ann.  Cas.  693 ;  Mc- 
Leod  V.  Pacific  State  Tel.,  etc.,  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac.  1009,  15  L. 
R.  A.  (N.  S.)  810,  18  L.  R.  A.  (N.  S.)  9.54,  16  Ann.  Cas.  1239. 

88  Pugh  V.  City,  etc.,  Tel.  Co.,  8  Ohio  Dec.  644. 


358  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  260 

facilities  to  any  one  who  does  not  offer  to  pay  the  proper  charges; 
and  a  regulation  of  a  telephone  company  that  it  will  not  furnish 
its  facilities  to  any  patron  in  arrears  for  past  services  is  reasonable 
and  may  be  enforced. ^°  The  reason  for  the  rule  is  that  the  law 
compels  a  telephone  company  to  furnish  efficient  service  without 
discrimination  under  reasonable  regulations,  and  since  it  can  main- 
tain an  efificient  service  only  through  prompt  payment  of  its  dues 
and  tolls,  the  use  of  the  summary  remedy  of  denying  service  for 

soRusliville,  etc.,  Tel.  Co.  v.  Irvin,  27  Ind.  App.  62,  59  N.  E.  327;  Irvin 
V.  Rusbville,  etc.,  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258;  Cumberland,  etc., 
Tel.  Co.  V.  Hobart,  89  Miss.  252,  42  Soutb.  349,  119  Am.  St.  Rep.  702;  Ma- 
lochee  v.  Great  Soutbern,  etc.,  Tel.  Co.,  49  La.  Ann.  1690,  22  Soutb.  922; 
Magruder  v.  Cumberland,  etc.,  Tel.  Co.,  92  Miss.  716,  46  Soutb.  404,  16  L.  R. 
A,  (X.  S.)  560;  Cumberland,  etc.,  Tel.  Co.  v.  Baker,  85  Miss.  486,  37  Soutb. 
1012;  Buffalo  County  Tel.  Co.  v.  Turner,  82  Xeb.  841,  148  X.  W.  1064,  130 
Am.  St.  Rep.  609,  19  L.  R.  A.  (X.  S.)  693;  Woodley  v.  Carolina,  etc.,  Tel. 
Co.,  163  X.  C.  284,  79  S.  E.  598,  Ann.  Cas.  1914D,  116 ;  Vaugbt  v.  East  Ten- 
nessee Tel.  Co.,  123  Tenn.  318,  130  S.  W.  1050,  Ann.  Cas.  1912C,  132,  31  L. 
R.  A.  (X.  S.)  315 ;  State  v.  Independent  Tel.  Co.,  59  Wasb.  156,  109  Pac.  366, 
31  L.  R.  A.  (N.  S.)  329.  See  People  v.  Manbattan  Gasligbt  Co.,  45  Barb. 
(N.  Y.)  136;  Tacoma  Hotel  Co.  v.  Tacoma  Ligbt,  etc.,  Co.,  8  Wasb.  316,  28 
Pac.  516,  28  Am.  St.  Rep.  35,  14  L.  R.  A.  669;  Cox  v.  Cyntbiana,  123  Ky. 
363,  96  S.  W.  456;  Mansfield  v.  Humpbreys  Mfg.  Co.,  82  Obio  St.  216,  92 
X.  E.  233,  19  Ann.  Cas.  842,  31  L.  R.  A.  (X.  S.)  .301 ;  Soutbwestern  Tel.,  etc., 
Co.  V.  Danaber,  238  U.  S.  482,  35  Sup.  Ct.  886,  59  L.  Ed.  1419,  L.  R.  A. 
1916A,  1208,  reverses  94  Ark.  533,  127  S.  W.  963,  30  L.  R.  A.  (X.  S.)  1027,  Id., 
102  Ark.  547,  144  S.  W.  925. 

Rural  telephone. — A  rule  tbat  rural  telephone  subscribers  shall  pay  six 
months  in  advance  is  reasonable.     Buffalo  County  Tel.  Co.  v.  Turner,  supra. 

Deduction  of  rent  ivhile  live  out  of  repair. — A  telephone  subscriber  is  pre- 
sumed to  know  that  his  telephone  is  liable  to  get  out  of  order,  and,  if  it  is 
situated  in  the  country  tbat  some  time  may  elapse  before  it  can  be  repaired, 
and  such  subscriber  is  only  entitled  to  a  deduction  from  his  bill  subsequent 
to  the  expiration  of  a  reasonable  time  after  the  comiiany  bad  notice  of  the 
trouble  and  has  failed  to  repair  it.    Buffalo  County  Tel.  Co.  v.  Turner,  supra. 

Payment,  ichere  to  he  made. — A  subscriber  must  pay  for  the  use  of  the 
telephone  at  its  office,  and  the  habit  of  the  company  to  present  the  biUs 
through  a  collector  at  the  subscriber's  office  or  home  may  be  abandoned  on 
proper  notice.  Magruder  v.  Cumberland  Tel.,  etc.,  Co.,  supra ;  Rusbville, 
etc.,  Tel.  Co.  v.  Irvin,  supra. 

Disputed  claims,  payment  under  protest. — Where  there  is  a  dispute  over  a 
debt,  the  remedy  of  the  subscriber  is  to  pay  under  protest  the  amount  de- 
manded, and  sue  for  the  excess ;  he  cannot  compel  service  by  mandamus  to 
enforce  bis  agreement.  State  v.  Cadwallader,  172  Ind.  619,  87  X.  E.  644, 
affirmed  in  172  Ind.  619,  S9  X.  E.  319,  on  rehearing.  Hanson  v.  Olean  Tel.  Co., 
P.  U.  R.  1916B,  833,  holding  that  a  telephone  company  cannot  refuse  to  serve 
a  patron  because  of  nonpayment  of  a  disputed  bill  for  service  during  a  time 
when  the  line  was  not  in  condition  and  pending  court  proceedings  to  determine 
the  amount  due. 


§    260)  EQUAL   FACILITIES   TO   ALL  359 

nonpayment  is  reasonable.^^  It  has  been  held  that  the  service  may 
be  refused  for  nonpayment  of  rental,  despite  the  company's  indebt- 
edness to  the  subscriber,  where  the  rule  is  reasonable.^^  However, 
such  a  regulation  cannot  be  used  as  a  means  to  enforce  payment 
which  it  is  not  the  duty  of  the  subscriber  to  pay;  ^^  and  it  has  even 
been  held  that  if  the  patron  was  indebted  to  the  company  for  serv- 
ices rendered  under  a  separate  contract,  the  company  could  only 
put  an  end  to  that  contract  wherein  there  was  default.^*  And  some 
cases  take  the  view  that  such  a  regulation  cannot  be  made  the  in- 
strument by  which  the  telephone  company  can  become  the  judge 
in  its  own  case,  and  refuse  service  to  enforce  payment  of  disputed 
bills. ^^  The  charges  of  these  companies  are  regulated  by  the  state 
and  federal  laws,  and  so  long  as  charges  remain  within  the  maxi- 
mum rate  prescribed  by  these  authorities,  the  companies  can  en- 
force a  compliance  therewith  or  refuse  to  render  their  services.  But 
so  soon  as  a  telephone  company  exceeds  these  charges  in  any  man- 
ner, as  by  rental  of  each  of  its  instruments ;  or  as  a  rental  for  its 
instruments  and  an  extra  charge  for  nonsubscribers,  or  as  a  toll 
station,  or  a  charge  for  each  conversation  and  a  rental,^ "^  the  com- 
pany cannot  use  this  as  an  excuse  for  not  furnishing  its  instru- 
ments, provided  the  subscriber  or  patron  offers  to  pay  the  rate  pre- 
scribed by  law.^^    And  a  telephone  company  whose  maximum  ren- 

81  Riisbville,  etc.,  Tel.  Co.  v.  Irvin,  27  Ind.  App.  62,  59  N.  E.  327;  Irviii 
V.  Rnshville,  etc.,  Tel.  Co.,  161  In(J.  524,  69  N.  E.  258;  Buffalo  County  Tel. 
Co.  V.  Turner,  S2  Neb.  841,  148  N.  W.  1064,  1.S0  Am.  St.  Rep.  699,  19  L.  R. 
A.  (N.  S.)  693. 

82  Rushville,  etc.,  Tel.  Co.  v.  Irvin,  27  Ind.  App.  62,  59  N.  E.  327 ;  Irvin 
V.  Rushville,  etc.,  Tel.  Co.,  161  Ind.  524,  69  N.  E.  258;  Buffalo  County  Tel. 
Co.  V.  Turner,  82  Neb.  841,  148  N.  W.  1064,  130  Am.  St.  Rep.  699,  19  L.  R. 
A.   (N.  S.)  693. 

83  Cumberland  Tel.,  etc.,  Co.  v.  Hobart,  89  Miss.  252,  42  South.  349,  119 
Am.  St.  Rep.  702,  where  amount  due  is  from  complainant's  wife  for  the 
use  of  another  telephone. 

81  Id.,  where  amount  is  due  on  house  other  than  the  one  for  which  present 
service  is  requested. 

»•-'  State  V.  Kinloch  Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  684 ;  State  v.  Ne- 
braska Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404,  where  a  sub- 
scriber refused  to  pay  his  rental,  past  due,  on  the  account  of  a  directory 
not  having  been  furnished  at  the  time  by  his  request;  Southwestern  Tel., 
etc.,  Co.  V.  Luckett,  60  Tex.  Civ.  App.  117,  127  S,  W.  856. 

8  6  See  §  237. 

87  Illinois  Glass  Co.  v.  Chicago  Tel.  Co.,  2.34  111.  535,  85  N.  E.  200,  18  L, 
R.  A.  (N.  S.)  124.  See,  also,  Hockett  v.  State,  105  Ind.  250,  5  N.  E.  178,  55 
Am.  Rep.  201;  Colorado  Tel.  Co.  v.  Fields,  15  N.  M.  431,  110  Pac.  571,  30 
L.  R.  A.  (N.  S.)  1088,  cannot  charge  a  higher  rate  for  short  term  than  for 
yearly  contracts;  Central  U.  Tel.  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  721; 
Chicago  Tel.  Co.  v.  Illinois  Mfg.  Asso.,  106  111.  App.  54,  "telephone  service" 


:3G0  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  261 

tals  are  fixed  by  contract  with  the  municipality  in  which  it  is  to 
transact  its  business  cannot  enforce  a  regulation  requiring  patrons 
to  pay  a  charge  in  addition  thereto,  for  installing  and  transferring 
instruments.''^  A  telephone  company  may  refuse  to  furnish  facili- 
ties to  one  who  violates  its  reasonable  regulations  with  regard  to 
the  use  of  its  instruments,  but  the  regulations  must  be  entirely  rea- 
sonable.®®  For  instance,  a  company  cannot,  as  a  condition  pre- 
cedent to  furnishing  an  applicant  with  telephone  facilities,  require 
him  to  stipulate  that  he  will  use  the  system  of  that  company  exclu- 
sively.^"" 

§  261.  Cormections  with  extension  systems  privately  owned. — 
Occasionally  subscribers  have  apparatus  for  interior  systems  or  ex- 
tension sets  secured  from  some  source  other  than  the  telephone 
company,  and  then  demand  of  the  latter  connections  with  its  lines 
and  services  at  ordinary  rates.  Under  such  circumstances,  the  com- 
pany is  justified  in  withdrawing  its  services  from  such  subscribers 
upon  the  latters'  refusal  to  discontinue  the  use  of  such  apparatus ; 
however,  it  is  necessary  that  the  right  of  the  company  to  prohibit 
the  use  of  the  apparatus  not  provided  by  it  is  subject  to  the  obliga- 
tion that  the  company  itself  shall  be  able  and  willing  to  furnish 
apparatus  or  extension  sets  as  efficient  and  convenient  as  the  state 
of  the  art  affords,  upon  reasonable  terms,  and  that  if  the  company 

includes  subsequent  improvements  whicli  may  be  made  to  render  more 
eflBcient  service;  Johnson  v.  State,  113  Ind.  143,  15  N,  E.  215,  in  which  it 
was  held  that  a  fixed  charge  of  $1  per  month,  in  excess  of  the  rate  allowed 
by  the  statute,  for  the  use  of  telephone  by  nousubscribers,  which  was  charged 
and  collected  whether  the  telephone  was  used  by  the  nousubscribers  or  not, 
and  without  regard  to  the  number  of  such  persons  who  may  use  it,  was  in 
violation  of  a  statute  making  it  a  crime  to  charge  in  excess  of  the  rate  pre- 
scribed by  statute.     See  §  237. 

Penalty  for  delayed  payment. — The  establishment  in  the  franchise  of  a  tel- 
ephone company  of  a  maximum  monthly  rental  to  be  charged  by  it  for  serv- 
ice does  not  prevent  its  requiring  the  rentals  to  be  paid  in  advance,  and 
making  an  additional  charge  in  case  they  are  not  paid  before  a  certain  speci- 
fied day  each  month.  State  v.  Independent  Tel.  Co.,  59  Wash.  156,  109  Pac. 
366,  31  L.  R.  A.  (N.  S.)  329. 

9  8  Colorado  Tel.  Co.  v.  Fields,  15  N.  M.  431,  110  Pac.  571,  30  L.  R.  A.  (N. 
S.)  1088. 

99  People  V.  Hudson  River  Tel.  Co.,  19  Abb.  N.  C.  (N.  Y.)  466;  Gardner  v. 
Providence  Tel.  Co.,  23  R.  I.  262,  49  Atl.  1004,  55  L.  R.  A.  113.  See  chapter 
XIV.  See,  also,  Buffalo  County  Tel.  Co.  v.  Turner,  82  Neb.  841,  118  N.  W. 
1064,  130  Am.  St.  Rep.  699,  19  L.  R.  A.  (N.  S.)  693. 

100  State  V.  Citizens'  Tel.  Co.,  61  S.  C.  83,  39  S.  E.  257,  85  Am.  St.  Rep. 
870,  55  L.  R.  A.  139 ;  Gwynn  v.  Citizens'  Tel.  Co.,  69  S.  C.  434,  48  S.  E.  460, 
104  Am.  St.  Rep.  819,  67  L.  R.  A.  111. 

Subscription  for  stock  as  condition  to  furnish  telephone  cannot  be  en- 
forced.    Re  Superior  Rural  Tel.  Co.,  P.  U.  R.  1916A,  860. 


§    262)  EQUAL   FACILITIES   TO   ALL  361 

neglects  its  duty  to  the  public,  and  is  not  provided  with  the  means 
to  secure  the  accommodation  of  its  customers,  or,  having  at  its 
command  such  appliances,  refuses  to  furnish  them  except  at  exor- 
bitant rates,  the  subscribers  may  supplement  the  imperfect  service 
of  the  company  with  approved  appliances  procured  elsewhere,  pro- 
vided that  such  appliances  can  be  used  in  connection  with  the  com- 
pany's circuits  without  detriment  to  their  harmonious  operation/"'- 
§  262.  Same  continued — other  corporations — telegraph  compa- 
nies.— These  companies  may  elect  as  to  whether  they  will  receive 
from  and  deliver  messages  to  telegraph  companies;  ^'^-  but,  if  they 
tender  their  services  to  one  of  these  companies,  they  are  bound  to 
receive  dispatches  from  and  for  all  telegraph  companies  in  the 
usual  course  of  business. ^°^  As  was  very  ably  observed  by  Judge 
Butler  on  this  subject:  "While  such  companies  are  not  required 
to  extend  their  facilities  beyond  such  reasonable  limits  as  they  may 
prescribe  for  themselves,  they  cannot  discriminate  between  indi- 
viduals or  classes  which  they  undertake  to  serve.  As  common 
carriers  of  merchandise  may  prescribe  the  points  between  which 
they  will  carry  and  the  description  of  goods  they  will  accept,  so,, 
doubtless,  may  carriers  of  messages  limit  their  business  and  obli- 
gations. If,  therefore,  the  respondent  had  confined  the  use  of  its. 
telephonic  facilities  to  the  carriage  of  personal  messages  for  in- 
dividuals, excluding  those  of  telegraph  companies  and  others  who 
forward  messenger  hire,  the  relator  would,  probably,  have  no  just 
ground  of  complaint."  ^°* 

101  Gardner  v.  Providence  Tel.  Co.,  23  R.  I.  262,  49  Atl.  1004. 

102  See  Delaware,  etc.,  Tel.  Co.  v.  Delaware,  50  Fed.  677,  2  C.  C.  A.  1, 
affirming  (C.  C.)  47  Fed.  633;  Dumont  v.  Peet,  152.  Iowa,  524,  132  N.  W. 
955;  Telegraph  Company  v.  Telegraph,  etc.,  Co.,  125  Tenn.  270,  141  S.  W. 
845,  43  L.  R.  A.  (N.  S.)  550;  Telegraph,  etc.,  Co.  v.  Anderson  (D.  C.)  196 
Fed.  699. 

103  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  ]\Id.  399,  7  Atl. 
809,  59  Am.  Rep.  167;  State  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89 
N.  E.  319;  Delaware,  etc.,  Tel.,  etc.,  Co.  v.  Delaware,  50  Fed.  677,  2  C.  C. 
A.  1,  affirming  (C.  C.)  47  Fed.  633;  People  v.  Hudson  River  Tel.  Co.,  19 
Abb.  N.  C.  (N.  Y.)  466 ;  Philadelphia  Bell  Tel.  Co.  v.  Commonwealth,  2  Sad- 
ler, 299,  3  Atl.  825 ;  State  v.  Bell  Tel.  Co.,  36  Ohio  St.  296,  38  Am.  Rep.  583 : 
Commercial  Union  Tel.  Co.  v.  New  England,  etc.,  Tel.  Co.,  61  Vt.  241,  17 
Atl.  1071,  15  Am.  St.  Rep.  893,  5  L.  R.  A.  161;  Missouri  v.  Bell  Tel.  Co. 
(C.  C.)  23  Fed.  539,  in  the  absence  of  a  statute  a  telephone  company  cannot 
be  required  to  make  a  physical  connection  of  its  system  with  that  of  another 
company  so  as  to  give  the  latter  physical  use  of  its  lines;  State  v.  Cad- 
wallader, 172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319.  See,  also,  Ivanhoe  Furnace 
Co.  V.  Virginia,  etc.,  Tel.  Co.,  109  Va.  130,  63  S.  E.  426. 

10*  Delaware,  etc.,  Tel.  Co.  v.  State,  50  Fed.  677,  2  C.  C.  A.  1. 


362  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  263 

§  263.  Same  continued — rival  companies. — The  rules  laid  down 
elsewhere  ^°^  respecting  the  connection  of  lines  do  not  make  it  the 
duty  of  one  telephone  company  to  connect  with  competing  lines. 
The  physical  connection  between  competing  telephone  companies 
is  a  privilege  to  be  created  only  as  a  result  of  private  contract,  or 
in  obedience  to  some  constitutional  or  statutory  provision. ^"^  And 
where  this  right  is  given,  either  under  the  constitution  or  statute, 
the  mere  physical  connection  of  the  wires  is  not  sufficient,  but  to 
make. this  connection  of  value  the  telephone  company  will  be  fur- 
ther required  to  give  other  companies  the  use  of  its  wires,  and  the 
service  of  its  operators  which  shall  be  as  full  and  as  efficient  as 
that  required  in  the  discharge  of  the  business  proffered  by  its  own 
subscribers.^"'^  These  constitutional  or  statutory  requirements 
must  be  construed,  however,  as  granting  the  right  subject  to  the 
obligation  of  compensating  the  opposing  company  for  such  con- 
nections with  all  its  incidents,  which  may  be  done  by  imposing  an 
extra  charge  on  each  message  or  conversation.^"^    It  has  been  held 

105  See  §§  405,  447,  et  seq. 

106  Pacific  Tel.,  etc.,  Co.  v.  Eslileman,  1G6  Cal.  640,  137  Pac.  1119,  50  L. 
R.  A.  (N.  S.)  652,  Ann.  Cas.  1915C,  822;  Pacific  Tel.,  etc.,  Co.  v.  Anderson 
(D.  C.)  196  Fed.  609 ;  Billings  Mut.  Tel.  Co.  v.  Rocky  Mountain  Bell  Tel.  Co. 
(C.  C.)  155  Fed.  207 ;  State  ex  rel.  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644, 
89  N.  E.  319 ;  Southwestern  Tel.,  etc.,  Co.  v.  State  (Tex.  Civ.  App.)  150  S.  W. 
604,  holding  that  the  power  may  be  delegated  to  a  city  which  may  compel 
connections  within  its  limits ;  Home  Tel.  Co.  v.  Sarcoxie,  etc.,  Tel.  Co.,  236 
Mo.  114,  139  S.  W.  108,  36  L.  R.  A.  (N.  S.)  124 ;  Hooper,  Tel.  Co.  v.  Nebraska 
Tel.  Co.,  96  Neb.  245,  147  N.  W.  674,  jurisdiction  of  commissioners  over. 

Through  correspondence  pertaining  to  the  course  of  action  to  which  the 
American  Telephone  &  Telegraph  company  has  committed  itself  in  response 
to  suggestions  from  the  Department  of  Justice  of  the  federal  government, 
the  said  company  has  made  certain  propositions  whereby  arrangements  will 
be  made  promptly  under  which  all  other  telephone  companies  may  secure 
for  their  subscribers  toll  service  over  the  lines  of  the  companies  in  the  Bell 
system  in  the  ways  and  under  the  conditions  therein  laid  out.  See  letter  to 
the  Attorney  General  from  the  American  Telephone  &  Telegraph  Conjfpany 
outlining  a  course  of  action  which  it  has  determined  upon  filed  with  the 
Department  of*  Justice. 

107  Billings  Mut.  Tel.  Co.  v.  Rocky  Mountain  Bell  Tel.  Co.  (C.  C.)  155 
Fed.  207.  See  Pacific  Tel.,  etc.,  Co.  v,  Wright-Dickinson  Hotel  Co.  (D.  C.)  214 
Fed.  666;  Hooper  Tel.  Co.  v.  Nebraska  Tel.  Co.,  96  Neb.  245,  147  N.  W. 
674;  Pioneer  Tel.,  etc.,  Co.  v.  Grant  County  Tel.  Co.  (Okl.)  119  Pac.  968; 
Pioneer  Tel.  Co.  v.  State,  38  Okl.  554,  134  Pac.  398;  Id.,  144  Pac.  1060; 
Southwestern  Tel.,  etc.,  Co.  v.  State  (Tex.  Civ.  App.)  150  S.  W.  604;  Home 
Tel.  Co.  V.  Sarcoxie,  etc.,  Tel.  Co.,  236  Mo.  114,  139  S.  W.  108,  36  L.  R.  A. 
<N.  S.)  124.  See  State  v.  Tel,  Co.,  85  Wash.  29,  147  Pac.  885,  each  loses 
their  independence. 

108  People  V.  Central  N.  Y.  Tel.  Co.,  41  App.  Div.  17,  58  N.  Y.  Supp.  221; 


§    263)    •  EQUAL   FACILITIES  TO   ALL  363 

that  where  such  connection  has  been  made  voluntarily  by  agree- 
ment between  two  companies  and  without  any  stipulation  as  to 
the  time  of  its  continuance,  and  in  which  nothing  is  said  about 
notice  being  given  by  either  party  of  the  termination  of  the  con- 
tract/"^  the  companies  lose  their  independent  status,  so  that  the 
contract  cannot  be  discontinued  by  either  or  both  companies. ^^^ 
While  some  of  the  authorities  do  not  agree  with  the  effect  of  such 
voluntary  agreement/^^  yet  it  seems  that  perfect  harmony  should 
prevail  among  these  where  two  companies  are  consolidated,  and 
for  a  time  thereafter  the  lines  are  physically  connected,  and  sub- 
scribers of  either  company  are  permitted  the  general  use  of  the 
line  as  to  both  the  exchanges,  the  company  cannot  thereafter  re- 
fuse to  connect  the  subscriber  of  one  company  with  a  subscriber  of 

Shepard  v.  Tel.  Co.,  38  Hun  (N.  Y.)  3.38;  In  re  Baldwinsville  Tel.  Co.,  24 
Misc.  Rep.  221,  53  N.  Y.  Supp.  574 ;  Home  Tel.  Co.  v.  People's  Tel.,  etc.,  Co., 
125  Tenn.  270,  141  S.  W.  845,  43  L.  R.  A.  (N.  S.)  550 ;  Evansville  Traction 
Co  V.  Henderson  Bridge  Co.  (C.  C.)  134  Fed.  973;  Pacific  Tel.,  etc.,  Co.  v. 
Eshleman,  166  Cal.  640,  137  Pac.  1119,  50  L.  R.  A.  (N.  S.)  652,  Ann.  Cas. 
1915C,  822.  See  cases  in  note  107,  supra.  See,  also.  State  v.  Tel.  Co.,  85 
Wash.  29,  147  Pac.  885 ;  Whittenberg,  etc.,  Tel.  Co.,  P.  U.  R.  1916C,  104,  Olda- 
homa  commission  has  no  power  to  order  free  interchange  service  between  tele- 
phone companies. 

Under  the  arrangement  of  the  American  Telephone  &  Telegraph  Company, 
supra,  it  was  proposed  by  such  company  that  the  subscribers  of  the  inde- 
pendent company  having  toll  connections  should  pay  for  such  connections 
the  regular  toll  charge  of  the  Bell  Company,  and  in  addition  thereto  a  con- 
nection charge  of  10  cents  for  each  message  which  originates  on  its  lines 
and  is  carried,  in  whole  or  in  part,  over  the  lines  of  the  Bell  system. 

10  9  State  ex  rel.  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319, 
holding  that  such  notice  may  terminate  the  contract. 

110  state  ex  rel.  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319; 
Campbellsville  Tel.  Co.  v.  Lebanon,  etc.,  Tel.  Co.,  118  Ky.  277,  80  S.  W.  1114, 
84   S.  W.  518. 

Where  by  the  terms  of  the  contract  between  two  telephone  companies  for 
connection  the  term  of  the  contract  is  fixed,  it  cannot  be  terminated  by 
either  party  prior  thereto,  and  the  contract  will  be  specifically  enforced  by 
the  courts,  or  its  breach  enjoined.  Gravel,  etc.,  Tel.  Co.  v.  Lebanon,  etc., 
Tel.  Co.,  139  Ky.  827,  132  S.  W.  424,  modifying  judgment  as  reported  in  139 
Ky.  151,  129  S.  W.  559,  same  effect  in  Wayne-Monroe  Tel.  Co.  v.  Ontario 
Tel.  Co.,  60  Misc.  Rep.  435,  112  N.  Y.  Supp.  424. 

111  Home  Tel.  Co.  v.  People  Tel.  Co.,  125  Tenn.  270,  141  S.  W.  845,  43  L. 
R.  A.  (N.  S.)  550;  Rural  Home  Tel.  Co.  v.  Kentucky,  etc.,  Tel.  Co.,  128  Ky. 
209,  107  S.  W.  787,  holding  that,  where  there  is  no  contract  for  connection 
between  two  companies,  although  there  is  an  actual  connection,  it  is  not  sufli- 
cient  to  entitle  one  of  the  companies  to  restrain  the  other  from  terminating 
the  connection;  Bastin  Tel.  Co.  v.  Richmond  Tel.  Co.,  117  Ky.  122,  77  S. 
W.  702,  holding  that,  where  the  connection  is  under  an  oral  contract  void 
under  the  statute  of  frauds,  one  company  is  not  liable  in  damages  for  vio- 
lating the  contract  by  refusing  to  make  or  permit  a  connection. 


364  TELEGRAPH  AND  TELEPHONE  COMPANIES        .  (§  263 

the  other. ^^-  If  a  telephone  company  makes  a  physical  connection 
with  another  exchange,  it  cannot  refuse  to  make  such  connection 
with  other  exchanges  similarly  situated/^^  But  it  has  been  held 
that  the  mere  fact  that  a  telephone  company  doing  a  long-distance 
business,  in  order  to  extend  its  business,  contracts  with  another 
company  doing  local  business,  for  connection,  does  not  obligate 
the  latter  company  to  give  to  another  company  the  same  service, 
as  such  contracts  are  not  in  restraint  of  trade,  nor  invalid  as  tend- 
ing to  create  a  monopoly. ^^*  While  such  contracts  are  not  neces- 
sarily invalid  as  a  violation  of  public  policy  because  tending  to 
create  a  monopoly,  yet  this  restriction  may  render  them  prima 
facie  invalid.  This  presumption,  however,  may  be  overcome  by 
establishing  the  reasonableness  of  the  restriction  in  view  of  all 
the  circumstances,  and  their  beneficial,  rather  than  harmful,  char- 
acter so  far  as  concerns  the  public  at  large. ^^^  As  may  be  seen 
from  the  cases  on  this  question,  the  courts  are  not  in  entire  har- 
mony as  to  when  such  a  restriction  is  reasonable  and  incidental  to 

112  Mahan  v.  Michigan  Tel.  Co.,  132  Mich.  242,  93  N.  W.  629. 

113  state  ex  rel.  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319; 
Bank  v.  Kinloch,  etc.,  Tel.  Co.,  258  111.  202,  101  N.  E.  535,  Ann.  Cas.  1914B, 
258,  45  L.  R.  A.  (N.  S.)  465 ;  United  States  Tel.  Co.  v.  Central  Union  Tel.  Co. 
(C.  C.)  171  Fed.  130,  affirmed  202  Fed.  66,  122  C.  C.  A.  86;  Home  Tel. 
Co.  V.  Granby,  etc.,  Tel.  Co.,  147  Mo.  App.  216,  126  S.  W.  773 ;  Central  New 
York  Tel.  Co.  v.  Averill,  199  N.  Y.  128,  92  N.  E.  206,  139  Am.  St.  Rep.  878, 
32  L.  R.  A.  (N.  S.)  494 ;  State  v.  Bell  Tel.  Co.,  36  Ohio  St.  296,  38  Am.  Rep. 
583.  But  compare  with  Home  Tel.  Co.  v.  People  Tel.  Co.,  125  Tenn.  270, 
141  S.  W.  845,  43  L.  R.  A.  (N.  S.)  550 ;  Home  Tel.  Co.  v.  Sarcoxie,  etc.,  Tel. 
Co.,  236  Mo.  114,  139  S.  W.  108,  36  L.  R.  A.  (N.  S.)   124. 

114  In  Home  Tel.  Co.  v.  Sarcoxie,  etc.,  Tel.  Co.,  236  Mo.  114,  139  S.  W.  108, 
36  L.  R.  A.  (N.  S.)  124,  disapproving  Home  Tel.  Co.  v.  Granby,  etc.,  Tel. 
Co.,  147  Mo.  App.  216,  126  S.  W.  773,  the  contract  was  for  twenty-five  years. 
In  Cumberland,  etc.,  Tel.  Co.  v.  State,  100  Miss.  102,  54  South.  670,  39  L.  R.  A. 
(N.  S.)  277,  the  contract  was  for  five  years ;  United  States  Tel.  Co.  v.  Middle- 
point  Tel.  Co.,  7  Ohio  N.  P.  (N.  S.)  425,  19  Ohio  Dec.  202,  affirmed  in  32  Ohio 
C.  C.  18;  Id.,  86  Ohio  St.  319,  99  N.  E.  1129;  Home  Tel.  Co.  v.  North  Man- 
chester Tel.  Co.,  47  Ind.  App.  411,  92  N.  E.  558,  rehearing  denied  in  93  N.  E. 
234.  See,  also,  McKinley  Tel.  Co.  v.  Cumberland  Tel.  Co.,  152  Wis.  359,  140 
N.  W.  38,  sustaining  a  contract  to  run  for  seven  years  between  two  local  tele- 
phone companies  having  lines  in  the  same  rural  territory  radiating  from  a 
city,  whereby  one  of  them,  which  was  furnishing  services  within  the  city,  was 
to  confine  its  lines  to  the  city,  and  the  other  was  refrained  from  operating 
within  the  city,  and  was  to  take  over  the  rural  lines  in  the  country,  where 
both  operated,  and  each  was  to  furnish  free  comiection  with  the  other. 

115  Cases  holding  the  contract  void:  United  Trust  &  Sav.  Bk.  v.  Kinloch 
Long  Distance  Tel.  Co.,  258  111.  202,  101  N.  E.  535,  Ann.  Cas.  1914B,  258,  45 
L.  R.  A.  (N.  S.)  465 ;  United  States  Tel.  Co.  v.  Central  Union  Tel.  Co.  (C.  C.) 
171  Fed.  130,  affirmed  by  Circuit  Court  of  Appeals  202  Fed.  66,  122  C.  C.  A.  86. 


i 


§    264)  EQUAL  FACILITIES  TO  ALL  365 

a 

the  general  purpose  of  competition,  rather  than  primarily  to  create 
a  monopoly. 

§  264.  Being  lessees  of  patents — no  excuse. — It  has  been  vigor- 
ously contended  in  several  cases  that  telephone  companies  were 
not  under  obligation  to  furnish  services  to  the  entire  public  or  to 
certain  rival  companies,  where  they  were  the  lessees  of  telephone 
patent  devices;  but,  with  only  one  exception, ^^"^  all  the  courts  have 
held  that  they  could  not  evade  this  duty  on  such  ground.^ ^^  The 
manner  in  which  this  question  was  brought  about  is  as  follows : 
One  Alexander  Graham  Bell  invented  an  apparatus  for  transmit- 
ting articulate  speech  by  electricity,  and  the  same  was  patented  by 
him  in  1876  in  the  United  States,  by  which  the  exclusive  right  to 
use  and  license  others  to  use,  and  to  refuse  to  others  the  right  to 
use  said  invention,  was  vested  absolutely  in  said  Bell  and  his  as- 
signs; and  the  whole  of  said  rights  of  said  Bell  were  by  him 
duly  assigned  to,  and  became  vested  in,  the  American  Bell  Tele- 
phone Company,  a  Massachusetts  corporation ;  and  after  the  grant 
of  said  letters  patent  to  Bell,  other  inventors  made  various  im- 
provements in  his  apparatus,  to  be  used  therewith,  and  all  of  which 
have  been  assigned  to  the  said  company.  But  before  these  last 
patent  devices  were  assigned  to  said  company,  a  controversy  arose 
as  to  who  were  the  real  inventors  of  said  devices;  the  result  of. 
said  controversy  was  the  assignment  of  all  said  devices  to  this 
company,  by  which  there  were  certain  exclusive  privileges  to  be 
enjoyed  by  the  assignors.  Later  the  American  Bell  Telephone 
Company,  assignee  of  all  these  patented  devices,  leased  these  ap- 
paratuses to  other  companies,  under  the  condition  that  the  latter 
companies  would  not  furnish  services  to  certain  rival  companies 
of  lessors.  These  rival  companies,  after  having  been  refused  by 
these  lessees  to  furnish  them  with  telephone  connections  and  serv- 
ices, applied  to  the  courts  to  issue  a  mandate  to  force  and  compel 
such  services;    and  the  same  was  granted  on  the  ground  that  the 

116  American,  etc.,  Tel.  Co.  v.  Connecticut  Tel.  Co.,  49  Conn.  352,  44  Am. 
Rep.  237. 

117  People  V.  Hudson  River  Tel.  Co.,  19  Abb.  N.  C.  (N.  Y.)  466;  Chesapeake, 
etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  7  Atl.  809,  59  Am.  Rep. 
167;  State  v.  Bell  Tel.  Co.,  36  Ohio  St.  296,  38  Am.  Rep.  583;  Commercial 
Union  Tel.  Co.  v.  New  England  Tel.,  etc.,  Co.,  61  Vt.  241,  17  Atl.  1071,  15  Am. 
St.  Rep.  893,  5  L.  R.  A.  161 ;  Bell  Tel.  Co.  v.  Commonwealth,  2  Sadler,  299,  3 
Atl.  825;  Missouri  v.  Bell  Tel.  Co.  (C.  C.)  23  Fed.  539;  Delaware,  etc.,  Tel., 
etc.,  Co.  V.  Delaware,  50  Fed.  677,  2  C.  C.  A.  1,  affirming  (C.  C.)  47  Fed.  633. 

Contra,  American,  etc.,  Tel.  Co.  v.  Connecticut,  etc.,  Tel.  Co.,  49  Conn.  352, 
44  Am.  Rep.  237. 


366  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  265 

condition  under  which  the  lease  was  made,  with  respect  to  the 
uses  to  which  these  devices  could  be  put,  was  void.^^® 

§  265.  Lessee's  ground  for  refusal. — It  has  been  strongly  urged 
by  the  lessees  of  these  patented  devices  that  by  reason  of  the  fact 
that  the  American  Bell  Telephone  Company,  being  the  absolute 
and  exclusive  owner  of  such  patents,  having  acquired  the  right  to 
vend,  sell  and  use  them  in  any  manner  which  it  might  see  proper, 
and,  having  leased  under  such  authority  its  patents  to  them,  could 
use  them  only  for  such  purposes  as  were  prescribed  in  the  lease. 
In  other  words,  the  American  Bell  Telephone  Company  was  the 
absolute  and  exclusive  owner  of  these  devices;  that  it  had  the 
right,  in  granting  any  license  to  use  these  apparatuses,  to  limit 
such  use  by  any  condition  which  it  saw  proper  to  impose  upon  the 
licensee ;  and  that  the  licensee  acquired  but  a  limited  right,  and 
could  impart  no  greater  right  to  any  subscriber  than  that  pos- 
sessed by  the  licensee  itself."^  It  is  true  that  this  company  has 
acquired,  through  Bell,  the  inventor,  the  absolute  ownership  of 
these  devices ;  that  it  is  protected  under  its  patent  in  the  vending 
and  selling  of  the  patent  itself;  and  it  may  lease  these  to  any  per- 
son or  corporation  it  may  see  proper,  or  may  refuse  to  make  or  use 
or  allow  any  one  else  to  make  or  use  them ;  but  as  soon  as  the 
right  of  the  property,  in  its  physical  substance,  is  placed  out  to 
any  one  for  public  use,  it  then  loses  the  control  over  its  use.^-" 
The  owner  may  lease  the  devices  for  private  purposes  and  restrict 
its  uses ;  but  so  soon  as  it  is  leased  for  a  public  use  the  public  then 
acquires  an  interest  in  the  property  in  its  physical  nature. ^^^  It  is 
then  subject  to  the  public  control  as  any  other  property  so  used; 
and  no  discrimination  with  respect  to  that  use  can  be  exercised. 
It  must  be  borne  in  mind  that  the  right  of  property  in  the  physical 
substance,  which  is  the  fruit  of  the  discovery,  is  altogether  distinct 
from  the  right  in  the  discovery  itself.^^^     Therefore,  as  soon  as  the 

118  Commercial  Union  Tel.  Co.  v.  New  England,  etc.,  Tel.  Co.,  61  Vt.  241,  17 
Atl.  1071, 15  Am.  St.  Rep.  893,  5  L.  E.  A.  161. 

119  See  cases  cited  117,  Supra. 

120  Commercial  Union  Tel.  Co.  v.  New  England,  etc.,  Tel.  Co.,  61  Vt.  241,  17 
Atl.  1071,  15  Am.  St.  Rep.  S9.3,  5  L.  R.  A.  161. 

Exclusive  right  to  call  number. — The  adoption  of  the  number  for  calling  the 
trouble  department  which  has  been  long  in  use  by  another  company  is  not  un- 
lawful. Rocky  Mt.  Bell  Tel.  Co.  v.  Utah  Independent  Tel.  Co.,  31  Utah,  377, 
88  Pac.  26,  8  L.  R.  A.  (N.  S.)  1153. 

121  Connell  v.  West.  Union  Tel.  Co.,  116  Mo.  34,  22  S.  W.  345,  38  Am.  St. 

122  Commercial  Union  Tel.  Co.  v.  New  England,  etc.,  Tel.  Co.,  61  Vt.  241,  17 
Atl.  1071,  15  Am.  St.  Rep.  893,  5  L.  R.  A.  161. 


§    267)  EQUAL   FACILITIES   TO   ALL  367 

owner  of  these  patented  devices  leases  them  to  be  used  by  another 
company,  he  may  restrict  the  lessee  with  respect  to  the  making, 
selling  or  leasing  of  such  instruments  or  devices ;  but  he  loses  con- 
trol over  the  property  with  respect  to  the  uses  to  which  it  may  be 
put. 

§  266.  Private  unincorporated  companies. — In  some  instances 
telegraph  or  telephone  lines  or  electric  companies  are  constructed 
and  owned  by  private  unincorporated  companies  or  individuals.^-^ 
If  this  be  the  status  of  the  concern,  the  owners  thereof  will  be  un- 
der the  same  obligation  to  furnish  equal  facilities  to,  and  act  im- 
partially with,  all  who  apply  to  them  as  if  said  business  were  in- 
corporated.^-* It  is  the  nature  of  the  service  undertaken  to  be 
performed  that  creates  the  duty  to  the  public,  and  in  which  the 
public  has  an  interest,  and  not  simply  the  body  that  may  be  in- 
vested with  power-^-^  A  man  may  use  his  money  in  any  legal  busi- 
ness he  may  desire,  and  so  long  as  it  is  not  invested  in  an  enter- 
prise in  which  the  public  may  have  an  interest,  he  will  have  exclu- 
sive control  over  it,  or  rather  over  the  enterprise;  but  so  soon  as 
the  money  is  invested  in  a  business  in  which  the  public  has  an  in- 
terest, the  business  must  be,  and  is,  under  the  control  of  the  gov- 
ernment to  that  extent.^^® 

§  267.  Electric  companies — discrimination. — Where  a  corpora- 
tion is  duly  organized  under  the  laws  of  a  state,  with  power  to 
generate,  distribute,  and  supply  electric  currents  for  light,  heat, 
and  power,  and  other  purposes,  to  the  cities  of  the  state  and  the 
inhabitants  of  such  cities,  and  having  accepted  a  franchise  from  a 
city  authorizing  it  to  operate  therein,  it  is  bound  by  implication 
of  law  to  make  no  unreasonable  discriminations  between  those  to 
whom  the  said  service  is  to  be  furnished;    that  is,  it  must  not  be 

Rep.  575,  20  L.  R.  A.  172 ;  Commercial  Union  Tel.  Co.  v.  New  England,  etc., 
Tel.  Co.,  Gl  Vt.  241,  17  Atl.  1071,  15  Am.  St.  Rep.  S93,  5  L.  R.  A.  161. 

123  Magee  v.  Overshiner,  150  Tnd.  127,  49  N.  E.  951,  65  Am,  St.  Rep.  358,  40 
L.  R.  A.  370 ;  State  v.  Cadwallader,  172  Ind.  619,  87  N.  E.  644,  89  N.  E.  319 ; 
Haines  v.  Crosby,  94  Me.  212,  47  Atl.  137;  Bishop  v.  Riddle,  51  Tex.  Civ.  App. 
317,  113  S.  W.  151 ;  State  v.  Twin  Village  Water  Co.,  98  Me.  214,  56  Atl.  763. 
See  Lowther  v.  Bridgeman,  57  W.  Va.  306,  50  S.  E.  410 ;  Crawford  Electric  Co. 
V.  Knox  County  Power  Co.,  110  Me.  285,  86  Atl.  119,  Ann.  Cas.  1914C,  933. 
See  §§  67,  131,  134. 

124  State  V.  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404. 
See  §  248. 

125  Chesapeake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  7  Atl. 
809,  59  Am.  Rep.  167. 

126  Chesaiieake,  etc.,  Tel.  Co.  v.  Baltimore,  etc.,  Tel.  Co.,  66  Md.  399,  7  Atl. 
S09,  59  Am.  Rep.  167. 


368  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  267 

partial,  and  must  serve  alike  all  who  are  similarly  circumstanced 
with  reference  to  its  system,  or  who  are  members  of  any  class  to 
which  it  has  undertaken  or  is  otherwise  bound  to  furnish  serv- 
ice.^"'^  The  wiring  of  an  applicant's  house  for  lighting  purposes, 
or  the  installing  of  radiators  therein  for  heating  purposes,  is  a  busi- 
ness distinct  from  that  of  furnishing  electricity  for  either  or  both 
of  said  purposes,  and  the  company  would  not  be  under  obligation 
to  provide  a  house  with  such  fixtures. ^^^     But  it  would  be  an  un- 

127  Thompson  v.  San  Francisco  Gas,  etc.,  Co.,  IS  Cal.  App.  30,  121  Pac.  9.37; 
Owensboro  Gas  Light  Co.  v.  Hildebrand  (Ky.)  42  S.  W.  351 ;  Snell  v.  Clinton 
Electric  Light,  etc.,  Co.,  196  111.  626,  63  N.  E.  1082,  S9  Am.  St.  Rep.  341,  58 
L.  R.  A.  284 ;  State  v.  Waseca,  122  Minn.  348,  142  N.  W.  319,  46  L.  R.  A.  (N.  S.) 
437 ;  State  v.  Butte  Electric,  etc.,  Co.,  43  Mont.  118,  115  Pac.  44 ;  Schmitt  v. 
Edison  Electric  111.  Co.,  58  Misc.  Rep.  19,  110  N,  Y.  Supp.  44 ;  Armour  Packing 
Co.  V.  Edison  Electric  111.  Co.,  115  App.  Div.  51,  100  N.  Y,  Supp.  605 ;  Cincin- 
nati, etc.,  R.  R.  Co.  V.  Bowling  Green,  57  Ohio  St.  336,  49  N.  E.  121,  41  L.  R.  A. 
422 ;  Allegheny  County  Light  Co.  v.  Shadyside  Electric  Light  Co.,  37  Pa.  Super. 
Ct.  79 ;  Mercur  v.  Media  Electric  Light,  etc.,  Co.,  19  Pa.  Super.  Ct.  519 ;  Stein- 
man  V.  Edison  Electric  111.  Co.,  43  Pa.  Super.  Ct.  77 ;  Kilbourn  City  v.  Southern 
Wisconsin  Power  Co.,  149  Wis.  168,  135  N.  W.  499 ;  Economic  Gas  Co.  v.  Los 
Angeles.  168  Cal.  448,  143  Pac.  717;  Elec.  Co.  v.  Public  Utility  Com'rs,  87  N.  J. 
Law,  128,  93  Atl.  707,  P.  U.  R.  1915C,  229.  See,  also,  Gainesville  v.  Gainesville, 
etc..  Gas  Co.,  65  Fla.  404,  62  South.  919,  46  L.  R.  A.  (N.  S.)  1119 ;  Weld  v.  Gas, 
etc.,  Com'rs,  197  Mass.  556,  84  N.  E.  101;  Minnesota  Canal,  etc.,  Co.  v.  Koo- 
chiching, 97  Minn.  429,  107  N.  W.  405,  5  L.  R.  A.  (N.  S.)  638,  7  Ann.  Cas.  1182 ; 
Andrews  v.  North  River  Electric  Light,  etc.,  Co.,  23  Misc.  Rep.  512,  51  N.  Y. 
Supp.  872;  Reiser  v.  Edison  Electric  111.  Co.,  76  Misc.  Rep.  563,  137  N.  Y. 
Supp.  145 ;  Moore  v.  Champlain  Electric  Co.,  88  App.  Div.  2S9,  85  N.  Y.  Supp. 
37 ;  Moffat  v.  N.  Y.  Edison  Company  (Sup.)  116  N.  Y.  Supp.  683 ;  Nacogdoches 
Light,  etc.,  Co.  v.  Richardson  (Tex.  Civ.  App.)  138  S.  W.  1080;  State  v.  Con- 
sumers' Power  Co.,  119  Minn.  225,  137  N.  W.  1104,  Ann.  Cas.  1914B,  19,  41  L. 
R.  A.  (N.  S.)  1181 ;  State  v.  Water  &  Light  Com'rs,  105  Minn.  472,  117  N.  W. 
827,  127  Am.  St.  Rep.  581,  where  a  municipality  engages  in  the  business  of 
furnishing  electric  light  and  power,  it  is  held  to  the  same  duty  of  giving  fair 
and  impartial  service  to  all  as  a  private  corporation.  State  v.  Waseca,  122 
Minn.  348,  142  N.  W.  319,  46  L.  R.  A.  (N.  S.)  437 ;  State  v.  Jones,  141  Mo.  App. 
299,  125  S.  W.  1169.  Similarly  a  private  corporation  may  not  give  to  a  munici- 
pality to  which  it  furnished  electricity  a  preference  over  private  consumers 
similarly  situated.  Kilbourn  City  v.  Southern  Wisconsin  Power  Co.,  149  Wis. 
168,  135  N.  W.  499 ;  Seaton  Mountain  Elec,  etc.,  Co.  v.  Idaho  Springs  Inv.  Co., 
49  Colo.  122,  111  Pac.  834,  33  L.  R.  A.  (N.  S.)  1078,  holding  that  an  electric 
company  cannot  refuse  to  furnish  heat  to  those  not  using  its  electricity.  See, 
also,  §  248.  Kilbourn  City  v.  Southern,  etc.,  P.  Co.,  149  Wis.  168,  135  N.  W. 
499,  neither  can  city  be  favored.  To  same  effect,  see  Elec.  Co.  v.  Public  Utility 
Com'rs,  supra. 

128  Snell  V.  Clinton  Electric  Light,  etc.,  Co.,  196  111.  626,  63  N.  E.  1082,  89 
Am.  St.  Rep.  341,  58  L.  R.  A.  284,  reversing  95  111.  App.  552,  holding  that  a 
refusal  to  furnish  a  transformer  or  converter  to  a  customer  therefor,  because 
he  did  not  have  his  house  wired  by  the  company,  is  an  unfair  discrimination, 


§    267)  EQUAL   FACILITIES  TO   ALL  369 

reasonable  discrimination  for  a  company  to  require  an  applicant 
for  service  to  procure  for  it  a  right  of  way  to  his  premises,  or  to 
provide  his  house  with  the  wiring,  when  such  conditions  were  not 
imposed  upon  other  applicants  and  patrons. ^^^  These  companies 
cannot  arbitrarily  charge  different  prices  to  different  patrons  for 
light  or  heat,  but  must  treat  all  customers  without  unjust  discrimi- 
nation.^^**   And  while  they  are  not  bound,  in  the  absence  of  statu- 

where  the  company  furnishes  such  appliances  to  those  whose  houses  it  has 
wired.  See  Benson  v.  American  Ilium.  Co.  (Co.  Ct.)  102  N.  Y.  Supp.  206,  de- 
fective interior  wiring,  excuse  for  supplying  current ;  Burke  v.  Mead,  159  Ind. 
252,  64  N.  E.  880;  Ex  parte  Goodrich,  160  Cal.  410,  117  Pac.  451,  Ann.  Cas. 
1913A,  56,  do  not  have  to  furnish  lamps  free  of  charge. 

129  Thompson  v.  San  Francisco  Gas,  etc.,  Co.,  18  Cal.  App.  30,  121  Pac.  937; 
Owensboro  v.  Hildebrand  (Ky.)  42  S,  W.  351 ;  State  v.  Butte  Electric,  etc.,  Co., 
43  Mont.  118,  115  Pac.  44 ;  Andrews  v.  North  River  Electric  Light,  etc.,  Co.,  23 
Misc.  Rep.  512,  51  N.  Y.  Supp.  872 ;  Reiser  v.  Edison  Electric  111.  Co.,  76  Misc. 
Rep.  563,  137  N.  Y.  Supp.  145 ;  Moffat  v.  N.  Y.  Edison  Electric  Co.  (Sup.)  116 
N.  Y.  Supp.  683;  State  v.  Consumers'  Power  Co.,  119  Minn.  225,  137  N.  W. 
1104,  Ann.  Cas.  1914B,  19,  41  L.  R.  A.  (N.  S.)  1181. 

130  Snell  V.  Clinton  Electric  Light,  etc.,  Co.,  196  III.  626,  63  N.  E.  10S2,  89 
Am.  St.  Rep.  341,  58  L.  R.  A.  284,  reversing  95  111.  App.  552 ;  Cincinnati,  etc., 
R.  Co.  V.  Bowling  Green,  57  Ohio  St.  336,  49  N.  E.  121,  41  L.  R.  A.  422 ;  Weld 
V.  Com'rs,  197  Mass.  556,  84  N.  E.  101 ;  Horner  v.  Oxford  Water  &  Electric  Co., 
153  N.  C.  535,  69  S.  E.  607,  138  Am.  St.  Rep.  681 ;  Armour  Packing  Company  v.' 
Edison  Electric  111.  Co.,  115  App.  Div.  51,  100  N.  Y.  Supp.  605 ;  Kilbourn  City 
V.  Wisconsin  Power  Co.,  149  Wis.  168,  135  N.  W.  499. 

Thus,  in  Armour  Packing  Co.  v.  Edison  Electric  111.  Co.,  supra,  it  was  held 
that  a  company  could  not  discriminate  against  one  consumer  in  favor  of  oth- 
ers in  charges  for  the  same  service  under  the  same  conditions,  even  though 
the  contract  fixing  the  rates  between  the  parties  was  expressed  In  writing. 
The  court  said :  "Here  the  plaintiff  contracted  to  pay  certain  rates  in  igno- 
rance of  the  unjust  discrimination  the  defendant  was  making  against  it,  which 
discrimination  has  been  shown  to  be  unlawful,  and  certainly  the  payment 
cannot  attain  to  the  dignity  of  a  defense  complete  in  itself  simply  because  it 
was  the  suliject  of  a  contract  between  the  parties.  The  contract  itself  was  a 
part  of  the  unlawful  discrimination ;  for  by  its  terms  plaintiff  was  required  to 
pay  rates  in  excess  of  those  charged  others  for  the  same  service  under  the 
same  conditions.  The  mere  fact  that  the  payment  was  required,  and  so  by 
reason  of  a  contract,  cannot  very  well  excuse  the  defendant  for  the  unjust 
discrimination  which  by  reason  of  that  contract  springs  into  being ;"  discrim- 
inatory charges  cannot  be  imposed  by  way  of  penalty.  State  v.  Jones,  141  Mo. 
App.  299,  125  S.  W.  11C9.  A  difference  in  charges  based  on  a  fair  and  reason- 
able classification  corresponding  to  actual  differences  in  the  situation  of  con- 
sumers is  not  a  discrimination.  Steinman  v.  Edison  Electric  111.  Co.,  43  Pa. 
Super.  Ct.  77,  where  a  rate  charged  to  retail  customers  was  uniform,  the  com- 
pany furnishing  lamps  free,  except  "that  a  discount  was  allowed  to  a  certain 
class  in  lieu  of  furnishing  lamps,  it  was  not  discriminatory  where  a  consumer 
by  his  own  act  left  the  class  where  the  rate  was  lower  and  entered  the  retail 
class,  paying  the  retail  rate  and  supplying  his  own  lamps.  Ilalpern  v.  New 
Jones  T£l.(2d  Ed.) — 24 


370  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  267 

tory  enactments  to  treat  all  their  patrons  with  absolute  equality,  still 
they  are  bound  to  furnish  light  and  heat  at  a  reasonable  rate  to 

York  Edison  Co.,  Gl  Misc.  Rep.  2SS,  113  N.  Y.  Supp.  790.  A  reduced  rate  may 
be  given  to  those  signing  yearly  contracts.  AUeglieny  County  Light  Co.  v. 
Shady  side  Electric  Light  Co.,  37  Pa.  Super.  Ct.  79 ;  Mercur  v.  Media  Electric 
Light,  etc.,  Co.,  19  Pa.  Super.  Ct.  519,  holding  that:  "The  fact  that  a  par- 
ticular rate  was  charged  for  a  service  from  which  the  relator  voluntarily 
withdrew  is  not  conclusive  that  it  would  be  a  fair  and  reasonable  one  after 
the  line  had  been  changed  and  poles  removed.  The  relator  had  all  the  ad- 
vantages of  the  contract  rate  and  surrendered  them  by  canceling  his  contract 
and  requesting  for  leave  to  pay  for  the  current  on  the  meter  rate.  *  *  * 
All  agree  that  the  company  cannot  give  undue  or  unreasonable  preference,  or 
advantage  to,  or  make  unfair  discrimination  among  its  customei's  where  the 
conditions  are  like  and  circumstances  similar.  To  affect  this  whole  rule  it  is 
not  uecessai'y  for  this  company  to  cancel  all  of  its  original  or  special  contracts, 
even  if  it  has  the  power  to  do  so,  before  it  requires  new  customers  to  pay  by 
a  meter  rate.  This  record  does  not  disclose  the  full  character  of  these  con- 
tracts, nor  the  conditions  which  induced  them.  They  may  have  been,  and 
doubtless  were,  fair  business  and  controlling  reasons  which  were  deemed  ad- 
vantageous to  the  company  as  tending  to  promote  its  interests  at  the  time  they 
were  made,  which  it  would  be  unfair  and  unbusinesslike  to  repudiate  at  this 
time.  The  relator  elected  to  withdraw  from  a  favored  position,  and  cannot 
hold  the  company  responsible  for  his  error  of  judgment.  By  canceling  his 
contract  he  surrendered  all  rights  under  it  and  is  in  the  class  of  new  cus- 
tomers in  regard  to  future  relations.  By  the  meter  system  he  is  required  to 
pay  for  the  correct  amount  of  ciu'rent  he  uses,  and  the  fairness  or  reasonable- 
ness of  this  meter  rate  is  not  questioned  by  him.  Under  the  charter  of  the 
company  he  is  entitled  to  service  only  'at  such  prices  as  may  be  agreed  upon' 
or  show  that  he  is  discriminated  against  in  fav.or  of  patrons  who  receive  serv- 
ice upon  like  condition  and  under  similar  circumstances  to  his  own.  *  *  * 
It  is  not  sufficient  to  say  that  the  contract  to  which  the  relator  is  entitled 
'must  conform  to  other  contracts  executed  with  same  class  of  people.'  He  is 
entitled  to  a  like  service  granted  to  others  who  are  similarly  conditioned,  and 
without  proof  that  he  is  denied  the  right  the  writ  should  not  issue.  The  'class 
of  people'  to  whom  the  service  is  made  is  not  material ;  it  is  the  condition  and 
character  of  the  service  required  in  view  of  location,  extent,  volume,  etc.,  of 
the  service.  The  mere  fact  that  a  different  sum  is  demanded  is  not  unfair  or 
unjust  discrimination." 

In  Graver  v.  Edison  Electric  111.  Co.,  126  App.  Div.  371,  110  N.  Y.  Supp.  603, 
it  was  said:  "A  corporation  engaged  in  furnishing  an  electric  current  is  en- 
titled, like  other  quasi-public  corporations,  to  earn  a  fair  income  upon  its 
investment ;  it  has  a  right  to  fix  its  rates  upon  the  cost  of  the  production,  tak- 
ing into  account  not  only  the  cost  of  coal,  labor,  etc.,  but  the  investment  which 
is  necessary  to  carry  on  the  enterprise,  and,  acting  in  good  faith,  it  has  a 
right  to  make  experimental  contracts  for  the  purpose  of  reaching  a  basis  for 
future  charges  even  though  this  should  result  in  giving  for  a  limited  time  a 
better  rate  to  a  few  customers  than  was  given  to  others  receiving  substantial- 
ly the  same  amount  of  current.  To  hold  otherwise  would  be  to  stand  in  the 
way  of  the  best  development  of  the  business  and  the  fairest  service  to  the  pub- 
lic generally." 

See  Public  Service  Commission  v.  Pacific,  etc.,  L.  Co.,  P.  U.  R.  1916B,  86. 


§    267)  EQUAL   FACILITIES  TO   ALL  371 

every  customer  and  without  unjust  discrimination. ^^^  Usually  the 
municipality  has  the  power  to  fix  upon  maximum  rates  for  elec- 
tricity to  be  consumed,  which  rates  the  company  has  no  right  to 
disregard,  where  they  are  reasonable  in  their  terms  and  are  with- 
out any  discrimination  as  between  citizens  receiving  the  same  kind 
and  degree  of  services ;  and  in  the  absence  of  more  specific  legis- 
lative regulation,  such  rates  may,  under  some  circumstances,  be 
made  the  subject  of  judicial  scrutiny  and  control. ^^-  While  the 
companies  must  not  unjustly  discriminate  against  their  customers 
in  charges,  yet  a  mere  difference  therein  to  different  customers 
does  not  of  necessity  constitute  a  discrimination,^"^  but  the  ques- 

holding  that  separates  may  be  fixed  for  different  communities  served  by  an 
electric  utility  either  through  the  same  or  different  systems,  giving  lower 
rates  to  localities  enjoying  natural  advantages  by  reason  of  population  or 
location. 

131  Snell  V.  Clinton  Electric  Light,  etc.,  Co.,  196  111.  626,  63  N.  E.  10S2, 
89  Am.  St.  Rep.  341,  58  L.  R.  A.  284,  reversing  95  111.  App.  552.  In  com- 
menting on  this,  the  Supi-eme  Court  of  North  Carolina, — in  Griffin  v.  Golds- 
boro  Water  Co.,  122  N.  C.  206,  30  S.  E.  319,  41  L.  R.  A.  240,  says :  "If  this 
were  not  so,  and  if  corporations  existing  by  the  grant  of  public  franchises, 
and  supplying  the  great  conveniences  and  necessities  of  modern  city  life,  as 
water,  gas,  electric  light,  street  cars,  and  the  like,  could  charge  any  rates, 
however  unreasonable,  and  could  at  will  favor  certain  individuals  with  low 
rates,  and  charge  others  exorbitantly  high,  or  refuse  service  altogether,  the 
business  interests  and  the  domestic  comfort  of  every  man  would  be  at  their 
mercy.  *  *  *  The  law  cannot  and  will  not  tolerate  discrimination  in  the 
charges  of  these  quasi  public  corporations.  There  must  be  equality  of  rights 
to  all,  and  special  privileges  to  none." 

In  Cincinnati,  etc.,  R.  Co.  v.  Bowling  Green,  supra,  the  court  said:  "The 
light  company  have  acquired  in  the  village  rights  that  are  in  the  nature  of  a 
monopoly.  *  *  *  ^oth  reason  and  authority  deny  to  a  corporation  clothed 
with  such  rights  and  powers  and  bearing  such  relation  to  the  public  the  power 
to  arbitrarily  fix  the  price  at  which  it  will  furnish  light  to  those  who  desire 
to  use  it.  The  company  was  bound  to  .serve  all  of  its  patrons  alike ;  it  could 
■impose  on  the  plaintiff  in  error  no  greater  charge  than  it  exacted  of  others 
who  had  used  its  lights."  Exclusion  of  similar  service  from  rule,  see  St.  Al- 
bans V,  Vermont  Power,  etc.,  Co.,  P.  U.  R.  1916B,  293. 

132  Horner  v.  Oxford  Water  &  Electric  Co.,  153  N.  C.  535,  69  S.  E.  607, 
138  Am.  St.  Rep.  681. 

133  Snell  v.  Clinton  Electric  Light,  etc.,  Co.,  196  111.  626,  63  N.  E.  1082, 
89  Am.  St.  Rep.  341,  58  L.  R.  A.  284,  reversing  95  111.  App.  552,  depends  upon 
the  circumstances  of  the  case;  Mercur  v.  Media  Electric  Light,  etc.,  Co.,  19 
Pa.  Super.  Ct.  519,  distance  from  the  main  electric  line,  the  number  of  poles 
used,  whether  the  means  of  access  to  a  residence  is  along  a  public  way  or 
over  private  property,  and  the  nature  of  the  obstruction  to  be  overcome  by 
the  company,  are  all  proper  objects  for  consideration  in  determining  whether 
a  certain  charge  is  an  unjust  discrimination;  IMetropolitan  Electric  Supply 
Co.  V.  Ginder,  2  Ch.  799,  65  J.  P.  519,  70  L.  J.  Ch.  802,  84  L.  I.  Rep.  N.  S.  818, 
48  Wkly.  Rep.  508,  where  the  circumstances  differ  or  the  quantities  of  elec- 


372  TELEGRAPH  AND   TELEPHONE   COMPANIES  (§    268 

tion  of  what  constitutes  an  unjust  discrimination  in  this  or  in  other 
respects  depends  upon  the  circumstances  of  the  particular  case.^^* 
These  companies  have  the  right  to  prescribe  practically  the  same 
or  similar  rules  and  regulations  as  telegraph  and  telephone  com- 
panies, and,  as  elsewhere  discussed, ^^^  for  their  convenience  and 
security,  and  refuse  to  accommodate  patrons  who  refuse  to  com- 
ply therewith  where  they  are  just  and  reasonable. ^^"^ 

§  268.  Remedies. — An  action  of  mandamus  is  the  usual  and 
appropriate  remedy  to  be  exercised  when  a  telegraph,  telephone, 
or  electric  company   refuses,   without  legal   cause,  to  furnish   its 

tricit J'  do  not  correspond,  differences  may  be  made  in  the  cliarges  therefor ; 
Steiuman  v.  Elec.  111.  Co.,  43  Pa.  Super.  Ct.  77 ;  Public  Service  Commission  v. 
Pacific,  etc.,  L.  Co.,  P.  U.  R.  191GB,  86,  giving  a  lower  rate  to  localities  enjoy- 
ing natural  advantages. 

Right  to  male  minimum  charge  for  service. — State  v.  Water,  etc.,  Co.,  249 
Mo.  649,  155  S.  W.  826,  Ann.  Cas.  1914D,  452,  where  company  has  been  forced 
to  furnish  light  at  a  certain  rate  per  kilowatt  hour,  it  cannot  contend  that 
the  rate  is  confiscatory  simply  because  there  is  a  loss  on  subscribers  who 
consume  less  than  $1  worth,  as  the  company  is  not  entitled  to  insist  on  a 
profit  on  each  transaction,  but  only  on  its  entire  business.  See,  also,  Gould 
V.  Edison  Electric  111.  Co.,  29  Misc.  Rep.  241,  60  N.  Y.  Supp.  559. 

Option  of  consumer  under  two  schedules — inspection. — See  Rhodes-Burford 
Home,  etc.,  Co.  v.  Union  Light,  etc.,  Co.,  P.  U.  R.  1916B,  645. 

Several  localities  served  by  one  utility — segregation — natural  advantages. — 
See  Public  Service  Commission  v.  Pacific  Power,  etc.,  Co.,  P.  U.  R.  1916B,  86. 

134  Snell  V.  Clinton  Electric  Light,  etc.,  Co.,  196  111.  626,  63  N.  E.  1082, 
89  Am.  St.  Rep.  341,  58  L.  R.  A.  284,  refusing  to  furnish  conformer  or  con- 
verter to  a  customer  without  charge  therefor,  because  he  did  not  have  his 
house  wired  by  the  company,  is  an  unfair  discrimination  where  the  company 
furnishes  such  appliances  free  to  those  whose  houses  it  has  wired.  Gould 
V.  Edison  Electric  111.  Co.,  29  Misc.  Rep.  241,  60  N.  Y.  Supp.  5-59,  holding  that 
a  demand  that  a  prospective  customer  shall  agree  to  pay  a  minimum  charge 
of  $1.50  per  month  is  reasonable,  where  it  is  requested  to  put  in  twelve  ad- 
ditional lamps  for  the  customer,  each  lamp  necessitating  an  investment  of 
$25  on  the  part  of  the  company.  Mercur  v.  Media  Electric  Light,  etc.,  Co., 
19  Pa.  Super.  Ct.  519,  holding  that,  where  a  customer  is  transferred  from  the 
contract  to  the  meter  class  of  patrons  at  his  own  request,  he  cannot  after- 
wards demand  that  he  be  transferred,  if  all  persons  in  the  latter  class  are 
ti'eated  fairly  and  equallj-  and  a  retransfer  would  necessitate  the  incurment 
of  additional  expense  by  the  company.  Graver  v.  Edison  Electric  111.  Co.,  126 
App.  Div.  371,  110  N.  Y.  Supp.  603;  Light,  etc.,  Co.  v.  Light  Co.,  37  Pa.  Suixjr. 
Ct.  79 ;   Light,  etc.,  Co.  v.  Thomas  (Tex.  Civ.  App.)  138  S.  W.  1080. 

13  5  See  §  251  et  seq.  See,  also.  State  ex  rel.  v.  Butte  Elec,  etc.,  Co.,  43 
Mont.  118,  115  Pac.  44. 

136  Compare  Tacoma  Hotel  Co.  v.  Tacoma  Light,  etc.,  Co.,  3  Wash.  316,  28 
Pac.  516,  14  L.  R.  A.  669,  28  Am.  St.  Rep.  35 ;  State  v.  Board  of  Water  Com'rs, 
105  Minn.  472,  117  N.  W.  827,  127  Am.  St.  Rep.  581;  Cumberland  Tel.,  etc., 
Co.  V.  Hobart,  89  Miss.  2.52,  42  South.  319,  119  Am.  St.  Rep.  702.  But  an  elec- 
tric company  supplying  the  public  with  heat  cannot  refuse  to  supply  such 


? 


§    268)  EQUAL   FACILITIES  TO   ALL  373 

services  or  the  continuance  of  same.^^'^  These  companies  are  not 
under  obligations  to  the  public,  in  every  particular  as  common 
carriers,  in  that  they  are  not  insurers  of  correct  transmission  of 
messages;  yet  their  duties  toward  the  public,  with  respect  to  act- 
ing impartially  toward  all  who  apply  to  them,  offering  compliance 
vv^ith  their  reasonable  regulations,  are  the  same  as  common  car- 
riers. While  the  government  will  not  interfere  with  the  internal 
management  of  these  companies,  unless  necessity  demands  it  to 
do  so,  yet,  having  an  interest  in  the  concerns  to  the  extent  of  see- 
ing that  their  acts  toward  the  public  are  impartial,  it  may  regulate 
the  external  management  of  the  company  to  that  extent  through 
the  remedy  mentioned.  But  if,  after  the  writ  has  been  issued, 
there  is  any  showing  that  the  company  has  not  had  the  time  to 
make  the  arrangements  in  supplying  the  facilities,  and  that  they 
will  be  furnished  within  a  reasonable  time,  the  writ  should  be 
stayed  until  proper  time  has  been  given  the  company  to  make  such 
necessary  arrangements. ^^^  While  this  is  usually  the  proper  step 
to  pursue  in  order  to  enforce  the  duties  of  these  companies,  it  is 
also  the  proper  procedure  to  compel  the  lessee  of  patented  devices 
to  furnish  their  instruments  to  all  who  apply  for  services. ^^'^     And 

only  to  those  using  its  electricity.  Seaton  Mountain  Elec,  etc.,  Co.  v.  Idaho 
Springs  Inv.  Co.,  49  Colo.  122,  111  Pac.  8.34,  33  L.  R.  A.  (N.  S.)  1078.  See, 
State  ex  rel.  v.  Jones,  141  Mo.  App.  299,  125  S.  W.  1169 ;  Gainesville  v.  Gaines- 
ville, etc.,  Elec.  P.  Co.,  65  Fla.  404,  62  South.  919,  46  L.  R.  A.  (N.  S.)  1119, 
cannot  discontinue  business. 

137  Crouch  V.  Arnett,  71  Kan.  49,  79  Pac.  1086;  Central  Union  Tel.  Co.  v. 
State,  123  Ind.  113,  24  N.  E.  215;  Central  Union  Tel.  Co.  v.  State,  118  Ind. 
194,  19  N.  E.  604,  10  Am.  St.  Rep.  114 ;  Chesapeake,  etc.,  Tel.  Co.  v.  Balti- 
more, etc.,  Tel.  Co.,  66  Md.  399,  7  Atl.  809,  59  Am.  Rep.  167 ;  State  v.  Kiuloch 
Tel.  Co.,  93  Mo.  App.  349,  67  S.  W.  684;  Mahan  v.  Michigan  Tel.  Co.,  132 
Mich.  242,  93  N.  W.  629 ;  State  v,  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  W. 
237,  52  Am.  Rep.  404 ;  Bell  Tel.  Co.  v.  Commonwealth,  2  Sadler,  299,  3  Atl. 
825;  People  v.  Hudson  River  Tel.  Co.,  19  Abb.  N.  C.  (N.  Y.)  466;  People  v. 
Central,  etc.,  Tel.,  etc.,  Co.,  41  App.  Div.  17,  58  N.  Y.  Supp.  221;  State  v. 
Citizens'  Tel.  Co.,  61  S.  C.  83,  39  S.  E.  257,  85  Am.  St.  Rep.  870,  55  L.  R.  A. 
139;  State  v.  Sunset  Tel.,  etc.,  Co.,  30  Wash.  676,  71  Pac.  198;  Commercial 
Union  Tel.  Co.  v.  New  England  Tel.,  etc.,  Co.,  61  Yt.  241,  17  Atl.  1071,  15 
Am.  St.  Rep.  893,  5  L.  R.  A.  161 ;  JMissouri  v.  Bell  Tel.  Co.,  23  Fed.  (C.  C.)  539 ; 
Huffman  v.  Marcy  Mutual  Tel.  Co.,  143  Iowa,  590,  121  N.  W.  1033,  23  L.  R.  A. 
(N.  S.)  1010 ;  Mason  v.  Consumers'  Power  Co.,  119  Minn.  225,  137  N.  W.  1104, 
Ann.  Cas.  1914B,  19,  41  L.  R.  A.  (N.  S.)  1181. 

13  8  Bell  Tel.  Co,  v.  Commonwealth  (Pa.)  3  Atl.  825.  Compare  Commercial 
Union  Tel.  Co.  v.  New  England  Tel.,  etc.,  Co.,  61  Vt.  241,  17  Atl.  1071,  15 
Am.  St.  Rep.  893,  5  L.  R.  A.  161.  See,  also,  Missouri  v.  Bell  Tel.  Co.  (C.  C ) 
23  Fed.  539. 

139  Id. 


374  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  269 

in  mandamus  proceedings  brought  to  enforce  telephone  companies 
leasing  patented  devices  to  furnish  facilities  it  is  not  necessary  to 
make  the  owner  of  the  patent  a  defendant  in  the  case.^*°  The 
lessee  of  the  patent  is  the  only  necessary  party  defendant,  unless 
the  latter  is  prevented  from  so  doing  by  the  owner  of  the  patent.^*^ 
While  mandamus  is  usually  the  appropriate  remedy  where  these 
companies  have  refused  to  furnish  or  to  continue  their  services  in 
a  given  case  to  patrons,  the  remedy  by  injunction  may,  in  some 
cases,  be  invoked.^*"  These  companies  are  also  liable  for  damages 
in  an  action  at  law/^^ 

§  269.  Measure  of  damages. — While  customers,  having  a  con- 
tractual relation  with  a  public  service  telephone  company,  may  sue 
the  latter  in  tort  where  he  has  suffered  special  injury  by  reason  of 
a  wrongful  removal  of  its  telephone  or  the  discontinuance  of  its 
service,  yet  the  statements  in  the  decisions  of  the  courts  as  to  the 
measure  of  damages  in  such  cases  are  so  divergent  that  it  is  diffi- 
cult to  formulate  any  general  rule  on  the  subject.^**  Furthermore, 
the  inconvenience,  the  annoyance,  and  the  trouble  of  being  without 
a  telephone  is  a  damage  which  no  one  can  accurately  estimate.  It 
is  such  inconvenience  and  annoyance  as  is  only  to  be  fully  appre- 
ciated when  one  is  deprived  of  its  use ;  its  loss  is  a  great  and  dis- 
tinct damage,  yet  such  damage  as  is  not  susceptible  of  exact  meas- 

140  Id.  1*1  Id. 

142  Central  New  York,  etc.,  Tel.  Co.  v.  ATerill,  199  N.  Y.  128,  92  N.  E.  206, 
32  L.  R.  A.  (N.  S.)  494,  139  Am.  St.  Rep.  S7S;  Anderson  v.  Mt.  Sterling  Tel. 
Co.,  S6  S.  W.  1119,  27  Ky.  Law  Rep.  S6S,  contract  for  service  in  consideration 
of  grant  of  right  of  way  will  be  specifically  enforced ;  Williams  v.  :Maysville 
Tel.  Co.,  119  Ky.  33,  82  S.  W.  995,  26  Ky.  Law  Rep.  945,  mandatory  injunc- 
tion ;  Wright  v.  Glen  Tel.  Co.,  112  App.  Div.  745,  99  N.  Y.  Supp.  85,  manda- 
tory injunction;  Sterne  v.  Metropolitan  Tel.,  etc.,  Co.,  33  App.  Div.  169,  53 
N.  Y.  Supp.  467 ;  Central  District,  etc.,  Tel.  Co.  v.  Commonwealth,  114  Pa.  592, 
7  Atl.  926  ;  Tel.  Co.  v.  Tel.,  etc.,  Co.  (C.  C.)  177  Fed.  726  ;  Louisville  Transfer  Co. 
V.  American  District  Tel.  Co.  (Ky.)  24  Alb.  L.  J.  2S3;  Seattle  Elec.  Co.  v. 
Snoqualmie,  etc.,  P.  Co.,  40  Wash.  380,  82  Pac.  713,  1  L.  R.  A.  (N.  S.)  1032. 
Where,  pending  injunction  suit,  a  telephone  company  sold  and  transferred 
its  property  and  rights  to  another,  the  suit  cannot  be  conducted  against  the 
purchaser  merely  as  its  successor.  Sterne  v.  Metropolitan  Tel.,  etc.,  Co., 
supra.  See  Seaton  Mountain  Elec.  Co.  v.  Idaho  Springs  In.  Co.,  49  Colo.  122, 
111  Pac.  834,  33  L.  R.  A.  (N.  S.)  1078;  Gainesville  v.  Gainesville,  etc.,  Elec. 
P.  Co.,  65  Fla.  404,  62  South.  919,  46  L.  R.  A.  (N.  S.)  1119. 

143  See  §  269.  See,  also,  Gardner  v.  Springfield,  etc.,  Elec.  Co.,  154  Mo. 
App.  666,  135  S.  W.  1023 ;   Thompson  v.  Elec.  Co.,  18  Cal.  App.  30,  121  Pac.  937. 

144  Southern  Bell  Tel.  Co.  v.  Earle,  118  Ga.  506,  45  S.  E.  319;  Atlantic 
Standard  Tel.  Co.  v.  Porter,  117  Ga.  124,  43  S.  E.  441;  Barton  v.  Cumber- 
land Tel.  Co.,  116  La.  125,  40  South.  590;  Cumberland  Tel.,  etc.,  Co.  v. 
Hobart,  89  Miss.  252,  42  South.  349,  119  Am.  St.  Rep.  702. 


§    269)  EQUAL  FACILITIES   TO   ALL  375 

urement.^*"  However,  the  amount  of  damages  to  be  allowed  will 
depend  largely  upon  the  facts  in  each  particular  case.  The  cus- 
tomer should  not  be  confined  to  what  would  only  be  a  fair  compen- 
sation for  the  loss  of  the  telephone  or  the  company's  service,  but 
he  should  also  be  awarded  damages  for  such  annoyance,  incon- 
venience, and  humiliation  as  would  be  fairly  attributable  to  the 
particular  wrong  done  in  being  deprived  of  the  services  stipulated 
for.^**^  So,  together  with  the  annoyance  and  inconvenience  result- 
ing from  this  wrongful  act,  it  has  been  held  that  damages  for  men- 
tal anguish  could  be  recovered. ^**^  And  where  a  customer's  busi- 
ness has  been  destroyed  thereby,  it  has  been  held  that  he  was  en- 
titled to  recover  for  prospective  profits  from  his  business. ^*^  In 
some    jurisdictions,    where    the    refusal    to    furnish    service    has 

145  Cumberland  Tel.,  etc.,  Co.  v.  Hobart,  89  Miss.  252,  42  South.  349,  119 
Am.  St.  Rep.  702. 

140  Carmichael  v.  Southern  Bell  Tel.,  etc.,  Co.,  157  N.  C.  21,  72  S.  E.  619, 
Ann.  Cas.  1913B,  1117,  39  L.  R.  A.  (N.  S.)  651;  Cumberland  Tel.,  etc.,  Co.  v. 
Hobart,  89  Miss.  252,  42  South.  349,  119  Am.  St.  Rep.  702 ;  Southwestern  Tel., 
etc.,  Co.  V.  Allen  (Tex.  Civ.  App.)  146  S.  W.  1066,  company  was  liable  for 
wrongfully  discontinuing  service  in  such  general  damages  as  might  reasonably 
be  expected  to  follow  as  the  natural  and  probable  consequences  of  the  act, 
and  for  such  special  damages  as  were  the  natural  and  probable  result  of 
the  special  conditions  of  which  the  company  had  notice.  See,  also,  Car- 
michael V.  Southern  Bell  Tel.,  etc.,  Co.,  162  N.  C.  333,  78  S.  E.  507,  Ann.  Cas. 
1915A,  983,  substantially  upholding  first  case  in  note;  Vinson  v.  Southern 
Bell  Tel.,  etc.,  Co.,  188  Ala,  599,  66  South.  100,  L.  R.  A.  1915C,  450 ;  Glaw- 
son  V.  Southern  Bell,  etc.,  Co.,  9  Ga.  App.  450,  71  S.  E.  747;  Cumberland 
Tel.,  etc.,  Co.  v.  Sutton,  156  Ky.  191,  160  S.  W.  949;  Southern  Tel.  Co.  v. 
King,  103  Ark.  160,  146  S.  W.  489,  Ann.  Cas.  1914B,  780,  39  L.  R.  A.  (N.  S.) 
402 ;  Montgomery  v.  Southwestern  Arkansas  Tel.  Co.,  110  Ark.  480,  161  S.  W. 
1060 ;  Kevand  v.  New  York  Tel.  Co.,  159  App.  Div.  628,  145  N.  T.  Supp.  414 ; 
Southwestern  Tel.,  etc.,  Co.  v.  Andrews  (Tex.  Civ.  App.)  169  S.  W.  218. 

147  Carmichael  v.  Southern  Bell  Tel.,  etc.,  Co.,  157  N.  C.  21,  72  S.  E.  019, 
Ann.  Cas.  1913B,  1117,  39  L.  R.  A.  (N.  S.)  651. 

14  8  Owensboro-Harrison  Tel.  Co.  v.  Wisdom  (Ky.)  62  S.  W.  529,  where  plain- 
tiff had  a  contract  for  three  years,  and  his  business  had  been  destroyed  by  the 
wrongful  removing  of  the  telephone,  the  court  said:  "The  measure  of  damages 
in  such  a  case  is  compensation.  Plaintiff  is  entitled  to  recover  all  loss  and 
damage  sustained  as  the  direct  or  proximate  consequence  of  defendant's  breach 
of  its  contract  susceptible  of  ascertainment  by  competent  evidence.  The  plain- 
tiff is  entitled  to  the  full  value  of  his  contract  as  far  as  ascertainable ;  to  such 
damage  as  might  reasonably  be  supposed  to  be  contemplated  by  the  parties  in 
making  the  contract.  Such  damages  are  usually  easily  susceptible  of  proof." 
But  see  Cumberland  Tel.,  etc.,  Co.  v.  Hicks,  89  Miss.  270,  42  South.  285,  a  phy- 
sician cannot,  in  an  action  for  cutting  off  his  telephone  service,  recover  for  loss  of 
practice  proved  only  by  his  own  testimony  that  certain  persons  told  him  that 
they  had  tried  to  reach  him  by  telephone  to  secure  his  services.     See  Cum- 


376  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  269 

amounted  to  a  willful  and  conscious  invasion  of  the  customer's 
rights,  he  may  be  awarded  punitive  damages/**^  although  this 
would  not  be  the  case  where  the  wrong  was  only  mere  negligence, 
or  an  honest  mistake  without  any  conscious  invasion  of  his 
rights,^-^°  or  where  it  was  due  merely  to  the  inadequacy  of  the  com- 
pany's equipment  to  furnish  the  facilities  demanded. ^^^  In  some 
jurisdictions  such  companies  are  also  liable  for  statutory  penalties. 
While  most  of  the  cases  on  this  subject  relate  to  instances  where 
the  telephone  company  has  removed  its  phone  from  or  discon- 
tinued its  service  with  one  of  its  customers,  without  legal  justifica- 
tion, there  is  no  reason  why  the  same  law  may  not  apply  where  it 
wrongfully  refuses  to  install  a  phone  for,  or  to  furnish  the  neces- 
sary facilities  to  one  demanding  such,  for  in  either  case  the  action 
would  be  based  upon  the  breach  of  the  company's  public  duty. 
And  the  same  rule  of  law  would  apply  in  cases  arising  against  elec- 
tric companies  for  failing  to  comply  with  practically  the  same  pub- 
lic duties.^^^ 

berland  Tel.,  etc.,  Co.  v.  Hendon,  114  Ky.  501,  71  S.  W.  435,  102  Am.  St.  Rep. 
290,  60  L.  R.  A.  849 ;  Southern  Bell  Tel.,  etc.,  Co.  v.  Earle,  118  Ga.  506,  45  S.  E. 
319. 

14  9  Carmicliael  v.  Southern  Bell  Tel.  Co.,  157  N.  C.  21,  72  S.  E.  619,  Ann.  Cas. 
191.3B,  1117,  39  L.  R.  A.  (N.  S.)  651.  See  Southern  Bell  Tel.,  etc.,  Co.  v.  Earle, 
lis  Ga.  506,  45  S.  E.  319 ;  Barton  v.  Cumberland  Tel.,  etc.,  Co.,  116  La.  125,  40 
South.  590 ;  Cumberland  Tel.,  etc.,  Co.  v.  Hendon,  114  Ky.  501,  71  S.  AV.  435,  24 
Ky.  Law  Rep.  1271,  102  Am.  St.  Rep.  290,  60  L.  R.  A.  849,  where  no  proof  of 
pecuniary  loss,  measure  of  damages  is  amount  paid  for  service  during  time  in- 
strument was  disconnected  calculated  at  contract  rate;  Owensboro-Harrison 
Tel.  Co.  V.  Wisdom  (Ky.)  62  S.  W.  529,  23  Ky.  Law  Rep.  97,  substantial  dam- 
ages sustained  where  removal  of  telephone  practically  destroyed  one  branch 
of  plaintiff's  business,  and  jury  allowed  to  consider  profits  which  would  have 
been  made;  Ashley  v.  Rocky  Mountain  Bell  Tel.  Co.,  25  Mont.  286,  64  Pac. 
765,  offered  to  restore  telephone  on  payment  of  certain  sum  provable  in  mitiga- 
tion, since  plaintiff  must  use  effort  to  reduce  his  loss ;  Gwynn  v.  Citizens'  Tel. 
Co.,  69  S.  C.  434,  48  S.  E.  460,  67  L.  R.  A.  Ill,  104  Am.  St.  Rep.  Sl9,  holding 
that  the  fact  that  the  defendant's  switchboard  was  full  may  be  shown  in 
mitigation  of  damages,  but  that  such  fact  will  not  preclude  a  recovery.  See, 
also.  Southern  Tel.  Co.  v.  King,  103  Ark.  160,  146  S.  W.  489,  39  L.  R.  A.  (N. 
S.)  402,  Ann.  Cas.  1914B,  780,  refusal  to  answer  call. 

150  Cumberland  Tel.,  etc.,  Co.  v.  Hendon,  114  Ky.  501,  71  S.  W.  435,  24  Ky. 
Law  Rep.  1271.  102  Am.  St.  Rep.  290,  60  L.  R.  A.  849 ;  Cumberland  Tel.,  etc., 
Co.  V.  Baker,  85  Miss.  486,  37  South.  1012 ;  Gwynn  v.  Citizens'  Tel.  Co.,  69  S. 
C.  434,  48  S.  E.  460,  104  Am.  St.  Rep.  819,  67  L.  R.  A.  111. 

151  Gwynn  v.  Citizens'  Tel.  Co.,  69  S.  C.  434,  48  S.  E.  460,  104  Am.  St.  Rep. 
819,  67  L.  R.  A.  111. 

152  See  §  251.  Compare  Cumberland  Tel.,  etc.,  Co.  v.  Hobart,  89  Miss.  252, 
42  South.  349,  119  Am.  St.  Rep.  705. 


§    269b)  EQUAL   FACILITIES   TO   ALL  377 

§  269a,  May  recover  overcharge. — Telegraph,  telephone,  and 
electric  companies  cannot  charge  their  patrons  for  services  or  for 
electric  currents  more  than  the  lawful  rate,  and  which  must  not  be 
discriminatory  among  those  similarly  situated.  So,  where  the 
same  has  been  done,  and  an  involuntary  payment  thereof  has  been 
made,  such  person  thereby  overcharged  or  discriminated  against 
may  recover  the  difference  between  that  paid  and  that  which  should 
have  been  paid.^^^  The  fact  that  such  payment,  in  either  instance, 
was  made  in  accordance  to  a  special  contract, ^^*  or  that  it  was 
made  without  knowledge  of  the  unlawful  discrimination,  will  not 
change  the  rule.^^^  On  the  other  hand,  where  the  customer  has 
been  undercharged  for  said  services,  or  current,  it  seems  that  the 
company  could  not  recover  the  difference  between  the  price  paid 
and  the  customary  rate.^'*' 

§  269b.  Penalty  for  failure  to  furnish  current. — There  are  stat- 
utes in  some  states  which  provide  that  if  electric  companies  refuse 
to  furnish  their  services  to  customers  who  have  complied  with  the 
company's  rules  and  regulations  and  have  made  proper  demand 
for  same,  a  penalty  may  be  recovered  by  the  customer  if  the  serv- 
ices are  not  furnished  within  a  certain  number  of  days.  In  conse- 
quence of  the  fact  that  these  penalties  being  looked  upon  with  dis- 
favor,^^'  and  the  statutes  creating  them  being  penal,  a  strict  con- 
struction is  placed  upon  such  statutes.  These  penalties  are  cumu- 
lative remedies  and  independent  of  the  actual  damages  which  may 
be  recovered  for  a  failure  to  furnish  services. ^^^  It  is  ordinarily 
required  under  these  statutes  that  the  applicant's  building  should 
be  within  a  reasonable  distance  to  the  plant  ;^^^    that  the  company 

153  Armour  Pkg.  Co.  v.  Edison  Elec.  111.  Co.,  115  App.  Div.  51,  100  N.  Y. 
Supp.  605 ;  Illinois  Glass  Co.  v.  Chicago  Tel.  Co.,  234  111.  535,  85  N.  E.  200,  18 
L.  R.  A.  (N.  S.)  124,  voluntarily  paid. 

154  Armour  Pkg.  Co.  v.  Edison  Elec.  111.  Co.,  115  App.  Div.  51,  100  N.  Y. 
Supp.  605 ;  Armour  &  Co.  v.  Edison  Elec.  111.  Co.,  115  App.  Div.  57,  100  X.  Y. 
Supp.  609.  See  Illinois  Glass  Co.  v.  Chicago  Tel.  Co.,  234  111.  535,  85  X.  E.  200 ; 
18  L.  R.  A.  (N.  S.)  124,  where  payment  is  voluntarily  made  cannot  be  recovered 
back. 

153  Armour  Pkg.  Co.  v.  Edison  Elec.  111.  Co.,  115  App.  Div.  51,  100  N.  Y. 
Supp.  605 ;  Payne  v.  Witherbee,  Sherman  &  Co.,  200  N.  Y.  572,  93  N.  E.  954. 

15  6  Lewisville  Lt.,  etc.,  Co.  v.  Lester,  109  Ark.  545,  160  S.  W.  861.  See  Vine- 
land  V.  Fowler,  etc.,  Mfg.  Co.,  86  N.  J.  Law,  342,  90  Atl.  1054,  L.  R.  A.  1915B, 
711. 

15  7  Thompson  v.  San  Francisco,  etc.,  Elec.  Co.,  20  Cal.  App.  142,  128  Pac. 
347;  Reiser  v.  Edison  Elec.  111.  Co.,  76  Misc.  Rep.  563,  137  N.  Y.  Supp.  145; 
Andrews  v.  North  River  Elec,  etc.,  Co.,  24  Misc.. Rep.  671,  53  N.  Y.  Supp.  810. 

15  8  Reiser  v.  Edison  Elec.  111.  Co.,  76  Misc.  Rep.  563,  137  N.  Y.  Supp.  145. 

169  Moore  v.  Champlain  Elec.  Co.,  88  App.  Div.  289,  85  N.  Y.  Supp.  37. 


378  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  269" 

should  have  received  some  notice  of  the  requirements  of  the  appli- 
cant;^'"' and  that  the  applicant  should  make  a  prepayment  of  all 
sums  due  the  company,  before  the  latter  will  be  liable  thereun- 
der.161 

§  269c.  Excuses  for  not  rendering  services. — A  telegraph,  tele- 
phone, or  an  electric  company  cannot  refuse  to  furnish  its  services 
to  any  one  who  has  ofifered  to  comply  with  all  the  reasonable  rules 
and  regulations  of  the  company. ^°^  Neither  can  one  of  these  com- 
panies discontinue  services  to  the  public,  and  a  burdensome  ordi- 
nance will  be  no  excuse  therefor.^''^  There  may  be  instances,  how- 
ever, where  the  company  may  have  a  good  excuse  for  not  furnish- 
ing or  continuing  services. ^^*  With  respect  to  telegraph  and  tele- 
phone companies,  this  question  has  been  discussed  elsewhere,^°^ 
and  so  we  will  only  mention  certain  instances  where  an  electric 
company  may  be  justified  in  refusing  to  furnish  or  continue  the 
furnishing  of  electric  currents.  Thus,  where  the  building  desired 
to  be  lighted  or  heated  has  been  wired  by  some  other  company,  the 
company  should  have  an  opportunity  to  inspect  the  wiring  of  such 
building,  and  may  refuse  to  furnish  or  supply  the  current  until  said 
inspection  has  been  made.^®°  In  England  it  is  necessary  that  a 
contract  be  made  between  the  company  and  the  customer  before 

160  Reiser  v.  Edison  Elec.  111.  Co.,  76  Misc.  Rep.  563,  137  N.  Y.  Siipp.  145; 
Andrews  v.  North  River  Elec.,  etc.,  Co.,  23  Misc.  Rep.  512,  51  N.  Y.  Supp.  872 ; 
Moffat  V.  Edison  Co.  (Sup.)  116  N.  Y.  Supp.  683. 

101  Thompson  v.  San  Francisco,  etc.,  Elec.  Co.,  20  Cal.  App.  142,  128  Pac.  347. 

162  state  V.  Nebraska  Tel.  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep. 
404 ;  Crouch  v.  Arnett,  71  Kan.  49,  79  Pac.  1086 ;  People  v.  Hudson  River  Tel. 
Co.,  19  Abb.  N.  C.  (N.  Y.)  466 ;  State  v.  Citizens'  Tel.  Co.,  61  S.  C.  83,  39  S.  E. 
257,  85  Am.  St.  Rep.  870,  55  L.  R.  A.  139 ;  State  v.  Bell  Tel.  Co.,  36  Ohio  St. 
296,  38  Am.  Rep.  583 ;  Delaware,  etc.,  Tel.,  etc.,  Co.  v.  Delaware,  50  Fed.  677,  2 
C.  C.  A.  1,  affirmed  (C.  0.)  47  Fed.  633. 

The  fact  that  the  company  as  a  special  favor  to  one  or  two  persons  has  ren- 
dered them  services  which  it  is  not  obligated  to  furnish  under  terms  of  its 
franchise  does  not  require  it  to  furnish  similar  services  to  the  others.  Younts 
v.  Tel.,  etc.,  Co.  (C.  C.)  192  Fed.  200. 

Buying  quotations  of  Board  of  Trade. — A  telegraph  company  which  buys  the 
continuous  quotations  of  a  Board  of  Trade  and  supplies  them  to  some  cannot 
refuse  to  supply  the  same  to  others  who  are  willing  to  comply  with  the  com- 
pany's rules  and  regulations.  West.  U.  Tel.  Co.  v.  State,  165  Ind.  492,  76  N.  E. 
100,  3  L.  R.  A.  (N.  S.)  151,  6  Ann.  Cas.  880. 

16  3  Gainesville  v.  Gainesville,  etc.,  Elec.  P.  Co.,  65  Fla.  404,  62  South.  919,  46 
L.  R.  A.  (N.  S.)  1119. 

164  state  V.  Waseca,  122  Minn.  348,  142  N.  W.  319,  46  L.  R.  A.  (N.  S.)  437. 

165  See  §  258  et  seq.     See,  also,  chapter  XVI. 

166  Benson  v.  American  111.  Co.  (Co.  Ct.)  102  N.  Y.  Supp.  206. 


II 


§    269c)  EQUAL   FACILITIES   TO   ALL  379 

the  former  can  be  forced  to  furnish  its  currents;  ^"^^  but  in  this 
country  the  company,  it  seems,  can  be  forced  to  furnish  the  cur- 
rent before  a  contract  has  been  completely  made  between  the  par- 
ties. The  company  may  also  refuse  to  furnish  its  currents  unless 
there  is  a  prepayment  of  the  rates  or  charges. ^"^  And  it  seems 
that  the  company  could  also  require  the  customer  to  prepay  all 
rates  and  charges  in  arrear  before  it  could  be  forced  to  furnish  cur- 
rents.^°^  In  a  proceeding  to  compel  a  company  to  supply  elec- 
tricity, the  burden  is  upon  it  to  establish  a  defense  predicated  upon 
its  inability,  through  physical,  legal,  financial,  or  other  obstacles, 
to  furnish  the  services  demanded. ^^"^ 

167  Husey  v.  London  Elec.  Sy.  Corp.,  1  Ch.  411,  71  L.  J.  Ch.  313,  SG  L.  T. 
166,  50  A.  R.  420. 

I'cs  Minneapolis,  etc.,  Elec.  Co.  v,  Minneapolis  (C.  C.)  194  Fed.  215;  Thomp- 
son V.  San  Francisco,  etc.,  Elec.  Co.,  20  Cal.  App.  142,  12S  Pac.  347;  Marion 
Elec,  etc.,  Co.  v.  Rochester,  149  Ky.  810,  149  S.  W.  977. 

169  See  §  260,  and  cases  cited  thereunder. 

170  state  V.  Consumers'  P.  Co.,  119  Minn.  225,  137  N.  W.  1104,  41  L.  E.  A. 
(N.  S.)  1181,  Ann.  Cas.  1914B,  19. 


380  TELEGRAPH  AND  TELEPHONE  COMPANIES 


CHAPTER  XII 

TRANSMISSION  AND  DELIVERY  OF  MESSAGES— GENERAL  NATURE 

OF  LIABILITY 

§  270.  Transmission  of  messages — duties  in  general. 

271.  Duty  of  telegraph  companies  to  transmit — arises  not  on  contract  alone. 

272.  Same  continued — further  duties — to   accept  and  deliver — in   general. 

273.  Same  continued — must  accept  proper  messages — not  improper  or  such 

as  would  subject  the  company  to  indictment. 

274.  Same  continued — such  as  would  subject  to  action  of  tort. 

275.  Same  continued — lines  down — other  reasons. 

276.  Must  be  properly  tendered — in  writing. 

277.  Same  continued — must  be  on  company's  blank. 

278.  Delivery  to  messenger  boy — not  delivery  to  company. 

279.  Same  continued — prepayment  of  charges  before  accepting. 

280.  Same  continued — failure  to  receive — damages — functions. 

281.  Transmit  without  delay. 

282.  Burden  of  evidence — delay — presumption. 

283.  Duty  to  inform  sender  when  delay  unavoidable. 

284.  Must  transmit  without  error. 

285.  Same — degree  of  care  in  transmission. 

286.  Liability  under  statutes— all  mistakes. 

287.  Same  continued — damages — actual — errors  in  transmission. 

288.  Duty  to  deliver — addressee — in  general. 

289.  Excuse  for  nondelivery. 

290.  Same  continued — not  excused  for. 

291.  Duty  to  inform  sender  of  nondelivery. 

292.  To  whom  made — delivery. 

293.  Delivery  to  wife. 

294.  Delivery  to  hotel  clerk — not  sufficient. 

295.  Wliere  two  parties  have  same  name — delivery  to  one. 

296.  In  care  of  another. 

297.  To  authorized  agent. 

298.  Manner  of  delivery — written  copy. 

299.  No  duty  to  forward  messages. 

300.  Time  to  deliver. 

301.  Same  continued — two  messages  of  same  nature  received  within  office 

hours. 

302.  Free  delivery  limit. 

303.  When  sendee  lives  several  miles  from  office. 

304.  Same  continued — may  waive  right. 

305.  No  delivery  limit  fixed. 

306.  Must  use  due  diligence  to  deliver. 

307.  Same  continued — illustrations. 

308.  Diligence  exercised — evidence — burden  of  proof. 

309.  Failure  to  designate  with  accuracy  the  address. 

310.  Penalty  imposed  for  failure  to  deliver, 

311.  Duty  to  preserve  secrecy  of  message. 


§    271)  AS  TO  MESSAGES LIABILITY  381 

§  312.  Same  continued — imposed  by  statute. 

313.  Same  coutiDued — applicable  to  telephone  companiea, 

314.  Messages  "in  care  of"  common  carriers. 

315.  Same  continued — telephone. 

316.  Message  for  person — make  reasonable  search. 

317.  Same  continued — when  compensated. 

318.  Long-distance  telephone — disconnected  at  intermediate  points. 

§  270.  Transmission  of  messages — duties  in  general. — While 
telegraph  companies  are  not  common  carriers,  in  the  strict  sense 
of  the  term,  in  that  they  are  not  insurers  of  a  correct  transmission 
of  messages,  yet  the  duty  which  they  owe  the  public  is  very  simi- 
lar to  that  of  carriers.^  They  must  serve  impartially  all  who  apply 
to  them  for  services  ;2  must  be  equipped  with  ample  and  modern 
facilities;  2  have  only  skilled,  experienced,  and  reliable  employes;* 
and  exercise  the  highest  degree  of  care  and  diligence  in  the  trans- 
mission of  messages.^  So  long  as  they  discharge  their  duties  in 
these  respects,  they  will  not  be  liable  for  damages  incurred  as  a 
result  of  errors  made  in  the  transmission  of  messages ;  but  so  soon 
as  they  are  guilty  of  negligence  in  either  of  these  duties,  and  dam- 
ages arise  thereby,  they  will  be  liable.  The  business  of  these  com- 
panies has  become  so  great  in  the  commercial  world  that,  in  order 
to  accomplish  successfully  those  duties  imposed  upon  them  by  the 
public,  they  should  be  held  to  the  strictest  accountability  in  the 
performance  and  discharge  of  such  duties.  So,  while  not  being 
insurers  of  a  correct  transmission  of  messages,  they  should  be  held, 
on  account  of  the  very  great  importance  of  their  undertaking,  to  a 
strict  observance  of  the  absolute  necessity  of  the  highest  degree  of 
care  in  the  transmission  of  all  messages  intrusted  to  them. 

§  271.  Duty  of  telegraph  companies  to  transmit — arises  not  on 
contract  alone. — The  duties  and  obligations  of  telegraph  compa- 
nies to  transmit  and  deliver  messages  do  not  arise  altogether  from 
contracts.  They  are  quasi-public  corporations,  exercising  privileges 
acquired  from  the  state  and  federal  government,  which  imposes  on 
them  a  greater  duty  than  could  be  enjoyed  if  it  were  a  mere  contract 
made  between  two  individuals.  It  is  true  that  they  can  make  rea- 
sonable contracts  with  their  patrons  whereby  they  may  limit,  to  a 

1  See  chapter  II.  See,  also,  Stewart-Morehead  Co.  v.  Postal  Tel.  Cable  Co., 
131  Ga.  31,  61  S.  E.  1045,  127  Am.  St.  Rep.  205.  18  L.  R.  A.  (N.  S.)  692; 
Halsted  v.  Postal  Tel.  Cable  Co.,  193  N.  T.  293,  85  N.  E.  1078  19  L  R  A 
(N.  S.)  1021,  127  Am.  St.  Rep.  952. 

2  See  chapter  II.  Stewart-Morehead  Co.  v.  Postal  Tel.  Cable  Co.,  131  Ga. 
31,  61  S.  E.  1045,  127  Aju.  St.  Rep.  205,  18  L.  R.  A.   (N.  S.)  692. 

8  See  chapter  II. 

*  See  chapter  X.  6  gee  §  285. 


382  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  272 

certain  extent,  their  common-law  liabilities,  but  they  cannot  evade 
their  entire  duties  and  obligations  which  they  owe  the  public  by  a 
contract.®  This  would  give  them  too  much  power  by  which  frauds 
would  be  perpetrated  and  impositions  cast  upon  the  public ;  since  it 
is  often  the  case  that  these  companies  are  called  on  to  transmit  mes- 
sages of  the  greatest  importance,  and  in  order  to  accomplish  the 
purposes  for  which  they  are  sent,  they  should  be  transmitted  in  the 
most  possible  haste.  When  this  is  the  case,  the  sender  has  no  time 
to  investigate  the  purport  and  nature  of  the  contract,  and  should 
not  be  forced,  at  such  a  time,  to  accept  any  contract  which  may  be 
held  out  to  him  by  the  company.'^  It  is  a  duty  which  they  owe  the 
government  to  make  prompt  and  correct  transmissions  of  messages, 
and  it  is  not  necessary  that  such  a  duty  be  imposed  on  them  by  the 
statutes;  since  it  is  a  common-law  duty.®  It  is  true  that  the  con- 
tract for  sending  gives  force  and  effect  to  the  duty  which  is  imposed 
upon  such  companies,  but  the  contract  alone  does  not  fix  the  meas- 
ure of  their  duties  and  obligations.  This  contract  must  be  con- 
trolled, to  a  certain  extent,  by  the  public  duty ;  since,  if  there  is 
any  material  part  of  the  contract  in  conflict  with  this  public  duty, 
it  will  be  of  no  force  and  effect.® 

§  272.  Same  continued — further  duties — to  accept  and  deliver — 
in  general. — Telegraph  companies  are  under  a  legal  duty  to  accept, 
transmit  and  deliver,  without  error  or  delay,  all  proper  messages 
presented,  after  they  have  been  compensated  for  such  service,  and 
any  injury  arising  proximately  out  of  a  failure  to  perform  such 
duty,  will  subject  them  to  damages.^"    They  are  exercising  a  public 

6  Stewart-Moreliead  Co.  v.  Postal  Tel.  Cable  Co.,  131  Ga,  31,  61  S.  E. 
1045,  127  Am.  St.  Rep.  205,  IS  L.  R.  A.  (N.  S.)  692;  Green  v.  Tel.  Co.,  136 
N.  C.  4S9,  49  S.  E.  165,  67  L.  R.  A.  98-5,  103  Am.  St.  Rep.  9.55,  1  Ann.  Cas. 
349.  holding  tbat  "a  breach  of  this  duty  is  a  breach  of  the  law,  and  for  this 
breach  an  action  lies,  founded  on  the  Georgia  law,  which  action  calls  in 
the  aid  of  a  contract  to  support  it."  See,  also,  Cashion  v.  West.  U.  Tel.,  etc., 
Co.,  124  N.  C.  459,  32  S.  E.  746,  45  L.  R.  A.  160;  Cogdell  v.  West.  U.  Tel., 
etc.,  Co.,  135  N.  C.  431,  47  S.  E.  490;  Landie  v.  West.  U.  Tel.,  etc.,  Co.,  124 
N.  C.  528,  32  S.  E.  886. 

7  See  §  381  et  seq. 

8  See  §  255. 

9  Smith  V.  West.  U.  Tel.  Co.,  83  Ky.  104.  4  Am.  St.  Rep.  126 ;  Ellis  v. 
American  Tel.  Co.,  13  Allen  (Mass.)  231;  Wadsworth  v.  West.  U.  Tel.  Co., 
86  Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep.  864 ;  West.  U.  Tel.  Co.  v.  Reynolds, 
77  Va.  173,  46  Am.  Rep.  715. 

10^  telegram  is  in  transit  not  only  while  it  is  being  sent  over  the  wires, 
but  during  the  time  it  is  in  the  hands  of  the  messenger  for  delivery  after  it 
reaches  the  place  where  the  addressee  resides.  Brown  v.  West.  U.  Tel.  Co., 
85  S.  C.  495,  67  S.  E.  146,  137  Am.  St.  Rep.  914. 

"Deliver" — irhat  is. — "To  deliver  means  to  hand  over.  To  transmit  is  to 
communicate ;    to  send  from   one  person  to  another.     The  terms  imply,  to 


§    273)  AS  TO  MESSAGES LIABILITY  SSS' 

employment  and  must  subject  themselves  to  all  demands  of  the 
government.  As  public  servants,  they  should  be  ready  and  willing 
to  obey  any  mandate  or  request  of  the  public.  "Their  relation  to 
the  public  imposes  upon  them  the  duty  of  undertaking  as  well  as 
the  duty  of  performing,  and  the  violation  of  either  duty  is  a  negli- 
gence, a  tort.  It  is  the  equivalent,  therefore,  of  an  affirmative  inter- 
ference by  a  mere  private  person  to  hinder  or  obstruct  communi- 
cation. For  one  of  these  companies  not  to  receive  or  not  to  transmit 
and  dehver  a  dispatch  when  it  ought  to  do  so  is  more  than  a  refusal 
to  contract  or  than  the  breach  of  a  contract.  It  is  a  wrong  as  pro- 
nounced as  would  be  that  of  a  person  who  should  forcibly  exclude 
another  from  the  telegraph  office,  and  prevent  him  from  handing  in 
a  dispatch  which  he  desired  to  lodge  for  transmission.  In  dealing 
with  the  wrong  as  such,  the  element  of  contract  is  not  involved."  ^^ 
§  273.  Same  continued — miust  accept  proper  messages — not  im- 
proper or  such  as  would  subject  the  company  to  indictment. — The 
first  duty  of  these  companies  is  to  accept  all  proper  messages  pre- 
sented to  them  for  transmission,  after  a  payment  has  been  made,  or 
an  offer  to  pay  a  reasonable  sum  for  such  services. ^^  While  this  is 
the  general  rule,  yet  there  may  be  instances  when  these  companies 
may  refuse  to  accept  messages  for  transmission.^^  Thus  they  may 
refuse  to  accept  a  message  for  transmission,  which  clearly  shows  on 
its  face  matters  which  would  subject  them  to  a  criminal  prosecu- 

some  extent,  the  same  idea,  the  distinction  being  that  the  latter  implies 
separation  of  the  actors.  There  is  nothing  to  lead  to  the  conclusion  that 
while  a  message  is  passing  over  the  wire  it  is  being  transmitted,  and  while 
in  the  possession  of  the  messenger  boy,  being  carried  to  its  destination,  it  is 
being  delivered.  We  think  the  whole  constitutes  one  transaction,  the  pass- 
ing of  the  message  between  the  sender  and  the  person  to  whom  it  is  sent." 
Kirby  v.  West.  U.  Tel.  Co.,  77  S.  C.  404,  58  S.  E.  10,  128  Am.  St.  Rep.  580. 
See  Hall  v.  West.  U.  Tel.  Co.,  59  Fla.  275,  51  South.  819,  27  L.  R.  A.  (N.  S.) 
639. 

iiHalsted  v.  Postal  Tel.  Cable  Co.,  193  N.  T.  293,  So  N.  E.  1078.  19  L. 
R.  A.  (N.  S.)  1021,  127  Am.  St.  Rep.  952;  West.  U.  Tel.  Co.  v.  INIilton.  53 
Fla.  484,  43  South.  495,  11  L.  R.  A.  (N.  S.)  5G0,  125  Am.  St.  Rep.  1077; 
Stewart-Morehead  Co.  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045, 
127  Am.  St.  Rep.  205,  IS  L.  R.  A.  (N.  S.)  692 ;  Green  v.  Tel.  Co.,  136  N.  C. 
489,  49  S.  E.  165,  67  L.  R.  A.  985,  103  Am.  St.  Rep.  9.55,  1  Ann.  Cas.  349; 
Hall  V.  West.  U.  Tel.  Co.,  59  Fla.  275,  51  South.  819.  27  L.  R.  A.  (N.  S.) 
639;  Vermilye  v.  Postal  Tel.  Cable  Co.,  205  Mass.  598,  91  N.  E.  904,  .30  L. 
R,  A.  (N.  S.)  472;  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  2T 
Am.  St.  Rep.  260,  14  L.  R.  A.  95.    See  §  288. 

12  Geor</ia.— Stewart  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045, 
18  L.  R.  A.  (N.  S.)  692,  127  Am.  St.  Rep.  205;  Jeffries  v.  West.  U.  Tel. 
Co.,  2  Ga.  App.  853,  59  S.  E.  192;    Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  3.50. 

1 3  See  §  275  et  seq.  When  company's  employes  on  strike,  see  §§  302  and 
363. 


384  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  273 

tion.^*  No  person  is  under  any  legal  duty  or  can  be  compelled  by 
law  to  commit,  foster  or  aid  in  the  commission  of  a  crime.  The 
laws  were  enacted  and  are  enforced  to  accomplish  the  direct  oppo- 
site results.  Telegraph  companies  are  but  persons  in  the  eye  of  the 
law,  enjoying  certain  privileges  and  immunities  as  such,  and  for 
the  reason  that  their  rights  and  duties  toward  the  government  are 
somewhat  different  from  that  of  individuals  is  no  reason  why  they 
should  be  under  any  obligation  to  the  public  to  do  an  act  which 
would  make  them  liable  criminally.  It  follows,  therefore,  that  they 
are  under  no  obligations,  or  can  be  forced,  to  accept  a  message  for 
transmission  which  would  have  the  tendency  of  subjecting  them  to 

13  S.  E.  562.  27  Am.  St.  Rep.  259,  14  L.  R.  A.  95 ;  Dunn  v.  West.  U.  Tel.  Co., 
2  Ga.  App.  845,  59  S.  E.  189. 

nWiois.— Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38;  Beggs 
V.  Tel.  Cable  Co.,  159  111.  App.  247. 

Indiana. — Central  Union  Tel.  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E. 
1035;  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495;  West.  U.  Tel.  Co.  v.  State, 
165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.)  153,  6  Ann.  Cas.  880. 

Kentncky.— Commonwealth  v.  West.  U.  Tel.  Co.,  112  Ky.  355,  67  S.  W.  59, 
23  Ky.  Law  Rep.  1633,  99  Am.  St.  Rep.  299,  57  L.  R.  A.  614. 

Maine.— Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep. 
211. 

Massachusetts.— Yermilye  v.  Postal  Tel,  Cable  Co.,  205  Mass.  598,  91  N, 
E.  904,  30  L.  R.  A.  (N.  S.)  472. 

Michigan. — West.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525. 

2\  ebrasA-o.— West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506, 
48  Am.  St.  Rep.  729,  27  L.  R.  A.  622 ;  Nebraska  Tel.  Co.  v.  State,  55  Neb.  627, 
76  N.  W.  171,  45  L.  R.  A.  113. 

Neiv  Yorfc.— Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.  132,  8  Am.  Rep.  526 ;  De  Rutte 
V.  N.  Y.,  etc..  Electric  Magnetic  Tel.  Co.,  1  Daly,  547.  See,  also,  U.  S.  Tel. 
Co.  V.  West.  U.  Tel.  Co.,  56  Barb.  46;  Atlantic,  etc.,  Tel.  Co.  v.  West.  U. 
Tel.  Co.,  4  Daly,  527. 

North  Carolina.— Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S.  E.  71,  22 
L.  R.  A.   (N.  S.)  540. 

Tennessee.— Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496;  Cum- 
berland Tel.  Co.  V.  Brown,  104  Tenn.  56,  55  S.  W.  155,  50  L.  R.  A.  277,  78 
Am.  St.  Rep.  906. 

Texas.— West.  U.  Tel.  Co.  v.  Downs,  25  Tex.  Civ.  App.  597,  62  S.  W.  1078 ; 
West.  U.  Tel.  Co.  v.  Neill,  57  Tex.  283.  44  Am.  Rep.  589. 

Vermont.  Commercial  Union  Tel.  Co.  v.  New  England  Tel.,  etc.,  Co.,  61 
Vt.  241,  17  Atl.  1071,  15  Am.  St.  Rep.  893,  5  L.  R.  A.  161;  Gillis  v.  West. 
U.  Tel.  Co.,  61  Vt.  401,  17  Atl.  736,  15  Am.  St.  Rep.  917,  4  L,  R.  A.  611. 

United  States.— Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct. 
1098,  38  L.  Ed.  883;    Nye  v.  West.  U.  Tel.  Co.  (C.  C.)  104  Fed.  628. 

Nature  of  liability. — The  refusal  of  a  telegraph  company,  without  legal 
excuse,  to  accept  and  transmit  a  message  tendered  to  it,  is  an  actionable 
tort.  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S.  E.  71,  22  L.  R.  A. 
(N.  S.)  540. 

14  Louisville  v.  Wehmhoff,  116  Ky.  812,  76  S.  W.  876,  79  S.  W.  201,  25  Ky. 
Law  Rep.  995,  1924 ;  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  3.50,  13  S.  E.  562,  27 
Am.  St.  Rep.  2.59,  14  L.  R.  A.  95;  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C. 
402,  63  S.  E.  71,  22  L.  R.  A.   (N.  S.)  540. 


§    274)  AS  TO  MESSAGES LIABILITY  385 

a  criminal  prosecution,  either  as  a  principal  or  an  accessory.^'  To 
relieve  the  company,  however,  of  this  duty,  it  must  clearly  appear 
on  the  face  of  the  message  that  it  would  subject  it  to  an  indictment, 
and  every  doubt  should  be  construed  in  favor  of  the  message.^® 
The  moral  effect  of  the  telegram  would  not  be  for  their  considera- 
tion,^^ and  yet  they  may  refuse  to  accept  any  message  which  shows 
any  indecency  or  profanity  on  its  face.^*  In  many  instances  the 
messages  presented  to  the  company  are  written  in  such  a  style  or 
in  such  a  manner  as  that  it  would  not  be  apprised  of  their  meaning 
or  purport,  and  among  which  there  may  be  some  which  are  very 
immoral;  yet  the  company,  not  being  able  to  ascertain  the  meaning 
of  these  on  their  face,  it  being  presumed  that  the  operators  could 
not  read  the  minds  and  consciences  of  the  sender,  should  not,  there- 
fore, be  held  liable  for  their  moral  efifect,^^ 

§  274.  Same  continued — such  as  would  subject  to  action  of  tort. 
So,  for  the  same  reasons,  a  telegraph  company  is  not  under  obliga- 
tions to  any  one  to  accept  a  message  for  transmission  which  would 
lay  it  liable  to  an  action  of  tort.-**  While  they  may  and  do  commit 
torts  in  many  and  various  ways,  yet  they  cannot  be  forced  to  do 
any  act  which  would  make  them  liable  for  one.^^  "Doubtless,"  as 
was  said  on  this  subject,  "a  dispatch  to  be  entitled  to  transmission 
must  be  free  from  open  indecency  or  profanity,  and  perhaps  other 

15  Id. 

18  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259, 
14  L.  R.  A.  95,  where  the  court  said :  "When  a  dispatch  is  ambiguous,  the 
law  would  give  the  benefit  of  the  ambiguity  to  the  company  in  dealing  with 
it  either  civilly  or  criminally  for  transmitting  the  dispatch ;  and  hence  it 
would  be  the  duty  of  the  company,  in  deciding  whether  to  transmit  or  not, 
to  give  the  benefit  of  the  doubt  to  the  sender." 

I'^West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495;  Commonwealth  v.  West.  U. 
Tel.  Co.,  112  Ky.  355,  67  S.  W.  59,  23  Ky.  Law  Rep.  1633,  99  Am.  St.  Rep. 
299,  57  L.   R.  A.  614. 

18  See  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562.  27  Am.  St.  Rep. 

259,  14  L.  R.  A.  95 ;  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  405 ;  Nye  v.  West. 
U.  Tel.  Co.  (C.  C.)  104  Fed.  628 ;  West.  U.  Tel.  Co.  v.  Lillard,  86  Ark.  208.  110 
S.  W.  1035,  17  L.  R.  A.  (N.  S.)  836;  Peterson  v.  West.  U.  Tel.  Co.,  65  Minn. 
IS,  67  N.  W.  646,  33  L.  R.  A.  302. 

19  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495 ;  Commonwealth  v.  West.  U. 
Tel.  Co.,  112  Ky.  355,  67  S.  W.  59,  23  Ky.  Law  Rep.  16.33,  99  Am.  St.  Rep.  299, 
57  L.  R.  A.  614 ;  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  3.50,  13  S.  E.  562.  27  Am. 
St.  Rep.  260,  14  L.  R.  A.  95;  Smith  v.  West.  U.  Tel.  Co.,  84  Ky.  664,  2  S. 
W.  483. 

2  0  Peterson  v.  West.  U.  Tel.,  65  Minn.  18,  67  N.  W.  646,  33  L,  R.  A.  302. 
See,  also,  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep. 
2.59,  14  L.  R.  A.  95. 

21  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  14  L.  R.  A.  95,  27  Am.  St.  Rep. 

260,  13  S.  E,  562. 

Jones  Tel.(2d  Ed.)— 25 


386  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  275 

vices  of  language  might  condemn  it;  but  supposing  it  to  be  proper 
in  tone  and  expression,  we  should  say  that  the  companies  would 
have  no  concern  with  its  import  unless  it  sought  to  subserve  either 
crime  or  tort.  If  it  disclosed  either  of  these  objects,  it  seems  to  us 
that  the  company,  for  its  protection,  might  and  should  refuse  to 
handle  it.  It  would  be  unreasonable  to  suppose  that  the  legislature 
intended  telegraph  companies  to  aid  in  the  perpetration  of  crimes 
or  actionable  wrongs,  for  this  would  be  to  constrain  them  to  do  by 
legislative  mandate  what  they  would  have  no  right  to  do  by  their 
own  choice."  ^^ 

§  275.  Same  continued — lines  down — other  reasons. — If  the 
company's  lines  are  down,  or  for  any  other  reason  it  cannot  trans- 
mit the  messages,  it  may  decline  to  accept  same ;  but  if  the  com- 
pany accepts  the  message,  knowing  these  facts,  without  informing 
the  sender,  it  will  be  liable  for  a  faikire  to  transmit,  although  the 
transmission  was  impossible.*^  Thus,  where  the  company's  agent 
receives  the  message  to  be  transmitted  to  a  certain  place,  it  will  be 
liable  for  a  failure  to  transmit,  even  though  the  company  has  uq 
office  at  this  place,  which  fact  the  agent  did  not  know  until  after 
the  message  had  been  received.-*  If  the  name  of  a  station  is  not 
entered  in  the  official  guide  book  this  would  be  no  reason  for 
refusing  to  receive  a  message  for  that  place. ^^  It  is  presumed  that 
the  agent  knows  or  has  a  means  of  knowing  all  the  stations  of  the 
company,-*^  In  fact,  this  is  the  reason  why  these  companies  should 
be  required  to  keep  an  official  guide  book,  and  if  the  name  of  the 
station  is  not  entered  or  is  incorrectly  entered  therein,  this  negli- 
gence itself  would  make  the  company  liable. ^^     It  seems  that  it 

22  Id. 

23  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  14  L.  R.  A.  95,  27  Am.  St.  Rep. 
260,  13  S.  E.  562.  See  Baker  v.  West.  U.  Tel.  Co.,  84  S.  C.  477,  66  S.  E.  182, 
137  Am.  St.  Rep.  848,  holding  that  it  is  competent  to  explain  a  delay  in  the 
transmission  of  a  telegram  by  showing  that  any  trouble  with  the  wires 
between  the  sending  and  delivering  offices  was  not  due  to  the  negligence  of 
the  telegraph  company,  but  evidence  of  the  condition  is  not  admissible  if 
there  is  no  showing  of  a  necessity  of  the  message  going  over  it.  See  §  283, 
and   cases. 

2-4  West.  U.  Tel.  Co.  v.  Hargrove,  14  Tex.  Civ.  App.  79,  36  S.  W.  1077; 
West.  U.  V.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep.  579 ;  Hoaglin 
v.  Tel.  Co.,  161  N.  G.  390,  77  S.  E.  417. 

2  5  West.  U.  Tel.  Co.  v.  Downs,  25  Tex.  Civ.  App.  597,  62  S.  W.  1078. 

26  West.  U.  Tel.  Co.  v.  Downs.  25  Tex.  Civ.  App.  597,  62  S.  W.  1078;  West. 
U.  Tel.  Co.  V.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep.  579. 

2  7  West.  U.  Tel.  Co.  v.  Downs,  25  Tex.  Civ.  App.  597,  62  S.  W.  1078,  where 
an  operator  refused  to  accept  a  message  addressed  to  "New  Waverly"  on 
the  ground  that  the  company  had  no  office  at .  such  place,  when  the  com- 
pany did  have  an  office  there,  but  it  was  erroneously  listed  in  its  books  as 
"Waverly."     See,  also,  State  v.  West.  U.  Tel.  Co.,  76  Ark.  124,  88  S.  W.  834. 


§    276)  AS   TO   MESSAGES LIABILITY  387 

would  not  only  be  liable  for  a  failure  to  transmit  to  a  station  on  its 
line,  not  entered  on  the  official  guide  book,  but  to  any  other  place 
on  any  other  line  not  officially  entered  in  this  guide  book,  but  to 
a  place  it  could  reach. ^*  In  such  a  case  the  company  would  be  lia- 
ble as  in  the  nature  of  an  agent  for  the  company  on  whose  line  the 
place  was  located,  and  by  whose  negligence  the  name  of  the  station 
had  been  omitted. ^'^  In  the  last-cited  case  it  would  not  be  good 
reason  to  hold  either  the  receiving  company,  or  the  connecting 
company  over  whose  line  the  message  was  to  finally  reach  its  desti- 
nation, liable  for  a  failure  to  transmit,  where  the  latter  company's 
lines  were  down,  which  fact  was  not  known  by  the  first  company, 
but  was  known  by  the  latter. 

§  276.  Must  be  properly  tendered — in  writing. — No  duty  or  lia- 
bility on  the  part  of  a  telegraph  company  with  respect  to  the  trans- 
mission of  a  message  arises  until  it  has  been  properly  tendered  at 
the  company's  office  for  transmission.^"  It  must  be  in  conformity 
to  the  reasonable  rules  and  regulations  of  the  company.'^  One  of 
the  rules  of  the  company,  and  one  to  be  complied  with  in  order  to 
constitute  proper  tender,  is  that  the  message  must  be  in  writing.^- 
"It  is  common  knowledge,"  as  was  said  by  Judge  Cambell,  "that 
messages  are  required  to  be  written,  and  upon  the  blanks  of  the 
company,  and  it  would  be  hazardous  to  pursue  any  other  course."  ^^ 
He  further  said :  "In  the  absence  of  satisfactory  evidence  of  a 
known  course  of  business  by  the  telegraph  company  to  receive 
verbal  messages  orally  delivered  to  operators  for  transmission,  we 

2  8  See  West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St. 
Rep.  .579.     See,  also,  §  347  et  seq. 
2  0  See  §  454  et  seq. 

30  Planters'  Oil  Co.  v.  West.  U.  Tel.  Co.,  126  Ga.  621,  55  S.  E,  495,  6  L. 
R.  A.  (N.  S.)  1180.    See  §  511  et  seq. 

31  Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D.  623,  65  N.  W.  37,  46  Am.  St.  Rep. 
765,  30  L.  R.  A.  621,  624 ;  Id.,  4  S.  D.  105,  55  N.  W.  759,  46  Am.  St.  Rep. 
765,  .30  L.  R.  A.  612. 

32  West.  U.  Tel.  Co.  v.  Liddell,  68  Miss.  1,  8  South.  510;  People  v.  West. 
U.  Tel.  Co.,  166  111.  15,  46  N.  E.  731,  .36  L.  R.  A.  637;  West.  U.  Tel.  Co. 
V.  Dozier,  67  Miss.  2SS,  7  South.  .325;  Rich  v.  West.  U.  Tel.  Co  (Tex.  Civ. 
App.)  110  S.  W.  93;  Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D.  623,  65  N.  W.  37. 
46  Am.  St.  Rep.  765,  .30  L.  R.  A.  621,  624;  Id.,  4  S.  D.  105,  55  N.  W.  759, 
46  Am.  St.  Rep.  765,  30  L.  R.  A.  612.  This  is  true,  although  the  operator, 
at  the  request  of  the  sender  writes  the  message  for  him.  IMims  v.  West. 
U.  Tel.  Co.,  82  S.  C.  247,  64  S.  E.  236 ;  West.  U.  v.  Prevatt,  149  Ala.  617,  43 
South.  106 ;  West.  U.  v.  Foster,  64  Tex.  220,  53  Am.  Rep.  754 ;  Gulf,  etc.,  R, 
R.  Co.  V.  Geer,  5  Tex.  Civ.  App.  349,  24  S.  W.  86;  West.  U.  Tel.  Co.  v. 
Edsall,  63  Tex.  668.  See,  also,  Carroll  v.  South.  Express  Co.,  37  S.  C.  452,  16 
S.  E.  128.  See,  also,  Tel.  Co.  v.  Jackson.  163  Ala.  9,  50  South.  316;  Tel. 
Co.  V.  Benson,  159  Ala.  2.54.  48  South.  712. 

33  West.  U.  V.  Dozier,  67  Miss.  2SS,  7  South.  325. 


388  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  277 

are  not  willing  to  sanction  the  proposition  that  failure  to  transmit 
such  a  message  is  a  ground  for  recovery  against  the  company,  either 
by  statute  or  common  law."  ^*  When  it  is  the  rule  that  the  mes- 
sages shall  be  in  writing,  unless  it  has  been  the  custom  of  the  com- 
pany to  receive  them  orally,^^  it  is  not  necessary  that  they  should 
be  in  any  particular  language  or  in  any  peculiar  style,  provided  the 
operator  of  the  company  understands  the  language  or  style.  In 
other  words,  it  is  not  necessary  that  they  know  the  meaning  of  the 
message,  provided  they  have  the  knowledge  of  what  to  send,  and 
how-^° 

§  277.  Same  continued — must  be  on  company's  blank. — Another 
regulation  of  the  company,  and  one  which  is  generally  held  to  be 
reasonable,  is  that  the  message  shall  be  written  on  one  of  the  com- 
pany's blank  forms.^'^  ]\Iere  delivery  of  a  message,  written  on  a  leaf 
torn  from  a  blank  book,  without  any  word  spoken  either  by  the 
plaintiff's  messenger  or  the  company's  operator  concerning  the 
sending  of  the  message,  and  an  absence  of  any  payment  made,  or 
tendered,  of  the  price  for  transmission,  is  insufficient  to  create  a  lia- 
bility against  the  company  for  failing  to  send  such  message.^^  But 
if  the  message  is  received  by  the  company  and  paid  for  by  the 
sender,  the  company  is  bound  to  transmit  it,  although  it  is  written 
on  paper  other  than  its  usual  blanks.^^  A  presumption  of  delivery 
for  transmission  arises  from  the  receipt  of  a  message  written  on 
one  of  the  company's  blanks.**^  But  the  fact  that  the  message  was 
not  on  one  of  the  company's  regular  blanks,  nor  in  writing  at  all, 
but  was  merely  telephoned  to  the  operator,*^  will  not  affect  the  com- 

34  Id. 

35  The  right  may  be  waived  to  the  message  received  orally  or  by  telephone. 
People  V.  West.  U.  Tel.  Co.,  166  111.  15,  46  N.  E.  731,  36  L.  R.  A.  637 ;  West. 
U.  Tel.  Co.  V.  Wilson,  93  Ala.  32.  9  South.  414,  30  Am.  St.  Rep.  23;  West. 
U.  Tel.  Co.  V.  Todd  (Ind.  App.)  53  N.  E.  194 ;  Carland  v.  West.  U.  Tel.  Co., 
118  Mich.  369,  76  N.  W.  762,  74  Am.  St.  Rep.  394,  43  L.  R.  A  280;  West. 
U.  Tel.  Co.  V.  Gault,  90  S.  W.  610,  28  Ky.  Law  Rep.  881;  Bowie  v.  West. 
U.  Tel.  Co.,  78  S.  C.  424,  59  S.  E.  65. 

3  6  See  §  406  et  seq. 

37  West.  U.  Tel.  Co.  v,  Dozier,  67  Miss.  288,  7  South.  325;  West.  U.  Tel. 
Co.  V.  Liddell,  68  Miss.  1,  8  South.  510;  Kirby  v.  West.  U.  Tel.  Co.,  7  S. 
D.  623,  67  N.  W.  37,  46  Am.  St.  Rep.  765.  30  L.  R.  A.  621,  624 ;  Id.,  4  S.  D. 
105,  55  N.  W.  759,  46  Am.  St.  Rep.  765,  30  L.  R.  A.  612. 

3  8  West.  U.  Tel.  Co.  v.  Liddell,  68  INIiss.  1,  8  South.  510. 

39  West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep. 
579;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  IS,  50  South.  248,  23  L.  R.  A.  (N. 
S.)  648,  19  Ann.  Cas.  1058.  See  Alexander  v.  West.  U.  Tel.  Co.,  158  X.  C. 
473,  74  S.  E.  449,  42  L.  R.  A.   (N.  S.)  407. 

4  0  West  U.  Tel.  Co.  v.  Russell  (Tex.  Civ.  App.)  31  S.  W.  698. 

41  See  cases  in  35,  supra,  as  to  waiver.     See  Alexander  v.  West.  U.  Tel. 


k 


§    278)  AS  TO  MESSAGES LIABILITY  389 

pany's  liability  *^  where  the  negligence  complained  of  is  a  failure 
to  transmit  after  a  delivery  to  the  company. ^^  The  rule  that  the 
company's  forms  shall  be  used  is  a  reasonable  one,  for  it  contains 
that  part  of  the  company's  contract  which  must  be  accepted  and 
agreed  to  by  the  sender;  and  to  compel  it  to  accept  messages  on 
other  paper  would  deprive  it  of  some  of  the  privileges  and  immuni- 
ties it  could  otherwise  claim,**  It  is  true  that  the  courts  have  held 
that  some  of  these  stipulations  were  of  no  force  and  efifect,  but  this 
is  no  reason  why  such  companies  may  not  relieve  themselves  from 
liabilities  by  those  which  are  reasonable.  These  companies  are 
entitled  to  the  protection  of  the  laws,  and  this  rule  will  protect  them 
in  many  instances  and  should  be  enforced.  The  message  should  be 
made  out  on  the  blank  form  and  signed  either  by  the  sender  or  his 
agent  in  order  to  hold  him  liable  for  the  stipulation  therein.*^  For, 
if  an  agent  of  the  telegraph  company  receives  a  message  for  trans- 
mission, written  on  a  plain  piece  of  paper,  and  attaches  it  to  one  of 
such  blanks  without  calling  the  attention  of  the  sender  to  the  regu- 
lations printed  thereon,  he  acts  as  agent  for  the  company  alone, 
and  the  sender  is  not  bound  by  such  regulations;  but  he  may  re- 
cover for  the  negligence  of  the  company  in  the  transmission  of  the 
message.*^ 

§  278.  Delivery  to  messenger  boy — not  delivery  to  company. — 
A  delivery  of  a  message  to  one  of  the  company's  messenger  boys, 
written  on  one  of  its  blanks,  is  not  a  delivery  to  the  company,  un- 
less it  has  been  accepted  by  the  latter  at  one  of  the  transmitting 
offices.*^    It  is  very  often  the  case  that  a  message  is  written  out  on 

Co.,  158  N.  C.  473,  74  S.  E.  449,  42  L.  R.  A.  (N.  S.)  407 ;  Planters'  Cotton  Oil 
Co.  V.  West.  U.  Tel.  Co.,  126  Ga.  621,  55  S.  E.  405,  6  L.  R.  A.  (N.  S.)  IISO. 

42  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23 ; 
Carland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762,  74  Am.  St.  Rep. 
394,  43  L.  R.  A.  280 ;  West.  II.  Tel.  Co.  v.  Todd  (Ind.  App.)  53  N.  E.  194 ; 
Bowie  V.  West.  U.  Tel.  Co.,  78  S.  C.  424,  59  S.  E.  65. 

43  Planters'  Cotton  Oil  Co.  v.  West.  U.  Tel.  Co.,  126  Ga.  621,  55  S.  E.  495, 
6  L.  R.  A.  (N.  S.)  1180 ;  West.  U.  Tel.  Co.  v.  Gault,  90  S.  W.  610,  28  Ky.  Law 
Rep.  881. 

44  If  a  person  insists  upon  erasing  from  the  printed  condition  of  a  tele- 
graph company  a  reasonable  and  valid  stipulation  contained  therein,  the  com- 
pany may  refuse  to  receive  the  message.  Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D. 
623,  65  N.  W.  37,  46  Am.  St.  Rep.  765,  30  L.  R.  A.  621,  624 ;  Id.,  4  S.  D.  105, 
55  N.  W.  759,  46  Am.  St.  Rep.  765,  30  L.  R.  A.  612 ;  Vermilye  v.  Postal  Tel. 
Cable  Co.,  207  Mass.  401,  93  N.  W.  635,  holding  that  rule  is  not  binding  on 
sender  who  has  no  knowledge  of  it. 

4  5  See  §  340.  See,  also,  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63 
S.  E.  71,  22  L.  R.  A.  (N.  S.)  540. 

46  Harris  v.  West.  U.  Tel.  Co.,  121  Ala.  519,  25  South.  910,  77  Am.  St. 
Rep.  70. 

*7  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  18  S.  E.  1008,  44  Am.  St.  Rep.  95. 


390  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  279 

one  of  the  company's  blanks,  and  given  to  one  of  the  messenger 
boys  by  the  sender  with  the  request  that  he  deliver  it  to  the  com- 
pany for  transmission;  notwithstanding  that  this  may  be  the  usual 
way  the  sender  has  of  delivering  messages  for  transmission,  yet  a 
delivery  to  the  company  in  such  a  manner  would  not  be  a  proper 
delivery  to  it.  The  reason  assigned  for  the  soundness  of  this  rule  is 
that  on  nearly  if  not  all  of  these  blanks  there  is  a  stipulation  to  the 
effect  that,  when  messages  are  delivered  to  the  messenger  boy,  he 
shall  be  considered  the  agent  of  the  sender  and  not  that  of  the  com- 
pany in  that  particular  business,  and  when  the  sender  signs  the 
message  he  should  be  bound  by  this  stipulation.*^  It  is  a  reasonable 
regulation ;  since,  in  some  cases,  the  operator  of  the  company  may 
have  reasons  for  not  accepting  a  message  for  transmission  and  of 
which  the  messenger  would  have  no  knowledge.*^  It  is  well  known 
that  the  messengers  are  usually  young  and  inexperienced  boys,  and 
of  course  are  not  familiar  with  the  rules  in  regard  to  the  proper 
messages  to  be  accepted  for  transmission.  It  follows,  therefore, 
that  if  a  delivery  to  a  messenger  should  be  considered  a  delivery  to 
the  company,  the  latter  would  be  liable  for  failure  to  send  a  message 
delivered  to  its  messenger,  although  to  do  so  would  subject  the 
company  to  an  indictment  or  to  an  actionable  wrong.^**  If,  however, 
the  message  has  been  delivered  to  one  of  the  transmitting  offices 
of  the  company,  and  it  is  a  proper  message  for  transmission,  it  is 
then  a  delivery  to  the  company. ^^ 

§  279.  Same  continued — prepayment  of  charges  before  accept- 
ing.— Although  telegraph  companies  are  exercising  a  public  func- 
tion and  must,  therefore,  serve  all  impartially  who  apply  to  them, 
yet,  for  this  reason,  it  is  not  presumed  that  these  companies  can  be 
forced  to  accept  a  message  for  transmission  without  first  being  paid 
a  reasonable  compensation  for  its  transmission,  or  a  tender  made 
for  same.^^  The  fixed  rates  for  the  transmission  and  delivery  hav- 
ing been  paid,  or  an  offer  having  been  made  in  legal  tender,  it  is 
then  a  sufficient  delivery  to  the  company  for  acceptance. ^^     The 

48  Id.  49  Id.  50  Id. 

siAyres  v.  West.  U.  Tel.  Co.,  G.5  App.  Div.  149,  72  N.  Y.  Supp.  634;  Alex- 
ander V.  West.  U.  Tel.  Co.,  158  N.  C.  473,  74  S.  E.  449,  42  L.  R.  A.  (N.  S.)  407. 

f;2  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109; 
West.  U.  Tel.  Co.  v.  Cunninsliam,  99  Ala.  314,  14  South.  579;  West.  U.  Tel. 
Co.  V.  Henley,  157  Ind.  90,  60  N.  E.  082 :  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind. 
248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  Macplierson  v.  West.  U.  Tel.  Co.,  52  N.  Y. 
Super.  Ct.  232 ;  West.  U.  Tel.  Co.  v.  Liddell,  68  Miss.  1,  8  South.  510 ;  West. 
U.  Tel.  Co.  V.  Snodgrass,  94  Tex.  284,  60  S.  W.  308,  86  Am.  St.  Rep.  851; 
Cogdell  V.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490. 

5  3  Payment  to  messenger  of  company  delivering  message  is  payment  to 
company.     West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R.  A. 


« 


§    280)  AS  TO   MESSAGES LIABILITY  391 

company  may  refuse  to  accept  a  message  until  this  requirement  has 
been  performed ;  but,  if  the  agent  has  accepted  one  for  transmission 
without  prepayment,  the  company  cannot  escape  Hability,  by  evi- 
dence that  its  rule  required  prepayment,^*  in  the  absence  of  a  show- 
ing that  the  sender  knew  of  such  a  rule.^^  Of  course  there  may  be 
exceptions  to  this  rule/''  as,  for  instance,  where  a  message  is  pre- 
sented to  a  company  with  the  instruction  of  the  sender  to  collect 
the  charges  from  the  party  to  whom  the  message  is  addressed.^'^ 
It  is  then  the  duty  of  the  company  to  accept  the  message,  if  it  has 
reasonable  grounds  to  believe  that  the  sendee  will  pay  for  its  trans- 
mission.^^ 

§  280.  Same  continued — failure  to  receive — damages — functions. 
When  a  telegraph  company  willfully  refuses  to  accept  a  proper 
message  from  any  one  who  has  complied  with  all  the  reasonable 
conditions  demanded  by  the  company,  it  will  be  liable  for  exem- 
plary damages,  although  it  will  not  be  liable  for  such  damages, 
where  its  refusal  to  transmit  arises  from  a  misunderstanding  as  to 
the  nature  and  meaning  of  the  message.^^  Thus,  where  a  company 
refuses  to  accept  a  message  for  transmission  because  it  had  reasons 
to  believe  that  it  was  intended  to  promote  an  illegal  purpose,  but 
in  which  it  was  mistaken,  the  court  held  that  it  was  liable  in  dam- 
ages, but  could  not  be  held  liable  for  exemplary  or  punitive  dam- 
ages.''*'   Where  a  message  is  properly  prepared  and  presented,  and 

(N.  S.)  648,  19  Ann.  Cas.  1058;  Hall  v.  West.  U.  Tel.  Co.,  59  Fla.  275,  51 
South.  819,  27  L.  R.  A.  (N.  S.)  689. 

5  4  West.  U.  Tel.  Co.  v.  Henley,  157  Ind.  90,  60  N.  E.  682;  West.  U.  Tel.  Co. 
V.  Cunningham,  99  Ala.  314,  14  South.  579. 

5  5  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579. 

5  6  May  extend  ci-edit  therefor.  West.  U.  Tel.  Co.  v.  Henley,  157  Ind.  90, 
60  N.  E.  682 ;   West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579. 

5  7  West.  U.  Tel.  Co.  v.  Snodgrass,  94  Tex.  284,  60  S.  W.  308,  86  Am.  St. 
Rep.  851 ;  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579 ;  Cog- 
dell  V.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490;  West.  U.  Tel.  Co.  v. 
Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224. 

5  8  West.  U.  Tel.  Co.  v.  Henley,  157  Ind.  90,  60  N.  E.  682. 

5  0  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495.  See  Hall  v.  West.  U.  Tel. 
Co.,  59  Fla.  275,  51  South.  819,  27  L.  R.  A.  (N.  S.)  639 ;  Cordell  v.  West.  U. 
Tel.  Co.,  149  N.  C.  402,  63  S.  E.  71,  22  L.  R.  A.  (N.  S.)  540. 

CO  A  company  cannot  refuse  to  accept  a  message  couched  in  decent  lan- 
guage, and  not  libelous,  because  purpose  for  which  may  be  to  accomplish, 
or  aid  in  the  accomplishment,  of  an  illegal  or  immoral  act.  West.  U.  Tel. 
Co.  V.  Ferguson,  57  Ind.  495;  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13 
S.  E.  562,  27  Am.  St.  Rep.  250,  14  L.  R.  A.  95 ;  Connuonwealth  v.  West.  U. 
Tel.  Co.,  112  Ky.  355,  67  S.  W.  59,  23  Ky.  Law  Rep.  1633,  99  Am.  St.  Rep. 
209,  57  L.  R.  A.  614,  holding  that  a  telegraph  company  has  no  more  right  to 
refuse  to  send  a  message,  when  the  charges  are  paid  or  tendered,  when 
couched  in  decent  language  on  the  ground  that  the  information  may  be  used 


392  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  281 

the  company  then  refuses  to  accept  it,  the  sender  may  enforce  the 
acceptance  by  mandamus  proceedings.*'^ 

§  281.  Transmit  without  delay. — The  next  duty  of  a  telegraph 
company,  after  accepting  a  message,  is  to  transmit  it  without  un- 
necessary delay ;  ®^  and,  on  the  failure  to  do  so,  the  company  will 
be  liable  to  any  one  who  may  be  damaged  thereby.*'^  One  of  the 
fundamental  reasons  why  the  business  of  these  companies  has  be- 
come so  great,  and  that  which  induces  the  public  to  resort  to  them, 
is  that  it  is  a  means  by  which  the  business  of  the  greatest  importance 
may  be  accomplished  in  the  shortest  possible  time.  This  being  the 
case,  these  companies  by  implication,  necessarily  hold  themselves 
out  to  the  public  to  use  all  diligence  in  the  transmission  of  all  mes- 
sages intrusted  to  them.^*     This  does  not  mean,  however,  an  im- 

for  an  illegal  or  immoral  purpose,  than  a  railroad  company  has  to  refuse  to 
carry  a  passenger  who  tenders  or  pays  his  fare  because  latter  believed  that 
his  purpose  in  going  to  a  certain  place  was  to  commit  an  illegal  or  immoral 
act. 

61  Friedman  v.  Gold,  etc.,  Tel.  Co.,  32  Hun  (N.  Y.)  4. 

6  2  Biruey  v.  N.  Y.,  etc.,  Printing  Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  607; 
West.  U.  V.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep.  579 ;  Baldwin 
V.  West.  U.  Tel.  Co.,  93  Ga.  692,  21  S.  E.  212,  44  Am.  St.  Rep.  194 ;  Hocutt  v. 
West.  U.  Tel.  Co.,  147  N.  C.  186,  60  S.  E.  980 ;  Burnett  v.  West.  U.  Tel.  Co., 
39  Mo.  App.  599;  U.  S.  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751; 
West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715;  Tel.  Co.  v. 
Landry  (Tex.  Civ.  App.)  134  S.  W.  848.  This  is  true  although  the  message  is 
one  which  the  company  may  have  refused  to  accept.  West.  U.  Tel.  Co.  v. 
Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep.  579,  message  not  on  regular 
blank ;  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579,  charges 
not  prepaid;  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715, 
unless  it  would  have  been  unlawful  for  the  company  to  transmit  same ;  West, 
U.  Tel.  Co.  V.  Young,  138  Ala.  240,  36  South.  374 ;  Kirk  v.  West.  U.  Tel.  Co. 
(C.  C.)  90  Fed.  809. 

6  3  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579;  Bartlett  v. 
West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437;  West.  U.  Tel.  Co.  v.  Jobe, 
6  Tex.  Civ.  App.  403.  25  S.  W.  168,  1036.  It  is  liable  for  such  damage  as  is 
the  direct  and  natural  result  of  its  failure  to  deliver  a  message  intrusted  to 
it  for  transmission.  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W.  734, 
13  Am.  St.  Rep.  843.  It  is  said  that  a  person  injured  by  the  delay  in  de- 
livering a  message  to  him  is  not  limited  in  his  recovery  to  such  damages  as 
might  reasonably  have  been  within  the  contemplation  of  the  parties,  but 
recovery  may  be  had  for  all  the  injuiious  results  which  flow  therefrom  by 
ordinary  natural  sequence.  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78 
N.  W.  63,  43  L.  R.  A.  214,  70  Am.  St.  Rep.  205;  Johnson  v.  West.  U.  Tel. 
Co.,  79  Miss.  58,  89  Am.  St.  Rep.  584,  29  South.  787;  Birney  v.  N.  Y.,  etc., 
Printing  Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  607,  where  the  operator  forgot 
about  the  message  and  made  no  effort  to  transmit  it ;  U.  S.  Tel.  Co.  v.  Wenger, 
55  Pa.  202,  93  Am.  Dec.  751 ;  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46 
Am.  Rep.  715. 

6  4  West.  U.  Tel.  Co.  v.  Emerson,  161  Ala.  221,  49  South.  820;  West.  U.  Tel. 
Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas. 


i 


§    281)  AS  TO   MESSAGES LIABILITY  393 

mediate  transmission  at  all  times. *'^  If  it  is  not  within  the  power 
of  the  company  to  make  an  immediate  transmission/*'  as  where  it 
is  prevented  from  making  such  by  the  public  enemy  or  by  the  act 
of  God,  it  would  not  be  liable  for  any  injury  caused  by  the  delay  in 
the  transmission.*''^     So  also,  if  the  delay  has  been  caused  by  the 

105S;  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579;  Daughtery 
V.  Amer.  U.  Tel.  Co.,  75  Ala.  16S,  51  Am.  Rep.  435. 

Florida.— West.  U.  Tel.  Co.  v.  Hyer,  22  Fla.  637,  1  South.  129,  1  Am.  St. 
Rep.  222. 

Illinois.— See  Ins.  Co.  v.  Tel.  Co.,  247  111.  84,  93  N.  E.  134,  30  L.  R.  A.  (N.  S.) 
1170,  139  Am.  St.  Rep.  314. 

/oi(;a.— McNeil  v.  Tel.  Co.,  154  Iowa,  241,  134  N.  W.  611,  38  L.  R.  A.  (N.  S.) 
727,  Ann.  Cas.  1914A,  1294. 

Kentucky.— Te\.  Co.  v.  Sisson,  155  Ky.  624,  160  S.  W.  168 ;  Cumberland  Tel. 
etc.,  Co.  V.  Quigley,  129  Ky.  788,  112  S.  W.  897,  19  L.  R.  A.  (N.  S.)  575. 

iYevocio.— Mackay  v.  West.  U.  Tel.  Co.,  16  Nev.  222. 

New  Yor7c.— Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21 
Am.  St.  Rep.  662;  Leonard  v.  N.  Y.  Elec.  Magnetic  Tel.  Co.,  41  N.  Y.  544, 
1  Am.  Rep.  446. 

South  Carolina.— Bvowu  v.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146, 
137  Am.  St.  Rep.  914. 

Texas.— West.  U.  Tel.  Co.  v.  True,  101  Tex.  236,  106  S.  W.  315,  reversing 
on  other  grounds  (Tex.  Civ.  App.)  103  S.  W.  1180;  Mitchell  v.  West.  U.  Tel. 
Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016 ;  Tel.  Co.  v.  White  (Tex.  Civ.  App.) 
149  S.  W.  790. 

United  States.— Behm  v.  West.  U.  Tel.  Co.,  Fed.  Cas.  No.  1,234,  8  Biss.  131 ; 
Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181. 

65  See  Birney  v.  N.  Y.,  etc.,  Printing  Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  607; 
West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715;  Tel.  Co.  v.  Ivy, 
177  Fed.  63,  100  C.  C.  A.  481. 

Must  use  reasonable  care  and  diligence  in  transmitting,  West.  U.  Tel.  Co. 
V.  McDonald,  42  Tex.  Civ.  App.  229,  95  S.  W.  691 ;  Beasley  v.  West.  U.  Tel. 
Co.  (C.  C.)  39  Fed.  181 ;  and  in  determining  the  question  the  circumstances  of 
each  case  should  be  considered,  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed. 
181,  including  the  amount  of  the  message,  Cumberland  Tel.,  etc.,  Co.  v. 
Quigley,  129  Ky.  788,  112  S.  W.  897,  19  L.  R.  A.  (N.  S.)  575 ;  Beasley  v.  West. 
U.  Tel.  Co.  (C.  C.)  39  Fed.  181. 

The  company  need  not  transmit  a  message  received  on  Sunday  unless  it 
relates  to  a  matter  of  charity  or  necessity.  Willingham  v.  West.  U.  Tel.  Co., 
91  Ga.  449,  18  S.  E.  298;  Rogers  v.  West.  U.  Tel.  Co.,  78  Ind.  169,  41  Am. 
Rep.  558;  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A. 
224.  But  the  rule  would  be  otherwise  if  it  did  relate  to  one  of  these.  Bur- 
nett V.  West.  U.  Tel.  Co.,  39  Mo.  App.  599. 

A  company  would  not  be  justified  in  not  transmitting  the  message  because 
one  of  its  rules  had  not  been  complied  with,  but  which  was  waived  by  the 
acceptance  of  the  message.  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14 
South.  579. 

6G  See  Glover  v.  West.  U.  Tel.  Co.,  78  S.  C.  502,  59  S.  E.  526 ;  Tel.  Co.  v. 
Ivy,  177  Fed.  63,  100  C.  C.  A.  481. 

67  Bierhaus  v.  West.  U.  Tel.  Co.,  8  Ind.  App.  246,  34  N.  E.  581 ;  West.  U. 
Tel.  Co.  V.  Davis,  95  Ga.  522,  22  S.  E.  642 ;  Taylor  v.  West.  U.  Tel.  Co.,  107 
Mo.  App.  105,  80  S.  W.  697;  Smith  v.  West.  U.  Tel.  Co.,  57  IMo.  App.  259; 
Jacob  V.  West.  U.  Tel.  Co.,  135  Mich.  600,  98  N.  W.  402 ;  Leonard  v.  N.  Y., 
etc.,  Elec.  Magnetic  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446;    Kirby  v.  West.   U. 


394  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  281 

company  transmitting  the  message,  without  neghgence,  in  a  cir- 
cuitous route,"^  where  the  same  could  not  be  sent  direct,  on  the  ac- 
count of  the  arrangement  of  its  offices  and  office  hours,  it  would  not 
be  liable.®''  And  if  it  be  necessary  to  send  the  message  through  a 
repeating  office,  sufficient  time  must  be  given  for  other  business  at 
that  office;  ^°  but  if  the  business  is  such  at  the  repeating  office,  or 
at  any  other  office,  as  to  require  more  than  one  operator,  and  only 
one  being  in  charge  of  such  office,  the  company  would  be  liable  for 
a  delay  caused  thereby/^  If  the  delay  has  been  caused  by  any 
undue  advantage  of  the  company  over  the  sender,  it  will  not  be  re- 
lieved from  any  injuries  arising  directly  therefrom.     As  where  the 

Tel.  Co.,  4  S.  D.  10.5,  55  N.  W.  759,  46  Am.  St.  Rep.  765,  30  L.  R.  A.  612; 
Glover  v.  West.  U.  Tel.  Co.,  78  S.  C.  502.  59  S.  E.  526;  West  U.  Tel.  Co.  v. 
McGown,  42  Tex.  Civ.  App.  565,  93  S.  W.  710;  West.  U.  Tel.  Co.  v.  Birge- 
Forbes  Co.,  29  Tex.  Civ.  App.  526,  69  S.  W.  181 ;  Faubion  v.  West.  U.  Tel. 
Co.,  36  Tex.  Civ.  App.  98,  81  S.  W.  56 ;  West.  U.  Tel.  Co.  v.  Stiles  (Tex.  Civ. 
App.)  35  S.  W.  76 ;  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181 ;  Stephen- 
son V.  Montreal  Tel.  Co.,  16  U.  C.  Q.  B.  530.     See,  also,  chapter  XV. 

6  8  Leavell  v.  West.  U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391,  27  L.  R.  A.  843, 
47  Am.  St.  Rep.  798 ;  West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  658,  13  South.  471, 
30  Am.  St.  Rep.  579;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  18  Am. 
St.  Rep.  148,  7  South.  419. 

GsW^est.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W.  528,  7  Ann.  Cas.  228: 
West.  U.  Tel.  Co.  v.  Love-Banks  Co.,  73  Ark.  205,  83  S.  W.  949,  3  Ann.  Cas. 
712;  West.  U.  Tel.  Co.  v.  Crumpton,  138  Ala.  632,  36  South.  517;  West.  U. 
Tel.  Co.  V.  Georgia  Cot.  Co.,  94  Ga.  444,  21  S.  E.  835 ;  Jacob  v.  West.  U.  Tel. 
Co.,  135  Mich.  600,  98  X.  W.  402;  West.  U.  Tel.  Co.  v.  Crider,  107  Ky.  600. 
54  S.  W.  963,  21  Ky.  Law  Rep.  1.336;  West.  U.  Tel.  Co.  v.  Van  Cleave,  107 
Ky.  464.  54  S.  W.  827,  92  Am.  St.  Rep.  366 ;  West.  U.  Tel.  Co.  v.  Steenbergen, 
107  Ky.  4G9,  54  S.  W.  829,  21  Ky.  Law  Rep.  12S9 ;  Davis  v.  West.  U.  Tel.  Co., 
66  S.  W.  17,  23  Ky.  Law  Rep.  1758 ;  West.  U.  Tel.  Co.  v.  Harding,  103  Ind. 
505,  3  X.  E.  172;  Sweet  v.  Postal  Tel.,  etc.,  Co.,  22  R.  I.  344,  47  Atl.  881, 
53  L.  R.  A.  732 ;  Ayers  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  X.  Y.  Supp. 
634;  Roberts  v.  West.  U.  Tel.  Co.,  73  S.  C.  520,  53  S.  E.  985,  114  Am.  St. 
Rep.  100 ;  Bonner  v.  West.  U.  Tel.  Co.,  71  S.  C.  303,  51  S.  E.  117 ;  Harrison 
v.  West.  U.  Tel.  Co.,  71  S.  C.  386,  51  S.  E.  119 ;  McCaul  v.  West.  U.  Tel.  Co., 
114  Tenn.  661,  88  S.  W.  325 ;  West.  U.  Tel.  Co.  v.  Xeel,  86  Tex.  368,  25  S.  W. 
15,  40  Am.  St.  Rep.  847;  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219,  21  Pac.  988 ; 
West.  U.  Tel.  Co.  v.  Byrd,  34  Tex.  Civ.  App.  594,  79  S.  W.  40 ;  West.  U.  Tel. 
Co.  V.  Christensen  (Tex.  Civ.  App.)  78  S.  W.  744 ;  Davis  v.  West.  U.  Tel.  Co., 
46  W.  Va.  48,  32  S.  E.  1026;  West.  U.  Tel.  Co.  v.  McConnico,  27  Tex.  Civ. 
App.  610,  66  S.  W.  592 ;  West.  U.  Tel.  Co.  v.  Rawls  (Tex.  Civ.  App.)  62  S.  W. 
136 ;  Robinson  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  43  S.  W.  1053 ;  West.  U. 
Tel.  Co.  V.  Gibson  (Tex.  Civ.  App.)  53  S.  W.  712;  West.  U.  Tel.  Co.  v.  Mc- 
Millan (Tex.  Civ.  App.)  30  S.  W.  298;  West.  U.  Tel.  Co.  v.  May,  8  Tex.  Civ. 
App.  176,  27  S.  W.  760 ;  West.  U.  Tel.  Co.  v.  Murray  (Tex.  Civ.  App.)  26  S.  W. 
996 ;  West.  U.  Tel.  Co.  v.  Wingate,  6  Tex.  Civ.  App.  394,  25  S.  W.  439 ;  West. 
U.  Tel.  Co.  V.  :Merrill  (Tex.  Civ.  App.)  22  S.  W.  826;  Given  v.  West.  U.  Tel. 
Co.  (C.  C.)  24  Fed.  119 ;   Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181. 

70  Behm  v.  West.  U.  Tel.  Co.,  8  Biss.  131,  Fed.  Cas.  Xo.  1,234. 

71  West.  U.  Tel.  Co.  v.  Seircle,  103  Ind.  227,  2  N.  E.  604. 


§    283)  AS  TO   MESSAGES LIABILITY  395 

sender's  consent  to  a  delay,  under  a  misapprehension  induced  by 
the  company's  agent,  creates  no  estoppel  on  his  part.'- 

§  282.  Burden  of  evidence — delay — presumption, — When  an  ac- 
tion is  being  maintained  for  an  injury  caused  by  an  error  or  a  delay 
in  the  transmission  of  a  message,  the  burden  of  proof  is  on  the  com- 
pany to  show  that  the  delay  was  not  caused  by  its  negligence.'^  It 
would  be  an  unreasonable  rule  of  evidence  to  compel  the  sender  to 
furnish  such  proof,  since  to  do  so  Avould  be  nothing  less  than  to 
deprive  him  of  his  redress  for  injuries  arising  from  such  causes. 
The  transmission  of  the  message  is  within  the  exclusive  control  of 
the  company's  servants,  and  if  any  of  these  should  be  guilty  of  neg- 
ligence, it  would  generally  be  committed  beyond  the  reach  of  the 
sender,  but  within  the  knowledge  of  the  company.  This  being  the 
case,  it  is  better  for  the  burden  of  proof  to  be  on  the  company,  when 
it  may  exonerate  itself  for  the  negligent  act,  rather  than  to  impose 
such  proof  on  the  sender.  In  some  instances  a  delay  in  the  trans- 
mission of  messages  will  be  presumed  to  have  been  caused  by  the 
company's  negligence.  Thus  a  delay  of  ten  or  twelve  hours  in 
transmission,  if  unexplained,  will  create  a  presumption  of  negli- 
gence on  the  part  of  the  company,''*  and  a  delay  of  very  much  less 
time  may,  under  peculiar  circumstances,  raise  the  presumption  of 
negligence;  ^^  yet  the  company  may  overcome  this  presumption 
by  competent  evidence.'^*' 

§  283.  Duty  to  inform  sender  when  delay  unavoidable. — When 
a  telegraph  company,  for  any  cause,  cannot  transmit  a  message,'^ 
or  when  it  will  be  unavoidably  delayed,"^  it  is  the  duty  of  its  agent, 
in  all  cases,  to  inform  the  sender  of  such  fact,^**  especially  when  the 

72  West.  U.  Tel.  Co.  v.  Seffel,  31  Tex.  Civ.  App.  134,  71  S.  W.  616;  Seffel 
V.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  65  S.  W.  897. 

"West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  604;  Pope  v.  West. 
U.  Tel.  Co.,  9  111.  App.  283;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W. 
598,  10  Am.  St.  Eep.  772,  1  L.  R.  A.  728 ;  Baker  v.  West.  U.  Tel.  Co.,  84 
S.  C.  477,  66  S.  E.  1S2,  137  Am.  St.  Rep.  848 ;  Strong  v.  West.  U.  Tel.  Co.,  18 
Idaho,  3«9,  109  Pac.  910,  30  L.  R.  A.  (N.  S.)  409,  Aun.  Cas.  1912A,  55. 

7  4  Kendall  v.  West.  U.  Tel.  Co.,  56  Mo.  App.  192;  West.  U.  Tel.  Co.  v. 
Clark  (Tex.  Civ.  App.)  25  S.  W.  990. 

70  Id. 

7G  Smith  v.  West.  U.  Tel.  Co.,  57  Mo.  App.  259. 

7  7  Buchanan  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  100  S.  W.  974. 

7  8  Swan  V.  West.  U.  Tel.  Co.,  129  Fed.  318,  63  C.  C.  A.  550,  67  L.  R.  A.  153; 
West.  U.  Tel.  Co.  v.  Bickerslaff,  100  Ark.  1,  138  S.  W.  997,  Ann.  Cas.  1913B, 
242 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.) 
648.  19  Ann.  Cas.  1058.  But  see  Stephenson  v.  Montreal  Tel.  Co.,  16  U.  C.  Q. 
B.  530. 

■^^  Alahama.—Vs' est.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132 
Am.  St.  Rep.  46. 

/n(?i«;ia.— West.  U.  Tel.  Co.  v.  Bierhaus,  12  Ind.  App.  37,  39  N.  E.  881;  Id., 


396  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  283 

message  shows  on  the  face  its  importance;  **°  when  these  facts  are 
within  the  knowledge  of  the  agent,  or  such  as  he  ought  to  know, 

8  Ind.  App.  563,  36  N.  E.  161 ;  West.  U.  Tel.  Co.  v.  Moore,  12  Ind.  App.  186,  39 
N.  E.  874,  54  Am.  St.  Rep.  515. 

Missouri. — Brashears  v.  West.  U.  Tel.  Co.,  45  Mo.  App.  433. 

North  Carolina.— ^hevrill  v.  West.  U.  Tel.  Co.,  117  N.  C.  352,  23  S.  E.  277; 
Id.,  116  N.  C.  655,  21  S.  E.  429 ;  Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304, 
85  S.  E.  548,  78  Am.  St.  Rep.  658 ;  Laudie  v.  West.  U.  Tel.  Co.,  126  N.  C.  431, 
35  S.  B.  810,  78  Am.  St.  Rep.  668 ;  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C.  317, 
43  S.  E.  841 ;  Hinson  v.  Postal  Tel.  Cable  Co,  132  N.  C.  460,  43  S.  E.  945 ;  Bry- 
an V.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E.  938 ;  Cogdell  v.  West.  U.  Tel. 
Co.,  135  N.  C.  431,  47  S.  E.  490 ;  Hood  v.  West.  U.  Tel.  Co.,  135  N.  C.  622,  47 
S.  E.  607 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  500,  49  S.  E.  171,  1  Ann.  Cas. 
358 ;  Hall  v.  West.  U.  Tel.  Co.,  189  N.  C.  369,  52  S.  E.  50 ;  Carter  v.  West.  U. 
Tel.  Co.,  141  N.  C.  374,  54  S.  E.  274 ;  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61 
S.  E.  653,  128  Am.  St.  Rep.  581. 

South  Carolina.— CamiybeW  v.  West.  U.  Tel.  Co.,  74  S.  C.  300,  54  S.  E.  571; 
Bolton  V.  West.  U.  Tel.  Co.,  76  S.  C.  529,  57  S.  E.  543 ;  Lyles  v.  West.  U.  Tel. 
Co.,  77  S.  C.  174,  57  S.  E.  725,  12  L.  R.  A.  (N.  S.)  534. 

Tennessee.-West.  U.  Tel.  Co.  v.  Robinson,  97  Tenn.  638,  37  S.  W.  545,  34 
L.  R.  A.  431. 

Te^pas.— Anderson  v.  West.  U.  Tel.  Co.,  84  Tex.  17,  19  S.  W.  285 ;  West.  U. 
Tel.  Co.  V.  Sweetman,  19  Tex.  Civ.  App.  435,  47  S.  W.  676 ;  West.  U.  Tel.  Co.  v. 
Davis,  24  Tex.  Civ.  App.  427,  59  S.  W.  46 ;  West.  U.  Tel.  Co.  v.  Birge-Forbes 
Co.,  29  Tex.  Civ.  App.  526,  69  S.  W.  181 ;  West  U.  Tel.  Co.  v.  Sorsby,  29  Tex. 
Civ.  App.  345,  69  S.  W.  122 ;  Faubion  v.  West.  U.  Tel.  Co.,  36  Tex.  Civ.  App. 
98,  81  S.  W.  56;  West.  U.  Tel.  Co.  v.  Bruner  (Tex.)  19  S.  W.  149;  Evans  v. 
West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  609 ;  West.  U.  Tel.  Co.  v.  Kuyken- 
dall  (Tex.  Civ.  App.)  86  S.  W.  61 ;  West.  U.  Tel.  Co.  v.  McDonald,  42  Tex.  Civ. 
App.  229,  95  S.  W.  691 ;  West.  U.  Tel.  Co.  v.  Ayers,  47  Tex.  Civ.  App.  557,  105 
S.  W.  11G5. 

United  States.— Hwan  v.  West.  U.  Tel.  Co.,  129  Fed.  318,  63  C.  C.  A.  550,  67 
L.  R.  A.  153;  Box  v.  Postal  Tel.  Co.,  165  Fed.  138,  91  C.  C.  A.  172,  28 
L.  R.  A.  (N.  S.)  566. 

Some  cases  hold  that  the  sender  must  be  promptly  notified  of  delay  in  the 
transmission  or  delivery  of  a  message.  Swan  v.  West.  U.  Tel.  Co.,  129  Fed. 
818,  63  C.  C.  A.  550,  67  L.  R.  A.  153,  certiorari  denied  195  U.  S.  628,  25  Sup. 
Ct.  787,  49  L.  Ed.  351 ;  Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304,  35  S.  E. 
543,  78  Am.  St.  Rep.  658 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  506,  49  S.  E. 
171,  1  Ann.  Cas.  358 ;  Carter  v.  West.  U.  Tel.  Co.,  141  N.  C.  374,  54  S.  E.  274 ; 
Evans  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  609. 

Failure  to  notify  sender  of  delay  in  transmission  or  delivery  of  a  message 
is  in  itself  evidence  of  negligence.  Swan  v.  West.  U.  Tel.  Co.,  supra ;  Cogdell 
V.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490 ;  Carter  v.  West.  U.  Tel.  Co., 
supra ;  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128  Am.  St.  Rep. 
581 ;  AVest.  U.  Tel.  Co.  v.  Hargrove,  14  Tex.  Civ.  App.  79,  36  S.  W.  1077. 

It  has,  however,  been  held  that  the  duty  of  the  telegraph  company  to  no- 
tify the  sender  of  its  inability  to  send  a  message  is  not  an  absolute  one ;  that, 
at  most,  it  can  be  only  a  question  of  whether,  under  all  the  circumstances,  a 
reasonable  prudent  person  would  pursue  such  a  course ;  and  that  the  necessity 
and  sufficiency  of  notice  are  questions  or  the  jury.  Faubion  v.  West.  U.  Tel. 
Co.,  36  Tex.  Civ.  App.  98,  81  S.  W.  56;  West.  U.  Tel.  Co.  v.  Sorsby,  29  Tex. 

bo  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172;  Box  v.  Postal  Tel. 
Cable  Co.,  165  Fed.  138,  91  C.  C.  A.  172,  28  L.  R.  A.  (N.  S.)  566,  citing  author. 


§    283)  AS  TO  MESSAGES — LIABILITY  397 

and  he  fails  to  give  such  information,  this  will  be  evidence  of  negli- 
gence, although  it  may  not  be  negligence  per  se.®^  Mitchell,  C.  J., 
in  discussing  this  subject,  said:  "It  might  well  be  that  in  a  case 
when  a  message  was  delivered,  which  showed  upon  its  face  the  im- 
portance of  speedy  transmission,  and  other  means  of  making  the 
communication  were  unavoidable  to  the  sender,  which  might  be 
resorted  to,  if  he  was  informed  that  the  one  chosen  was  ineffectual, 
or  his  conduct  might  otherwise  be  materially  controlled  thereby, 
the  company  would  be  bound  at  its  peril  to  ascertain  and  disclose 
its  inability  to  serve  him,  or  render  itself  liable  to  respond  in  dam- 
ages." ^^  It  may  not  be  negligence  within  itself  in  failing  to  inform 
the  sender  of  the  unavoidable  delay  in  transmission,  but  it  would  be 
unquestionably  evidence  of  negligence.     "In  many  instances,  by 

Civ.  App.  345,  69  S.  W.  122 ;  West.  U.  Tel.  Co.  v.  Davis  (Tex.  Civ.  App.)  51  S. 
W.  258. 

Failure  to  notify  the  sender  of  the  nondelivery  of  a  message  will  not  war- 
rant a  recovery  of  damages  which  are  speculative  and  not  proximately  related 
to  such  failure.  Cahn  v.  West.  U.  Tel.  Co.,  48  Fed.  810.  1  C.  C.  A.  107 ;  Kagy 
V.  West.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117  Am.  St.  Rep.  278; 
Cumberland  Tel.,  etc.,  Co.  v.  Atherton,  122  Ky.  154,  91  S.  W.  257;  Barnes  v. 
West.  U.  Tel.  Co.,  24  Nev.  125,  50  Pac.  438,  77  Am.  St.  Rep.  791 ;  Poteet  v. 
West.  U.  Tel.  Co.,  74  S.  C.  491,  55  S.  E.  113 ;  Stephenson  v.  Montreal  Tel.  Co., 
16  U.  C.  Q.  B.  530. 

Delay  in  transmission. — It  is  held  that,  when  a  telegraph  company  learns  of 
defects  existing  along  its  lines  of  communication  which  will  prevent  or  delay 
the  transmission  of  messages,  its  duty  is  promptly  to  notify  the  sender  in  or- 
der that  he  may  have  an  opportunity  to  accomplish  his  purpose  in  some  other 
available  manner.  Fleischner  v.  Pac.  Postal  Tel.  Cable  Co.  (C.  C.)  55  Fed.  738, 
affirmed  66  Fed.  899,  14  C.  C.  A.  166 ;  Swan  v.  West.  U.  Tel.  Co.,  129  Fed.  318, 
63  C.  C.  A.  550,  67  L.  R.  A.  153 ;  West.  U.  Tel.  Co.  v.  Bierhaus,  12  Ind.  App. 
17,  39  N.  E.  881 ;  Id.,  8  Ind.  App.  563,  36  N.  E.  161 ;  Laudie  v.  West.  U.  Tel.  Co., 
126  N.  C.  431,  35  S.  E.  810,  78  Am.  St.  Rep.  668 ;  West.  U.  Tel.  Co.  v.  Sorsby, 
29  Tex.  Civ.  App.  345,  69  S.  W.  122 ;  West.  U.  Tel.  Co.  v.  Birge-Forbes  Co.,  29 
Tex.  Civ.  App.  526,  09  S.  W.  181 ;  Faubion  v.  West.  U.  Tel.  Co.,  36  Tex.  Civ. 
App.  98,  81  S.  W.  56;  West.  U.  Tel.  Co.  v.  Birge-Forbes  Co.,  supra,  holding 
that  a  notice  posted  in  the  company's  office  that  its  line  is  down,  and  that  it  is 
behind  in  its  business,  and  that  all  messages  will  be  delayed  in  transmission, 
are  not  sufficient  to  charge  the  sender  with  these  facts ;  West.  U.  Tel.  Co.  v. 
Sorsby,  supra,  holding  that,  where  a  connecting  line  over  which  a  message 
must  be  sent  notifies  the  transmitting  office  of  its  inability  to  send  the  mes- 
sage because  of  trouble  on  its  lines,  it  is  the  clear  duty  of  the  transmitting  of- 
fice as  agent  of  the  sender  to  advise  its  principal  to  that  effect.  Refer  to  § 
291. 

81  Fleischner  v.  Pac.  Postal  Tel.  Cable  Co.  (C.  C.)  55  Fed.  738;  West.  U.  Tel. 
Co.  V.  Cohen,  73  Ga.  522 ;  Bierhaus  v.  West.  U.  Tel.  Co.,  8  Ind.  App.  246,  34 
N.  E.  581 ;  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172 ;  West.  U. 
Tel.  Co.  v.  Birge-Forbes  Co.,  29  Tex.  Civ.  App.  526,  69  S.  W.  181.  Compare 
Ohio  R.,  etc.,  Co.  v.  Applewhite,  52  Ind.  540 ;  Pittsburg,  etc.,  R.  Co.  v.  Nuzum 
50  Ind.  141,  19  Am.  Rep.  703 ;  Laudie  v.  West.  U.  Tel.  Co.,  126  N.  0.  431,  35  S. 
E.  810,  78  Am.  St.  Rep.  668. 

62  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172. 


398  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  284 

such  a  course,  the  damage  would  be  greatly  lessened,  if  not  entirely- 
avoided.  A  better  address  might  be  given,  mutual  friends  might  be 
communicated  with,  or  even  a  letter  might  reach  the  addressee.  In 
any  event  the  sender  might  be  relieved  from  great  anxiety,  and 
would  know  what  to  expect.  Moreover,  it  would  tend  to  show  dili- 
gence on  the  part  of  the  company."  ^^ 

§  284.  Must  transmit  without  error. — After  a  telegraph  com- 
pany has  accepted  a  message  to  be  sent  over  its  wires,  it  must  exer- 
cise due  and  proper  care  to  transmit  it  correctly.®*  They  are  not 
common  carriers,  and  are  not,  therefore,  insurers  of  a  correct  trans- 
mission of  messages,  but,  as  they  have  assumed  public  functions 
and  solicited  public  trade,  proper  care,  under  the  circumstances, 
must  be  exercised  in  carrying  on  their  business.  The  value  of  a 
message  depends  upon  its  correctness.  If  it  is  changed  in  any  ma- 
terial part,  it  is  not  the  same  message  as  that  delivered  for  trans- 
mission, and  may  materially  afifect  the  rights  of  both  the  person 
sending  and  the  person  receiving  it.^^  Oftentimes  messages  sent 
by  telegrams  are  of  the  most  important  class  of  news,  and  are  pre- 
pared in  the  briefest  manner;  the  slightest  change  or  error  made 
by  the  company  might  likely  incur  serious  injury  or  loss.  It  is  a 
further  fact  that  the  transmission  of  these  messages  is  intrusted  to 
the  exclusive  control  of  the  servants  of  the  company — the  sender 
doing  nothing  more  than  preparing  the  message  for  transmission. 
The  companies  for  these  reasons  should  prepare  themselves  with 
the  best  material  for  such  business,  and  have  the  most  suitable, 
skilled  and  competent  men  to  manage  and  operate  their  machinery. 
Telegraph  companies  are  often  confronted  with  many  uncontrolla- 
ble hindrances;  as  where  the  wires  are  exposed  to  the  interference  of 
strangers ;  a  surcharge  of  electricity  in  the  atmosphere,  or  a  failure 
or  an  irregularity  in  the  electrical  current,  may  stop  communica- 

83  Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304,  35  S.  E.  543,  78  Am.  St. 
Rep.  658. 

8  4  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep. 
363,  and  this  irrespective  of  the  question  of  punctuality  in  their  delivery ; 
West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  18  S.  E.  979,  44  Am.  St.  Rep.  93; 
West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109 ;  Peg- 
ram  V.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557.  See 
extended  notes  to  West.  U.  Tel.  Co.  v.  Blanchard,  45  Am.  Rep.  496 ;  West.  U. 
Tel.  Co.  V.  Cooper,  10  Am.  St.  Rep.  784 ;  West.  U.  Tel.  Co.  v.  Hyer,  1  Am.  St. 
Rep.  229 ;  and  Postal  Tel.  Cable  Co.  v.  Lathrop,  131  111.  575,  19  Am.  St.  Rep. 
55,  7  L.  R.  A.  474,  23  N.  E.  583. 

85  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep. 
363. 

Not  liable  as  common  carriers — Reason. — Notwithstanding  that,  in  an  able 
opinion,  telegraph  companies  were  held  to  be  liable  as  bailees  for  hire,  yet 
in  this  same  opinion  good   reasons  were  given   why  such   companies  should 


§    284)  AS   TO   MESSAGES LIABILITY  399 

tion;  and  they  are  also  subject  to  danger  from  accident,  malice  and 
climatic  influences.^''  In  the  early  state  of  their  existence,  they 
were  more  often  interfered  with  by  these  hindrances,  but  many  of 

not  be  held  liable  as  common  carriers.  The  court  said:  "There  are  three 
classes  of  cases  in  which  the  law  has  settled  the  principle,  independent 
of  the  stipulations  in  the  contract,  to  govern  when  alleged  injuries  have 
been  received  by  one  at  the  hands  of  another.  These  are:  First,  bail- 
ments; second,  duties  undertaken  by  one  claiming  to  be  skilled  in  the  mat- 
ter which  he  undertakes,  such  as  professional  employments ;  and,  third, 
common  carriers.  As  to  the  two  first,  the  principle  is  that  reasonable  and 
due  care  and  skill,  according  to  the  nature  and  character  of  the  work  done 
or  service  rendered,  is  guaranteed,  and  in  case  of  injury,  to  be  exempt,  the 
defendant  must  show  the  presence  of  this  care  and  skill,  or,  what  is  the 
same  thing,  the  absence  of  negligence  and  inexcusable  carelessness.  As  to  the 
latter,  to  wit,  common  carriers,  the  more  stringent  principle  is  that  nothing 
but  an  act  of  God  or  irresistible  force,  expressed  in  the  books  as  the  public 
enemies,  will  exempt.  Now  in  which  of  these  classes  shall  telegraph  com- 
panies be  placed,  or  to  which  have  they  been  regarded  as  belonging?  It  is 
true  the  business  in  which  these  companies  are  engaged  is  quasi-public,  but 
there  is  a  wide  difference  between  them  and  common  carriers,  and  the  founda- 
tion upon  which  the  very  stringent  doctrine  of  nonexemption,  except  for  an 
uncontrollable  cause,  is  imposed  by  the  law  upon  common  carriers,  is  alto- 
gether wanting  as  to  a  telegraph  company.  There  is  no'  motive  or  opportu- 
nity for  a  telegraph  company  to  make  mistakes  or  commit  errors.  There  is  no 
inducement  or  possibility  for  such  companies  to  appropriate  anything  which 
may  be  intrusted  to  them,  to  their  own  benefit,  at  the  saci*ifice  of  their  em- 
ployer's interests.  Their  business  is  simply  to  transmit  messages  by  the  me- 
dium of  that  mysterious  agent  electricity,  which  with  increasing  progress  is 
now  being  made  to  contribute  so  wonderfully  and  so  usefully  to  our  wants. 
In  the  discharge  of  their  duties  the  principal  qualifications  required  are  ex- 
perience, practice,  and  good  faith  on  the  part  of  their  agents  and  servants,  but 
even  with  the  best  qualified  employes  much  depends  upon  electric,  atmospheric, 
and  other  subtle  influences  beyond  the  reach  of  experience  and  the  utmost 
skill.  While,  therefore,  there  is  reason  for  holding  them  responsible  for  the 
qualifications  necessary  for  the  proper  performance  of  the  work  which  tliey 
purpose  to  do,  as  the  first  classes  mentioned  above  are  held,  to  wit,  profes- 
sional employes  and  bailees,  yet  there  is  no  reason  for  holding  them  as  insur- 
ers like  common  carriers.  Common  carriers  transport  goods,  merchandise, 
and  other  corporeal  materials,  which  are  constantly  in  their  possession  from 
the  commencement  of  their  trip  until  the  destinations  are  reached,  and  it  is 
entirely  reasonable  that  they  should  guard  and  protect  these  goods  against 
all  dangers  which  can  be  warded  off  by  human  power.  But  telegraph  com- 
panies transmit  ideas — intangible  and  fleeting  things — which  when  placed  upon 
the  wire  instantly  escape  from  the  hands  of  the  operators,  and  in  a  moment, 
yea,  in  the  twinkling  of  an  eye,  are  hundreds  and  thousands  of  miles  away, 
far  beyond  the  reach  and  control  of  him  who  started  them  upon  their  distant 
mission,  passing  through  different  parallels  of  latitude  or  degrees  of  longi- 
tude, as  the  case  may  be,  with  the  rapidity  of  thought,  but  encountering  for 
themselves  all  the  dangers  or  obstacles  that  may  be  met  by  the  way.  To  apply 
the  rule  of  common  carriers  to  these  companies  would,  it  seems  to  us,  be  ex- 
tremely unjust,  and  to  hold  them  absolutely  liable  as  insurers  would  greatly 
impair  this  mode  of  correspondence,  crippling,  if  not  destroying,  a  most  im- 
portant and  growing  department  of  business,"  Pinckney  v.  Tel.  Co.,  19  S.  C. 
71,  45  Am.  Rep.  765. 

»6  Smith  V.  West.  U.  Tel.  Co.,  83  Ky.  101,  4  Am.  St.  Rep.  126. 


400  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  285 

these  by  degrees  have  been  overcome  by  improvements  in  their  ma- 
chinery. We  can  look  back  but  a  few  years  and  marvel  at  the  vast 
improvements  which  have  been  injected  into  this  line  of  business, 
and  no  one  can  imagine  what  a  few  years  in  the  future  will  bring 
about.  It  will  be  but  a  question  of  time  when  these  companies  will 
have  made  such  vast  improvements  on  their  instruments  as  will  en- 
able them  to  overcome  a  greater  part  of  these  hindrances,  and, 
when  the  time  should  come,  they  should  be  held  as  insurers  of  an 
accurate  and  correct  transmission  of  messages. 

§  285.  Same — degree  of  care  in  transmission. — The  very  aims 
and  purposes  for  which  telegraphic  institutions  are  inaugurated 
and  operated  would  be  destroyed  if  they  were  permitted  to  escape 
the  responsibilities  arising  from  a  negligent  failure  to  transmit  and 
deliver  messages.^^  They  are  not  insurers  against  mistakes  and 
errors  which  may  be  made  in  the  transmission  of  messages,  unless 
they  are  made  so  by  statute  or  by  an  agreement  to  that  effect,^^  yet, 

ST  Florida.— West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46  South.  1024,  127 
Am.  St.  Rep.  169. 

Georgia.— West.  U.  Tel.  Co.  v.  Cohen,  73  Ga.  522 ;  Stewart  v.  Postal  Tel.  Ca- 
ble Co.,  131  Ga.  31,  61  S.  E.  1045,  127  Am.  St.  Rep.  205,  18  L.  R.  A.  (N.  S.) 
692;  West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480.  See,  al- 
so, West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  18  S.  E.  979,  44  Am.  St.  Rep.  93. 

Illinois.— Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38;  West.  U. 
Tel.  Co.  V.  Tyler,  74  111.  168,  24  Am.  Rep.  279 ;  West.  U.  Tel.  Co.  v.  Hart,  62  111. 
App.  120. 

Indiana.— West.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53. 

/oifo.— Turner  v.  E[awkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep.  605. 

Ifairte.— Bartlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437. 

Massachusetts.— 'Slay  v.  West.  U.  Tel.  Co.,  112  Mass.  90. 

Mississippi.— West.  U.  Tel.  Co.  v.  Lyon,  93  Miss.  590,  47  South.  344. 

Missouri.— Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St. 
Rep.  609,  34  L.  R.  A.  492.  See  Miller  v.  West.  U.  Tel.  Co.,  157  Mo.  App.  5S0, 
138  S.  W.  887. 

Nehraska.—West.  U.  Tel.  Co.  v.  Kemp,  44  Neb.  194,  62  N.  W.  451,  48  Am. 
St.  Rep.  723. 

North  Ca/o/i/Mi.— Hedrick  v.  West.  U.  Tel.  Co.,  167  N.  C.  234,  83  S.  E.  358. 

New  York. — Rittenhouse  v.  Independent  Tel.  Line,  44  N.  T.  263,  4  Am.  Rep. 
673,  affirming  1  Daly,  474 ;  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  T.  256.  26  N. 
E.  534,  21  Am.  St.  Rep.  662 ;  Leonard  v.  N.  Y.,  etc.,  Electro  Magnetic  Tel.  Co., 
41  N.  Y.  544,  1  Am.  Rep.  446 ;  Wolfskehl  v.  West.  U.  Tel.  Co.,  46  Hun,  542 ;  De 
Rutte  V.  N.  Y.,  etc..  Electro  Magnetic  Tel.  Co.,  1  Daly,  547. 

07iio.— West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500. 

South  Carolina.— Fainter  v.  West.  U.  Tel.  Co.,  100  S.  C.  65,  84  S.  E.  293. 

Texas.— West.  U.  Tel.  Co.  v.  Raglaiid  (Civ.  App.)  61  S.  W.  421;  Womack  v. 
West.  U.  Tel.  Co.,  58  Tex.  176,  44  Am.  Rep.  614;  West.  U.  Tel.  Co.  v.  Tobin 
(Civ.  App.)  56  S.  W.  540 ;  West.  U.  Tel.  Co.  v.  Hines,  22  Tex  Civ.  App.  315,  54 
S.  W.  627 ;  West.  U.  Tel.  Co.  v.  Saxon  (Civ.  App.)  138  S.  W.  1091. 

Wi.vconsin.— Sherrerd  v.  West.  U.  Tel.  Co.,  146  Wis.  197,  131  N.  W.  341. 

Canoda.— Lane  v.  Montreal  Tel.  Co.,  7  U.  C.  C.  P.  23. 

8  8  Halsted  V.  Postal  Tel.  Cable  Co.,  193  N.  Y.  293,  85  N.  E.  1078,  19  L.  R.  A. 


8    285)  AS  TO  MESSAGES LIABILITY  401 

on  account  of  the  importance  and  magnitude  of  the  business  in- 
trusted to  them,  the  highest  degree  of  care  should  be  required  of 
them  in  this  respect.^^  It  is  not  understood,  however,  that  this 
would  impose  a  liability  upon  the  company  for  want  of  skill  or 
knowledge  not  reasonably  attainable  in  the  art;  nor  for  errors  or 
imperfections  which  arise  from  causes  not  within  its  control,  or 
which  are  not  capable  of  being  guarded  against.^"    So  they  will  not 

(N.  S.)  1021,  127  Am.  St.  Rep.  952 ;  West.  TJ.  Tel.  Co.  v.  Short,  53  Ark.  434,  14 
S.  W.  649,  9  L.  R.  A.  744 ;  Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.  132,  8  Am.  Rep. 
526 ;  West.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525 ;  De  Rutte  v.  N.  Y.,  etc.,  Electro 
Magnetic  Tel.  Co.,  1  Daly  (N.  Y.)  547 ;  Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C. 
71,  45  Am.  Rep.  765 ;  West.  U.  Tel.  Co.  v.  Neill,  57  Tex.  283,  44  Am.  Rep.  5S9 ; 
West.  U.  Tel.  Co.  v.  Bdsall,  63  Tex.  668 ;  West.  U.  Tel.  Co.  v.  Brown  (Tex.  Civ. 
App.)  75  S.  W.  359 ;  Abraham  v.  West.  U.  Tel.  Co.  (C.  C.)  23  Fed.  315 ;  Prim- 
rose V.  AVest.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098,  38  L.  Ed.  883 ;  White 
V.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710.  See,  also,  Pearsall  v.  West.  U.  Tel. 
Co.,  124  N.  Y.  256,  26  N.  B.  534,  21  Am.  St.  Rep.  662 ;  Leonard  v.  N.  Y.,  etc., 
Electro  Magnetic  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446. 

8  9  Providence- Washington  Ins.  Co.  v.  West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E. 
134,  139  Am.  St.  Rep.  314,  30  L.  R.  A.  (N.  S.)  1170 ;  Stewart-Morehead  Co.  v. 
Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045,  18  L.  R.  A.  (N.  S.)  692,  127  Am. 
St.  Rep.  205 ;  Colt  v.  West.  U.  Tel.  Co.,  130  Cal.  657,  63  Pac.  83,  53  L.  R.  A. 
687,  80  Am.  St.  Rep.  153,  where  statute  requires  great  care ;  Stone  v.  Postal 
Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46  L.  R.  A.  (N.  S.)  180. 

Death  messages. — Cases  holding  only  ordinary  care  required  in  death  mes- 
sages: West.  U.  Tel.  Co.  v.  Duke,  108  Ark.  8,  156  S.  W.  452;  Barnes  v.  Postal 
Tel.  Cable  Co.,  156  N.  C.  150,  72  S.  E.  78 ;  Poulnot  v.  West.  U.  Tel.  Co.,  69  S. 
C.  545,  48  S.  E.  622 ;  West.  U.  Tel.  Co.  v.  McDonald,  42  Tex.  Civ.  App.  229,  95 
S.  W.  691 ;  Cumberland  Tel.  Co.  v.  Maxberry,  134  Ky.  642,  121  S.  W.  447.  But 
see  West.  U.  Tel.  Co.  v.  Hendricks,  29  Tex.  Civ.  App.  413,  68  S.  W.  720 ;  Bal- 
derston  v.  West.  U.  Tel.  Co.,  79  S.  C.  160,  60  S.  E.  435 ;  Stuart  v.  West.  U.  Tel. 
Co.,  66  Tex.  580,  18  S.  W.  .351,  59  Am.  Rep.  623;  Kernodle  v.  West.  U.  Tel. 
Co.,  141  N.  C.  436,  54  S.  E.  423,  8  Ann.  Cas.  469. 

0  0  White  V.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710;  Bartlett  v.  West.  U.  Tel. 
Co.,  62  Me.  209,  16  Am.  Rep.  437,  in  which  the  court  said:  "To  require  a  de- 
gree of  care  and  skill  commensurate  with  the  importance  of  the  trust  im- 
posed is  in  accordance  with  the  principles  of  law  applicable  to  all  undertak- 
ings of  whatever  kind,  whether  professional,  mechanical,  or  that  of  the  com- 
mon laborer.  There  is  no  reason  why  the  business  of  sending  messages  by 
telegraph  should  be  made  an  exception  to  the  general  rule.  This  requires 
skill  as  well  as  care.  If  the  work  is  difficult,  greater  skill  is  required.  It  is 
often  necessary  to  intrust  to  this  mode  of  communication  matters  of  great 
moment,  and  therefore  the  law  requires  great  care.  It  is  necessary  to  use 
instruments  of  somewhat  delicate  nature  and  accurate  adjustment,  and  there- 
fore they  must  be  so  made  as  to  be  reasonably  sufficient  for  the  purpose.  The 
company,  holding  itself  out  to  the  public  as  ready  and  willing  to  transmit 
messages  by  this  means,  pledges  to  that  public  the  use  of  instruments  proi>er 
for  the  purpose,  and  that  degree  of  skill  and  care  adequate  to  accomplish  the 
object  proposed.  In  case  of  failure  in  any  of  these  respects,  the  company 
would  undoubtedly  be  liable  for  the  damages  resulting.  This  would  not  im- 
pose any  liability  for  want  of  skill  or  knowledge  not  reasonably  attainable  in 
the  present  state  of  the  art,  nor  for  errors  resulting  from  the  peculiar  and 

Jones  Tel.(2d  Ed.)— 26 


402  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  286 

be  liable  for  errors  due  to  climatic  or  other  uncontrollable  hin- 
drances temporarily  affecting  the  operation  of  their  lines. ^^  So 
also  the  fact  that  these  companies  must  exercise  the  highest  degree 
of  care  in  the  transmission  of  messages  does  not  mean  that  they 
shall  be  transmitted  verbatim  et  literatim  et  punctuatiin,  but  if  the 
messages  are  transmitted  and  delivered  in  substantially  the  same 
way  as  they  were  when  delivered  to  the  company  for  transmission, 
the  company  will  have  discharged  its  duty,  and  will  not,  therefore, 
be  liable  if  there  are  only  immaterial  errors  ^~  made,  and  as  a  result 
of  which  the  addressee  is  not  misled  or  injured  thereby.^^  The  same 
degree  of  care  is  required  over  connecting  lines  as  over  the  receiv- 
ing company's  lines."* 

§  286.  Liability  under  statutes — all  mistakes. — In  some  states 
there  are  statutes  which  provide  that  telegraph  companies  are  lia- 
ble for  all  mistakes  and  errors  made  in  the  transmission  of  mes- 

nnknown  condition  of  the  atmospliere,  or  any  agency  from  whatever  source 
whieli  the  degree  of  care  spolten  of  is  insufficient  to  guard  against  or  avoid." 

91  White  V.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710.  The  company  will  not  be 
liable  where  the  error  was  due  to  uncontrollable  causes  if  it  exercised  due 
care.  Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  71,  4.5  Am.  Rep.  765 ;  West.  U. 
Tel.  Co.  V.  Neill,  57  Tex.  283,  44  Am.  Rep.  5S9;  West.  U.  Tel.  Co.  v.  Brown 
(Tex.  Civ.  App.)  75  S.  W.  359. 

9  2  No  better  rule  can  be  given  than  that  of  Judge  Campbell,  who  says: 
"Can  it  be  supposed  that  for  changing  my  signature  or  address  from  Campbell 
to  Camel,  or  Canipel,  or  Cambelle,  or  Cowmel,  according  to  the  form  of  writ- 
ing which  is  sometimes  met  with,  in  a  message  sent  by  me  or  to  me,  and 
promptly  delivered,  and  accomplishing  the  purpose,  and  doing  no  harm,  the 
penalty  would  be  incurred?  To  so  hold  would  impute  to  the  legislature  a 
spirit  of  injustice  and  cruelty  that  would  seriously  reflect  on  its  attempt  to 
legislate  in  this  matter  for  the  public  interest."  West.  U.  Tel.  Co.  v.  Clarke,  71 
Miss.  157,  14  South.  452,  under  a  statute  imposing  a  penalty  for  failure  to 
"transmit  correctly."  The  court  further  said:  "If  the  message  transmitted 
and  delivered  must  be  a  reproduction  verhatim  et  Utcratim  et  punctuatiin  of 
that  written  to  be  sent  or  the  penalty  denounced  by  the  section  may  be  recov- 
ered, the  statute  is  needlessly  severe.  No  interest  requires  such  nicety,  and  it 
may  be  justly  assumed  that  the  legislature  had  in  view  not  only  'reasonable 
time'  for  delivery,  but  reasonable  conformity  to  the  terms  of  the  message  so 
as  to  present  it  to  the  sendee  in  such  time  as  to  effect  the  purpose  for  which  it 
is  sent." 

9  3  West.  U.  Tel.  Co.  v.  Clarke,  71  Miss.  157,  14  South.  452;  Newsome  v. 
West.  U.  Tel.  Co.,  144  N.  C.  178,  5G  S.  E.  863. 

94  White  V.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710;  Smith  v.  AVest.  U.  Tel.  Co., 
84  Tex.  359,  19  S.  W.  441,  31  Am.  St.  Rep.  59.  Compare  Falvey  v.  Georgia  R., 
76  Ga.  597,  2  Am.  St.  Rep.  58 ;  I.  C.  R.  Co.  v.  Frankenberg,  54  111.  88,  5  Am. 
Rep.  92;  McCarty  v.  Gulf,  etc.,  R.  Co.,  79  Tex.  33,  15  S.  W.  164,  and  notes  to 
Wells  V.  Thomas,  72  Am.  Dec.  230 ;  Lawrence  v.  Winona,  etc.,  R.  Co.,  2  Am. 
Rep.  141  ;  Gray  v.  Jackson,  12  Am.  Rep.  40 ;  Hill  v.  Syracuse,  etc.,  R.  Co.,  29 
Am.  Rep.  166 ;  Nashville,  etc.,  R.  Co.  v.  Sprayberry,  35  Am.  Rep.  708 ;  Hadd  v. 
United  States  Express  Co.,  36  Am.  Rep.  761 ;  Louisville,  etc.,  R.  Co.  v.  Weaver, 
42  Am.  Rep.  664. 


§    287)  AS  TO  MESSAGES LIABILITY  403 

sages.®®  While  regulations  made  in  accordance  with  these  statutes 
are  held  to  be  reasonable,  it  is  claimed  that  they  are  not  liable  for 
such  mistakes  or  errors  which  are  caused  by  some  act  not  within 
the  control  of  the  company. ^"^  They  are  only  liable  for  the  negli- 
gent acts  of  their  servants  and  not  for  any  other."'^  A  statute  pro- 
viding that  these  companies  shall  transmit  and  deliver  messages 
with  "due  diligence,"  and  prescribing  a  penalty  for  failure  to  com- 
ply with  the  terms  of  the  statute,  relates  to  the  time  within  which 
messages  must  be  transmitted  and  delivered,  and  not  to  the  ac- 
curacy and  correctness  in  sending  and  transmitting  them.°® 

§  287.  Same  continued — damages — actual — errors  in  transmis- 
sion.— There  is  a  distinction  to  be  drawn,  as  may  be  seen,  between 
errors  made  in  the  transmission  of  a  message  and  delays  made  in 
the  delivery  of  same,  wherein  the  penalty  can  only  be  inflicted  on  a 
failure  to  promptly  deliver  the  message. ®®  These  statutory  provi- 
sions have  no  effect  whatever  on  errors  made  in  the  transmission ; 
where  such  errors  are  made,  the  injured  party  is  entitled  to  all 
actual  damages  arising  thereby,  irrespective  of  the  question  of 
punctuality  in  their  delivery. ^^'^  There  must,  however,  be  actual 
damages  caused  by  the  error  in  the  transmission,  otherwise  a  re- 
covery could  not  be  had.^*^^  Thus,  if  through  a  mistake  in  the  trans- 
mission of  a  telegram  the  owner  of  property  is  induced  to  sell  it  for 
its  then  market  value,  he  suffers  no  damage  and  cannot  recover 
any,  although,  when  the  property-  subsequently  advanced  in  value, 
he  purchased  a  part  thereof  at  the  advanced  rate;  ^°^   and  again,  if 

as  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep. 
363. 

90  West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  44  Am.  St.  Rep.  93,  18  S. 
E.  979. 

9  T  See  §  285. 

98  West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  18  S.  E.  979,  44  Am.  St. 
Rep.  93. 

99  See  §§  271,  288. 

100  West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  18  S.  E.  979,  44  Am.  St. 
Rep.  93. 

101  Pepper  v.  Telegraph  Co.,  87  Tenn.  554,  11  S.  W.  783,  4  L.  R.  A.  660,  10 
Am.  St.  Rep.  699 ;  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  5.34, 
21  Am.  St.  Rep.  662;  West.  U.  Tel.  Co.  v.  Stevenson,  128  Pa.  442,  18  Atl. 
441,  5  L.  R.  A.  515,  15  Am.  St.  Rep.  687 ;  West.  U.  Tel.  Co.  v.  Dubois,  128 
111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109;  West.  U,  Tel.  Co.  v.  Edsall,  74 
Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835;  Alexander  v.  West.  U.  Tel. 
Co.,  66  Miss.  161,  5  South.  397,  3  L.  R.  A.  71,  14  Am.  St.  Rep.  5.56 ;  Reed  v. 
West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R.  A.  492,  58  Am.  St. 
Rep.  609;  West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  18  S.  E.  979,  44  Am. 
St.  Rep.  93 ;  Shingleur  v.  West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425,  30 
L.  R.  A.  444,  48  Am.  St.  Rep.  604 ;    West.  U.  Tel.  Co.  v.  Reals,  56  Neb.  415, 

102  Id. 


404  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  288 

a  broker  is  directed  by  telegraph  to  sell  cotton  for  the  sender  of  the 
message  on  the  latter's  account,  at  a  designated  price,  and  the  com- 
pany makes  a  mistake  in  sending  the  telegram,  whereby  the  sender 
contracts  to  sell  for  a  less  price,  the  latter  is  under  no  obligation  to 
deliver  the  cotton,  but,  if  he  does  so,  constrained  by  a  desire  to 
maintain  his  business  credit,  or  other  reasons,  he  cannot  recover 
from  the  telegraph  company,  for  his  payment  of  the  loss  is  purely 
voluntary  and  gratuitous. ^'^^ 

§  288.  Duty  to  deliver — addressee — in  general. — Subject  to  rea- 
sonable regulations  as  to  delivery  limits,^°*  telegraph  companies  are 
bound  to  deliver  all  messages  sufficiently  addressed,^"^  when  this 
can  be  done  by  the  exercise  of  reasonable  diligence;  ^^'^  and  in  case 
of  a  wrongful  or  negligent  failure  to  do  so  they  will  be  liable  for 
damages  caused  by  such  failure.^°^     It  is  seldom  these  companies 

76  N.  W.  903,  71  Am,  St.  Rep.  682 ;  West.  U.  Tel.  Co.  v.  Flint  River  Lumber 
Co.,  114  Ga.  576.  40  S.  E.  815,  88  Am.  St.  Rep.  36;  Hughes  v.  West.  U.  Tel. 
Co.,  114  N.  C.  70,  41  Am.  St.  Rep.  782,  19  S.  E.  100. 

103  Shingleur  v.  West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425,  48  Am. 
St,  Rep.  604,  30  L.  R.  A.  440. 

104  See  §  302  et  seq. 

105  West.  U.  Tel.  Co.  v.  Gougar,  84  Ind.  176;  West.  U,  Tel.  Co.  v.  Cooper, 
71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep.  772,  1  L.  R.  A.  728 ;  Pope  v.  West. 
U.  Tel.  Co.,  9  111.  App.  283 ;  West.  U.  Tel.  Co.  v.  Lindley,  62  Ind.  371 ;  State 
V.  West.  U.  Tel.  Co.,  172  Ind.  20.  87  N.  E.  641 ;  West.  U.  Tel.  Co.  v.  Johnsey, 
49  Tex.  Civ.  App.  487,  109  S.  W.  251 ;  West.  U.  Tel.  Co.  v.  Allen,  30  Okl.  229, 
119  Pac.  981,  38  L.  R.  A.  (N.  S.)  348. 

When  a  message  in  foreign  language  is  accepted  for  delivery  in  a  country 
using  that  language,  the  same  must  be  delivered  regardless  whether  the  com- 
pany's agent  at  the  point  of  destination  did  or  did  not  understand  the  lan- 
guage.    West.  U,  Tel.  Co.  v.  Oliearri   (Tex.  Civ.  App.)  110  S.  W.  930. 

106  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep. 
211;  West.  U.  Tel.  Co.  v.  Elliott,  131  Ky.  .340.  115  S.  W.  228,  22  L.  R.  A. 
(N.  S.)  761;  Hinson  v.  Postal  Tel.  Cable  Co.,  132  N.  C.  460,  43  S.  E.  945; 
Hargrave  v.  West.  U.  Tel.  Co.  (Tex,  Civ.  App.)  60  S.  W.  687 ;  West.  U.  Tel. 
Co.  V.  Cox  (Tex.  Civ.  App.)  74  S.  W.  922;  West.  U.  Tel.  Co.  v.  Burgess 
(Tex.  Civ.  App.)  43  S.  W.  1033;  Ross  v.  West.  U.  Tel.  Co.,  81  Fed.  676, 
26  C.  C.  A.  564;  West.  U.  Tel.  Co.  v.  McMullin,  98  Ark.  347,  135  S.  W. 
909;  Barnes  v.  Tel.  Cable  Co.,  156  N.  C.  150,  72  S.  E.  78.  See  Stone  &  Co. 
V.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46  L.  R.  A.  (N.  S.)  ISO. 

107  West.  U.  Tel.  Co.  v.  Krichbaum,  145  Ala.  409,  41  South.  16;  Hender- 
shot  V.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am.  St.  Rep. 
318;  Arkansas,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117,  100  S.  W.  760;  Postal 
Tel.  Cal)le  Co.  v.  Pratt,  85  S.  W.  225,  27  Ky.  Law  Rep.  430;  Milliken  v. 
West.  U.  Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  2.51,  1  L.  R.  A.  281;  Edwards  v. 
West.  U.  Tel.  Co.,  147  N.  C.  126,  60  S.  E.  900;  Lyne  v.  West.  U.  Tel.  Co., 
123  N.  C.  129.  31  S.  E.  350 ;  West.  V.  Tel.  Co.  v.  Johnsey,  49  Tex.  Civ.  App. 
487,  109  S.  W.  251 ;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  5S9, 
10  Am.  St.  Rep.  772,  1  L.  R.  A.  728;  West.  U.  Tel.  Co.  v.  0-Fiel,  47  Tex, 
Civ.  App.  40,  104  S.  W.  406;  West.  U.  Tel.  Co.  v.  Craige,  44  Tex.  Civ.  App. 
214,  90  S.  W.  681 ;  West.  U.  Tel.  Co.  v.  Cain  (Tex.  Civ.  App.)  40  S.  W.  624 ; 
West.  U.  Tel.  Co.  v.  Birchfield,  15  Tex.  Civ.  App.  426,  30  S.  W.  1002;    Mc- 


§    288)  AS  TO  MESSAGES — LIABILITY  405 

are  resorted  to  for  the  purpose  of  transmitting  news  unless  the 
same  pertains  to  business  of  the  greatest  importance,  and  neces- 
sarily to  be  accomplished  in  the  shortest  possible  time;  since,  if  it 
were  otherwise,  the  postal  system,  which  is  of  much  less  expense 
and  in  which  there  is  a  greater  reliance  of  secrecy,  would  be  used 
as  the  means  of  accomplishing  this  purpose.' °^  It  is  just  as  great 
a  duty  and  is  just  as  binding  on  a  telegraph  company  to  use  due 
diligence  in  delivering  a  telegram  to  the  addressee,  or  one  in  whose 
care  it  is  directed,  as  that  to  be  exercised  in  its  transmission ;  ^^^ 
since  a  mere  transmission  from  one  station  to  another  would  avail 
nothing.  It  is  part  of  the  contract  whereby  the  company  has  un- 
dertaken to  transmit  the  messages,  and  therefore  just  as  essential 
as  that  of  the  transmission  itself ;  ^^'^  since  a  failure  of  the  company 
to  comply  with  this  part  of  the  contract  would  bring  about  the  same 
results,  as  even  a  complete  failure  to  transmit  the  message. ^^^    To 

Millan  v.  West.  U.  Tel.  Co.,  60  Fla.  131,  53  South.  329,  29  L.  R.  A.  (N.  S.) 
891;  Tel.  Cable  Co.  v.  Oil  Co.,  140  Ky.  506,  131  S.  W.  277;  West.  U.  Tel. 
Co.  v.  Olivarri,  104  Tex.  203,  135  S.  W.  1158 ;  West.  U.  Tel.  Co.  v.  Williams 
(Tex.  Civ.  App.)  137  S.  W.  148;  Stone  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  49S, 
87  Atl.  319,  46  L.  R.  A.   (N.  S.)  180. 

108  West.  U.  Tel.  Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep. 
920,  6  L.  R.  A.  844. 

109  West.  U.  Tel.  Co.  v.  Moore,  12  Ind.  App.  136,  .39  N.  E.  874,  54  Am.  St. 
Rep.  515;  Brown  v.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146,  137  Am. 
St.  Rep.  914,  holding  that  the  failure  of  the  company  to  convey  the  informa- 
tion from  the  sender  to  the  addressee,  and  not  the  wrongful  act  of  an  agent 
at  any  particular  point  prior  to  the  delivery  of  the  message  to  the  addressee, 
constitutes  the  delict ;  a  message  Is  in  transit  not  only  while  it  is  being 
sent  over  the  wires,  but  during  the  time  it  Is  in  the  hands  of  the  messenger 
for  delivery,  after  it  reaches  the  place  where  addressee  resides,  and  there 
is  no  sound  reason  why  the  company  should  be  liable  when  the  agent  in  the 
state  from  which  the  message  has  been  sent,  or  an  agent  along  the  line,  is 
guilty  of  negligence,  and  yet  not  be  liable  for  an  act  of  negligence  on  the 
part  of  the  messenger  to  whom  the  telegram  is  handed  for  delivery  by  the 
agent  of  the  terminal  office ;  that  it  would  be  against  public  policy  to  re- 
quire the  plaintiff  to  prove  at  what  point  on  the  defendant's  line  the  failure 
occurred,  or  to  permit  the  defendant  to  show  that  the  message  was  delayed 
at  some  specific  point  on  its  line,  and  thus  malie  the  plaintiff's  right  of  re- 
covery dependent  upon  the  laws  of  that  place.  See  §  302.  But  see  Stone 
&  Co.  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  4  L.  R.  A.  (N.  S.) 
ISO,  holding  that  the  telegraph  company  is  not  bound  to  exercise  the  highest 
degree  of  diligence  and  promptness  in  delivering  a  message,  or  to  use  the 
greatest  care  as  to  the  place  of  delivery.  See,  also.  West.  U.  Tel.  Co.  v. 
Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A.  844. 

110  West.  U.  Tel.  Co.  v.  Gougar,  84  Ind.  176;  West.  U.  Tel.  Co.  v.  Adams, 
75  Tex.  531,  12  S.  W,  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A.  844. 

Right  of  sender  to  recall  message. — The  negligent  failure  of  the  company 
to  carry  out  its  agreement  to  stop  delivery  of  the  message  may  expose  it 
to  liability  to  damages.  Bertuch  v.  Tel.,  etc.,  Co.,  79  Misc.  Rep.  10,  139  N. 
Y.  Supp.  289. 

111  Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304,  78  Am.  St.  Rep.  658,  35 


406     .        TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  289 

perform  this  part  of  their  duty,  they  must  keep  a  sufficient  mimber 
of  messenger  boys  at  their  stations  to  make  such  deliveries,  and  they 
cannot  escape  this  duty  by  showing  that  the  business  of  the  office 
at  the  receiving  station  was  not  sufficient  to  justify  the  employment 
of  an  additional  agent  to  make  delivery.^^^ 

§  289.  Excuse  for  nondelivery. — There  are  few  instances  where 
telegraph  companies  are  excused  for  not  making  a  prompt  delivery, 
since  it  is  presumed  that,  when  they  accept  a  message  for  transmis- 
sion, it  is  within  their  power  to  carry  out  the  obligations  of  their 
contracts  to  promptly  deliver.  There  may,  however,  be  some  in- 
stances where  they  are  excusable  for  not  making  a  prompt  or  even 
for  making  any  delivery  at  all."^  For  instance,  where  the  address 
of  the  sendee  is  not  sufficiently  given  in  that  his  name  is  not  cor- 
rectly written  or  his  street  number  is  improperly  given,^^*  or  where 
the  charges  for  transmission  are  not  given  or  tendered  either  by  the 
sender  or  sendee, ^^^  or  when  the  message  is  transmitted  at  a  time, 
as  at  night,  when  the  receiving  office  has  no  messenger  boy,  and  it 
is  not  the  usual  custom  to  have  one  at  that  time ;  in  this  latter  case, 
however,  the  message  should  be  delivered  early  the  next  morn- 
ing.118  Where  the  sendee  is  quarantined,  on  account  of  some  con- 
tagious disease,  or  where  he  cannot  be  found  ^^'^  after  diligent  in- 


S.  E.  543 ;    Brown  v.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146,  137  Am.  St. 
Rep.  914. 

112  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148;  West.  U.  Tel.  Co.  v.  Parsons,  72  S.  W.  800,  24  Ky.  Law  Rep. 
2008;  Brown  v.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146,  137  Am.  St. 
Rep.  914.  Compare  Behm  v.  West.  U.  Tel.  Co.,  8  Biss.  131,  Fed.  Cas.  No. 
1,234. 

Where  delivery  was  guaranteed,  error  to  instruct  the  jury  that  "it  was  not 
due  diligence  to  entrust  a  guaranteed  message  to  a  stranger  to  carry  on  foot 
a  distnnce  of  two  and  one-half  miles."  West.  U.  Tel.  Co.  v.  Daniels,  15  Ky. 
Law  Rep.  813. 

113  Prevented  hy  circumstances  over  which  the  company  had  no  control. — 
Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep.  211. 

Message  destroyed  by  hurning  of  telegraph  office. — West.  U.  Tel.  Co.  v. 
Stracner  (Tex.  Civ.  App.)  152  S.  W.  845. 

114  See  §  307. 

115  See  §  279. 

116  See  chapter  XIV. 

1  IT  West.  U.  Tel.  Co.  v.  Cross,  116  Ky.  5,  74  S.  W.  1098.  76  S.  W.  162, 
25  Ky.  Law  Rep.  268,  646;  West.  U.  Tel.  Co.  v.  Elliott,  131  Ky.  340,  115  S. 
W.  228,  22  L.  R.  A.  (N.  S.)  761;  Hinson  v.  Postal  Tel.  Cable  Co.,  132  N.  C. 
460,  43  S.  E.  945;  West.  U.  Tel.  Co.  v.  Cox  (Tex.  Civ.  App.)  74  S.  W.  922. 
Inquiry  at  all  hotels,  one  boarding  house,  picture  store  and  office,  and 
office  of  another  company  sufficient  where  addressee  was  a  traveling  picture 
man.  Hargrave  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  60  S.  W.  687 ;  West. 
U.  Tel.  Co.  v.  Burgess  (Tex.  Civ.  App.)  43  S.  W.  1033 ;  West.  U.  Tel.  Co.  v.. 
Wright,  169  Ala.  104,  53  South.  95. 


§    290)  AS  TO   MESSAGES LIABILITY  407 

quiry  for  his  whereabouts/^^  or  where  he  lives  unreasonably  far 
beyond  the  free  delivery  limits  and  the  charges  for  such  delivery 
have  not  been  prepaid/^^  the  company  would  be  excused  for  a  non- 
delivery. 

§  290.  Same  continued — not  excused  for. — A  telegraph  company 
cannot  be  excused  for  liabilities  caused  by  a  delay  in  delivering  a 
message  by  proof  that  it  was  not  the  custom  of  the  physician,  the 
sendee,  to  make  professional  calls  at  a  distance  without  prepayment 
or  guaranteed  payment  of  his  charges;  ^-°  or  that  the  message  re- 
lates to  a  sale  of  "futures,"  unless  it  is  made  a  crime  or  tort  to 
speculate  in  "futures,"  or  would  subject  the  company  to  indictment 
or  civil  action  to  receive  and  transmit  a  message  in  relation  there- 
to; ^^^  or  that  the  contract  for  its  transmission  and  delivery  was 
entered  into  on  Sunday,  if  the  emergency  to  which  the  telegram 
related  was  the  death  and  burial  of  the  father  of  the  person  to  whom 
it  was  addressed. ^^^  A  stipulation  on  the  company's  blank,  requir- 
ing messages  to  be  repeated,  is  no  defense  to  an  action  brought  to 
recover  damages  for  a  delay,  or  for  failure  in  delivering  a  message, 
where  the  same  has  not  been  repeated  ;^^^  nor  does  a  regulation 
requiring  the  prepayment  of  special  delivery  charges  before  trans- 
mission for  a  telegram  to  be  delivered  beyond  free  delivery  limits 
excuse  delay  in  delivery  or  nondelivery  of  a  telegram,  unless  the 
sender  knows  or  is  informed  that  the  residence  of  the  sendee  is  be- 
yond the  free  delivery  limits,  and  of  the  amount  of  the  special  de- 
livery charges. ^^*  A  telegraph  company  will  not  be  excused  for 
nondelivery  on  the  ground  that  the  sender  did  not  inform  the  opera- 
tor of  its  importance,  when  they  fail  to  show  that,  if  the  operator 
had  received  such  information,  he  would  have  changed  the  method 

118  Miller  v.  West.  U.  Tel.  Co.,  159  N.  C.  501,  75  S.  E.  795;  Hendershot 
V.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828.  68  Am.  St.  Rep.  31.3 ;  West. 
U.  Tel.  Co.  V.  Krichbaum,  145  Ala.  409,  41  South.  16;  Lyne  v.  West.  U.  Tel. 
Co.,  12.3  N.  C.  129,  31  S.  E.  350;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507, 
9  S.  W.  598,  1  L.  R.  A.  728,  10  Am.  St.  Rep.  772 ;  West.  U.  Tel.  Co.  v.  O-Fiel, 
47  Tex.  Civ.  App.  40,  104  S.  W.  406;  West.  U.  Tel.  Co.  v.  James,  31  Tex. 
Civ.  App.  503,  73  South.  79;  West.  U.  Tel.  Co.  v.  Waller,  37  Tex.  Civ.  App. 
515,  84  S.  W.  695. 

119  See  §  302  et  seq. 

120  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  IS  Am.  St. 
Rep.  148. 

121  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  14  L.  R.  A.  9.1,  27 
Am.  St.  Rep.  259;    Smith  v.  West.  U.  Tel.  Co.,  84  Ky.  664,  2  S.  W.  4S;J. 

122  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  30  Am.  St.  Rep.  23,  9  South. 
414.     See,  also,  note  65,  ante. 

1^3  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  30  Am.  St.  Rep.  23,  9  South.  414. 
12*  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St. 
Rep.  843. 


408  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  291 

of  the  transmission,  or  the  time  in  which  it  would  have  been  sent^ 
the  agency  employed,  the  price  demanded  therefor,  or  the  skill  used 
in  the  transmission;  ^-^  nor  will  it  be  excused  on  the  ground  that 
the  business  of  the  office  where  it  was  received  was  not  sufficient  to 
justify  the  employment  of  a  messenger.^^^  They  cannot  be  excused 
for  a  delay  by  contending  that  the  sender  should  have  sent  the 
message  sooner,  instead  of  waiting  until  the  last  moment, ^-'^  nor  by 
setting  up  the  fact  that  the  message  as  offered  was  not  in  writing.^-^ 
§  291.  Duty  to  inform  sender  of  nondelivery. — As  a  general 
rule,  it  is  not  the  duty  of  the  telegraph  company  to  inform  the 
sender  that  the  telegram  cannot  be  delivered,  or  the  sendee  cannot 
be  found, ^^^  but  when  it  is  convenient  or  practical  for  the  company 
to  impart  such  information,  especially  where  the  message  shows 
on  its  face  its  importance,  it  should  do  so ;  otherwise  the  company 
will  be  liable  for  all  damages  directly  arising  therefrom. ^^'^  Thus, 
where  a  mother  telegraphs  to  a  friend  to  meet  the  remains  of  her 
child  at  a  certain  place,  and  she  has  been  assured  of  the  fact  that 

125  Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304,  35  S.  E.  543,  78  Am. 
St.  Eep.  658 ;    West.  U.  Tel.  Co.  v.  Hyer  Bros.,  16  Am.  &  Eng.  Corp.   Cas.  232. 

120  West.  U.  Tel.  Co.  v.  Heuderson,  89  Ala.  510,  18  Am.  St.  Rep.  148,  9 
Soutb.  419. 

127  Pope  V.  West.  U.  Tel.  Co.,  14  111.  App.  531;  West.  U.  Tel.  Co.  v.  Bruner 
(Tex.)  19  S.  W.  149. 

12  8  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414.  30  Am.  St.  Rep.  23. 

129  West.  U.  Tel.  Co.  v.  Davis  (Tex.  Civ.  App.)  51  S.  W.  258. 

i30Cog:dell  v.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490;  Hendricks  v. 
West.  U.  Tel.  Co.,  126  N.  C.  304,  35  S.  E.  543,  78  Am.  St.  Rep.  658,  the  reason  is  to 
enable  the  sender  to  remedy  the  defect,  or  to  resort  to  any  or  further  or  other 
means  of  communication  with  the  addressee ;  West.  U.  Tel.  Co.  v.  Garrett,  46 
Tex.  Civ.  App.  430, 102  S.  W.  456;  Johnson  v.  West.  U.  Tel.  Co.,  75  S.  C.  54,  54 
S.  E.  826,  where  operator  agrees  to  notify  the  sender  in  case  a  message  is 
not  delivered  within  a  certain  time,  negligent  not  to  do  so;  otherwise  if  this 
in  no  way  caused  or  contributed  to  the  injury  complained  of;  Sturtevant  v. 
Tel.  Co.,  109  Me.  479,  84  Atl.  998 ;  Ellison  v.  West.  U.  Tel.  Co.,  163  N.  C.  5, 
79  S.  E.  277 ;  Dempsey  v.  West.  U.  Tel.  Co.,  92  S.  C.  577,  75  S.  E.  977,  notice 
should  be  sent  to  the  place  indicated  in  the  telegram  when  different  from 
the  place  of  sending;  West.  U.  Tel.  Co.  v.  Erwin  (Tex.  Civ.  App.)  147  S.  W. 
607.  See  West.  U.  Tel.  Co.  v.  Allen,  30  Okl.  229,  119  Pac.  981,  38  L.  R.  A. 
(N.  S.)  348;  Fleischner  v.  Pac.  Postal  Tel.  Cable  Co.  (C.  C.)  55  Fed.  738, 
affirmed  G6  Fed.  899,  14  C.  C.  A.  166 ;  Swan  v.  West.  U.  Tel.  Co.,  129  Fed.  318, 
63  C.  C.  A.  550,  67  L.  R.  A.  153,  certiorari  denied  195  U.  S.  628,  25  Sup.  Ct. 
787,  49  L.  Ed.  351 ;  Box  v.  Postal  Tel.  Cable  Co.,  165  Fed.  138,  91  C.  C.  A. 
172,  28  L.  R.  A.  (N.  S.)  566 ;  West.  U.  Tel.  Co.  v.  Bierhaus,  12  Ind.  App.  17,. 
39  N.  E.  881;  Id.,  8  Ind.  App.  5G3,  36  N.  E.  161;  West.  U,  Tel. -Co.  v.  Moore, 
12  Ind.  App.  136,  39  N.  E.  874,  54  Am.  St.  Rep.  515;  Brashears  v.  West.  U. 
Tel.  Co.,  45  Mo.  App.  433;  Sherrill  v.  West.  U.  Tel.  Co.,  117  N.  C.  352,  23 
S.  E.  277 ;  Id.,  116  N.  C.  655,  21  S.  E.  429 ;  Bright  v.  West.  U.  Tel.  Co.,  132 
N.  C.  317,  43  S.  E.  841;  Hinson  v.  Postal  Tel.  Cable  Co.,  132  N.  C,  460,  43 
S.  E.  945 ;  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E.  938 ;  Cogdell 
V.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490;    Hood  v.  West.  U.  Tel.  Co.^ 


§    291)  AS  TO   MESSAGES LIABILITY  409 

the  same  was  delivered,  but  in  fact  it  had  not  been,  and  the  com- 
pany could  have  easily  informed  her  of  the  nondelivery,  it  will  be 
liable  for  all  damages  caused  by  her  accompanying  the  remains  to 
this  place  by  railroad  without  giving  her  an  opportunity  of  making 

135  N.  C.  622,  47  S.  E.  607;  Campbell  v.  West.  U.  Tel.  Co.,  74  S.  C.  300,  54 
S.  E.  571 ;  Bolton  v.  West.  U.  Tel.  Co.,  76  S.  C.  529,  57  S.  E.  543 ;  Lyles  v. 
West.  U.  Tel.  Co.,  77  S.  C.  174,  57  S.  E.  725,  12  L.  R.  A.  (N.  S.)  534 ;  West. 
U.  Tel.  Co.  V.  Robinson,  97  Tenn.  638,  37  S.  W.  545,  34  L.  R.  A.  431 ;  Ander- 
son V.  West.  U.  Tel.  Co.,  84  Tex.  17,  19  S.  W.  285;  West.  U.  Tel.  Co.  v. 
Sweetman,  19  Tex.  Civ.  App.  435,  47  S.  W.  676 ;  West.  U.  Tel.  Co.  v.  Davis, 
24  Tex.  Civ.  App.  427,  59  S.  W.  46 ;  West.  U,  Tel.  Co.  v,  Birge-Forbes  Co.,  29 
Tex.  Civ.  App.  526,  69  S.  W.  ISl ;  West.  U.  Tel.  Co.  v.  Sorsby,  29  Tex.  Civ. 
App.  345,  69  S.  W.  122 ;  Faubion  v.  West,  U.  Tel.  Co.,  36  Tex.  Civ.  App.  98, 
81  S.  W.  56;  West.  U.  Tel.  Co.  v,  Bruner  (Tex.)  19  S.  W.  149;  Evans  v. 
AVest.  U,  Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  609;  West.  U.  Tel.  Co.  v.  Mc- 
Donald, 42  Tex.  Civ.  App.  229,  95  S.  W.  691 ;  West.  U.  Tel.  Co,  v,  Ayres,  47 
Tex.  Civ.  App.  557,  105  S.  W.  3165. 

Some  cases  hold  that  the  sender  must  be  promptly  notified  of  delay  in  the 
transmission  or  delivery  of  a  message.  Swan  v.  West.  U.  Tel.  Co.,  supra ; 
Hendricks  v.  West.  U,  Tel,  Co.,  supra;  Green  v.  West.  U,  Tel,  Co,,  post; 
Carter  v.  West.  U.  Tel.  Co.,  post. 

Duty  to  wire  back. — It  has  been  held  that  if  due  search  has  been  made  for 
the  addressee  and  he  cannot  be  found,  it  is  still  required  of  the  company  to 
wire  back  for  a  better  address ;  otherwise  it  would  be  evidence  of  negligence. 
Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304,  35  S.  E.  543,  78  Am.  St.  Rep. 
658 ;  Cogdell  v.  West,  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490 ;  Woods  v. 
West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128  Am,  St,  Rep,  581;  Postal 
Tel.  Cable  Co.  v.  Nichols,  159  Fed.  643,  89  C.  C,  A,  585,  16  L.  R.  A.  (N.  S.) 
870,  14  Ann.  Cas.  3G9 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  506,  49  S.  E.  171, 
1  Ann.  Cas.  358 ;  Hall  v.  West.  U.  Tel.  Co.,  139  N.  C.  369,  52  S.  E.  50.  But 
see  Cumberland  Tel.,  etc.,  Co.  v.  Atherton,  28  Ky.  Law  Rep.  1100,  91  S.  W.  257 ; 
Johnson  v.  West.  U.  Tel.  Co.,  75  S.  C.  54,  54  S.  E.  826,  holding  that,  where 
it  does  not  appear  that  the  sender  of  a  telegraph  message  could  have  used 
any  other  means  of  communication  in  time  to  have  prevented  the  addressee 
from  taking  an  unnecessary  journey,  the  latter  cannot  recover  damages  there- 
for, based  on  the  telegraph  company's  failure  to  notify  the  sender,  as  its 
agent  had  agreed  to  do  within  two  hours,  if  the  message  could  not  be  de- 
livered that  night;  Poteet  v.  West.  U.  Tel.  Co.,  74  S.  C.  491,  55  S.  E,  113, 
holding  that  there  can  be  no  recovery  for  the  failure  to  notify  the  sender 
of  the  nondelivery  of  a  message  because  of  the  addressee's  temporary  absence 
from  his  residence,  requesting  the  latter  to  come  on  the  first  train,  as  his 
child  was  dead,  where  notice,  if  given,  would  not  have  enabled  the  sender, 
by  use  of  other  means  of  communication,  to  have  given  the  addressee  notice 
in  time  for  him  to  have  come  that  day.  See,  also.  Carter  v.  West.  U.  Tel. 
Co.,  141  N.  C.  374,  54  S.  E.  274. 

It  has  been  held  that  the  duty  of  the  telegraph  company  to  notify  the 
sender  of  its  inability  to  send  a  message  is  not  an  absolute  one ;  that,  at  most, 
it  can  be  only  a  question  of  whether,  under  all  the  circumstances,  a  reason- 
ably prudent  person  would  pursue  such  a  course,  and  that  the  necessity  or 
sufiiciency  of  notice  are  questions  for  the  juiy.  Faubion  v.  West.  U.  Tel. 
Co.,  36  Tex.  Civ.  App.  98,  81  S.  W.  56;  West.  U.  Tel.  Co.  v.  Sorsby,  29  Tex. 
Civ.  App.  345,  69  S.  W.  122;  West.  U.  Tel.  Co.  v.  Davis  (Tex.  Civ.  App.)  51 
S.  W,  258. 

Failure  to  notify  the  sender  of  the  nondelivery  of  a  message  will  not  war- 


410  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  292 

other  arrangements. ^^^  It  is  not  negligence  per  se  to  fail  to  disclose 
such  information  to  the  sender,  but  it  is  an  evidence  of  negligence.^^' 
§  292.  To  whom  made — delivery. — After  a  telegraph  company 
has  accepted  and  transmitted  a  message,  it  is  under  prima  facie  obli- 
gations to  deliver  the  message  to  the  sendee  in  person, ^^^  unless 
other  arrangements  have  been  made,  and  it  will  be  liable  for  any 
injury  caused  by  such  breach  of  duty.  Arrangements  may  be  made 
between  the  company  and  the  party  to  whom  the  messages  are  sent 
by  which  a  delivery  to  some  third  party  would  relieve  the  former 
of  further  duty.^^*  The  sender  could  not  object  to  such  arrange- 
ments ;  for  a  delivery  of  a  message  which  would  be  good  in  law  as 
between  the  addressee  and  the  company  is  good  as  between  the 
sender  and  the  company.^^^    A  party  may  instruct  the  company  to 

rant  a  recovery  of  damages  which  are  speculative  and  not  proximately  re 
lated  to  such  failure.  Cahn  v.  West.  U.  Tel.  Co.,  48  Fed.  810,  1  C.  C.  A,  107 
Kagy  V.  West.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117  Am.  St.  Rep 
278;  Cumberland  Tel.,  etc.,  Co,  v.  Atherton,  122  Ky.  154,  91  S.  W.  257 
Barnes  v.  West.  U.  Tel.  Co.,  24  Nev.  125,  50  Pac.  438,  77  Am.  St.  Rep.  791 ; 
Poteet  v.  West.  U.  Tel.  Co.,  74  S.  C.  491,  55  S.  E.  113 ;  Stephenson  v.  Montreal 
Tel.  Co.,  16  U.  C.  Q.  B.  530. 

131  Laudie  v.  West.  U.  Tel.  Co.,  126  N.  C.  431,  35  S.  E.  810,  78  Am.  St.  Rep. 
668. 

132  Laudie  v.  West.  U.  Tel.  Co.,  126  N.  C.  431,  35  S.  E.  810,  78  Am.  St.  Rep. 
668;  Swan  v.  West.  U.  Tel.  Co.,  129  Fed.  318,  63  C.  C.  A.  .550,  67  L.  R.  A. 
153;  Cogdell  v.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490;  Carter  v. 
West.  U.  Tel.  Co.,  141  N.  C.  374,  54  S.  E.  274 ;  Woods  v.  West.  U.  Tel.  Co., 
148  N.  C.  1,  61  S.  E.  653,  128  Am.  St.  Rep.  581 ;  West.  U.  Tel.  Co.  v.  Hargrove, 
14  Tex.  Civ.  App.  79,  36  S.  W.  1077. 

133  Pope  v.  West.  U.  Tel.  Co.,  9  111.  App.  283;  Glover  v.  West.  U.  Tel.  Co.,  78 
S.  C.  502,  59  S.  E.  526 ;  West.  U.  Tel.  Co.  v.  Newhouse,  6  Ind.  App.  422,  33  N.  E. 
800 ;  West.  U.  Tel.  Co.  v.  Mitchell,  91  Tex.  454,  44  S.  W.  274,  66  Am.  St.  Rep. 
900,  40  L.  R.  A.  209 ;  West.  U.  Tel.  Co.  v.  Houghton,  82  Tex.  561,  17  S.  W. 
846,  27  Am.  St.  Rep.  918,  15  L.  R.  A.  129 ;  West.  U.  Tel.  Co.  v.  Bruner  (Tex.)  19 
S.  W.  149 ;  West.  U.  Tel.  Co.  v.  Franklin,  129  Tenn.  656,  168  S.  W.  151. 

Instances  of  improper  delivery. — To  the  addressee's  minor  son  while  passing 
the  company's  office,  Mott  v.  West.  U.  Tel.  Co.,  142  N.  C.  532,  55  S.  E.  363 ;  to 
a  neighbor  of  the  addressee  delivering  it  to  the  addressee.  West.  U.  Tel.  Co.  v. 
Belew,  32  Tex.  Civ.  App.  338,  74  S.  W.  799;  telegram  addressed  to  a  certain 
person  at  the  freightyards  of  the  railroad  company,  the  company  not  justified 
in  leaving  it  with  the  yardmaster,  who  does  not  know  the  addressee,  West.  U. 
Tel.  Co.  V.  Newhouse,  6  Ind.  App.  422,  33  N.  E.  800 ;  to  business  partner  of  pri- 
vate or  social  telegram.  Glover  v.  West.  U.  Tel.  Co.,  78  S.  C.  502,  59  S.  E.  526 ; 
to  the  captain  of  a  steamboat  on  which  the  addressee  is  a  passenger,  Davies 
V.  West.  Steamboat  Co.,  94  Me.  379,  47  Atl.  896,  53  L.  R.  A.  239. 

134  Thompson  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  120,  30  S.  W.  250;  West. 
U.  Tel.  Co.  V.  Pierce,  95  Tex.  578,  68  S.  W.  771,  reversing  (Tex.  Civ.  App.)  67 
S.  W.  920,  and  distinguishing  West.  U.  Tel.  Co.  v.  Young,  77  Tex.  245,  13  S.  W. 
985,  19  Am.  St.  Rep.  751 ;  West.  U.  Tel.  Co.  v.  Evans,  5  Tex.  Civ.  App.  55,  23 
S.  W.  998 ;  West.  U.  Tel.  Co.  v.  Barefoot,  97  Tex.  159,  76  S.  W.  914,  64  L.  R.  A. 
491 ;  West.  U.  Tel.  Co.  v.  Franklin,  129  Tenn.  G.56,  168  S.  W.  157. 

135  Norman  v.  West.  U.  Tel.  Co.,  31  Wash.  577,  72  Pac.  474. 


§    293)  AS   TO   MESSAGES LIABILITY  411 

leave  all  messages  at  his  place  of  business,  and  a  delivery  to  such 
place  would  be  a  sufficient  delivery;  ^^°  or  the  addressee  may  make 
the  company's  messenger  his  agent,  so  that  he  could  not  hold  the 
company  for  the  messenger's  mistakes.^^'^  But  in  order  to  relieve 
the  company  of  any  responsibility,  the  arrangements  to  leave  the 
message  with  some  third  party  must  be  made  by  special  agree- 
ments between  the  company  and  the  party  to  whom  the  messages 
are  addressed;  and  generally  the  same  must  be  in  writing,  as  a 
mere  verbal  instruction  to  the  company's  messenger  at  some  place 
other  than  at  its  office  would  not  be  sufficient.^^^ 

§  293.  Delivery  to  wife. — Is  a  delivery  of  a  message  to  a  wife 
sufficient?  In  answering  this  question,  it  is  necessary  to  consider 
the  circumstances  in  each  particular  case.  Generally  speaking,  a 
delivery  to  a  wife  is  not  per  se  sufficient  as  matter  of  law.^^^  The 
wife,  as  such,  is  not  in  law  the  general  agent  of  her  husband."*^ 
If  the  husband  should  be  absent  from  home,  the  wife  may  be  the 
proper  party  to  whom  the  message  should  be  delivered,^*^  for  she 
is  the  most  likely  of  all  persons  in  the  world  to  know  of  her  hus- 
band's whereabouts,  and  thus  be  enabled  to  send  the  message  to 
him  immediately.^*^  And  the  husband,  in  case  of  his  absence  from 
home,  may  be  estopped  from  denying  the  rights  of  his  wife  in  ac- 
cepting a  message  for  him.  Thus,  if  she  has  been  at  the  head  of  his 
business,  about  which  the  message  concerns,  or  if  it  has  been  the 
custom  for  the  messages  to  be  delivered  to  her  in  his  absence,  the 
company,  under  such  circumstances,  would  be  justified  in  delivering 
the  message  to  her :  but  even  then,  if  the  message  has  importance 
on  its  face,  the  company  would  not  be  relieved  from  its  duty  to 
deliver  to  the  addressee  until  after  having  made  diligent  search  and 
inquiry  for  him.     The  reason  of  this  is  that  the  business  about 

136  West.  U.  Tel.  Co.  v.  Woods,  56  Kan.  737,  44  Pac.  9S9. 

137  Norman  v.  West.  U.  Tel.  Co.,  31  Wash.  577,  72  Pac.  474. 

13  8  Given  v.  West.  tf.  Tel.  Co.  (C.  C.)  24  Fed.  119.  Not  the  duty  to  deliver 
message  to  one  not  authorized  to  accept,  where  the  addressee  is  absent.  West. 
U.  Tel.  Co.  V.  Moseley,  28  Tex.  Civ.  App.  .162,  67  S.  W.  10-59 ;  West.  U.  Tel.  Co. 
V.  Mitchell,  91  Tex.  454,  44  S.  W.  274,  G6  Am.  St.  Rep.  906,  40  L.  R.  A.  209 ; 
West.  U.  Tel.  Co.  v.  Redinger  (Tex.  Civ.  App.)  63  S.  W.  156. 

3  39  West.  U.  Tel.  Co.  v.  Mitchell,  91  Tex.  454,  44  S.  W.  274,  66  Am.  St.  Rep. 
906,  40  L.  R.  A.  209 ;  West.  U.  Tel.  Co.  v.  Moseley,  28  Tex.  Civ.  Api).  562,  67 
S.  W.  1059. 

140  West.  U.  Tel.  Co.  v.  Mitchell,  91  Tex.  454,  44  S.  W.  274,  66  Am.  St.  Rep. 
906,  40  L.  R.  A.  209. 

1*1  Relating  to  family  matters. — West.  U.  Tel.  Co.  v.  Hendricks,  29  Tex. 
Civ.  App.  413,  08  S.  W.  720. 

142  West.  U.  Tel.  Co.  v.  Clark,  14  Tex.  Civ.  App.  563,  38  S.  W.  255 ;  West.  U. 
Tel.  Co.  V.  Woods,  56  Kan.  737,  44  Pac.  989 ;  Given  v.  West.  U.  Tel.  Co.  (C.  C.) 
24  Fed.  119. 


412  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  294 

which  the  message  pertains  may  be  different  from  that  over  which 
the  wife  may  have  control,  and  about  which  she  may  have  any 
knowledge.  While  it  may  be  likely  that  the  wife  would  know  of 
her  husband's  whereabouts,  in  a  general  way,  when  absent  from  his 
home  town,  yet  it  is  not  possible  that  she  has  been  informed  of  all 
of  his  business  affairs.  So  the  contents  of  a  message  may  be  con- 
cerning business  of  great  importance  to  him  and  on  which  he  would 
act  immediately,  but  if  delivered  to  his  wife,  she  might  not,  for  the 
above  reason,  notify  him  immediately  of  the  contents,  whereby  he 
would  be  injured  by  her  negligence. ^*^  It  is,  therefore,  better  to 
impose  the  duty  upon  the  telegraph  company  to  deliver  messages 
to  the  addressee  in  person,  especially  where  it  shows  importance  on 
its  face,  or  when  it  is  about  business  of  which  the  wife  has  no 
knowledge ;  and  this  duty  does  not  cease  until  the  company  has 
made  diligent  inquiries  for  the  addressee.^** 

§  294.  Delivery  to  hotel  clerk — not  sufficient. — It  has  been  held 
that  when  a  telegraph  company  has  delivered,  to  a  clerk  of  a  hotel, 
a  message  addressed  to  one  of  the  guests  or  boarders  in  his  absence 
from  his  place  of  business,  and  the  same  is  receipted  by  the  clerk, 
that  the  company  has  fulfilled  its  duties.^*^  The  ground  on  which 
this  reason  was  based  was  that  it  was  one  of  the  implied  duties  of  a 
hotel  clerk  to  receive  and  accept  all  messages  addressed  to  their 
guests  or  boarders  in  their  absence.^*^  But  there  is  a  later  opinion 
— and  a  better  one  we  think — which  holds  to  the  contrary.  In  this 
case  the  court,  said :  "The  question  presented  is  whether  or  not  the 
mere  relation  of  hotelkeeper  and  lodger  and  boarder  creates,  in  law, 
an  authority  in  the  former  or  his  clerk  to  receive  telegrams  ad- 
dressed to  the  latter.  It  must  be  answered  in  the  negative,  since 
there  is  no  evidence  stated  from  which  it  might  be  inferred  as  a  fact 
that  Cobb  had  constituted  the  clerk  of  the  hotel  his  agent  or  serv- 
ant for  such  purposes ;  there  is  nothing  to  be  considered  but  the 
fact  that  he  boarded  and  lodged  at  the  hotel.  If  such  an  authority 
arose  from  that  fact  alone,  it  could  only  be  because  the  performance 
of  such  services  by  the  keeper  of  the  hotel  was  among  the  duties 
imposed  on  him  by  law  toward  those  so  boarding  with  him.  Should 
it  be  assumed  that  the  full  relation  of  innkeeper  and  guest  existed 
(which  does  not  appear),  and  that  all  of  the  duties  arising  from  it 
rested  on  the  keeper  of  this  hotel,  we  know  of  no  authority  that 
would  include  among  them  that  of  receiving  and  assuming  the  re- 

143  Given  v.  West.  U.  Tel.  Co.  (C.  C.)  24  Fed.  119. 

144  See  §  292. 

14  5  West.  U.  Tel.  Co.  v.  Trissal,  98  Ind.  566. 
146  Id. 


§    296)  AS  TO  MESSAGES — LIABILITY  413 

sponsibility  of  safely  delivering  telegrams.  We  can  see  no  reason 
why  such  a  duty  would  exist,  if  not  voluntarily  assumed,  any  more 
than  that  of  receiving  other  notices  or  transacting  other  business 
for  the  boarder.^*^  Of  course  if  it  has  been  the  custom  to  deliver 
all  messages  to  a  hotel  clerk  and  a  special  arrangement  to  that  effect 
has  been  made  between  the  latter  and  guest  or  boarder,  then  a  de- 
livery to  the  clerk  will  be  sufficient. ^*^ 

§  295.  Where  two  parties  have  same  name— delivery  to  one. — It 
may  occasionally  happen  that  there  are  two  parties  at  the  place  the 
message  is  sent  having  the  same  name  as  that  to  which  the  message 
is  addressed.  Under  such  circumstances,  has  the  company  per- 
formed its  duty  when  it  has  delivered  the  message  to  one  of  these 
parties?  The  answer  to  this  question  rests  wholly  and  entirely 
upon  the  fact  as  to  whether  or  not  the  company  has  any  knowledge 
whatever,  derived  from  any  source,  of  the  real  party  addressed. 
Thus,  if  the  company  has  been  conducting  a  communication  prior 
thereto  for  one  of  these  parties,  or  if  the  telegram  is  in  reference  to 
the  business,  occupation  or  standing  of  one  of  these  parties,  or  if 
one  of  these  parties  to  whom  the  message  may  be  delivered  ascer- 
tains the  fact  after  reading  it  that  he  is  not  the  real  addressee  and 
informs  the  messenger  or  operator  of  this  fact,  or  if  there  is  any 
other  means  by  which  the  company  may  be  enlightened  as  to  who 
the  real  addressee  is,  it  will  not  be  relieved  from  liability  until  the 
message  shall  have  been  delivered  to  him,  or  good  reasons  shown 
for  not  doing  so.^*^  If,  on  the  other  hand,  the  company  has  no 
means  of  ascertaining  which  of  the  two  parties  is  the  real  addressee, 
a  delivery  to  one  is  sufficient. 

§  296.  In  care  of  another. — When  a  message  is  addressed  to  one 
party  in  care  of  another,  the  company  has  performed  its  duty  when 
it  delivers  the  message  to  the  party  in  whose  care  it  is  directed. 
The  telegraph  company  contracts  to  deliver  the  message  to  the 
party  in  whose  care  it  is  directed  and  not  to  the  addressee;  and 
when  it  has  performed  this  duty,  its  liability  ceases. ^^^  Such  de- 
livery is  sufficient  although  no  effort  has  been  made  to  find  the  ad- 

1*7  West.  U.  Tel.  Co.  v.  Trissal,  98  Ind.  506. 

148  See  §  292. 

14  0  Sherrill  v.  West.  U.  Tel.  Co.,  116  N.  C.  654,  21  S.  E.  400.  Wliere  one  mes- 
sage is  sent  to  two  persons  at  the  same  address,  the  company  may  be  liable  for 
damage  caused  by  sending  separate  messages  to  each  addressee.  Tel.  Co.  v. 
Bank,  7  Ala.  App.  637,  62  South.  250. 

150  See  West.  U.  Tel.  Co.  v.  Newhouse,  6  Ind.  App.  422,  33  S.  E.  800;  West. 
U.  Tel.  Co.  V.  Rovvell,  153  Ala.  295,  45  South.  73 ;  Hinson  v.  Postal  Tel.  Cable 
Co.,  132  N.  C.  460,  43  S.  E.  W5 ;  Lefler  v.  West.  U.  Tel.  Co.,  131  N.  C.  355,  42 
S.  E.  819,  59  L.  R.  A.  477 ;   Sweet  v.  West.  U.  Tel.  Co.,  139  Mich.  322,  102  N.  W. 


414  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  296 

dressee.^^^  And  when  the  address  is  in  care  of  a  railroad  company 
at  a  certain  place,  a  delivery  to  its  agent  there  is  sufficient.^^^  It 
has  further  been  held  that  a  delivery  to  the  party  in  whose  care  it 
is  sent  is  sufficient  although  he  refuses  to  accept  the  message  ;^^^ 
but  we  think  a  better  holding  is  that,  when  this  party  refuses  to  ac- 
cept the  message  and  the  company  knows  of  the  real  addressee's 
whereabouts,  it  should  make  reasonable  efforts  to  deliver  the  mes- 
sage to  him,  especially  when  the  message  shows  importance  on  its 
face.^^*  If  the  person  in  whose  care  the  message  is  sent  cannot  be 
found,  it  is  the  duty  of  the  company  to  make  diligent  search  for  the 
party  addressed;  ^^^  in  order  to  entirely  relieve  the  company  it 
would  be  a  good  plan  for  the  sender  to  be  notified  of  this  fact ;  and 
yet  it  is  not  a  necessary  duty  to  do  this,  unless  the  same  is  practica- 
ble.^^^  An  agreement  may  be  made  between  either  the  sender  or 
addressee  and  the  company's  operator  to  deliver  the  message  to  a 
certain  person  in  a  certain  manner,  and,  when  the  company  has 

850,  5  Ann.  Cas.  730 ;  West.  U.  Tel.  Co.  v.  McCaiil,  115  Tenn.  99,  90  S.  W.  856 ; 
West.  U.  Tel.  Co.  v.  Young,  77  Tex.  245,  13  S.  W.  985,  19  Am.  St.  Rep.  751 ; 
West.  U.  Tel.  Co.  v.  Mitchell,  91  Tex.  454,  44  S.  W.  274,  66  Am.  St.  Rep.  906,  40 
L.  R.  A.  209 ;  West.  U.  Tel.  Co.  v.  Sliaw,  40  Tex.  Civ.  App.  277,  90  S.  W.  58 ; 
West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App.  60,  30  S.  W.  70 ;  West.  U.  Tel. 
Co.  V.  Elliott,  7  Tex.  Civ.  App.  482,  27  S.  W.  219.  See  West.  U.  Tel.  Co.  v. 
Oakley  (Tex.  Civ.  App.)  181  S.  W.  507,  delivery  to  either  of  two  parties  to  ei- 
ther sufficient.  But  see  West.  U.  Tel.  Co.  v.  Schoonmaker  (Tex.)  181  S.  W. 
263,  where  company  negligently  changed  name  of  addressee. 

151  West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App.  60,  30  S.  W.  70. 

152  Lefier  v.  West.  U.  Tel.  Co.,  131  N.  C.  355,  42  S.  B.  819,  59  L.  R.  A.  477; 
West.  U.  Tel.  Co.  v.  Shaw,  40  Tex.  Civ.  App.  277,  90  S.  W.  58.  See,  also,  Hen- 
dricks V.  West.  U.  Tel.  Co.,  126  N.  C.  304,  35  S.  E.  543,  78  Am.  St.  Rep.  658. 
See  §  314.     See,  also,  West.  U.  Tel.  Co.  v.  Smith,  164  Ky.  270.  175  S.  W.  375. 

153  West.  U.  Tel.  Co.  v.  Thompson  (Tex.  Civ.  App.)  31  S.  W.  318.  But  ordi- 
narily where  a  person  in  whose  care  a  telegram  is  addressed  refuses  to  receive 
the  same,  the  telegraph  company  must  make  a  reasonable  effort  to  send  it  to 
the  sendee,  and,  failing  in  that,  should  wire  back  for  a  better  address.  See 
West.  U.  Tel.  Co.  v.  Smith,  164  Ky.  270,  175  S.  W.  375. 

154  Hinson  v.  Postal  Tel.  Cable  Co.,  132  N.  C.  460,  43  S.  E.  945.  Contra, 
West.  U.  Tel.  Co.  v.  Young,  77  Tex.  245,  13  S.  W.  985,  19  Am.  St.  Rep.  751. 

155  West.  U.  Tel.  Co.  v.  Houghton,  82  Tex.  561,  17  S.  W.  846,  15  L.  R.  A.  129, 
note,  27  Am.  St.  Rep.  918 ;  West.  U.  Tel.  Co.  v.  Jackson,  19  Tex.  Civ.  App.  273, 
46  S.  W.  279 ;  West.  U.  Tel.  Co.  v.  Barefoot,  '97  Tex.  159,  76  S.  W.  914,  64  L. 
R.  A.  491 ;  See,  also,  West.  U.  Tel.  Co.  v.  Mitchell,  91  Tex.  454,  44  S.  W.  274, 
40  L.  R.  A.  209,  66  Am.  St.  Rep.  906;  West.  U.  Tel.  Co.  v.  De  Jarles,  8  Tex. 
Civ.  App.  109,  27  S.  W.  792 ;  West.  U.  Tel.  Co.  v.  Houghton,  82  Tex.  561,  17  S. 
W.  846,  27  Am.  St.  Rep.  918,  15  L.  R.  A.  129 ;  West.  U.  Tel.  Co.  v.  Waller,  37 
Tex.  Civ.  App.  515,  84  S.  W.  695,  message  addressed  "care  some  hotel,"  duty 
not  discharged  by  inquiring  at  the  various  hotels  in  the  place,  if,  by  ordinary 
care,  the  addressee  could  be  found  elsewhere ;  Lyne  v.  West.  U.  Tel.  C,  123  N. 
■C.  129,  31  S.  E.  350.  question  for  jury.  See  West.  U.  Tel.  Co.  v.  Elliot,  130 
Ky.  340,  115  S.  W.  228,  22  L.  R.  A.  (N.  S.)  761. 

156  See  §  291. 


§    297)  AS  TO   MESSAGES LIABILITY  415 

complied  with  this  agreement,  it  will  be  relieved  from  further  re- 
sponsibility.'" But  whatever  arrangements  this  third  party  may 
have  made  with  the  company  with  respect  to  the  message  addressed 
to  him  will  not  be  binding  with  respect  to  the  messages  addressed 
in  his  care.'^^  Thus,  if  there  is  an  arrangement  made  between  the 
company  and  the  third  party  whereby  all  messages  may  be  de- 
livered to  him  by  telephone,  this  does  not  mean  that  messages  sent 
in  his  care  may  be  delivered  in  the  same  manner,'^'*  but  in  such 
cases  it  is  the  duty  of  the  company  to  deliver  to  him  in  person  ^'^'^ 
a  written  copy  of  the  telegram/*''  The  reason  of  this  rule  is  very 
clear.  When  a  message  is  addressed  to  this  party  and  is  delivered 
to  him  over  a  telephone  or  by  other  similar  means,  by  an  agreement 
to  that  effect,  it  has  reached  its  destination,  and  he  is  in  a  position 
to  understand  its  contents  and  may  act  on  it  as  he  may  see  fit ;  but 
in  the  other  instance,  where  he  is  the  party  in  whose  care  it  is 
addressed,  he  is  not  a  principal  and  may  not  be  in  a  position  to- 
comprehend  its  meaning  nor  understand  it  sufficiently  to  enable 
him  to  redeliver  it  to  the  addressee  correctly  and  promptly.  He 
should  have  a  written  copy  delivered  to  him  by  the  company  in 
order  that  he  may  deliver  to  the  real  addressee  the  same  identical 
message  received  by  him.'*'^ 

§  297.  To  authorized  agent. — A  delivery  will  be  sufficient  if  it  is 
made  to  a  clerk  of  a  hotel  of  which  the  addressee  is  a  guest  or 
boarder ;'^^  or  to  the  wife  of  the  addressee;'^*  or  a  member  of  a 
firm  or  corporation;  '^'^  or  to  any  other  party  who  is  authorized  to 
act  as  agent  in  receiving  messages.    But,  in  order  for  the  company 

157  Thompson  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  120,  30  S.  W.  250; 
West.  U.  Tel.  Co.  v.  Barefoot,  97  Tex.  159,  76  S.  W.  914,  64  L.  R.  A.  491. 

15  8  Norman  v.  West.  U.  Tel.  Co.,  31  Wash.  577,  72  Pac.  474. 

150  West.  U.  Tel.  Co.  v.  Pearce,  95  Tex.  578,  68  S.  W.  771,  reversing  (Tex. 
Civ.  App.)  67  S.  W.  920. 

160  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W.  856;  Thompson  v. 
West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  120,  30  S.  W.  250 ;  West.  U.  Tel.  Co.  v. 
Hendricks,  29  Tex.  Civ.  App.  413,  68  S.  W.  720 ;  West.  U.  Tel.  Co.  v.  McFran- 
cis  (Tex.  Civ.  App.)  149  S.  W.  574.  Not  proper  to  deliver  message  to  a  business 
associate.  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W.  8-50 ;  or  to  his 
wife,  Thompson  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  120,  30  S.  W.  250 ;  or 
to  an  agent  designated  to  receive  messages  addressed  to  him  personally.  West. 
U.  Tel.  Co.  v.  Pearce,  95  Tex.  578,  68  S.  W.  771,  reversing  (Tex.  Civ.  App.)  67 
S.  W.  920 ;  if  both  parties  are  absent,  should  be  delivered  at  the  residence  of 
the  addressee.  West.  U.  Tel.  Co.  v.  Hendricks,  26  Tex.  Civ.  App.  366,  66  S.  W. 
341. 

161  West.  U.  Tel.  Co.  v.  Pearce,  95  Tex.  578,  68  S.  W.  771,  reversing  (Tex. 
Civ.  App.)  67  S.  W.  920. 

162  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W.  856;  Thompson  v. 
West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  120,  30  S.  W.  250. 

163  See  §  294.  le-i  See  §  293.  i65  See  §  292. 


416  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  298 

to  be  relieved  from  any  liability,  the  message  must  be  delivered  to 
that  party.  Thus,  v^here  a  message  was  addressed  to  "T.  W.  Pear- 
sail  &  Co.,"  but  the  company  delivered  it  in  an  envelope  addressed. 
''T.  W.  Pearsall,"  a  member  of  the  firm  of  T.  W.  Pearsall  &  Co.,  it 
was  considered  at  the  office  of  T.  W.  Pearsall  &  Co.  as  Mr.  Pear- 
sail's  private  mail  and  was  not  opened  until  his  arrival.  It  was  an 
important  message  requiring  immediate  attention,  and  would  have 
been  attended  to  promptly  had  it  been  addressed  to  the  firm  in- 
stead of  to  Mr.  Pearsall  personally.  In  consequence  of  the  delay 
thus  occasioned,  the  plaintiff  suffered  damage  for  which  it  was 
held  that  he  could  recover  of  the  company. ^^^  It  is  not  necessary, 
in  every  instance,  to  authorize  any  one  to  act  as  agent  for  the  party 
addressed,  but,  if  there  is  shown  sufficient  proof  that  the  addressee 
cannot  be  found  after  diligent  search,  there  is  an  implied  agency 
existing  between  the  sender  and  some  one  closely  allied  in  the 
sendee's  business  or  social  affairs  after  the  former  has  been  notified 
of  this  fact;  ^^'^  as,  where  the  telegraph  company  telephoned  to  the 
addressee's  place  of  business  and  learning  that  he  was  out  of  town 
for  several  days,  caused  the  message  to  be  delivered  to  his  wife  at 
his  residence,  and  then  informed  the  sender  of  what  had  been  done, 
it  was  held  that  this  was  a  sufficient  delivery.^*'^ 

§  298.  Manner  of  delivery — written  copy. — It  is  incumbent  upon 
a  telegraph  company,  as  one  of  its  essential  duties,  to  deliver  to  the 
addressee  a  written  copy  of  the  telegram. ^''^  This  is  always  the 
best  means  by  which  the  exact  words  of  the  message  may  be  de- 
livered, in  order  that  the  addressee  may  act  thereon.  It  would  be 
very  difficult  for  operators  or  messengers  to  understand  and  remem- 
ber the  contents  of  all  messages  received  by  them  during  their  daily 
course  of  business.  Their  minds  being  taxed  with  other  business, 
it  would  be  impossible  for  them  to  remember  exactly  the  wording 
of  any  particular  message,  especially  where  they  are  not  further 
interested  in  it  than  that  of  receiving  it  as  all  others ;  and  when  they 
have  no  knowledge — and  it  is  presumed  that  they  have  none— of  the 
business  about  which  the  message  is  sent,  they  surely  could  not 
understand  it  as  well  as  the  party  to  whom  it  was  addressed.  For 
these  reasons,  the  best  means  of  delivering  the  exact  words  of  a 

3C6  Persall  v.  West.  U.  Tel.  Co.,  44  Hun.  (N.  Y.)  532,  affirmed  124  N.  Y.  256, 
26  N.  E.  534,  21  Am.  St.  Rep.  662. 

167  West.  U.  Tel.  Co.  v.  Trissal,  OS  Ind.  566  ;  West.  U.  Tel.  Co.  v.  Barefoot,  97 
Tex.  159,  76  S.  W.  914,  64  L.  R.  A.  491. 

16  8  Given  v.  West.  U.  Tel.  Co.  (C.  C.)  24  Fed.  119. 

109  West.  U.  Tel.  Co.  v.  Pearce,  95  Tex.  578,  68  S.  W.  771 ;  Brasliears  v.  West. 
U.  Tel.  Co.,  45  Mo.  App.  433 ;  Barnes  v.  West.  U.  Tel.  Co.  (C.  C)  120  Fed.  550. 
Compare  Xormau  v.  West.  U.  Tel.  Co.,  31  Wash.  577,  72  Pac.  474. 


§   299)  AS  TO   MESSAGES LIABILITY  417 

message  is  by  delivering  a  written  copy  of  the  message.  Further- 
more, the  sendee  having  this  written  copy  before  him  is  much  more 
capable  of  advising  himself  how  to  act  upon  same.  By  having  a 
written  copy  of  the  telegram,  the  errors  or  the  inaccuracies  which 
may  be  made  in  the  transmission  could  be  shown  more  easily  by 
comparing  this  copy  with  the  one  delivered  to  the  company  for 
transmission.^^"  It  is  true  that  the  sendee  may  waive  this  duty  of 
the  company,  as  by  granting  it  the  right  to  deliver  the  message  over 
a  telephone  line;^'^^  but  none  save  messages  addressed  to  the 
sendee  could  be  waived."^  If  it  were  only  delivered  to  him  in  care 
of  another  he  could  not  waive  this  duty,  but  the  same  would  have 
to  be  delivered  in  writing.^^^  When  telegrams  are  addressed  to 
him  and  delivered  by  telephone,  the  messenger  acts  as  his  and  not 
the  company's  agent  in  that  particular  business,  if  he  has  waived 
his  rights  for  a  personal  delivery. ^^* 

§  299.  No  duty  to  forward  messages. — A  telegraph  company  is 
under  no  obligation  to  forward  a  telegram  to  a  party  who  has  moved 
into  another  locality,^'^^  but  this  duty  may  be  assumed  by  an  agree- 
ment to  that  efiEect  entered  into  between  the  company  at  its  office 
and  the  sender.^'^"  Thus  it  has  been  held  that,  when  the  company 
has  been  paid  the  extra  charges  for  delivering  beyond  the  free  de- 
livery limit,  and  payment  for  any  additional  charges  has  been  guar- 
anteed,^''^ the  operator  at  the  receiving  station  knowing  that  the 

170  Brashears  v.  West.  U.  Tel.  Co.,  45  Mo.  App.  433;  Barnes  v.  West.  U.  Tel. 
Co.  (C.  C.)  120  Fed.  550. 

17  1  Norman  v.  West.  U.  Tel.  Co.,  31  Wash.  577,  77  Pac.  474;  Hellams  v.  West. 
U.  Tel.  Co.,  70  S.  C.  83,  49  S.  E.  12 ;  Lyles  v.  West.  U.  Tel.  Co.,  77  S.  C.  174, 
57  S.  E.  725,  12  L.  R.  A.  (N.  S.)  534 ;  West.  U.  Tel.  Co.  v.  Sorsby,  29  Tex.  Civ. 
App.  345,  69  S.  W.  122.  See  West.  U.  Tel.  Co.  v.  Wright,  169  Ala.  104,  53 
South.  95 ;  King  v.  West.  U.  Tel.  Co.,  89  Ark.  402,  117  S.  W.  521 ;  West.  U.  Tel. 
Co.  V.  Douglass  (Tex.  Civ.  App.)  124  S.  W.  488 ;  West.  U.  Tel.  Co.  v.  Price,  137 
Ky.  758,  126  S.  W.  1100,  29  L.  R.  A.  (N.  S.)  836.  See  West.  U.  Tel.  Co.  v.  Oak- 
ley (Tex.  Civ.  App.)  181  S.  W.  507,  cited  in  note  174,  infra. 

17  2  West.  U.  Tel.  Co.  v.  Pearce,  95  Tex.  578,  68  S.  W.  771,  reversing  (Tex. 
Civ.  App.)  67  S.  W.  920. 

173  Id. 

174  Norman  v.  West.  U.  Tel.  Co.,  31  Wash.  577,  72  Pac.  474;  West.  U.  Tel. 
Co.  V.  Oakley  (Tex.  Civ.  App.)  151  S.  W.  507,  consigned  to  telephone,  but  op- 
erator attempts  to  find  addressee  by  phone,  telegraph  company  liable  for  neg- 
ligence of  telephone  company. 

175  Thorp  V.  West.  U.  Tel.  Co.,  84  Iowa,  190,  50  N.  W.  675;  Abbott  v.  West. 
U.  Tel.  Co.,  86  Minn.  44,  90  N.  W.  1.  See,  also.  West.  II.  Tel.  Co.  v.  Redinger 
(Tex.  Civ.  App.)  63  S.  W.  156. 

170  Thorp  V.  West.  U.  Tel.  Co.,  84  lovi^a,  190,  50  N.  W.  675;  West.  U.  Tel. 
Co.  V.  Bierhaus,  8  Ind.  App.  563,  36  N.  E.  161 ;  Abbott  v.  West.  U.  Tel.  Co.,  86 
Minn.  44,  90  N.  W.  1. 

17  7  Abbott  v.  West.  U.  Tel.  Co.,  86  jNIinn.  44,  90  N.  W.  1. 
Jones  Tel.(2d  Ed.)— 27 


418  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  300 

messag-e  is  important,  and  that  the  addressee  is  temporarily  in  an- 
other city — where  the  company  had  an  office — is  under  a  duty  to 
send  it  to  him  there,  and  for  his  failure  in  this  respect  will  lay  the 
company  liable/^^  But  the  company  is  not  liable  for  failing  to  for- 
ward a  message  to  an  absent  addressee,  where  it  exercises  due  dili- 
gence to  make  personal  delivery,  and  the  operator  is  not  aware  of 
his  temporary  address,  although  the  messenger  boy  in  charge  of 
the  message  might  easily  have  learned  where  the  addressee  was,  if 
he  had  inquired  at  any  of  the  places  where  he  attempted  to  make 
delivery. ^'^^  Where  an  agreement  is  made  of  this  kind  to  forward 
a  message,  it  is  binding  on  the  company  only  for  a  reasonable  time, 
which  is  a  question  of  fact.^^° 

§  300,  Time  to  deliver. — It  is  the  duty  of  all  telegraph  com- 
panies, after  assuming  the  responsibilities  attached  to  the  nature  of  a 
business  wdiich  they  follow,  to  deliver  messages  to  the  proper  party 
as  soon  after  their  transmission  as   is   reasonably  practicable;  ^^^ 

178  West.  U.  Tel.  Co.  v.  Hendricks,  26  Tex.  Civ.  App.  366,  63  S.  W.  341.  See 
West.  U.  Tel.  Co.  v.  Alford,  110  Ark.  379,  161  S.  W.  1027,  50  L.  R.  A.  (N.  S.) 
94,  forwarding  by  telephone  instead  of  by  telegraph  liable  for.  To  same  effect 
see  West.  U.  Tel.  Co.  v.  Smith,  164  Ky.  270,  175  S.  W.  375. 

179  West.  U.  Tel.  Co.  v.  Redinger  (Tex.  Civ.  App.)  63  S.  W.  156. 

180  Harper  v.  West.  U.  Tel.  Co.,  92  Mo.  App.  304;  Thorp  v.  West.  U.  Tel. 
Co.,  84  Iowa,  190,  50  N.  W.  675,  holding  that  it  was  a  question  for  the  jury 
\^  hether  twenty-six  days  was  a  reasonable  time  to  which  an  agreement  to  for- 
ward would  extend. 

181  Alal}ama.—\Yest.  U.  Tel.  Co.  v.  Hill,  163  Ala.  IS,  50  South.  248,  23  L.  R. 
A.  (N.  S.)  648,  19  Ann.  Cas.  1058. 

Arkansas.— West.  U.  Tel.  Co.  v.  Gillis,  97  Ark.  226,  133  S.  W.  833, 

Indiana.— West.  U.  Tel.  Co.  v.  Moore,  12  Ind.  App.  136,  39  N.  E.  874,  54  Am. 
St.  Rep.  515 ;  Julian  v.  West.  U.  Tel.  Co.,  98  Ind.  327 ;  Reese  v.  West.  U,  Tel. 
Co.,  123  Ind.  294,  24  N.  E.  163,  7  L,.  R.  A.  583. 

/ojca.— Harkness  v.  West.  U,  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St, 
Rep.  672. 

Kentuclcy.— West.  U,  Tel.  Co.  v.  Parsons,  72  S.  W,  800,  24  Ky.  Law  Rep. 
2008. 

Missouri. — Bliss  v.  Baltimore,  etc.,  Tel,  Co.,  30  Mo.  App.  103. 

North  Carolina.— Uenavicks  v.  West.  U,  Tel.  Co.,  126  N.  C.  304,  35  S,  E,  543, 
78  Am.  St.  Rep.  658 ;  Cogdell  v.  West.  U.  Tel.  Co.,  135  N,  C.  431,  47  S.  E.  490 ; 
Cannon  v.  West.  U,  Tel.  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St.  Rep.  590. 

OAZa/iomo.— Blackwell  Milling,  etc.,  Co.  v.  AVest,  U.  Tel,  Co.,  17  Okl.  376,  89 
Pac.  235,  10  Ann.  Cas.  855. 

Te«»essee.— Cumberland  Tel.  Co.  v.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78 
Am.  St.  Rep.  906,  50  L.  R.  A.  277, 

Texas.— West.  U,  Tel.  Co.  v,  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St. 
Rep.  920,  6  L.  R.  A.  844 ;  West.  U,  Tel.  Co.  v.  Neel,  86  Tex.  368,  25  S.  W.  15,  40 
Am.  St.  Rep.  847 ;  West.  U.  Tel,  Co.  v.  Moran,  52  Tex.  Civ,  App.  117,  113  S.  W. 
625, 

United  States.— West.  U.  Tel.  Co.  v,  Lawson,  182  Fed,  369,  105  C,  C,  A.  451, 


§   300)  AS  TO   MESSAGES — LIABILITY  419 

and  on  a  negligent  or  wrongful  failure  so  to  do,  they  will  be  liable 
for  all  the  damages  arising  directly  therefrom. ^^-  It  is  as  great  if 
not  a  greater  duty  to  make  as  prompt  a  delivery  as  to  be  exercised  in 
its  transmission,^*^  It  is  not  an  easy  matter  to  lay  down  a  fixed 
rule  prescribing  the  degree  of  promptness  necessary  in  the  delivery 
of  every  particular  message.  They  must  deliver  the  message  as 
soon  as  reasonably  practicable  after  its  transmission,  and  in  deter- 
mining this  question  it  is  necessary  to  take  into  consideration  the 
surrounding  circumstances.^^*  Thus,  if  the  company's  ofiice  to 
which  the  message  is  sent  is  a  small  business  ofhce,  on  account  of 
which  there  are  only  a  few  messengers  required  in  the  general 
course  of  business,  and  there  is  an  extra  amount  of  telegraphic  work 
going  on  at  the  time  the  message  is  sent,  a  delay  caused  by  such 
rush  of  business  must  be  considered  in  determining  the  question  of 
negligent  delay  in  delivery.^^^  The  time  required  for  copying  and 
addressing  the  message  and  for  numbering  it,^**^  the  distance  the 
sendee  lives  from  the  office,  and  the  difficulty  in  reaching  him,  must 

1S2  West.  U.  Tel.  Co.  v.  Hanley,  85  Ark.  263,  107  S.  W.  1168;  Hendershot  v. 
West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am.  St.  Rep.  313 ;  Reese  v. 
West.  U.  Tel.  Co.,  123  Ind.  294,  24  N.  E.  163,  7  L.  R.  A.  583 ;  West  U.  Tel.  Co. 
V.  Parsons,  72  S.  W.  800,  24  Ky.  Law  Rep.  2008 ;  West.  U,  Tel.  Co.  v.  Lehman, 
106  Md.  318,  67  Atl.  241,  14  Ann.  Cas.  736 ;  Suttle  v.  West.  U.  Tel.  Co.,  148  N. 
C.  480,  62  S.  E.  593.  128  Am.  St.  Rep.  631 ;  Bryant  v.  Amer.  Tel.  Co.  1  Daly  (N. 
Y.)  575;  Blackwell  Milling,  etc.,  Co.  v.  West.  U.  Tel.  Co.,  17  Okl.  376,  89  Pac. 
235,  10  Ann.  Cas.  855 ;  Smith  v.  West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12 
Ann.  Cas.  654 ;  Kirby  v.  West.  U.  Tel.  Co.,  77  S.  C.  404,  58  S.  E,  10,  122  Am. 
St.  Rep.  580 ;  West.  U.  Tel.  Co.  v.  Moran,  52  Tex.  Civ.  App.  117, 113  S.  W,  625 ; 
West,  U,  Tel,  Co.  v.  Kibble,  53  Tex.  Civ,  App.  222,  115  S.  W.  643  ;  West,  U,  Tel. 
Co.  V.  Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251 ;  West.  U.  Tel.  Co,  v,  Ayres, 
47  Tex,  Civ,  App,  557,  105  S,  W,  1165 ;  West.  U.  Tel.  Co.  v.  Craige,  44  Tex,  Civ, 
App,  214,  90  S.  W,  681 ;  West,  U.  Tel.  Co.  v.  Roberts,  34  Tex.  Civ.  App.  70,  78 
S.  W.  522 ;  Sherrill  v.  West.  U,  Tel.  Co.,  155  N.  C.  250,  71  S.  E.  330 ;  West.  U. 
Tel.  Co.  V.  Hosea  (Tex.  Civ,  App.)  133  S,  W,  298;  Markley  v.  West,  U,  Tel, 
Co.,  159  Iowa,  557,  141  N,  W.  443, 

183  West,  U,  Tel.  Co,  v,  Moore,  12  Ind,  App.  136,  39  N.  E.  874,  54  Am.  St. 
Rep.  515.  See  Stone  &  Co.  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46 
L.  R.  A.  (N,  S.)  180. 

i84Ayres  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634;  West.  U, 
Tel,  Co,  V.  McConnico,  27  Tex.  Civ,  App.  610,  06  S.  W.  592 ;  West.  U,  Tel,  Co. 
V,  De  Jarles,  S  Tex.  Civ.  App,  109,  27  S.  W.  792;  W^est.  U.  Tel,  Co,  v,  Evans, 
108  Ark.  39,  156  S.  W.  424. 

The  character  of  the  message  itself  must  be  considered.  Reese  v.  West.  U, 
Tel.  Co.,  123  Ind.  294,  24  N.  E.  163,  7  L.  R.  A.  583 ;  Bryant  v.  Amer.  Tel.  Co.  1 
Daly  (N.  Y.)  575 ;  Suttle  v.  West.  U.  Tel.  Co.,  148  N.  C.  480,  62  S.  E.  .593,  128 
Am.  St.  Rep.  031 ;  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219.  21  Pac.  988. 

185  West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  308,  25  S.  W.  15,  40  Am.  St.  Rep.  847. 

i8'6West.  U.  Tel.  Co.  v.  McConnico,  27  Tex,  Civ,  App,  610,  66  S.  W.  592; 
Davis  V.  West.  U.  Tel.  Co.,  66  S.  W.  17,  23  Ky.  Law  Rep.  1758 ;  West.  U.  Tel, 
Co.  V.  Virginia  Paper  Co.,  87  Va.  418,  12  S.  E.  755. 


420  TELEGRArH  AND  TELErHONE  COMPANIES         (§  301 

be  considered  in  determining  the  degree  of  diligence  exercised.^" 
A  telegram  delivered  in  its  regular  order,  within  half  an  hour  of  the 
time  it  was  received  at  its  destination,  is  delivered  within  a  reason- 
able time ;  ^^^  and  where  the  operator  promised  the  addressee  to 
deliver  his  message  "at  once,"  the  company  is  still  bound  to  ordi- 
nary diligence.^ ^^  A  delay  of  five  hours  in  delivering  a  message,  the 
urgency  of  which  is  known  to  the  company,  is  negligence,  when  it 
attempts  to  find  the  addressee  down  town  and  at  his  office,  but  fails 
to  leave  notice  there  or  to  visit  his  residence  within  the  free  delivery 
limits,  where  he  might  have  been  found. ^^°  What  is  due  diligence 
in  this  respect  is  a  question  of  fact,  and  not  one  to  be  left  to  the 
judgment  of  the  company/^^ 

§  301.  Same  continued — two  messages  of  same  nature  received 
within  office  hours. — There  is  a  peculiar  duty  with  respect  to  the 
time  of  delivery  where  there  are  two  messages  having  relation  to 
the  same  matter,  and  transmitted  to  the  same  party  within  a  short 
period  of  each  other,  but  the  first  delivered  is  not  transmitted  until 
after  the  other.  If  the  company  is  not  guilty  of  negligence  in  de- 
livering one  before  the  other,  it  will  not  be  liable.  It  may  have  good 
reasons  to  give  why  this  accident  was  caused,  as  that  the  telegrams 
were  sent  out  by  the  two  diflerent  messengers,  but  the  one  carrying 
the  second  message  happens  to  find  the  sendee  before  the  first.^**- 
But  if  the  messages  show  on  their  faces — which  they  ought  to  show 
— the  time  when  each  was  delivered  to  the  company,  the  sendee 
could  hardly  be  heard  to  complain,  for  he  would  have  notice  of  the 
time  when  they  were  transmitted  and  could  act  accordingly.     The 

18  7  Ayres  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  G34;  Altman 
V.  West.  U.  Tel.  Co.  (Sup.)  84  N.  Y.  Supp.  54. 
ifes  .Julian  V.  West.  U.  Tel.  Co.,  98  Ind.  327. 

189  West.  U.  Tel.  Co.  v.  De  Jarles,  8  Tex.  Civ.  App.  109,  27  S.  W.  792. 
Express  agreement. — By  express  agreement  the  company  may  bind  Itself  to 

deliver  a  message  within  or  before  a  certain  time,  Suttle  v.  West.  U.  Tel.  Co., 
148  N.  C.  480,  62  S.  E.  .593,  128  Am.  St.  Rep.  631 ;  otherwise  it  does  not  insure 
to  do  so  regardless  of  circumstances,  Ayres  v.  West.  U.  Tel.  Co.,  63  App.  Div. 
149,  72  N.  Y.  Supp.  634 ;  West.  U.  Tel.  Co.  v.  .Alunford,  87  Tenn.  190,  10  S.  AV. 
318,  10  Am.  St.  Rep.  630,  2  L.  R.  A.  601 ;  West.  U.  Tel.  Co.  v.  De  Jarles,  8 
Tex.  Civ.  App.  109,  27  S.  W.  792 ;  immediate  delivery  is  not  required,  West. 
U.  Tel.  Co.  V.  Patrick,  92  Ga.  607,  18  S.  E.  980,  44  Am.  St.  Rep.  90;  Ayres  v. 
West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  6-34;  West.  U.  Tel.  Co. 
v.  McConnico,  27  Tex.  Civ.  App.  610,  66  S.  W.  592;  West.  U.  Tel.  Co.  v.  Hays 
(Tex.  Civ.  App.)  63  S.  W.  171,  severe  storm  delays  the  delivery,  not  liable. 

190  Hendershot  v.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am.  St. 
Rep.  313. 

191  Telephone  Co.  v.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78  Am.  St.  Rep.  906, 
50  L.  R.  A.  277. 

192  Cannon  v.  West.  U.  Tel.  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St.  Rep. 
590. 


§    302)  AS  TO  MESSAGES — LIABILITY  421 

company  may  make  reasonable  office  hours,  within  which  all  mes- 
sages should  be  received  for  immediate  delivery,  and  should  they  not 
be  received  within  that  time,  the  company  would  not  be  duty  bound 
to  deliver  the  message  until  the  office  was  opened,  and  as  soon 
thereafter  as  practicable/^^  A  person  desiring  a  message  delivered 
at  an  unusual  hour  should  inquire  whether  it  will  be  delivered  at  that 
time,  and,  in  the  absence  of  such  inquiry,  the  telegraph  company 
does  not  become  answerable  for  the  delay  by  its  failure  to  volunteer 
the  information  that  the  office  to  which  the  message  is  addressed  is 
not  open  for  business  until  later.^^*  And  if  two  messages  are  de- 
livered to  the  company  for  transmission  at  dififerent  times,  but  the 
office  to  which  they  were  to  be  sent  is  closed  when  both  are  de- 
livered, the  company  would  not  be  liable  in  the  absence  of  negli- 
gence, if  the  second  message  should  be  delivered  before  the  one 
first  tendered  for  transmission. ^^^ 

§  302.  Free  delivery  limit. — In  many  instances  the  addressee  of 
a  message  lives  some  distance  from  the  company's  office,  and  to 
require  the  latter  to  deliver  the  message  to  such  party,  without 
extra  compensation,  might  impose  on  it  an  unreasonable  burden ; 
so  these  companies  may  prescribe  rules  by  which  they  may  agree 
to  deliver  all  messages  within  a  certain  radius  of  their  offices,  free 
of  charge,  and  require  extra  compensation  for  all  delivery  beyond 
this  radius.^®®    These  regulations  are  generally  to  be  found  on  the 

193  See  §  247  et  seq. 

194  West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  368,  25  S.  W.  15,  40  Am.  St.  Rep.  847. 

195  Cannon  v.  West.  U.  Tel.  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St.  Rep. 
590;  Hocker  v.  West.  U.  Tel.  Co.,  45  Fla.  363,  34  South.  901. 

196  West.  U.  Tel.  Co.  v.  Archer,  96  Ark.  213,  131  S.  W.  702,  Ann.  Cas.  1912B, 
593  ;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  IS  Am.  St.  Rep. 
148,  holding  that:  "Free  delivery  within  a  half  mile  is  not  a  restriction  of  a 
right,  but  a  qualified  privilege  granted.  It  is  not  an  inherent  right ;  for  if  it 
were,  in  the  absence  of  restriction,  it  would  have  no  limits.  To  show  to  what 
absurd  results  this  would  lead,  let  us  suppose  the  contract  to  transmit  a  mes- 
sage is  silent  about  free  delivery.  If  we  hold  the  clause  In  controversy  to  be 
restricted  of  a  right,  then,  in  the  case  supposed,  the  telegraph  company  would 
be  bound  to  deliver  to  the  sendee,  no  matter  how  great  the  distance  to  his 
residence.  Free  delivery  is  a  conditional  obligation,  contingent  on  the  sendee's 
residence  being  within  the  area  of  free  delivery ;  and  until  the  condition  is 
shown,  the  telegraph  company  is  not  put  in  default."  West.  U.  Tel.  Co.  v. 
Whitson,  145  Ala.  426,  41  South.  405 ;  West.  U.  Tel.  Co.  v.  AYard,  23  Ind.  377, 
85  Am.  Dec.  462 ;  Arkansas,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117.  100  S.  W.  700 : 
West.  U.  Tel.  Co.  v.  Trotter,  55  111.  App.  659 ;  West.  U.  Tel.  Co.  v.  Smith,  93 
Ga.  635,  21  S.  E.  166 ;  West.  U.  Tel.  Co.  v.  Harvey,  67  Kan.  729.  74  Pac.  250 ; 
West.  U.  Tel.  Co.  v.  Cross,  116  Ky.  5,  74  S.  W.  1098,  76  S.  W.  162,  25  Ky.  Law 
Rep.  268,  646;  Cumberland  Tel.,  etc.,  Co.  v.  Atherton,  122  Ky.  154,  91  S.  W. 
2.57,  28  Ky.  Law  Rep.  1100 ;  West.  U.  Tel.  Co.  v.  Matthews,  113  Ky.  188,  67  S. 
W.  849,  24  Ky.  Law  Rep.  3 :  West.  U.  Tel.  Co.  v.  Mathews,  107  Ky.  663,  55 
S.  W.  427,  21  Ky.  Law  Rep.  1405 ;  West.  U.  Tel.  Co.  v.  Scott,  87  S.  W.  289,  27 


422  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  302 

telegraph  blanks,  and  are  presumed  to  have  been  accepted  at  the 
time  of  signing  and  delivery  of  the  telegram  to  the  company.  While 
this  is  the  general  way  these  regulations  are  made  and  entered  into, 
yet  there  are  statutes  in  some  states  containing  the  same  stipula- 
tions, and  they  bind  all  who  contract  business  with  these  companies 
within  their  jurisdiction. ^^^  Of  course,  this  free  delivery  limit  must 
be  reasonable,^®*  and  in  determining  this  question  the  surrounding 
circumstances  must  be  considered.  The  size  of  the  town  or  city 
and  location  of  the  surrounding  country  are  the  principal  questions 
to  be  considered  in  arriving  at  this  fact.^'*''  It  has  been  held  that  a 
radius  of  one-half  mile  in  a  city  of  five  thousand  inhabitants,  and 
a  radius  of  one  mile  in  cities  having  more  than  this  number,  was  a 
reasonable  distance  within  which  to  give  free  delivery. ^°°  When 
the  addressee  lives  beyond  the  free  delivery  limit,  and  this  fact  is 
known  by  the  sender,  it  is  his  duty  to  pay  an  extra  compensation 

Ky.  Law  Rep.  975;  Roche  v.  West.  U.  Tel.  Co.,  70  S.  W.  39,  29  Ky.  Law 
Rep.  845 ;  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W.  856 ;  Reynolds  v. 
West.  U.  Tel.  Co.,  81  Mo.  App.  223;  McCaul  v.  West.  U.  Tel.  Co.,  114  Teim. 
661,  88  S.  W.  325 ;  West.  U.  Tel.  Co.  v.  Swearingen,  95  Tex.  420,  67  S.  AV.  767, 
reversing  (Tex.  Civ.  App.)  65  S.  W.  lOSO ;  West.  U.  Tel.  Co.  v.  Jennings,  98  Tex. 
465,  84  S.  W,  1056 ;  Anderson  v.  West.  U.  Tel.  Co.,  84  Tex.  17,  19  S.  W.  285 ; 
West.  U.  Tel.  Co.  v.  Ayers,  41  Tex.  Civ.  App.  627,  93  S.  W.  199 ;  West.  U.  Tel. 
Co.  V.  Bryant,  35  Tex.  Civ.  App.  442.  80  S.  W.  406 ;  West.  U.  Tel.  Co.  v.  Byrd, 
34  Tex.  Civ.  App.  594,  79  S.  W.  40 ;  West.  U.  Tel.  Co.  v.  Christensen  (Tex.  Civ. 
App.)  78  S.  W.  744 ;  Hargrave  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  60  S.  W. 
687 ;  West.  U.  Tel.  Co.  v.  Redinger,  22  Tex.  Civ.  App.  362,  54  S.  W.  417 ;  West. 
U.  Tel.  Co.  V.  Teague.  8  Tex.  Civ.  App.  444,  27  S.  W.  958 ;  West.  U.  Tel.  Co.  v. 
Taylor,  3  Tex.  Civ.  App.  310,  22  S.  W.  532 ;  Wliittemore  v.  West.  U.  Tel.  Co.  (C. 
C.)  71  Fed.  651 ;  Given  v.  West.  U.  Tel.  Co.  (C.  C.)  24  Fed.  119.  In  State  v. 
West.  U.  Tel.  Co.,  172  Ind.  20,  87  N.  E.  641.  the  court  said:  "In  the  absence  of 
statutory  regulations,  it  is  within  the  power  of  telegraph  companies  to  pre- 
scribe reasonable  rules  by  which  they  will  undertake  and  agree  to  deliver  all 
messages  within  a  certain  radius  of  their  office  free  of  charge,  and  require 
extra  compensation  for  free  delivery  beyond  this  radius."  To  the  same  effect 
is  Roche  v.  West.  U.  Tel.  Co.,  70  S.  W.  39,  24  Ky.  Law  Rep.  845 ;  Campbell  v. 
AVest.  U.  Tel.  Co.,  74  S.  C.  300,  54  S.  E.  571,  holding  that:  "The  law  imposes 
upon  it  the  duty  of  delivering  all  messages  when  the  persons  to  whom  they 
ai'e  addressed  reside  within  a  reasonable  distance  from  the  terminal  office.  The 
company,  however,  has  a  right  to  make  reasonable  regulations  as  to  free  de- 
livery limits,  and  as  to  additional  charges  for  services  rendered  beyond  such 
limits."  West.  U.  Tel.  Co.  v.  Jennings,  98  Tex.  465,  84  S.  W.  1056;  West.  U. 
Tel.  Co.  V.  Benson,  159  Ala.  254,  48  South.  712. 

197  state  V.  West.  U.  Tel.  Co.,  172  Ind.  20,  87  N.  E.  64L 

IBS  West.  U.  Tel.  Co.  v.  Ayers,  41  Tex.  Civ.  App.  627,  93  S.  W.  199. 

19  9  West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712. 

2  00  West.  U.  Tel.  Co.  v.  Trotter,  55  111.  App.  659;  West.  U.  Tel.  Co.  v. 
Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep.  148;  West.  U.  Tel. 
Co.  V.  Emerson,  161  Ala.  221,  49  South.  820,  holding  that  the  failure  to  es- 
tablish free  delivery  limits  at  a  place  in  which  fifty  or  one  hundred  persons 
live  is  not  unreasonable  nonaction.    But  in  West.  U.  Tel.  Co.  v.  Whitson,  145 


§    302)  AS  TO   MESSAGES LIABILITY  423 

for  such  delivery ;  -°^  and  the  company  is  under  no  obligation  to 
accept  the  message  for  transmission  until  this  is  paid.^**-  It  is  held 
in  some  courts  that,  if  the  fact  is  not  known  by  either  the  sender  or 
the  operator  that  the  sendee  lives  beyond  the  free  delivery  limit, 
the  company  is  under  no  obligation  to  deliver  the  message,  if  the 
extra  charges  are  not  paid,  waived  or  guaranteed  to  be  paid ;  -**^ 
but  the  better  holding,  however,  is  that  the  company  is  under  obli- 
gations to  deliver  the  message  if  the  sendee  lives  within  a  reason- 
Ala.  626,  41  South.  405,  it  was  said  that  the  establishment  of  a  free  deliv- 
ery limit  and  a  regulation  with  respect  to  the  delivery  of  messages  beyond 
which  is  in  the  nature  of  an  exception  to  the  general  obligation  of  duty 
imposed  upon  a  company.  And  in  West.  U.  Tel.  Co.  v.  Burns,  164  Ala.  252, 
51  South.  373,  it  was  held  that  "the  burden  of  showing  that  such  limits  had 
been  established  and  the  area  of  same"  was  upon  the  company.  In  We.st. 
U.  Tel.  Co.  v.  Ayers,  41  Tex.  Civ.  App.  627,  93  S.  W.  199,  it  was  held  that  a 
rule  establishing  free  delivery  limits  is  binding  on  the  sender,  unless  the 
rule  is  unreasonable.  In  West.  U.  Tel.  Co.  v.  Trotter,  55  111.  App.  659,  a  rule 
establishing  the  free  delivery  limits  of  a  town  of  less  than  five  thousand  in- 
habitants at  one-half  mile  from  the  office  was  held  to  be  a  reasonable  one. 
To  the  same  effect  is  West.  U.  Tel.  Co.  v.  Cross,  116  Ky.  5,  74  S.  W.  1098, 
76  S.  W.  162. 

201  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148;  West.  U.  Tel.  Co.  v.  Emerson,  161  Ala.  221,  49  South.  820.  Com- 
pare West.  U.  Tel.  Co.  v.  Holcomb   (Tex.  Civ.  App.)  152  S.  W.  190. 

20  2  See  §  288  et  seq.  See  Smith  v.  West.  U.  Tel.  Co.,  168  N.  C.  515,  84  S. 
E.  796. 

203  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148;  Whittemore  v.  West.  U.  Tel.  Co.  (C.  C.)  71  Fed.  651;  West.  U. 
Tel.  Co.  V.  Mathews,  107  Ky.  663,  55  S.  W.  427 ;  Roche  v.  West.  U.  Tel.  Co., 
70  S.  W.  39,  24  Ky.  Law  Rep.  845;  West.  U.  Tel.  Co.  v.  Cross,  116  Ky.  5, 
74  S.  W.  1098.  76  S.  W.  162 ;  Anderson  v.  West.  U.  Tel.  Co.,  84  Tex.  17,  19 
S.  W.  285 ;  West.  U.  Tel.  Co.  v.  Warren  (Tex.  Civ.  App.)  36  S.  W.  314 ;  West. 
U.  Tel.  Co.  v.  Drake,  13  Tex.  Civ.  App.  572,  36  S.  W.  786;  West.  U.  Tel. 
Co.  V.  Merrill,  144  Ala.  618,  39  South.  121,  113  Am.  St.  Rep.  66.  So  it  is  held 
to  be  a  prima  facie  duty  of  the  sender  to  know  where  the  sendee  lives  with 
respect  to  the  free  delivery  limits,  and  no  duty  evolves  upon  the  company 
other  than  to  transmit  to  their  terminal  and  to  make  a  reasonable  search 
for  the  sendee  in  the  limit,  especially  where  the  sender  knows  of  the  exist- 
ence of  the  rules  of  the  company.  West.  U.  Tel.  Co.  v.  Trotter,  55  111.  App. 
659 ;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148.  See,  also.  West.  U.  Tel.  Co.  v.  Merrill,  144  Ala.  618,  39  South.  121, 
113  Am.  St.  Rep.  66 ;  West.  U.  Tel.  Co.  v.  Burns,  164  Ala.  252,  51  South.  373, 
holding  that  the  burden  is  upon  the  plaintiff  to  show  that  the  addressee  re- 
sided within  such  limits.  On  the  other  hand,  it  has  been  said  that  a  telegraph 
company  "does  not  say  that  the  message  will  not  be  delivered  beyond  such 
limits,  but  that  'a  special  charge  will  be  made  to  cover  the  cost  of  such  de- 
livery,' which  would  seem  clearly  to  imply  that  it  would  be  delivered.  No 
fixed  limit  of  distance  nor  definite  sum  is  specified,  and  it  is  difficult  to  see 
how  the  sender  can  be  presumed  to  know  either  in  the  absence  of  informa- 
tion from  the  company."  Hendricks  v.  West.  U.  Tel.  Co.,  126  X.  C.  304,  .35 
S.  E.  543.  78  Am.  St.  Rep.  658 ;  Hood  v.  West.  U.  Tel.  Co.,  135  N.  C.  622.  47 
S.  E.  607. 


424  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  302 

able  distance  beyond  the  delivery  limit, ^^^^  provided  he  will  pay  for 
such  extra  charges. ^"^    It  will  hardly  be  necessary,  at  this  place,  to 

204  West.  U.  Tel.  Co.  v.  Moore,  12  Ind.  App.  1.S6,  39  N.  E.  874,  54  Am.  St. 
Rep.  515.  The  court  in  this  case  disagreed  witli  the  holding  in  the  case 
of  West.  U.  Tel.  Co.  v.  Henderson,  above  cited,  and  said: 

"We  are  aware  that  in  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South. 
419,  18  Am.  St.  Rep.  148,  it  is  declared  that  the  sender  is  bound  to  know 
whether  the  sendee  lives  within  the  free  delivery  limits  and  must  himself 
provide,  beforehand,  for  delivery  if  he  does  not.  We  do  not,  however,  concur 
in  the  reasoning  or  conclusion  of  this  case  upon  this  proposition.  Many  men 
have  occasion  to  communicate  with  others  in  cities  and  towns  where  they 
are  totally  ignorant  of  the  distances  between  the  company's  receiving  sta- 
tion and  the  addressee's  residence.  Even  if  they  know  the  street  and  num- 
ber, they  may  still  be  wanting  in  a  knowledge  of  the  location  with  reference 
to  the  station. 

"Such  a  regulation  as  we  are  now  considering  would,  as  it  seems  to  us, 
be  harsh,  inequitable  and  unnecessary.  When  the  patron  pays  to  the  com- 
pany the  amount  which  he  believes,  in  good  faith,  covers  its  entire  charge 
for  the  service,  and  the  company  receives  it  and  the  message,  lie  has  a  right 
to  expect  that  the  company  will  carry  the  message  to  the  person  addressed, 
if  within  the  statutory  delivery  limits,  and  present  it  to  him  for  delivery.  If 
there  be  then  any  additional  sum  due,  the  company  may  require  its  pay- 
ment before  it  surrenders  the  message  to  the  sendee,  if  it  prefers  to  do  so 
rather  than  rely  solely  upon  the  sender  for  its  payment.  The  company  will 
thus  be  furnished  ample  protection,  and  the  expectations  and  purposes  of 
the  sender  of  the  message  will  not  be  disappointed. 

"This  course  seems  to  us  to  afford  a  much  fairer  and  more  equitable  solu- 
tion of  the  problem  as  to  what  is  the  duty  of  the  company  than  to  hold 
that  it  may  stop  the  message  halfway  upon  its  course,  and  thus  really  ren- 
der to  the  sender  no  service,  after  receiving  from  him  what  both  thought  to 
be  the  full  price  therefor.  We  apprehend  that,  if  such  a  course  were  fol- 
lowed, there  would  be  few  instances  where  the  sendee  would  refuse  to  re- 
ceive the  message,  and  pay  the  delivery  charge  if  proper. 

"If  he  did,  a  notification  to  the  sender,  in  most  of  those  few  instances, 
would  bring  the  money  from  him.  If,  however,  the  company  might  occa- 
sionally lose  a  delivery  charge,  the  loss  to  it  would  be  trifling  and  incon- 
siderable when  compared  with  the  possible  loss  and  inconvenience  to  the 
public  and  patrons  who  have  relied  in  good  faith  upon  their  delivery  of  the 
message." 

2  05  Martin  v.  West.  U.  Tel.  Co.,  81  S.  C.  432,  62  S.  E.  833.  The  company 
must  either  deliver  the  message  or  notify  the  sender  that  the  addressee 
lives  beyond  the  free  delivery  limits  and  require  the  extra  charge  to  be  paid 
or  guaranteed,  Gainey  v.  West.  U.  Tel.  Co.,  136  N.  C.  261,  48  S.  E.  653; 
Edwards  v.  West.  U.  Tel.  Co.,  147  N.  C.  126,  60  S.  E.  900;  Martin  v.  West. 
U.  Tel.  Co.,  81  S.  C.  432,  62  S.  E.  833;  especially  where  the  fact  is  not 
known  to  the  sender,  who  in  good  faith  pays  all  that  is  asked  of  him  for 
the  delivery  of  the  message.  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C.  317.  43 
S.  E.  841 ;  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E.  938 ;  Hood  v. 
West.  U.  Tel.  Co.,  135  N.  C.  622,  47  S.  E.  607.  See  West.  U.  Tel.  Co.  v. 
Davis,  24  Tex.  Civ.  App.  427,  59  S.  W.  46;  West.  U.  Tel.  Co.  v.  Sweetman, 
19  Tex.  Civ.  App.  435,  47  S.  AV.  676,  sender  not  presumed  to  know  the  free 
delivery  limit  does  not  extend  to  the  residence  of  the  addressee.  Rules 
applicable  at  least  where  company  receives  messages  on  paper  containing  no 
such  stipulations,  Anderson  v.  West.  U.  Tel.  Co.,  84  Tex.  17,  19  S.  W.  285; 
or  where  the  addressee  resides  in  the  town  or  city  to  which  the  telegram  is 


S    303)  AS  TO   MESSAGES LIABILITY  425 

enter  into  the  reasons  given  to  sustain  each  of  the  above  holdings ; 
but  suffice  it  to  say  that  these  companies  may  prescribe  regulations 
whereby  they  may  exact  of  all  their  patrons  an  extra  compensation 
for  all  deliveries  made  beyond  the  free  delivery  limit,-"''  when  the 
fact  is  known  at  the  time  the  message  is  tendered  for  acceptance. 
And  on  failure  so  to  do  the  company  is  under  no  obligation  to  de- 
liver the  message; ""''  but  if  the  fact  is  not  known,  it  is  the  duty  of 
the  company  to  deliver  the  message  on  the  sender's  paying  for  the 
extra  charges.^"^  In  those  jurisdictions  holding  the  first  rule,  it  is 
held  that  the  company  may  waive  the  right  to  exact  of  the  sender 
the  extra  compensation,-"^  or  he  may  give  a  written  guaranty  to 
pay  all  additional  charges  incurred  in  delivering  the  message  be- 
yond the  free  delivery  limit,""  and  then  the  company  is  under  obli- 
gation to  deliver. 

§  303.  When  sendee  lives  several  miles  from  office. — Very  often 
messages  are  sent  to  persons  who  live  in  the  country  or  several 
miles  from  the  receiving  office  of  the  company;  and  then,  surely, 
the  latter  would  be  under  no  obligation  whatever  to  make  such  de- 
addressed,  but  beyond  delivery  limits.  See,  also,  West.  U.  Tel.  Co.  v.  Harvey, 
67  Kan.  729,  74  Pac.  250;  West.  U.  Tel.  Co.  v.  Shookley,  57  Tex.  Civ.  App. 
30,  122  S.  W.  945. 

Sender,  being  informed  of  the  extra  charge,  fails  or  does  not  undertake  to 
pay  same,  company  not  bound  to  deliver.  West.  U.  Tel.  Co.  v.  Bryant,  35 
Tex.  Civ.  App.  442,  80  S.  W.  406.  But  see  West.  U.  Tel.  Co.  v.  Moore,  12 
Ind.  App.  136,  39  N.  E.  874,  54  Am.  St.  Rep.  515.  West.  U.  Tel.  Co.  v.  Webb, 
98  Ark.  87,  135  S.  W.  366,  company  may  waive  rules  prescribing  limits.  See, 
also,  West.  U.  Tel.  Co.  v.  Womack,  9  Tex.  Civ.  App.  607,  29  S.  W.  932 ;  West. 
U.  Tel.  Co.  V.  Cain  (Tex.  Civ.  App.)  40  S.  W.  624. 

2  0(1  Campbell  v.  West.  U.  Tel.  Co.,  74  S.  C.  300,  54  S.  E.  571. 

207  See  Gainey  v.  West.  U.  Tel.  Co.,  1.36  N.  C.  261,  48  S.  E.  653;  Smith 
V.  West.  U.  Tel.  Co.,  168  N.  O.  515,  84  S.  E.  796. 

2  08  Lyles  v.  West.  U.  Tel.  Co.,  77  S.  C.  174,  57  S.  E.  72,5,  12  L.  R.  A.  (N.  S.) 
534.  If  the  service  charge  for  delivery  beyond  the  free  delivery  limit  has 
been  paid,  it  does  not  become  effective  until  the  answering  message  is  re- 
ceived, Hargrave  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  60  S.  W.  687;  West. 
U.  Tel.  Co.  V.  Mathews,  107  Ky.  663,  55  S.  W.  427,  21  Ky.  Law  Rep.  1405; 
but  liable  for  the  negligent  delay  in  sending  the  service  message,  West.  U. 
Tel.  Co.  V.  Ayres,  47  Tex.  Civ.  App.  557,  105  S.  W.  1165 ;  or  in  failing  to  make 
delivery  thereafter.  West.  U.  Tel.  Co.  v.  Ayres,  47  Tex.  Civ.  App.  557,  105 
S.  W.  1165;  West.  U.  Tel.  Co.  v.  Mathews,  107  Ky.  663,  55  S.  W.  427,  21 
Ky.  Law  Rep.  1405.  Where  sender  pays  the  service  charge  when  the 
message  is  delivered  to  the  company,  negligence  in  the  company  not  to  wire 
information  to  the  terminal  office.  Edwards  v.  West.  U.  Tel.  Co.,  147  N. 
C.  126,  60  S.  E.  900.  But  see  Hargrave  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.) 
60  S.  W.  687. 

209  Roche  V.  West.  U.  Tel.  Co.,  70  S.  W.  39,  24  Ky.  Law  Rep.  845;  West. 
U.  Tel.  Co.  V.  O'Keefe  (Tex.  Civ.  App.)  29  S.  W.  1137. 

210  Reynolds  v.  West.  U.  Tel.  Co.,  81  Mo.  App.  223. 


426  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  303 

livery,^^^  unless  there  is  a  special  agreement  to  that  effect.^^^     It 
has  been  held  without  much  plausible  reason  that  when  this  extra 

211  West.  U.  Tel.  Co.  v.  Matthews.  107  Kj*.  663,  55  S.  W.  427;  West.  U. 
Tel.  Co.  V.  Swearingen,  95  Tex.  420,  67  S.  W.  767,  reversing  (Tex.  Civ.  App.) 
65  S.  W.  1080;  West.  U.  Tel.  Co.  v.  Taylor,  3  Tex.  Civ.  App.  310,  22  S.  W. 
532 ;  West.  U.  Tel.  Co.  v.  Harvey,  67  Kan.  729,  74  Pac.  250 ;  West.  U.  Tel. 
Co.  V.  Matthews.  113  Ky.  1S.S,  67  S.  W.  849,  24  Ky.  Law  Rep.  3;  West.  U. 
Tel.  Co.  V.  Scott,  87  S.  W.  289,  27  Ky.  Law  Rep.  975 ;  West.  U.  Tel.  Co.  v. 
McCaul,  115  Tenn.  99,  90  S.  W.  856 ;  McCaul  v.  West.  U.  Tel.  Co.,  114  Tenn. 
661,  88  S.  W.  325;  West.  U.  Tel.  Co.  v.  Byrd,  34  Tex.  Civ.  App.  594,  79  S. 
W.  40 ;  West.  U.  Tel.  Co.  v.  Christensen  (Tex.  Civ.  App.)  78  S.  W.  744 ;  Stew- 
art V.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  158  S.  W.  1034.  It  has  been  held 
that,  in  the  absence  of  an  arrangement  for  extra  compensation,  a  telegram 
addressed  to  a  particular  town  need  not  be  delivered  to  the  addressee's  res- 
idence if  he  lives  a  number  of  miles  from  the  town.  King  v.  West.  U.  Tel. 
Co.,  89  Ark.  402,  117  S.  W.  521 ;  West.  U.  Tel.  Co.  v.  Harvey,  67  Kan.  729,  74 
Pac.  250;  West.  U.  Tel.  Co.  v.  Mathews,  107  Ky.  663,  55  S.  W.  427;  West. 
U.  Tel.  Co.  V.  Cross,  116  Ky.  5,  74  S.  W.  1098,  76  S.  W.  162. 

212  West.  U.  Tel.  Co.  v.  Robinson,  97  Tenn.  638,  37  S.  W.  545,  34  L.  R.  A. 
431 ;  West.  U.  Tel.  Co.  v.  Matthews,  113  Ky.  188,  67  S.  W.  849,  24  Ky.  Law 
Rep.  3;  West.  U.  Tel.  Co.  v.  Carter,  24  Tex.  Civ.  App.  80,  58  S.  W.  198; 
West.  U.  Tel.  Co.  v.  Snell,  3  Ala.  App.  263,  56  South.  854.  See,  also.  West. 
U.  Tel.  Co.  V.  McDvoy,  107  Ky.  633,  54  S.  W.  428,  21  Ky.  Law  Rep.  1393; 
Gainey  v.  West.  U.  Tel.  Co.,  136  N.  C.  261,  48  S.  E.  653.  A  special  contract 
to  this  effect  is  within  the  apparent  scope  of  authority  of  company's  agents, 
and  which  is  obligatory  upon  the  company.  West.  U.  Tel.  Co.  v.  Matthews, 
supra. 

In  West.  U.  Tel.  Co.  v.  Archer,  96  Ark.  213,  131  S.  W.  702,  Ann.  Cas.  1912B, 
593,  it  is  stated  that  a  telegraph  company  is  bound  to  carry  out  such  a  con- 
tract, even  though  the  expense  incurred  in  delivering  the  message  may  be 
greater  than  the  consideration  received  by  it.  The  company  may  become 
bound  to  deliver  by  the  sender's  offer  to  pay  or  giiarantee  the  extra  charges. 
West.  U.  Tel.  Co.  v.  Snell,  3  Ala.  App.  263,  56  South.  8^ ;  West.  U.  Tel.  Co. 
V.  Drake,  13  Tex.  Civ.  App.  572,  36  S.  W.  786 ;  West.  U.  Tel.  Co.  v.  Warren 
(Tex.  Civ.  App.)  36  S.  W.  314;  or  where  the  agents  agree  to  collect  the 
extra  charges  from  the  addressee,  Roche  v.  West.  U.  Tel.  Co.,  70  S.  W.  39, 
24  Ky.  Law  Rep.  845;  West.  U.  Tel.  Co.  v.  Teague,  8  Tex.  Civ.  App.  444,  27 
S.  W.  958;  West.  IJ.  Tel.  Co.  v.  O'Keefe  (Tex.  Civ.  App.)  29  S.  W.  1137; 
or  to  deliver  without  extra  compensation.  See  West.  U.  Tel.  Co.  v.  Burns, 
164  Ala.  252,  51  South.  373;  West.  U.  Tel.  Co.  v.  Davis,  30  Tex.  Civ.  App. 
590,  71  S.  W.  313 ;  Reynolds  v.  West.  U.  Tel.  Co.,  81  Mo.  App.  223 ;  Cumber- 
land Tel.,  etc.,  Co.  v.  Maxberry,  134  Ky.  642,  121  S.  W.  447,  a  telephone  com- 
pany is  not  bound  to  exercise  greater  diligence  in  delivering  a  telephone 
message  beyond  the  free  deliverj'  limits  than  that  to  be  exercised  in  deliv- 
ering a  message  within  the  ordinary  delivery  limits. 

Mailing  message  in  oJjsence  of  contract. — The  mailing  of  the  message  in 
absence  of  contract  to  the  addressee  has  been  held  sufficient.  King  v.  West. 
U.  Tel.  Co.,  89  Ark.  402,  117  S.  W.  521.  But,  on  the  other  hand,  it  has 
been  held  that,  where  the  addressee  lives  beyond  the  free  delivery  limits,  the 
mailing  of  the  telegram  at  the  terminal  office  is  insufficient  in  the  absence  of 
notice  to  the  sender.  Sturtevant  v.  West.  U.  Tel.  Co.,  109  Me.  479,  84  Atl. 
998.  Under  other  views  it  seems  that  the  receiving  office  is  bound  to  mail 
the  message  where  one  of  the  company's  rules  requires  the  mailing  of  such 
messages  in  case  the  sending  office  is  unable  to  collect,  or  in  case  a  reply 
is  not  received  promptly  by  the  receiving  office.     Keeting  v.  West.  U.  Tel. 


§    304)  AS  TO   MESSAGES LIABILITY  427 

charge  is  refused  to  be  paid  by  either  sender  or  the  addressee,  the 
company  would  not  be  under  any  obligations  to  deliver  the  mes- 
sage, even  when  it  would  not  necessarily  be  put  to  any  additional 
expense.  Thus,  where  the  agent  at  the  receiving  offtce  notifies  the 
addressee  by  mail,  and  also  asks  that  the  extra  charges  be  guaran- 
teed by  him,  the  agent  is  not  liable  for  refusing  to  give  the  message 
to  a  neighbor  who  offers  to  deliver  it  without  charge.^^^  If  the 
charges  for  transmission  have  not  been  paid,  the  agent  would  clearly 
have  the  right  to  refuse  to  deliver  the  message  to  this  party ;  but 
if  there  is  nothing  except  the  extra  charge  for  delivery  left  unpaid, 
and  the  company  is  put  to  no  extra  expense  in  making  such  delivery, 
as  in  the  cited  case,  and  the  manner  of  delivery  is  acceptable  to  the 
addressee,  we  see  no  reason  why  the  agent  should  not  make  such 
delivery. -^^  While  the  company  will  be  under  no  obligations  to 
deliver  a  message  to  a  party  who  lives  several  miles  from  the  re- 
ceiving office  without  first  being  compensated,  yet  this  is  no  reason 
why  it  may  not  use  diligence  in  attempting  to  deliver  the  message 
to  him  while  temporarily  within  the  free  delivery  limits. ^^^ 

§  304.  Same  continued — may  waive  right. — If  the  addressee 
lives  beyond  the  free  delivery  limits,  and  this  fact  is  known  by  the 
company's  operator  at  the  time  the  message  is  received,  it  may, 
nevertheless,  become  liable  for  a  failure  to  deliver,  when  it  has 

Co.,  1G7  Mo.  App.  601,  152  S.  W.  95;  Lyles  v.  West.  U.  Tel.  Co.,  84  S.  C.  1, 
65  S.  E.  832,  1.37  Am.  St.  Rep.  829,  Id.,  77  S.  C.  174,  57  S.  E.  725,  12  L.  R. 
A.  (N.  S.)  5.34;  West.  U.  Tel.  Co.  v,  Douglass  (Tex.  Civ.  App.)  124  S.  W. 
488 ;  Hinson  v.  West.  U.  Tel.  Co.,  91  S.  C.  338,  74  S.  E.  752,  Ann.  Cas.  1914A, 
114,  holding  that  a  direction  by  the  sender  that  the  telegram  be  mailed  to 
the  addressee  who  lived  on  a  rural  route  constituted  the  post  office  his  agent 
to  receive  and  transmit.  To  same  effect,  see  Garner  v.  West.  U.  Tel.  Co., 
100  S.  C.  302,  84  S.  E.  829,  the  addi-essing  of  a  message  to  addressee  "R.  F. 
D.  1."  is  a  direction  to  the  company  to  mail  telegram  for  delivery. 

In  Lyles  v.  West.  U.  Tel.  Co.,  supra,  it  was  held  that  a  telegraph  com- 
pany may  agree  to  deliver  by  telephone  a  message  addressed  to  a  person 
living  beyond  the  free  delivery  limits. 

213  West.  U.  Tel.  Co.  v.  Swearingen,  95  Tex.  420,  67  S.  W.  767. 

214  See  West.  U.  Tel.  Co.  v.  Alford,  110  Ark.  379,  161  S.  W.  1027,  50  L.  R. 
A.  (N.  S.)  94. 

215  Rosser  V.  West.  U.  Tel.  Co.,  130  N.  C.  251,  41  S.  E.  378;  West.  U.  Tel. 
Co.  V.  Benson,  159  Ala.  2.54,  48  South.  712 ;  Arkansas,  etc.,  R.  Co.  v.  Stroude, 
82  Ark.  117,  100  S.  W.  760;  West.  U.  Tel.  Co.  v.  Davis,  30  Tex.  Civ.  App. 
590,  71  S.  W.  313 ;  West.  U.  Tel.  Co.  v.  Vance  (Tex.  Civ.  App.)  151  S.  W.  904. 
The  company  must  use  due  diligence  to  ascertain  whether  the  addressee  is 
within  the  free  delivery  limits,  and  the  mere  fact  that  the  addressee,  who 
lives  within  such  limits,  is  temporarily  beyond  the  limits,  will  not  justify 
the  company  in  relaxing  its  diligence  iu  making  further  effort  to  deliver  the 
telegram ;  nor  does  the  fact  that  the  addressee  resides  beyond  the  free  de- 
livery limits  excuse  nondelivery  of  the  telegram  if,  by  the  exercise  of  ordi- 
nary' diligence,  it  can  be  delivered  to  the  addressee  within  such  limits.     West 


428  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  304 

v.-aived  its  right  to  collect  for  the  extra  charge. ^^*  What  is  neces- 
sary to  constitute  a  waiver  is  a  question  of  fact,  and  where  the  com- 
pany has  been  accustomed  to  accept  messages  addressed  to  certain 
parties  living  beyond  this  free  delivery  limit  for  a  long  time,  it  will 
be  presumed  that  it  has  waived  its  rights.-^'  In  those  jurisdictions 
which  hold  that  a  company  is  under  no  obligation  to  deliver  a  mes- 
sage to  an  addressee  living  beyond  the  free  delivery  limit,  without 
the  prepayment  of  the  extra  charge,  it  is  generally  the  custom  for 
the  operator  at  the  receiving  office  to  notify  the  sender  of  the  fact 
that  the  sendee  lives  beyond  these  limits,  and  the  amount  of  the 
extra  charge  necessary  to  be  paid;  -^*  and,  on  a  failure  to  do  this, 
the  company  will  be  liable  for  nondelivery.-^^  But  if  the  sender 
cannot  be  found,  after  reasonable  search,  in  order  that  he  may  be 
informed  of  this  fact,  the  company  will  then  have  discharged  its 
duty  and  will  not  be  liable  for  the  nondelivery.  Whatever  the  cus- 
tom may  be  with  respect  to  the  delivery  of  messages  beyond  the  free 
delivery  limit,  and  the  manner  of  collecting  the  extra  compensation, 
the  regulations  requiring  prepayment  of  special  charges  will  be 
strictly  construed  against  the  company.^^" 

U.  Tel.  Co.  T.  Benson,  supra ;  Arkansas,  etc.,  R.  Co.  v.  Stroude,  supra ;  West. 
U.  Tel.  Co.  T.  McMullin,  98  Ark.  347,  135  S.  W.  909;  West.  U.  Tel.  Co.  v. 
Daniels,  15  Ky.  Law  Rep.  813 ;  West.  U.  Tel.  Co.  v.  Merrill,  144  Ala.  618,  39 
South.  121,  113  Am.  St.  Rep.  66. 

216  Wbittemore  v.  West.  U.  Tel.  Co.  (C.  C.)  71  Fed.  651;  West.  U.  Tel.  Co. 
V.  Matthews,  67  S.  W.  849,  24  Ky.  Law  Rep.  3 ;  West.  U.  Tel.  Co.  v.  Robin- 
son, 97  Tenn.  638.  37  S.  W.  545,  34  L.  R.  A.  431n ;  West.  U.  Tel.  Co.  v.  Teague, 
8  Tex.  Civ.  App.  444,  27  S.  W.  958 ;  West.  U.  Tel.  Co.  v.  Hargrove,  14  Tex.  Civ. 
App.  79,  36  S.  W.  1077  ;  West.  U.  Tel.  Co.  v.  Sweetman,  19  Tex.  Civ.  App.  435.  47 
S.  W.  676 ;  West.  U.  Tel.  Co.  v.  Davis,  30  Tex.  Civ.  App.  590,  71  S.  W.  313 ; 
Lyles  V.  West.  L.  Tel.  Co.,  77  S.  C.  174,  57  S.  E.  725,  12  L.  R.  A.  (N.  S.)  534, 
may  agree  to  deliver. 

217  West.  U.  Tel.  Co.  v.  Womack,  9  Tex.  Civ.  App.  607,  29  S.  W.  9-32;  West. 
U.  Tel.  Co.  T.  Robinson,  97  Tenn.  638,  37  S.  W.  545,  34  L.  R.  A.  431n ;  West. 
U.  Tel.  Co.  V.  Cain  (Tex.  Civ.  App.)  40  S.  W.  624 ;  West.  U.  Tel.  Co.  v.  Davis, 
24  Tex.  Civ.  App.  427,  59  S.  W.  46 ;  Klopf  v.  West.  U.  Tel.  Co.,  100  Tex.  540, 
101  S.  W.  1072,  123  Am.  St.  Rep.  831,  10  L.  R.  A.  (N.  S.)  498,  reversing  (Tex. 
Civ.  App.)  97  S.  W.  829,  in  which  it  was  said :  "The  evidence  tends  to  show 
a  general  custom  of  the  defendant  to  make  deliveries  throughout  the  terri- 
tory in  which  plaintiff  and  his  wife  resided ;  and  this  defined  the  extent  of 
its  undertaking,  when,  upon  payment  of  its  customary  charges  for  like  serv- 
ices, it  accepted  and  transmitted  the  messages."  Compare  West.  U.  Tel.  Co. 
V.  Wilson  (Tex.  Civ.  App.)  152  S.  W.  1169. 

218  See  cases  in  note  208. 

219  Evans  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  609:  West.  U. 
Tel.  Co.  T.  Pierce  (Tex.  Civ.  App.)  70  S.  W.  360.  Where  such  notice  is  not 
given,  it  would  be  evidence  of  negligence.  Hendricks  v.  West.  D.  Tel.  Co., 
126  N.  C.  304,  35  S.  E.  543,  78  Am.  St.  Rep.  658;  Bright  v.  West.  U.  Tel. 
Co.,  132  N.  C.  317,  43  S.  E.  841 ;  Bryan  v.  West.  U.  TeL  Co.,  133  N.  C.  603, 
45  S.  E.  938. 

2  20  See  note  220  on  following  page. 


§    306)  AS  TO   MESSAGES — LIABILITY  429 

§  305.  No  delivery  limit  fixed. — If  there  is  no  free  delivery  limit 
fixed,  either  by  the  company  or  by  statute,  it  is  presumed  that  the 
company  will  deliver  all  messages  to  parties  who  live  within  a  rea- 
sonable distance  of  the  company's  office.  It  is  not  to  be  understood, 
when  these  message  blanks  contain  a  stipulation  that  messages  will 
be  delivered  free  within  the  established  free  delivery  limits  of  the 
terminal  office  and  that  for  a  greater  distance  a  special  charge  will 
be  made  to  cover  the  cost  of  such  delivery,  that  this  prescribes  or 
fixes  a  free  delivery  limit,  but  that  it  gives  the  company  the  right 
to  make  a  limit;  ^'^  and  until  such  is  made  it  is  presumed  that  the 
company  will  deliver  to  all  who  live  within  a  reasonable  distance 
from  the  terminal  office.  What  is  a  reasonable  distance  is  a  ques- 
tion for  the  jury,  and  must  be  determined  by  a  consideration  of  the 
surrounding  circumstances. ^-- 

§  306.  Must  use  due  diligence  to  deliver. — The  company  must 
exercise  due  diligence  and  eft"ort  to  find  the  addressee  of  a  message 
and  deliver  same  to  him.--^  We  may  say  that  there  is  even  a  greater 
amount  of  diligence  required  on  the  part  of  a  telegraph  company 
in  making  an  eft'ort  to  find  the  addressee  and  deliver  the  message 
to  him  than  to  be  exercised  in  its  transmission.  For,  if  there  is  an 
immediate  effort  to  transmit,  and  the  company  is  unable  on  account 
of  some  unavoidable  hindrance  to  do  so,  the  sender  may  be  notified 

220  West.  U.  Tel.  Co.  v.  Moore,  12  Ind.  App.  136,  39  K  E.  874,  51  Am.  St. 
Rep.  515. 

221  West.  U.  Tel.  Co.  v.  Davis,  24  Tex.  Civ.  App.  427,  59  S.  W.  46;  West. 
U.  Tel.  Co.  V.  Robinson,  97  Tenu.  638,  37  S.  W.  545,  34  L.  R.  A.  431;  West. 
U.  Tel.  Co.  V.  Cain  (Tex.  Civ.  App.)  40  S.  W.  624.  See  West.  U.  Tel.  Co.  v. 
Webb,  98  Ark.  87,  135  S.  W.  366,  rules  prescribing  free  delivery  limits  are 
for  benefit  of  company,  and  may  be  waived. 

22  2  West.  U.  Tel.  Co.  v.  Russell  (Tex.  Civ.  App.)  31  S.  W.  698. 

223  Pope  V.  West.  U.  Tel.  Co.,  9  111.  App.  283;  Bliss  v.  Baltimore,  etc.,  Tel. 
Co.,  30  Mo.  App.  103 ;  Julian  v.  West.  U.  Tel.  Co.,  98  Ind.  327 ;  Harkness  v. 
West.  U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  West.  U. 
Tel.  Co.  v.  Gougar,  84  Ind.  176;  West.  U.  Tel.  Co.  v.  Moore,  12  Ind.  App.  136, 
39  N.  E.  874,  54  Am.  St.  Rep.  515;  Manville  v.  West.  U.  Tel.  Co.,  37  Iowa, 
214,  18  Am.  Rep.  8;  Mackay  v.  West.  U.  Tel.  Co.,  16  Nev.  222;  West.  U. 
Tel.  Co.  V.  Fatman,  73  Ga.  285,  54  Am.  Rep.  877 ;  West.  U.  Tel.  Co.  v.  Kricb- 
baum,  145  Ala.  409,  41  South.  16 ;  Hendersbot  v.  West.  U.  Tel.  Co.,  106  Iowa, 
529,  76  N.  W.  828,  68  Am.  St.  Rep.  313 ;  Lyne  v.  West.  U.  Tel.  Co.,  123  N.  C. 
129,  31  S.  E.  350;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598.  1 
L.  R.  A.  728,  10  Am.  St.  Rep.  772 ;  West.  U.  Tel.  Co.  v.  O'Fiel,  47  Tex.  Civ. 
App.  40,  104  S.  W.  406;  West.  U.  Tel.  Co.  v.  Waller,  37  Tex.  Civ.  App.  515, 
84  S.  W.  695 ;  West.  U.  Tel.  Co.  v.  James,  31  Tex.  Civ.  App.  503,  73  S.  W.  79 ; 
Miller  v.  West.  U.  Tel.  Co.,  159  N.  C.  501,  75  S.  E.  795 ;  West.  U.  Tel.  Co.  v. 
Bibb,  136  Ky.  817,  125  S.  W.  257,  27  L.  R.  A.  (N.  S.)  502 ;  West.  U.  Tel.  Co.  v. 
Price,  137  Ky.  758,  126  S.  W.  1100,  29  L.  R.  A.  (N.  S.)  836;  Klopf  v.  West. 
U.  Tel.  Co.,  ioO  Tex.  540,  101  S.  W.  1072,  123  Am.  St.  Rep.  831,  10  L.  R.  A. 
(N.  S.)  498,  reversing  (Tex.  Civ.  App.)  97  S.  W.  829. 


480  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  307 

in  time  to  pursue  another  course  if  possible.  But  when  the  message 
has  been  transmitted  to  the  operator  at  the  terminal  office,  it  will 
be  so  far  beyond  his  reach  as  to  prevent  him  from  ascertaining-  the 
condition  of  affairs.  It  is  then  not  incumbent  on  him  to  find  out 
whether  or  not  the  company  is  exercising  diligence  in  delivering  the 
message  ;^^*  or  even  whether  it  has  delivered  it  at  all.  It  is  pre- 
sumed that  the  company  is  exercising  diligence  in  the  transmission 
and  delivery  of  its  messages,  and  the  sender,  for  this  reason,  would 
likely  be  laboring  under  the  belief  that  the  message  had  been  de- 
livered promptly  and  accomplished  the  desired  results.  Reasonable 
diligence  exercised  in  the  finding  of  the  sendee  and  a  promptness  to 
deliver  same  to  him  is  a  part  of  the  contract  of  transmission,  and  a 
failure  to  do  either  is  no  transmission.^'^ 

§  307.  Same  continued — illustrations. — It  is  not  enough  to  at- 
tempt a  delivery  at  the  office  or  place  of  business  of  the  person  ad- 
dressed;—"    especially  when  he,  as  well  as  his  place  of  residence, 

22  4  West.  U.  Tel.  Co.  v.  Chamblee,  122  Ala.  428,  25  South.  232,  82  Am.  St. 
Rep.  89. 

2  25  West.  U.  Tel.  Co.  v.  Gougar,  84  Tnd.  176. 

226  Pope  V.  West.  U.  Tel.  Co.,  9  111.  App.  283;  or  merely  to  inquire  at  his 
home  or  his  place  of  business,  Post.  Tel.  Cable  Co.  v.  Pratt,  85  S.  W.  225, 
27  Ky.  Law  Rep.  4.30 ;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598, 
1  L.  R.  A.  728,  10  Am.  St.  Rep.  772 ;  Klopf  v.  West.  U.  Tel.  Co.,  100  Tex. 
540,  101  S.  W.  1072,  123  Am.  St.  Rep.  831,  10  L.  R.  A.  (N.  S.)  498,  reversing 
(Tex.  Civ.  App.)  97  S.  W.  825;  or  at  a  given  local  address,  West.  U.  Tel. 
Co.  V.  Waller,  37  Tex.  Civ.  App.  515,  84  S.  W.  695 ;  West.  U.  Tel.  Co.  v.  De 
Jarles,  8  Tex.  Civ.  App.  109,  27  S.  W.  792 ;  or  at  his  office  only,  Hendershot 
V.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am.  St.  Rep.  313.  The 
city  directory  should,  if  necessary,  be  consulted.  Martin  v.  West.  U.  Tel. 
Co.,  81  S.  C.  4.32,  62  S.  E.  833;  Klopf  v.  West.  U.  Tel.  Co.,  100  Tex.  540,  101 
S.  W.  1072,  123  Am.  St.  Rep.  831,  10  L.  R.  A.  (N.  S.)  498,  reversing  (Tex. 
Civ.  App.)  97  S.  W.  829 ;  West.  U.  Tel.  Co.  v.  Elliot,  131  Ky.  340,  115  S.  W. 
228,  22  L.  R.  A.  (N.  S.)  761;  West.  U.  Tel.  Co.  v.  Newhouse,  6  Ind.  App.  422, 
33  N.  E.  800 ;  West.  U.  Tel.  Co.  v.  Cain  (Tex.  Civ.  App.)  40  S.  W.  624 ;  INIartin 
V.  Sunset  Tel.  &  Tel.  Co.,  18  Wash.  260,  51  Pac.  376.  A  prima  facie  case  of 
negligence  is  shown  where  an  erroneous  street  address  is  given  on  the  mes- 
sage and  the  sendee's  name  and  correct  address  appeared  in  the  city  directory, 
which  was  not  consulted,  and  no  effort  made  to  discover  the  sendee.  Woods 
V.  West.  U.  Tel.  Co.,  supra;  West.  U.  Tel.  Co.  v.  Holley,  55  Tex.  Civ.  App. 
432,  119  S.  W.  888;  West.  U.  Tel.  Co.  v.  Price,  137  Ky.  758,  126  S.  W.  1100, 
29  L.  R.  A.  (N.  S.)  836,  after  office  hours  should  telephone  message  if  ad- 
dressee has  phone;  West.  U.  Tel.  Co.  v.  Gilstrap,  77  Kan.  191,  94  Pac.  122, 
exemplary  damages  allowed. 

Inquiry,  perhaps,  should  be  made  at  the  post  office.  Woods  v.  West.  U. 
Tel.  Co.,  \48  N.  C.  1,  61  S.  E.  653,  128  Am.  St.  Rep.  581 ;  Lyne  v.  West.  U.  Tel. 
Co.,  123  N.  C.  129,  31  S.  E.  350 ;  but  need  not  make  house  to  house  search, 
West.  U.  Tel.  Co.  v.  Cox  (Tex.  Civ.  App.)  74  S.  W.  922;  or  every  business 
or  public  place.  West.  U.  Tel.  Co.  v.  Cox  (Tex.  Civ.  App.)  74  S.  W.  922. 

Illustrations  of  due  diligence.— ^ee  Key  v.  West.  U.  Tel.  Co.,  76  S.  C.  301, 
56  S.  E.  963 ;    West.  U.  Tel.  Co.  v.  Cross,  116  Ky.  5,  74  S.  W.  1098,  76  S.  W. 


§    308)  AS   TO   MESSAGES LIABILITY  431 

is  well  known  in  the  town  where  the  message  is  received.^-^  Failing 
in  the  attempt  to  deliver  a  message  after  business  hours  or  on  Sun- 
day will  not  excuse  a  failure  to  deliver;  -^**  and  where  it  was  said 
that  "the  unsuccessful  attempts  of  the  company's  agent  to  deliver 
said  message  at  the  business  house  of  Arthur  Peter  &  Co.,  the  ad- 
dressee, either  on  Saturday  night  after  the  close  of  business  hours, 
or  on  Sunday  where  there  are  not  or  should  not  be  any  business 
hours,  certainly  affords  no  reasonable  excuse  for  the  nondelivery 
of,  or  for  want  of  an  effort  to  deliver,  the  said  message  during  busi- 
ness hours  of  the  succeeding  Monday."  A  company  failed  to  exer- 
cise due  diligence  in  delivering  a  message,  where  it  was  given  to  a 
messenger,  who  took  it  to  the  addressee's  place  of  business  and  was 
there  told  that  the  latter  was  five  miles  in  the  country,  but  that  a 
person  was  going  out  there  and  would  carry  it,  and  the  message 
was  taken  back  to  the  office,  and  no  further  attempt  made  to  deliver 
it,  though  the  house  of  the  addressee  was  about  one-half  mile  from 
the  terminal  station  in  a  town  where  there  were  no  prescribed  free 
delivery  limits.--'' 

§  308,  Diligence  exercised — evidence — burden  of  proof. — When 
a  telegraph  company  fails  to  deliver  a  message  to  the  party  ad- 
dressed, or  when  it  is  delivered,  but  not  immediately,  the  question 
which  necessarily  presents  itself  is  whether  or  not  it  is  a  question 
of  fact  to  be  decided  by  a  jury,  or  a  question  of  law  for  the  court? 
If  the  evidence  in  the  case  is  so  very  clear  as  to  show  to  any  rea- 
sonable and  fair-minded  man  that  the  company  was  not  negligent 
in  making  a  reasonable  effort  to  deliver  the  message  sent,  or  if  it  is 
an  undisputed  fact,  it  is  a  question  for  the  court.-^''     But  if  the  evi- 

162 ;  Hargrave  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  60  S.  W.  687 ;  West.  U. 
Tel.  Co.  V.  Bursess  (Tex.  Civ.  App.)  4.3  S.  W.  1033;  Deslottes  v.  Baltimore, 
etc,  Tel.  Co.,  40  La.  Ann.  183,  3  South.  5G6;  West.  U.  Tel.  Co.  v.  Smith,  93 
Ga.  635,  21  S.  E.  166,  question  for  jury  to  determine  whether  due  diligence 
was  exercised.  Cases  holdiug  that  due  diligence  was  not  exercised :  West. 
U.  Tel.  Co.  V.  McKihben,  114  Ind.  511,  14  N.  E.  894;  West.  U.  Tel.  Co.  v. 
Carter  (Tex.  Civ.  App.)  20  S.  W.  834 ;  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind. 
37,  60  N.  E.  679;  West.  U.  Tel.  Co.  v.  James,  31  Tex.  Civ.  App.  503,  73 
S.  W.  79 ;  West.  U.  Tel.  Co.  v.  Lewis,  89  Ark.  375,  116  S.  W.  894 ;  Gulf,  etc., 
R.  Co.  V.  Wilson,  69  Tex.  7.39,  7  S.  W.  653;  West.  U.  Tel.  Co.  v.  Manker, 
145  Ala.  418,  41  South.  850;  Martin  v.  West.  U.  Tel.  Co.,  81  S.  C.  432,  62 
S.  E.  833 ;  Sherrill  v.  West.  U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429 ;  Bolton 
V.  West.  U.  Tel.  Co.,  76  S.  C.  529,  57  S.  E.  543 ;  West.  U.  Tel.  Co.  v.  Patrick, 
92  Ga.  607,  IS  S.  E.  980,  44  Am.  St.  Rep.  90. 

227  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep. 
772,  1  L.  R.  A.  728,  note. 

228  West.  U.  Tel.  Co.  v.  Liudley,  62  Ind.  371. 

229  West.  U.  Tel.  Co.  v.  Russell,  31  S.  W.  698.  See,  also,  Sherrill  v.  West. 
U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429. 

230  Deslottes  v.  Baltimore,  etc.,  Tel.  Co.,  40  La.  Ann.  183,  3  South.  566; 


432  TELEGRAPH  AND  TELErHONE  COMPANIES         (§  309 

dence  on  this  point  is  conflicting,  it  is  a  question  of  fact."^^  In 
order  to  ascertain  the  fact  as  to  whether  a  telegraph  company  has 
been  negligent  in  delivering  a  message  promptly,  for  which  it  would 
be  liable  for  all  damages  arising  therefrom,  all  the  facts  pertaining 
to  the  case  must  be  considered.  No  two  cases  arise  with  the  same 
state  of  facts  and  the  facts,  necessary  to  be  considered,  are  not  al- 
ways the  same.  The  burden  of  proof  to  show  that  the  company 
exercised  due  diligence  in  the  delivery  of  the  message  is  on  the 
company.-^-  Thus  the  fact  that  the  person  addressed  was  not  at 
the  office  and  could  not  be  found  so  that  the  message  could  be  de- 
livered to  him  is  a  matter  of  defense  which  must  be  shown  by  the 
company  ;^^^  and  any  information  received  by  the  messenger  at 
the  office  of  the  addressee  as  to  the  whereabouts  is  admissible  to 
show  that  he  was  not  at  the  time  at  the  place  to  which  the  message 
was  sent.-^* 

§  309.  Failure  to  designate  with  accuracy  the  address. — The 
sender  is  presumed  to  know  the  name  of  the  party  to  whom  he 
desires  the  message  to  be  sent,  where  he  resides,  and  that  he  has 
written  this  accurately  and  correctly  on  the  telegram.-^^    The  com- 

Milliken  v.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  251,  1  L.  R.  A,  281; 
West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E.  894 ;  West.  U.  Tel.  Co. 
V.  Lindley,  62  Ind.  871 ;  West.  U.  Tel.  Co.  v.  Trissal,  98  Ind.  566 ;  Cordell  v. 
West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S.  E.  71,  22  L.  R.  A.  (N.  S.)  540. 

When  a  company  receives  a  message  for  delivery  and  it  fails  to  do  so,  it 
becomes  prima  facie  liable.  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E. 
653,  128  Am.  St.  Rep.  581 ;  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Ati. 
29,  6  Am.  St.  Rep.  211 ;  Cogdell  v.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E. 
490;  Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304,  35  S.  E.  543,  78  Am. 
St.  Rep.  658 ;  Miller  v.  West.  U.  Tel.  Co.,  159  N.  C.  501,  75  S.  E.  795.  But 
this  may  be  rebutted.  West.  U.  Tel.  Co.  v.  Elliott,  131  Ky.  340,  115  S.  W.  228, 
22  L.  R.  A.  (N.  S.)  761 ;  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29, 
6  Am.  St.  Rep.  211. 

231  West.  U.  Tel.  Co.  v.  Cooper.  71  Tex.  507,  9  S.  W.  598,  10  Ajn.  St.  Rep. 
772,  1  L.  R.  A.  728  note;  Reynolds  v.  West.  U.  Tel.  Co.,  81  Mo.  App.  223; 
Klopf  V.  West.  U.  Tel.  Co.,  100  Tex.  540,  101  S.  W.  1072,  123  Am.  St.  Rep. 
831,  10  L.  R.  A.  (N.  S.)  498;  West.  U.  Tel.  Co.  v.  Hankins,  50  Tex.  Civ. 
App.  513,  110  S.  W.  539;  Brumfield  v.  West.  U.  Tel.  Co.,  97  Iowa,  693,  66 
N.  W.  898.     See,  also,  §  321,  et  seq. 

232  West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  604;  Harkness  v. 
West.  U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672,  dehiy  of 
three  days  in  delivery ;  Cogdell  v.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E. 
490;  West.  U.  Tel.  Co.  v.  Smith,  88  Tex.  9,  28  S.  W.  931,  30  S.  W.  549; 
Potter  V.  West.  U.  Tel.  Co.,  138  Iowa,  406,  116  N.  W.  130,  burden  is  upon 
defendant. 

2  33  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep. 
772,  1  L.  R.  A.  728,  note. 

234  Id. 

235  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S.  E.  71,  22  L.  R.  A,  (N.  S.) 
540,  quoting  author. 


§    309)  AS  TO  MESSAGES LIABILITY  433 

pany's  duty  is  only  to  transmit  and  deliver  to  the  person  whose 
name  is  given,  at  his  address.  So,  if  the  company,  after  having 
assumed  the  duty  to  transmit  a  message,  sends  it  to  the  person  at 
the  place  designated  and  same  is  accepted  by  the  person  claiming 
to  be  the  addressee,  or  an  authorized  agent  of  his,  it  will  have  dis- 
charged its  duty,  notwithstanding  the  fact  that  it  was  delivered  to 
the  wrong  person.  This  may  be  caused  by  the  contributory  negli- 
gence of  the  sender,^^^  by  not  giving  the  name  and  address  of  the 
sendee  with  sufificient  accuracy.^'''^  Thus,  if  the  sender  should  fail 
to  designate  with  accurate  definiteness  the  name  of  the  addressee 
or  his  place  of  abode,  and  the  message  is  delivered  to  the  place 
where  the  real  addressee  resides  or  does  business,  to  a  person  claim- 
ing to  be  the  party  addressed,  the  company  would  have  discharged 
its  duty.^^^  If  the  sender  fails  upon  request  to  make  the  name  of 
the  addressee  more  definite,  or  to  give  the  street  and  number  of  the 
latter,  where  the  place  is  a  town  of  several  thousand  people,  he  will 
be  guilty  of  such  contributory  negligence  as  to  preclude  him  from 
recovering  for  the  failure  of  the  company  to  deliver  the  message."^'* 
But  should  the  sender's  name,  place  of  business  or  residence  be 
improperly  or  insufficiently  given,  it  would  still  be  the  duty  of  the 
company  to  exercise  diligent  effort  to  find  and  deliver  the  message 
to  the  proper  party  at  the  proper  place  if  it  has  any  information 
as  to  who  the  addressee  likely  is.-*'^     So  it  is  not  necessarily  con- 

236  However,  it  must  contribute  to  the  failure  to  deliver  it.  West.  U.  Tel. 
Co.  V.  Lewis,  89  Ark.  375,  116  S.  W.  894;  Arkansas,  etc.,  R.  Co.  v.  Stroude, 
82  Ark.  117,  100  S.  W.  760 ;  Hise  v.  West.  U.  Tel.  Co.,  137  Iowa,  329,  113  N.  W. 
819 ;   West.  U.  Tel.  Co.  v.  Rawls  (Tex.  Civ.  App.)  62  S.  W.  136. 

237  West.  U.  Tel.  Co.  v.  Patrick,  92  Ga.  607,  18  S.  E.  980,  44  Am.  St.  Rep. 
90,  message  addressed  to  "Colonel  O.  M.  Bergstrom,  47  S.  Pryor  St.,"  and 
the  addressee  having  no  title  or  known  by  one;  West.  U.  Tel.  Co.  v.  Mc- 
Daniel,  103  Ind.  294,  2  N.  E.  709,  message  not  stating  Christian  name  or  local 
street  address;  Deslottes  v.  Baltimore,  etc.,  Tel.  Co.,  40  La.  Ann.  183,  3 
South.  566;  West.  U.  Tel.  Co.  v.  Wofford,  32  Tex.  Civ.  App.  427,  72  S.  W. 
620,  74  S.  W.  943,  although  action  brought  by  the  sendee;  Hargrave  v. 
West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  60  S.  W.  687,  "near"  a  certain  mill,  when 
a  mile  from  the  mill ;  West.  U.  Tel.  Co.  v.  Rawls  (Tex.  Civ.  App.)  62  S.  W. 
136,  failure  to  prefix  "Mrs."  to  name  "L.  W.  Rawls."  However,  this  has 
been  questioned.     Cogdell  v.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490. 

238  Deslottes  v.  Baltimore,  etc.,  Tel.  Co.,  40  La.  Ann.  183,  3  South.  566. 
230  West.  U.  Tel.  Co.  v.  McDaniel,  103  Ind.  294,  2  N.  E.  709. 

24  0  A  recovery  not  necessarily  denied  when  message  sent  without  local 
address,  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W.  528 ;  West.  U.  Tel. 
Co.  V.  Lewis,  89  Ark.  375,  116  S.  W.  894 ;  West.  U.  Tel.  Co.  v.  McKibben,  114 
Ind.  511,  14  N.  E.  894;  West.  U.  Tel.  Co.  v.  Bowen  (Tex.  Civ.  App.)  76 
S.  W.  613,  reversed,  on  other  grounds,  in  97  Tex.  621,  81  S.  W.  27;  or  was 
indefinite,  West.  U.  Tel.  Co.  v.  Birchfield,  15  Tex.  Civ.  App.  426,  39  S.  W. 
1002;  or  erroneous,  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653, 
Jones  Tel.(2d  Ed.)— 28 


434  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  310 

tributory  negligence  to  send  a  message  without  a  definite  local  ad- 
dress,^*^  particularly  where  the  sender  gives  the  best  address  that 
he  knows  or  can  with  reasonable  diligence  ascertain. ^*^  If  the  cause 
for  failing  to  deliver  was  due  to  the  negligence  of  the  company  in 
making  an  error  in  transmitting  the  message,^*^  or  by  intentionally 
altering  it,^**  the  company  will  be  liable;  furthermore,  where  the 
message  is  written  by  the  agent  at  the  request  of  the  sender,  the 
company  may  be  liable  for  an  error  of  such  agent  in  spelling  the 
name  of  the  place  to  which  the  message  is  addressed.^*^ 

§  310.  Penalty  imposed  for  failure  to  deliver. — There  are  stat- 
utes in  most  of  the  states  which  impose  a  penalty  on  telegraph  com- 
panies for  a  failure  to  promptly  transmit  and  deliver  messages  in- 
trusted to  them,  and  this  penalty  may  be  recovered  without  alleging 
or  proving  any  actual  damages. ^^^  But  in  other  cases,  unless  the 
plaintiff  proves  special  injury  or  actual  damage,  he  can  recover 
nominal  damages  only.-*^ 

§  311.  Duty  to  preserve  secrecy  of  message. — It  is  the  duty  of  a 
telegraph  company  to  abstain  from  using  or  divulging  the  contents 
of  messages  intrusted  to  them  for  transmission.  There  is  a  simi- 
larity between  correspondence  by  mail  and  communications  by  wire, 
with  respect  to  the  rights  of  the  receiver  of  the  letter  and  the  tele- 

128  Am.  St.  Rep.  581;  Hise  v.  West.  U.  Tel.  Co.,  137  Iowa,  329,  113  N.  W. 
819;  West.  U.  Tel.  Co.  v.  Cain  ^Tex.  Civ.  App.)  40  S.  W.  624.  But  such 
errors  will  furnish  evidence  whether  due  care  and  diligence  in  making  the 
delivery  have  been  exercised.  West  U.  Tel.  Co.  v.  Patrick,  92  Ga.  607,  IS 
S.  E.  980,  44  Am.  St.  Rep.  90 ;  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S. 
W.  528 ;    Cason  v.  West.  U.  Tel.  Co.,  77  S.  C.  157,  57  S.  E.  722. 

Message  addressed  to  married  women. — See  Martin  v.  West.  U.  Tel.  Co., 
81  S.  C.  432,  62  S.  E.  833 ;  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W. 
528 ;  Hurlburt  v.  West.  U.  Tel.  Co.,  123  Iowa,  295,  98  N.  W.  794 ;  Bailey  v. 
West.  U.  Tel.  Co.,  150  N.  C.  316,  63  S.  E.  1044. 

Error  in  name  of  sendee. — See  West.  U.  Tel.  Co.  v.  Holley,  55  Tex.  Civ. 
App.  4.32,  119  S.  W.  S88;  Cogdell  v.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S. 
E.  490 ;    Miller  v.  West.  U.  Tel.  Co.,  167  N.  C.  315,  S3  S.  E.  482. 

241  West.  U.  Tel.  Co.  v.  Lewis,  89  Ark.  375,  116  S.  W.  894. 

242  West.  U.  Tel.  Co.  v.  Bowen  (Tex.  Civ.  App.)  76  S.  W.  613,  reversed 
on  other  grounds  in  97  Tex.  621,  81  S.  W.  271. 

243  Postal  Tel.  Cable  Co.  v.  Sunset  Const.  Co.,  102  Tex.  148,  114  S.  W. 
98,  reversing  (Tex.  Civ.  App.)  109  S.  W.  265;  Hise  v.  West.  U.  Tel.  Co.,  137 
Iowa,  329,  113  N.  W.  819 ;  Hedrick  v.  West.  U.  Tel.  Co.,  167  N.  C.  2.34,  83  S. 
E.  358. 

244  Elsey  V.  Post.  Tel.  Co.,  15  Daly,  58,  3  N.  Y.  Supp.  117. 

245  West.  U.  Tel.  Co.  v.  Hankins,  50  Tex.  Civ.  App.  513,  110  S.  W.  539.  See 
§  327.     See,  also.  Miller  v.  West.  U.  Tel.  Co.,  167  N.  C.  315,  83  S.  E.  482. 

246  Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79;  West.  U.  Tel.  Co.  v. 
Buchanan,  35  Ind.  429,  9  Am.  Rep.  744. 

24T  Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79;  Cutts  v.  West.  U.  Tel. 
Co.,  71  Wis.  46,  36  N.  W.  627. 


§    311)  AS  TO   MESSAGES LIABILITY  435 

graph  company  over  the  message.  The  weight  of  authority  is  that 
the  receiver  of  a  letter  has  only  a  right  in  its  tangible  property  or 
the  paper  on  which  it  is  written ;  that  the  literary  qualities  or  prop- 
erty therein  belongs  to  the  writer;  and  that  it  can  be  used  by  the 
former  only  as  a  means  of  carrying  out  the  purposes  for  which  it 
was  written.  From  this  doctrine  it  follows  as  a  general  rule  that 
the  receiver  has  no  right  to  publish  the  letter  without  the  consent 
of  the  writer,  and  such  publication  will  be  enjoined  by  a  court  of 
equity. ^*^  The  grounds  on  which  the  right  of  injunction  is  granted 
for  such  matters  is  that  to  permit  a  receiver  of  a  letter  to  use  it  for 
other  purposes  than  that  for  which  it  was  written,  or  to  permit  him 
to  have  the  right  to  divulge  its  contents,  would  be  a  breach  of  bad 
faith  and  would  tend  to  create  public  disturbances  and  breaches  of 
the  peace. ^*^  In  the  application  of  this  principle  to  telegraph  com- 
panies in  the  transmission  of  messages,  it  is  very  important  to  bear 
in  mind  that  the  company  must  necessarily  be  informed  of  the  con- 
tents of  a  message  in  order  that  it  may  be  able  to  transmit  it,  but 
that  this  is  the  only  reason  why  it  should  obtain  this  information. 
It  can  obtain  no  interest  either  in  the  tangible  property  of  the  tele- 
gram, as  the  receiver  of  a  letter  obtains  in  the  letter,  nor  any  in- 
terest whatever  in  it  as  a  literary  product.  The  receiver  of  a  letter 
may  use  its  contents  for  the  purposes  for  which  it  was  intended  to 
be  used,  and  may  derive  profit  thereby ;  but  the  telegraph  com- 
pany can  use  the  contents  or  knowledge  of  the  telegram  only  as  a 
means  of  corrrectly  transmitting  and  delivering  it,  and  it  would 
hardly  be  possible  that  a  telegram  would  be  tendered  to  them  for 
transmission,  out  of  which  they  could  derive  further  profit  than 
that  acquired  for  its  service.  While  there  is  a  striking  similarity 
existing  between  these  two  parties  over  letters  and  telegrams,  re- 
spectively, while  in  their  possession,  yet  it  seems  that  the  interest 
acquired  by  the  latter  is  not  so  great  as  that  of  the  former.  So,  if 
the  former  can  be  enjoined  from  using  the  letter  for  other  purposes 
than  that  for  which  it  was  intended  to  be  used,  there  is  no  reason 
why  a  telegraph  company  may  not  be  enjoined  from  using  or  di- 
vulging the  contents  of  the  telegram.  The  duty  imposed  on  tele- 
graph companies  in  this  respect  is  even  greater  than  that  of  the 
receiver  of  a  letter ;  for  the  latter  has  the  control  over  the  tangible 
property  of  the  letter  and  its  contents  sent  directly  in  its  original 
form  from  the  writer,  and,  being  a  principal  in  the  correspondecxe, 
has  surely  more  liberties  with  the  letter  than  the  former  over  the 

248  Smith,  Per.  Prop.  02. 

2  4  9  Smith,  Per.  Prop.  92 ;    Gray  on  Tel.  §  25. 


436  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  312 

messages  intrusted  to  its  care.  It  follows,  therefore  that  if  a  tele- 
graph company  makes  any  use  or  disclosure  of  its  message  other 
than  is  necessary  in  the  ordinary  course  of  its  business,  it  will  be 
liable.^^"  Involved  in  every  contract  for  the  transmission  of  a  tele- 
graphic dispatch  is  an  obligation  on  the  part  of  the  company  to  keep 
its  contents  secret  from  the  world,  and  for  a  breach  of  which  it  will 
be  liable  for  all  actual  damages  arising  directly  therefrom,^^^  and 
should  it  be  done  in  a  willful  or  reckless  manner,  it  should  be  held 
liable  for  punitive  damages. ^^^  The  company  is  not  liable,  how- 
ever, for  a  disclosure  of  a  message  in  court  in  pursuance  to  a  writ 
of  subpoena  duces  tecum.^^^ 

§  312.  Same  continued — imposed  by  statute. — In  some  states 
there  are  statutes  which  impose  the  duty,  either  upon  telegraph 
companies  or  upon  their  operators,  to  abstain  from  disclosing  the 
contents  of  a  message  intrusted  to  their  care,  and  for  a  willful  vio- 
lation of  which  the  wrongdoer  is  subjected  to  punishment. ^^* 
These  are  penal  statutes  and  must,  therefore,  be  strictly  construed. 
So,  if  the  statutes  provide  that  the  transmitting  operator  shall  be 
punished  for  a  violation  of  the  statute  he,  and  not  the  company, 
nor  the  receiving  operator  or  messenger,  shall  be  punished  for  the 
wrong.  In  other  words,  if  the  statute  imposes  this  duty  only  on 
the  transmitting  operator,  and  the  contents  of  the  message  are  will- 

250  Cocke  V.  West.  U.  Tel.  Co.,  84  Miss.  380,  36  South.  392;  Woods  v. 
Miller,  55  Iowa,  168,  7  N.  W.  484,  39  Am.  Rep.  170;  Barnes  v.  Postal  Tel. 
Cable  Co.,  156  N.  C.  150,  72  S.  E.  78 ;  Hellams  v.  West.  U.  Tel.  Co.,  70  S.  C. 
83,  49  S.  E.  12;    Barnes  v.  West.  U.  Tel.  Co.,   (C.  C.)  120  Fed.  550. 

Plaintiff  must  come  in  with  clean  Jiands. — In  West.  U.  Tel.  Co.  v.  McLaurin 
(Miss.)  66  South.  739,  L.  R.  A.  1915C,  487,  the  court  held  that  the  telegraph 
company  violated  its  public  duty  when  it  disclosed  the  contents  of  the 
message  to  persons  other  than  the  addressee,  but  holding  that  when  it  ap- 
pears that  the  plaintiff's  right  of  recovery  is  based  upon  his  own  wrong,  the 
court  will  bring  the  case  to  an  end  and  disregard  the  wrongs  committed  by 
.defendant. 

2  51  Exemplary  damages  are  not  recoverable  merely  for  divulging  the  con- 
tents of  a  telegram,  Cocke  v.  West.  U.  Tel.  Co.,  supra. 

2  52  Cocke  V.  AVest.  U.  Tel.  Co.,  supra.  See,  also,  Matter  of  Renville,  46 
App.  Div.  37,  61  N.  Y.  Supp.  549;  Hellams  v.  West.  U.  Tel.  Co.,  70  S.  C. 
S3,  49  S.  E.  12. 

2  53  Woods  V.  Miller,  55  Iowa,  168,  7  N.  W.  484,  39  Am.  Rep.  170. 

254  See  Arkansas,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117,  100  S.  W.  760;  Mat- 
ter of  Renville,  46  App.  Div.  37,  61  N.  Y.  Supp.  549. 

For  the  protection  of  radio  communications.  Congress  enacted  a  law  mak- 
ing it  a  crime  for  any  one  connected  with  a  wireless  company  to  divulge  the 
contents  of  a  wireless  message.  "An  Act  to  Regulate  Radio  Communica- 
tion," approved  August  13,  1912,  37  Stat.  302,  c.  287  (Comp.  St.  1913,  §§  10100- 
10109). 

Liability  for  tcrong fully  opening  a  telegram. — See  Deighton  v.  Hover,  58 
Wash.  12,  107  Pac.  853,  137  Am.  St.  Rep.  1035. 


§    315)  AS  TO  MESSAGES LIABILITY  437 

fully  divulged  at  the  other  end  of  the  line,  either  by  the  receiving 
operator  or  messenger  boy,  the  first-named  operator  would  not  be 
guilty  of  a  v^rong,  nor  would  the  company,  unless  its  servant  was 
acting  at  that  time  within  the  scope  of  his  authority.  But  should 
the  wrong  be  committed  by  the  company's  employe  while  acting 
within  his  apparent  authority,  the  company  will  be  liable  for  such 
wrong  as  any  other  principal  would  be  for  the  wrongs  of  his  agent, 
under  similar  circumstances. 

§  313.  Same  continued — lapplicable  to  telephone  companies. — It 
is  the  duty  of  telephone  employes  to  abstain  from  divulging  or 
using  any  of  the  contents  of  any  communication  carried  on  over 
their  wires,  and  for  a  violation  of  which  they  will  be  liable  in  dam- 
ages. The  strictness  of  this  rule  should  be  very  stringently  ob- 
served, since  the  operators  of  these  companies  are  placed  in  a  posi- 
tion to  ascertain  all  the  business  transactions  about  which  the  com- 
munications are  made,  and  could,  for  this  reason,  injure  the  com- 
municants very  seriously  in  their  business  affairs. 

§  314.  Messages  "in  care  of"  common  carriers. — Common  car- 
riers, as  such,  are  under  no  obligation  to  deliver  messages  to  their 
passengers.  So,  if  a  message  is  delivered  to  one  of  their  employes, 
addressed  in  care  of  the  common  carrier,  for  one  of  the  passengers 
on  board,  they  will  not  be  liable  for  a  failure  to  deliver  the  message, 
unless  it  is  the  custom  or  practice  for  such  messages  to  be  delivered ; 
and  then  it  seems  that  the  company  would  be  liable.- ^^  Arrange- 
ments could  be  made  to  this  effect  by  special  agreement,  and  under 
such  circumstances,  the  carrier  would  be  duty  bound  to  make  such 
delivery.  If,  however,  the  message  is  addressed  to  one  of  the  em- 
ployes of  the  carrier  and  is  sent  in  care  of  the  latter,  designating 
the  particular  carrier,  a  delivery  to  the  latter  will  be  sufficient  deliv- 
ery ;  and  it  would  be  the  duty  of  the  latter  to  make  a  delivery  to  the 
party  addressed  if  practicable.  But  if  the  message  is  addressed  to 
one  of  the  employes  of  another  carrier,  as  that  of  a  sleeping  car 
company,  and  sent  in  care  of  the  common  carrier  of  passengers,  or 
railroad  company,  the  latter  would  not  be  under  any  obligation  to 
deliver  the  message,  unless  special  arrangements  have  been  made  to 
that  effect. 

§  315.  Same  continued — telephone. — It  is  not  the  duty  of  tele- 
phone companies  to  deliver  messages ;  ^^^  but,  where  the  agent  of  the 

25  5  Da  vies  v.  Eastern  Steamboat  Company,  94  Me.  379,  47  Atl.  896,  53 
L.  R.  A.  239,  where  the  telegram  was  delivered  to  the  captain  of  a  steam- 


2  56  Southwestern  Tel.,  etc.,  Co.  v.  Flood,  51  Tex.  Civ.  App.  340,  111  S.  W, 
1064;    Southwestern  Tel.,  etc.,  Co.  v.  Gotcher,  93  Tex.  114,  53  S.  W.  6S6. 


438  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  316 

company  has  the  apparent  authority  to  receive  messages  for  trans- 
mission and  delivery,  the  company  will  be  liable  for  damages  in 
the  negligent  performance  of  the  undertaking.-^'^  Thus,  where  it 
is  agreed,  through  the  knowledge  of  the  company,  between  a  par- 
ty, who  pays  the  charges  for  transmission  and  an  extra  charge  for 
the  delivery,  and  the  agent  at  one  of  the  termini  of  the  company's 
line  that  the  latter  will  receive  and  deliver  a  message  two  miles 
from  the  office  of  the  company,  and  the  agent  negligently  delays  in 
delivering  same  for  eight  hours  after  the  message  is  received,  and 
damages  arise  thereby,  the  company  will  be  liable. -^^  And  it  will 
be  no  ground  for  defense  that  the  agent  believed  that  the  sendee 
would  not  be  benefitted  or  would  not  be  enabled  to  comply  with 
the  wishes  of  the  message  by  an  earlier  and  more  prompt  delivery 
of  same.^^^  It  is  no  duty  of  the  agent  to  speculate  as  to  the  neces- 
sity of  a  prompt  delivery  of  the  message,  but  he  should  use  due 
diligence  in  making  a  prompt  delivery.^®**  In  order  for  the  sendee 
to  recover  damages,  under  such  circumstances,  he  must  prove  that 
he  could  and  would  have  complied  with  the  apparent  wishes  of 
the  message.-*'^ 

§  316.  Message  for  person — make  reasonable  search. — As  it  is 
presumed  that  parties  desiring  to  converse  over  telephone  lines  are 
put  in  direct  communication  with  each  other,  and  that  it  is  not  un- 
der the  same  duty  to  deliver  the  messages  as  it  is  for  telegraph 
companies  to  deliver  telegrams,  unless  it  apparently  assume  the 
duty,  yet  in  order  to  place  the  parties  in  communication  with  each 
other  it  is  often  necessary  to  search  for  the  party  called.  For  in- 
stance, suppose  a  call  is  put  in  for  a  certain  person,  who  may 
or  may  not  be  a  subscriber,  and  it  is  necessary,  in  order  to  get  the 

boat ;  Lefler  v.  West.  U.  Tel.  Co.,  131  N.  C.  355,  42  S.  E.  819,  59  L.  R.  A.  477 ; 
West.  U.  Tel.  Co.  v.  Shaw,  40  Tex.  Civ.  App.  277,  90  S.  W.  58.  See  West. 
U.  Tel.  Co.  V.  Smith,  1&4  Ky.  270,  175  S.  W.  375. 

257  Jn  many  cases  telephone  companies  contract  to  send  messages  in  the 
nature  of  telegrams,  and  when  such  is  the  case,  they  are  under  the  same 
obligations  and  subject  to  the  same  liabilities  as  telegraph  companies,  and 
are  bound  by  the  same  rules.  See  notes  to  West.  U.  Tel.  Co.  v.  Cooper,  10 
Am.  St.  Rep.  778 ;  West.  U.  Tel.  Co.  v.  Luck,  66  Am.  St.  Rep.  873.  See  Cum- 
berland Tel.,  etc.,  Co.  v.  Atherton,  122  Ky.  1.54,  91  S.  W.  257,  28  Ky,  Law 
Rep.  1100.  See,  also.  State  v.  Tel.  Co.,  85  Wash.  29,  147  Pac.  885,  meaning 
of  "transmission  without  delay"   over  telephone. 

258  Cumberland  Tel.  Co.  v.  Brown,  104  Tenn.  56.  55  S.  W.  155,  50  L.  R.  A. 
277,  78  Am.  St.  Rep.  906 ;  Southwestern,  etc.,  Tel.  Co.  v.  Dale  (Tex.  Civ.  App.) 
27  S.  W.  1059. 

2  59  Cuml;erland  Tol.,  etc.,  Co.  v.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78 
Am.  St.  Rep.  906,  50  L.  R.  A.  277. 

260  1^  261  Id. 


§    317)  AS  TO  MESSAGES LIABILITY  439 

party,  to  send  out  and  notify  him  of  the  call.  The  question  which 
presents  itself  is,  Is  it  the  duty  of  the  company  to  send  out  for  the 
party  called?  It  seems  to  us  that,  if  the  party  wanted  is  within 
a  reasonable  distance  of  the  company's  exchange,  it  is  the  duty  of 
the  latter  to  make  reasonable  efforts  to  reach  him ;  surely  it  is  if 
extra  charges  have  been  collected  for  such  services. -°^  Many  times 
such  calls  are  made  for  parties  who  are  entire  strangers  in  the 
town,  to  which  doubtless,  there  are  no  other  means  of  reaching  him 
— as  by  telegram.  To  say  that  the  company  is  not  under  some  obli- 
gations to  the  public  to  make  an  effort  to  apprise  him  of  the  call 
would  be  nothing  less  than  to  release  it  from  performing  one  of  its 
public  duties.  Although  it  is  rather  difficult,  in  this  instance,  to 
lay  down  any  principle  of  law,  as  a  standard  of  measurement,  in 
determining  what  would  be  a  reasonable  distance,  within  which 
search  should  be  'made,  yet  each  case  should  be  taken  and  consid- 
ered somewhat  on  its  own  merits.  By  the  construction  of  an  In- 
diana statute,  it  has  been  held  that  it  is  the  duty  of  telephone  com- 
panies, in  that  state,  to  notify  a  person  living  within  a  reasonable 
distance  of  the  receiving  station  that  he  is  wanted.-"^  It  does  not 
seem  that  it  should  be  necessary  for  the  existence  of  such  a  statute, 
in  order  to  impose  on  the  company  the  duty  of  notifying  a  person 
who  lives  within  a  reasonable  distance  of  the  receiving  office ;  but 
the  question  to  be  decided  is,  What  is  a  reasonable  distance  from 
the  receiving  office  to  where  the  party  wanted  lives?  It  is  very 
evident  that  the  company  is  not  under  the  same  obligations  it  oth- 
erwise would  be  if  extra  charges  had  been  collected  for  performing 
this  service.  So,  while  it  may  be  seen  that  this  is  one  of  the  du- 
ties of  these  companies,  yet  it  is  one  not  to  be  so  closely  observed 
as  those  for  which  they  are  directly  compensated. 

§  317.  Same  continued — when  compensated. — The  preceding 
sections  have  reference  particularly  to  calls  made  where  no  extra 

262  McLeod  V.  Pacific  Tel.  Co.,  52  Or.  22,  94  Pac.  56S,  95  Pac.  1009,  15 
L.  R.  A.  (N.  S.)  810,  18  L.  R.  A.  (N.  S.)  954,  16  Ann.  Cas.  1239 ;  Southwest- 
ern Tel.,  etc.,  Co.  v.  Owens  (Tex.  Civ.  App.)  116  S.  W.  89;  Southwestern 
Tel.,  etc.,  Co.  v.  McCoy  (Tex.  Civ.  App.)  114  S.  W.  387;  Southwestern  Tel., 
etc.,  Co.  V.  Flood,  51  Tex.  Civ.  App.  340,  111  S.  W.  IWU ;  Southwestern  Tel., 
etc.,  Co.  V.  Taylor,  26  Tex.  Civ.  App.  79,  63  S.  W.  1076.  In  Wiggs  v.  South- 
western Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  110  S.  W.  179,  in  an  action  for  mental 
suffering  for  failure  promptly  to  call  plaintiff  to  listen  to  a  telephone  message 
from  her  father  concerning  the  serious  illness  of  her  brother,  a  recovery 
was  denied  upon  the  ground  that  the  negligence  of  the  telephone  company 
in  failing  promptly  to  call  plaintiff  was  not  the  proximate  cause  of  the 
injury. 

263  Central  Union  Tel.  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E.  1035. 


440  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  318 

charges  have  been  collected  for  delivery.  If  the  company  has  been 
compensated  additionally  for  its  services  in  getting  the  party  called 
to  the  telephone,  it  will  be  under  the  same  obligation  to  discharge 
this  duty  as  is  imposed  on  telegraph  companies  for  delivering  tele- 
grams, under  like  circumstances.^"*  A  greater  per  cent,  of  the  tel- 
ephone exchanges  are  in  country  towns,  and  the  revenues  derived 
from  this  kind  of  services  are  not  always  sufficient  to  justify  the 
company  in  keeping  a  messenger  boy.  But  wherever,  at  such  plac- 
es, a  call  has  been  put  in  for  a  certain  party  and  extra  charges 
have  been  collected  for  such  services,  it  is  the  duty  of  the  company 
to  make  a  reasonable  effort  to  find  the  party  called, ^"^  and  should 
some  one  be  engaged  or  employed  by  the  agent  of  the  company  to 
perform  such  services,  it  will  be  just  as  liable  for  the  negligence 
of  such  person  in  the  discharge  of  such  services,  as  if  he  was  a 
permanent  employe  whose  duties  were  of  this  particular  nature. 
To  hold  otherwise  would  relieve  these  companies  of  one  of  their 
public  functions,  and  furnish  them  a  means  of  avoiding  many  of 
their  liabilities.  So  it  will  be  seen,  under  such  circumstances,  that 
it  is  not  only  the  duty  of  the  company  to  exercise  a  reasonable  de- 
gree of  care  in  the  selection  of  its  messengers,  but  it  must  also 
exercise  the  same  care  in  seeing  that  the  messenger  properly  dis- 
charged his  duty  in  making  a  reasonable  search  for  the  party  called. 
§  318.  Long-distance  telephone — disconnected  at  intermediate 
points. — A  long-distance  telephone  company,  holding  itself  out  to 
furnish  connections  beyond  the  termini  of  its  lines,  is  under  obliga- 
tions to  the  public  to  perform  such  duty ;  and,  on  a  failure  to  se- 
cure such  connections,  through  the  negligence  of  its  agents,  at 
the  terminus  of  its  lines  whereby  damages  are  incurred,  the  com- 
pany will  be  liable  for  such  damages.^®®  When  the  company  holds 
itself  out  to  perform  such  duty,  it  is  incumbent  on  it  to  discharge 
that  duty  to  the  best  of  its  ability.  In  other  words,  it  is  part  of  the 
contract  continuously  offered  to  the  public,  at  all  times,  and  when 
any  applicant  accepts  the  benefits  arising  therefrom,  by  compen- 
sating the  company  for  such  services,  the  company  must  carry  out 
its  part  of  the  contract,  and  if  a  failure  to  do  so  is  caused  by  its 
servants  negligently  failing  to  furnish  the  proper  connection  with 

2C4  See  notes  to  West.  U.  Tel.  Co.  v.  Cooper,  10  Am.  St.  Rep,  778;    West. 
U.  Tel.  Co.  V.  Luck,  66  Am.  St.  Rep.  873. 

265  McLeod  V.  Pacific  Tel.  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac.  1009,  15  L. 
R.  A.   (X.  S.)  SIO,  18  L.  R.  A.  (N.  S.)  954,  16  Ann.  Cas.  1239. 

266  Southwestern  Tel.,  etc.,  Co.  v.  Taylor,  26  Tex.  Civ.  App.  79,  63  S.  W. 
1076.     See  §  451. 


§    318)  AS  TO   MESSAGES LIABILITY  441 

Other  lines,  over  which  the  distant  communicant  is  finally  to  be 
reached,  and  damages  arise  therefrom,  the  company  will  be  liable. ^°^ 

2  67  Smith  V.  West.  U.  Tel.  Co.,  84  Tex.  3.59,  19  S.  W.  441,  31  Am.  St.  Rep. 
59.  In  this  case  the  defendant  was  the  connecting  company  over  whose 
lines  the  message  was  to  reach  its  destination,  and  it  was  held  therein  that 
it  was  under  obligations  to  make  a  prompt  and  correct  delivery  of  the  tele- 
gram, regardless  of  the  contract  made  with  the  initial  line  with  the  sender. 


442  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  319' 

CHAPTER  XIII 
NEGLIGENCE 

§  319.  Negligence  in  transmission — in  general. 

320.  Prima  facie  negligence. 

321.  Same — illustrations. 

322.  Presumption  may  be  rebutted. 

323.  Nonpayment  of  charges — no  defense — regulation. 

324.  Contributory  negligence. 

325.  Messages  must  be  legible. 

326.  Same  continued — address  must  be  definite. 

327.  Operator  writing  message  for  sender — his  agent. 
32S.  Messages  not  stamped — contributorj'  negligence. 

329.  Delay  in  sending — no  contributory  negligence. 

330.  Injured  party — should  minimize  loss. 

331.  Presumed  to  perform  contract. 

332.  Should  resort  to  other  means  when  necessary. 

333.  Misinterpreting  message — addressee. 

334.  Should  read  carefully — sendee. 

§  319.  Negligence  in  transmission — in  general. — Telegraph 
companies,  having  placed  themselves  before  the  public  to  assume 
public  duties,  must  make  suitable  preparations  to  perform  those 
duties  as  befitting  an  employment  of  this  or  of  a  similar  nature. 
In  order  to  do  this,  they  should  have  the  best  and  most  suitable 
machinery  and  facilities,  and  Lhe  most  skilled  and  experienced 
workmen  ;  ^  and  after  being  supplied  as  above  required,  they  must 
not  be  guilty  of  carelessness  in  the  performance  of  their  work,  but 
must  exercise  due  care  in  the  transmission  and  delivery  of  all  mes- 
sages intrusted  to  them.  On  a  failure  to  exercise  due  and  reason- 
able care  in  the  transmission  of  messages,-  and  on  a  failure  to  use 
due  diHgence  in  finding  and  promptly  delivering  ^  them  to  the  par- 
ties addressed,  whereby  injur}^  is  incurred,  they  will  be  liable  for 
all  damages  arising  therefrom.*  It  is  not  an  easy  matter  to  deter- 
mine what  is  due  care  in  a  business  of  this  nature,  but  the  better 
holding  is  that  due  care  is  such  care  as  should  be  exercised  by  a 
responsible  man  of  ordinary  understanding  and  ability  under  sim- 
ilar circumstances,  or  such  as  a  prudent  man  of  ordinary  mind  and 
understanding  would  or  should  exercise  under  similar  circumstanc- 
es. There  have  been  a  few  courts  which  have  held  that  there  were 
different  degrees  of  care  to  be  exercised  by  these  companies  in  the 
transmission   and  delivery   of  messages,   or,   in   other  words,  that 

1  See  §  270.  ^  See  §  2S4  et  seq.  s  See  §  2SS  et  seq. 

4  See  chapters  XX,  XXI,  XXII,  XXIII,  XXV. 


§    320)  NEGLIGENCE  443 

there  were  different  degrees  of  negligence  as  a  result  of  the  want 
of  care;^  as  that  of  "due  and  reasonable  care,"  "ordinary  care  and 
vigilance,"  "reasonable  and  proper  care,"  "reasonable  degree  of  care 
and  diligence,"  "care  and  diligence  adequate  to  the  business  which 
they  undertake,"  "with  skill,  with  care,  and  with  attention,"  "a 
high  degree  of  responsibility,"  "great  care,"  or  "gross  negligence."  '^ 
But  it  seems  that  all  these  expressions  are  expressive  of  one  and 
the  same  term,  that  of  due  care  considered  under  the  pending  cir- 
cumstances. For  instance,  it  may  be  necessary  that  a  greater  de- 
gree of  care  should  be  exercised  in  one  instance  than  in  another,  in 
the  transmission  and  delivery  of  the  message ;  as,  where  the  mes- 
sage is  transmitted  during  a  storm,  it  seems  that  a  higher  degree 
of  care  should  be  exercised,  than  if  it  were  sent  during  a  calm. 
This  is  only  due  care  affected  by  surrounding  conditions  which 
should  be  considered  in  determining  the  want  of  care.  The  de- 
gree of  care  to  be  exercised  in  the  transmission  of  messages  has 
already  been  fully  discussed.'^ 

§  320,  Prima  facie  negligence. — Where  a  telegraph  company 
fails  to  transmit  a  message  correctly,®  it  is  prima  facie  evidence  of 
the  company's  negligence.^  So,  in  an  action  brought  to  recover 
damages  for  the  erroneous  transmission  of  a  telegraphic  message,^" 
proof  by  the  plaintiff  of  the  contract,  which  may  be  implied  by  the 
delivery  of  the  message  to  be  transmitted,  and  its  acceptance  by 

5  Coit  V.  West.  U.  Tel.  Co.,  130  Cal.  657,  63  Pac.  S3,  SO  Am.  St.  Eep.  153,  53 
L.  R.  A.  678. 

6  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep.  211 ; 
Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.  141,  8  Am.  Rep.  526 ;  Leonard  v.  New  York, 
etc.,  Tel.  Co.,  41  N.  Y.  571,  1  Am.  Rep.  446 ;  Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y. 
751,  6  Am.  Rep.  165 ;  De  Rutte  v.  New  York,  etc.,  Tel.  Co.,  1  Daly  (N.  Y.)  547 ; 
New  York,  etc.,  Tel.  Co.  v.  Dryburg,  35  Pa.  298,  78  Am.  Dec.  338 ;  West.  U.  Tel. 
Co.  V.  Graham,  1  Colo.  230,  9  Am.  Rep.  136;  Sweatland  v.  Illinois,  etc.,  Tel. 
Co.,  27  Iowa,  433,  1  Am.  St.  Rep.  285 ;  West.  U.  Tel.  Co.  v.  Neill,  57  Tex.  283, 
44  Am.  Rep.  589 ;  Wash.,  etc.,  Tel.  Co.  v.  Hobson,  15  Grat.  (Va.)  122 ;  Pinckney 
V.  Tel.  Co.,  19  S.  C.  71,  45  Am.  Rep.  765;  Smithson  v.  U.  S.  Tel.  Co.,  29  Md. 
167 ;  Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79 ;  Strong  v.  West.  U.  Tel. 
Co.,  18  Idaho,  389,  109  Pac.  910,  30  L.  R.  A.  (N.  S.)  409,  Ann.  Cas.  1912A,  55. 

7  See  §  285. 

8  See  §  285. 

9  Strong  V.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  Ann.  Cas.  1912A,  55, 
30  L.  R.  A.  (N.  S.)  409 ;  Kirby  v.  West.  U.  Tel.  Co.,  77  S.  C.  404.  58  S.  E.  10,  122 
Am.  St.  Rep.  580;  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128 
Am.  St.  Rep.  581 ;  Baker  v.  West.  U.  Tel.  Co.,  84  S.  C.  477,  66  S.  E.  182,  137 
Am.  St.  Rep.  848 ;  Shepard  v.  West.  U.  Tel.  Co.,  143  N.  C.  244,  55  S.  E.  704,  118 
Am.  St.  Rep.  796 ;  West.  U.  Tel.  Co.  v.  Merrill,  144  Ala.  618.  38  South.  121,  113 
Am.  St.  Rep.  66.  See  note  113  Am.  St.  Rep.  986.  But  see  Roberts  v.  West.  U. 
Tel.  Co.,  73  S.  C.  520,  53  S.  E.  985,  114  Am.  St.  Rep.  100.     See  §  509. 

10  See  chapter  XX. 


444  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  321 

the  defendant's  agents, ^^  and  of  the  breach,  makes  out  a  prima 
facie  case ;  and  the  plaintiff  need  not  go  further  and  show  any  neg- 
h'gence  or  omission  of  the  defendant. ^^  If  the  failure  was  not  the 
result  of  negligence,  the  means  of  showing  this  fact  is  almost  in- 
variably within  the  exclusive  possession  of  the  company.  To  re- 
quire the  sender  to  prove  the  negligence,  after  showing  the 
mistake,  would  be  to  require  in  many  cases  an  impossibility,  not  in- 
frequently resulting  in  enabling  the  company  to  evade  a  just  lia- 
bility.^^ Although  a  prima  facie  case  may  be  made  out,  thereby 
casting  the  burden  of  proof  upon  the  company  to  exonerate  it- 
self of  negligence,^*  yet  this  presumption  may  be  overcome  by  oth- 
er evidence  adduced  by  the  company. ^^ 

§  321.  Same — illustrations. — If  there  is  proof  to  the  effect  of 
an  unreasonable  delay  in  the  delivery  ^^  or  a  failure  to  deliver,^^ 
there  is  a  prima  facie  case  of  negligence  made  out,^^  and  the  burden 
is  cast  upon  the  company  to  exonerate  itself  of  such.^''    And  where 

11  Strong  V.  West.  U.  Tel.  Co.,  IS  Idaho,  3S9,  109  Pac.  910,  Ann.  Cas.  1912A, 
55,  30  L.  R.  A.  (N.  S.)  409. 

12  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  531,  21  Am.  St.  Rep. 
662;  AVest.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744; 
Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609,  34 
L.  R.  A.  492 ;  West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480 ;  Ty- 
ler V.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38 ;  Smith  v.  West.  U.  Tel.  Co., 
57  Mo.  App.  259;  Telegraph  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500; 
Bartlett  v.  West.  U.  Tel.  Co.,  62  jNIe.  209,  16  Am.  Rep.  437 ;  West.  U.  Tel.  Co.  v. 
Carew,  15  Mich.  525 ;  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am. 
St.  Rep.  211 ;  Strong  v.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  30  L.  R. 
A.  (N.  S.)  409,  Ann.  Cas.  1912A,  55.    See  §  509. 

13  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744. 

14  See  chapter  IX.  See,  also,  Hendricks  v.  West.  U.  Tel.  Co.,  126  N.  C.  304, 
35  S.  E.  540,  78  Am.  St.  Rep.  658 ;  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356, 
78  N.  W.  63,  43  L.  R.  A.  214,  70  Am.  St.  Rep.  205 ;  Fowler  v.  West.  U.  Tel.  Co., 
SO  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep.  211 ;  Harkness  v.  West.  U.  Tel.  Co.,  73 
Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  Strong  v.  West.  U.  Tel.  Co.,  18 
Idaho,  389,  109  Pac.  910,  Ann.  Cas.  1912A,  55,  30  L.  R.  A.  (N.  S.)  409.  See  § 
509. 

15  See  §  322.  Shepard  v.  West.  U.  Tel.  Co.,  143  N.  C.  244,  55  S.  E.  704,  118 
Am.  St.  Rep.  796. 

10  See  chapter  XII. 

17  See  chapter  XII. 

18  See  §§  320,  509. 

13  See  note  14,  supra,  for  cases  cited.    See  §  .509.    See,  also: 

Arlnnsas. — Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79. 

Indiana.— West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  604;  West.  U. 
Tel.  Co.  V.  Ward,  23  Ind.  377,  85  Am.  Dec.  462. 

Zoiro.— Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa,  190,  5  Am.  St.  Rep.  672,  34 
X.  W.  811. 

A'a/isas.— West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  079,  5  Am.  St.  Rep.  795,  17  Pac. 
309. 


§    321)  NEGLIGENCE  445 

there  is  a  material  error,^"  or  where  there  have  been  several  er- 
rors made  in  the  transmission  of  a  telegram,  it  is  presumed  that 
the  company  has  been  guilty  of  negligence,  and  the  facts  must  be 
shown  to  be  otherwise  or  it  will  be  liable. ^^  Thus,  where  there 
were  three  errors  made  in  the  transmission  of  a  message  contain- 
ing nine  words,  the  same  being  sent  on  a  fair  day,-^  or  an  error  in 
the  name  of  an  addressee  or  sender  made  in  the  course  of  transmis- 
sion, creates  a  presumption  of  negligence."^  It  makes  no  dif- 
ference whether  the  error  was  or  was  not  made  on  a  connecting 

Kentucky.— West.  U.  Tel.  Co.  v.  Mcllvoy,  107  Ky.  633,  55  S.  W.  428;  West. 
U.  Tel.  Co.  V.  Fisher,  107  Ky.  513,  54  S.  W.  830. 

Maine.— Bavtlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Eep.  447 ;  Fowler 
V.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep.  216. 

Maryland.— \5.  S.  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519. 

'North  CaroHH a.— Slierrill  v.  West.  U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429 ; 
Id.,  117  N.  C.  352,  23  S.  E.  277 ;  Rosser  v.  West.  U.  Tel.  Co.,  130  N.  C.  251,  41 
S.  E.  378.    Compare  Thompson  v.  West.  U.  Tel.  Co.,  106  N.  C.  549,  11  S.  E.  269. 

Pennsylvania.— "Uwiied  States  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dec. 
751. 

Tcj-as.— West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  46  S.  W.  659 ;  Id.,  88  Tex. 
9,  28  S.  W.  931,  30  S.  W.  549 ;  West.  U.  Tel.  Co.  v.  Carter,  2  Tex.  Civ.  App.  624, 
21  S.  W.  688 ;  West.  U.  Tel.  Co.  v.  Bouchell,  28  Tex.  Civ.  App.  23,  67  S.  W.  159 ; 
West.  U.  Tel.  Co.  v.  Boots,  10  Tex.  Civ.  App.  540,  31  S.  W.  825.  Compare  West. 
U.  Tel.  Co.  V.  Bennett,  1  Tex.  Civ.  App.  558,  21  S.  W.  699. 

2  0  West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  679,  5  Am.  St.  Rep.  799,  17  Pac.  309; 
Harkness  v.  West.  U,  Tel.  Co.,  73  Iowa,  190,  5  Am.  St.  Rep.  672,  34  N.  W.  811. 
See,  also,  §  509. 

21  Ar/cawsas.— West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  9  L.  R.  A.  744,  14  S. 
W.  649. 

Illinois.— Ty\QV  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38. 

Indiana.— West.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53. 

loioa. — Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep.  605. 

Louisiana. — La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383. 

Maine.— Ayev  v.  West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep. 
353. 

Missouri.— neoA  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R.  A. 
492,  58  Am.  St.  Rep.  609 ;  Lee  v.  West.  U.  Tel.  Co.,  51  Mo.  App.  375. 

Neio  York. — Rittenhouse  v.  Independent  Line  of  Tel.,  44  N.  Y.  263,  4  Am. 
Rep.  673 ;  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St. 
Rep.  662,  affirming  44  Hun  (N.  Y.)  532,  criticizing  Breese  v.  United  States  Tel. 
Co.,  48  N.  Y.  132,  8  Am.  Rep.  526. 

Oftto.— West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  303,  41  Am.  Rep.  500. 

Pennsylvania. — New  York,  etc.,  Printing  Tel.  Co.  v.  Dryburg,  35  Pa.  298,  78 
Am.  Dec.  338. 

Texas.— Went.  U.  Tel.  Co.  v.  Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599; 
West.  U.  Tel.  Co.  v.  Odom,  21  Tex.  Civ.  App.  537,  52  S.  W.  632 ;  West.  U.  Tel. 
Co.  V.  Hines,  22  Tex.  Civ.  App.  315,  54  S.  W.  027,  provided  there  was  no  stipula- 
tion for  repeating ;  West.  U.  Tel.  Co.  v.  Boots,  10  Tex.  Civ.  App.  540,  31  S.  W. 
825.     See,  also,  §  509. 

2  2  West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  679,  17  Pac.  309,  5  Am.  St.  Rep.  795. 

2  3  West.  U.  Tel.  Co.  v.  Ragland  (Tex.  Civ.  App.)  61  S.  W.  421 ;  West.  U.  Tel. 
Co.  V.  Boots,  10  Tex.  Civ.  App.  540,  31  S.  W.  825 ;  West.  U.  Tel.  Co.  v.  Norms,  25 
Tex.  Civ.  App.  43,  00  S.  W.  982 ;  West.  U.  Tel.  Co.  v.  Reeves,  8  Tex.  Civ.  App. 


446  TELEGRArH  AND  TELEPHONE  COMPANIES         (§  322 

line.^*  Thus,  in  the  case  of  La  Grange  v.  Southern  Telephone 
Company,  the  defendant  contended  that  it  was  not  the  first  car- 
rier and  that  plaintiff  had  failed  to  prove  that  the  error  had  oc- 
curred on  its  line,  and  showed  an  express  provision  in  its  printed 
blanks  that  it  would  not  be  liable  for  errors  occurring  on  connect- 
ing lines.  It  was  held  that  the  burden  of  proof  was,  nevertheless, 
on  the  company  to  show  that  the  error  did  not  occur  on  its  line, 
since  such  proof  was  easily  within  its  power. -^ 

§  322.  Presumption  may  be  rebutted. — When  there  has  been 
proof  adduced  which  shows  a  presumption  of  negligence  on  the 
part  of  these  companies,  it  is  not  to  be  understood  that  this  pre- 
sumption is  conclusive,  but  that  it  may  be  rebutted  by  evidence 
which  will  exonerate  the  company  of  negligence.^®  When  this  is 
done  there  is  a  shifting  of  the  omis  from  one  party  to  the  other,  but 
it  is  only  necessary  for  the  party  on  whom  the  burden  has  last  been 
shifted  to  prove  the  falsity  of  the  other's  assertion  as  to  the  state- 
ment which  caused  the  shifting  of  the  onus.  There  must  be  suffi- 
cient evidence  shown,  however,  to  rebut  the  presumption  of  neg- 
ligence. Thus  it  has  been  held  that  these  companies  are  not  relieved 
from  liability  for  an  erroneous  transmission  merely,  by  showing 
that  their  lines  were  in  good  order,  that  approved  instruments  were 
used,  and  that  faithful  and  competent  servants  were  employed,  if 
the  particular  act  complained  of  shows  a  negligent  performance  of 
their  duty  to  transmit.-^  Whether  or  not  the  company  has  been 
guilty  of  negligence — unless  the  act  which  creates  the  injury  is 
negligence  per  se — is  generally  a  question  for  the  jury,  and  it  will 
be  an  error  for  the  court  to  take  the  case  from  the  jury  if  the 
facts  are  conflicting,  however  strong  it  may  appear  that  the  com- 
pany has  been  guilty  of  negligence.-^ 

§  323.  Non-payment  of  charges — no  defense — regulation. — 
When  a  telegraph  company  undertakes  to  transmit  and  deliver  a 

37,  27  S.  W.  318.  Compare  West.  U.  Tel.  Co.  v.'  Elliott,  7  Tex.  Civ.  App.  482,  27 
S.  W.  219.    See,  also,  §  284  et  seq. 

2  4  See  §§  404,  454,  et  seq. 

25  I.a  Grange  v.  Soutliwestern  Tel.  Co.,  25  La.  Ann.  383. 

2  6  Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  71,  45  Am.  Rep.  765;  West.  U.  Tel. 
Co.  V.  Elliott,  131  Ky.  340,  115  S.  W.  228,  22  L.  R.  A.  (N.  S.)  761 ;  White  v. 
West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710;  West.  U.  Tel.  Co.  v.  Brown  (Tex.  Civ. 
App.)  75  S.  W.  359 ;  Hoaglin  v.  West.  U.  Tel.  Co.,  161  N.  C.  390,  77  S.  E.  417. 
See,  also,  §  509. 

2  7  Hunter  v.  West.  U.  Tel.  Co.,  130  N.  C.  602,  41  S.  E.  796;  Fowler  v.  West. 
V.  Tel.  Co.,  80  Me.  .381,  15  Atl.  29,  6  Am.  St.  Rep.  211 ;  West.  U.  Tel.  Co.  v. 
Meek,  49  Ind.  53 ;  AVest.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  604.  Com- 
pare Smith  V.  West.  U.  Tel.  Co.,  57  Mo.  App.  259. 

2  8  White  V.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710;  West.  U.  Tel.  Co.  v.  Brown 
<Tex.  Civ.  App.)  75  S.  W.  359. 


§    324)  NEGLIGENCE  447 

message  without  first  demanding  a  prepayment  of  the  charges  for 
its  services,  it  cannot  set  up,  as  a  defense  to  an  action  brought 
against  it  for  injuries  alleged  to  have  been  caused  by  its  negligent 
acts,  the  fact  that  the  charges  have  not  been  paid.-^  When  this 
duty  is  assumed  without  prepayment  of  compensation,  the  com- 
pany must  perform  the  duty  regardless  of  this  fact.^'^  But  it  has 
been  held  by  some  courts  that  if  there  is  not  a  prepayment  of  the 
extra  charge  for  delivering  the  message  beyond  the  free  delivery 
limits,  the  company  would  not  be  liable  for  a  delivery  or  a  neg- 
ligent delay  in  its  delivery,  and  that  the  burden  was  on  the  injured 
party  to  show  that  the  sendee  lived  within  the  free  delivery  limits. ^^ 
§  324.  Contributory  negligence. — Where  an  action  is  brought 
against  a  telegraph  company,  on  the  ground  of  its  having  been 
guilty  of  negligence  in  the  transmission  and  delivery  of  a  message, 
the  principle  of  the  law  of  contributory  negligence  may  be  applied. 
Therefore,  if  these  companies  are  guilty  of  negligence,  either  in  the 
transmission  or  delivery  of  messages  intrusted  to  their  care,  but  the 
plaintiff  on  the  other  hand  has  failed  to  exercise  ordinary  care 
with  respect  to  his  duties  toward  the  company  in  this  particular 
instance,  and  which  is  a  proximate  cause  of  the  injury  or  which 
combines  or  contributes  to  it — and  without  which  the  injury  would 
not  have  been  inflicted — they  will  not  be  liable. ^^  A  telegraph  com- 
pany may  be  guilty  of  negligence  without  any  failure  on  the  part 
of  the  plaintiff  to  exercise  ordinary  care  in  these  particulars;  but 
there  cannot  be  contributory  negligence  on  the  part  of  the  plaintiff, 
unless  the  company  is  guilty  of  negligence ;  and,  in  order  for  the 
latter  to  be  excused  from  its  negligence,  it  must  be  shown  that 
the  plaintiff  has  contributed  to  the  injury. ^^  It  is  not  necessary 
to  show  that  the  plaintiff's  contributory  negligence  was  the  direct 

2  0  See  §  279  et  seq. 

30  West.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53;  Milliken  v.  AYest.  U.  Tel.  Co.,  110 
N.  Y.  403,  IS  N.  E.  2.51,  1  L.  R.  A.  281,  reversing  53  N.  Y.  Super.  Ct.  111.  See, 
also,  §  279  et  seq. 

31  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414.  30  Am.  St.  Rep.  23 ; 
I\endall  v.  West.  U.  Tel.  Co.,  56  Mo.  App.  192 ;  West.  U.  Tel.  Co.  v.  Henderson, 
89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep.  148 ;  Resse  v.  West.  U.  Tel.  Co.,  123 
lud.  294,  24  N.  E.  163,  7  L.  R.  A.  583.     See,  also,  §  302  et  seq. 

3  2  Manly  Mfg.  Co.  v.  West.  U.  Tel.  Co.,  105  Ga.  235,  31  S.  E.  156;  West.  U. 
Tel.  Co.  V.  Gulledge,  84  Ark.  501,  lOG  S.  W.  957 ;  West.  U.  Tel.  Co.  v.  Wright, 
18  111.  App.  337 ;  Hart  v.  Direct  U.  S.  Cable  Co.,  86  N,  Y.  6.33 ;  Bowyer  v.  West. 
U.  Tel.  Co.,  130  Iowa,  324,  106  N.  W.  748,  5  L.  R.  A.  (N.  S.)  984;  Hocutt  v. 
West.  U.  Tel.  Co.,  147  N.  C.  186,  60  S.  E.  080 ;  West.  U.  Tel.  Co.  v.  Harper,  15 

3  3  West.  U.  Tel.  Co.  v.  Rawls  (Tex.  Civ.  App.)  62  S.  W.  1.36.  See  St.  Louis 
Southwestern,  etc.,  v.  Parks,  40  Tex.  Civ.  App.  480,  90  S.  W.  343.  See,  also,  §. 
309. 


448  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  325 

or  sole  cause  of  the  injury,  but  if  it  is  shown  that  it  proximately 
contributed  to  the  cause  of  the  loss  it  will  be  sufficient  to  relieve 
the  company  from  responsibility.^*  It  must,  how*  ver,  be  shown 
that  it  was  a  proximate  cause.  Thus,  where  the  company  accepts 
a  message  for  transmission  and  undertakes  to  deliver  it  about  9 
o'clock  at  night  the  fact  that  the  sender  of  the  telegram  might  have 
filed  it  earlier  in  the  evening  so  that  it  could  have  reached  plain- 
tiff, to  whom  it  was  addressed,  in  time  to  prevent  the  injury  com- 
plained of,  does  not  make  plaintiff  guilty  of  contributory  negli- 
gence.^^ 

§  325.  Messages  must  be  legible. — Telegrams  should  be  written 
legibly ;  and  should  a  mistake  in  the  transmission  or  delivery  oc- 
cur on  account  of  a  failure  to  clearly  write  them  out,  the  negligence 
will  be  that  of  the  sender,  and  will,  therefore,  prevent  him  from 
recovering.^®  Thus,  where  the  sender,  intending  to  order  by  tele- 
graph the  sale  of  "two  thousand"  cases,  wrote  what  more  nearly 
resembled  "ten  thousand"  cases,  and  sent  the  message  to  the  tel- 
egraph office  by  a  boy,  and  the  operator  transmitted  the  dis- 
patch "ten  thousand,"  and,  in  accordance  with  the  regulations  of 
the  company,  added  in  the  parentheses  the  figures  "10,000,"  which 
was  not  in  the  written  message,  in  an  action  by  the  addressee 
against  the  company  for  damages  sustained  by  reason  of  the  sale 
of  ten  thousand  instead  of  two  thousand  cases,  it  was  held  that 
the  cause  of  the  loss  was  the  negligence  of  the  sender,  and  there 
could  be  no  recovery.^''     But  if  the  sender's  error  is  harmless,  it 

Tex.  Civ.  App.  37,  39  S.  W.  599 ;  Nusbaum  v.  West.  U.  Tel.  Co.,  17  Phila.  (Pa.) 
340;  Barnes  v.  Tel.  Cable  Co.,  156  N.  C.  150,  72  S.  Ei.  78.  See  West.  U.  Tel. 
Co.  V.  Matthews,  21  Ky.  Law  Rep.  3,  67  S.  W.  849 ;  West.  U.  Tel.  Co.  v.  Hoff- 
man, SO  Tex.  420,  15  S.  W.  1048,  26  Am.  St.  Rep.  759.    See,  also,  §  309. 

3  4  West.  U.  Tel.  Co.  v.  Rawls  (Tex.  Civ.  App.)  62  S.  W.  136.  See,  also,  Cog- 
dell  V.  West.  U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490.  See  §  309.  See  West.  U. 
Tel.  Co.  V.  Lewis,  89  Ark.  375,  116  S.  W.  894 ;  Arkansas,  etc.,  R.  Co.  v.  Stroiide, 
82  Ark.  117,  100  S.  W.  760 ;  Hise  v.  West.  U.  Tel.  Co.,  137  Iowa,  329,  113  N. 
W.  819. 

3  5  See  cases  in  preceding  note. 

3  6  West.  U.  Tel.  Co.  v.  McDaniel,  103  Ind.  294,  2  N.  E.  709;  West.  U.  Tel.  Co. 
V.  Patrick,  92  Ga.  607,  IS  S.  E.  980,  44  Am.  St.  Rep.  90.  See,  also,  Deslortes  v. 
Baltimore,  etc.,  Tel.  Co.,  40  La.  Ann.  183,  3  South.  566 ;  West.  U.  Tel.  Co.  v. 
Wofford,  32  Tex.  Civ.  App.  427,  72  S.  W.  620,  74  S.  W.  943. 

3  7  Koons  V.  West.  U.  Tel.  Co.,  102  Pa.  164;  West.  U.  Tel.  Co.  v.  Liddell,  68 
Miss.  1,  8  South.  510. 

It  will  be  seen  that  the  cases  cited  in  the  preceding  note  and  this  one  were 
actions  brought  by  the  sender  and  sendee  respectively ;  but  it  has  been  ques- 
tioned whether  the  contributory  negligence  of  the  sender  can  be  used  as  a  de- 
fense against  the  addressee  in  a  suit  by  the  latter.  Cogdell  v.  West.  U.  Tel. 
Co.,  135  N.  C.  431,  47  S.  E.  490;  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511, 
14  N.  E.  894. 


NEGLIGENCE 


449 


§  327) 

will  be  no  defense  ;^^  as  where  the  message  notified  plaintiff  that 
his  brother  was  sick  at  a  certain  place,  when  in  fact  he  was  not 
at  that  place  but  at  another,  and  the  addressee  knew  his  brother 
was  at  the  latter  place,  and  would  have  gone  there;  the  error, 
though  made  by  the  sender,  is  no  defense. ^^ 

§  326.  Same  continued — address  must  be  definite. — The  sender 
must  exercise  reasonable  care  in  giving  the  address  of  the  sendee 
with  sufficient  accuracy,  and  on  a  failure  to  do  so  he  will  be  guilty 
of  contributory  negligence.*"  Thus,  when  a  message  is  addressed 
to  a  certain  person,  who  is  not  known  by  the  company,  in  a  certain 
street  in  the  city,  the  company  will  have  performed  its  duty  when 
it  has  made  a  reasonable  effort  to  deliver  to  the  person  at  that 
place;  and  if  there  is  no  such  person  at  that  place,  after  having 
made  diligent  inquiry  to  find  him  there,  the  company  will  not  be 
liable,  but  the  loss  which  may  have  been  incurred  will  be  imputed 
to  the  negligence  of  the  sender.*^  An  address  to  "R.  street"  in- 
stead of  "South  R.  street"  bars  recovery  ;*2  and  where  a  message 
is  sent  to  a  place  of  12,000  people  and  fails  to  designate  the  street 
and  number  of  the  address  on  request,  the  sender  will  be  guilty 
of  contributory  negligence.*^  If  there  are  two  towns  of  the  same 
name  in  the  state,  but  the  operator  is  informed  of  the  one  to  which 
the  message  is  desired  to  be  sent,  the  company  cannot  avoid  liabil- 
ity by  setting  up  the  fact  that  the  address  was  indefinite.** 

§  327.  Operator  writing  message  for  sender — his  agent. — It  has 
been  generally  held  that,  where  an  operator  writes  the  message  for 
the  sender  at  the  latter's  request,  he  acts  as  agent  for  him  and  not 
for  the  company  in  this  particular  matter.  His  duties  toward  the 
company  are  to  receive  the  messages  and  the  charges  for  the  same, 

8  8  See  §  285. 

39  Koons  V.  West.  IT.  Tel.  Co.,  102  Pa.  164 ;  West.  U.  Tel.  Co.  v.  Liddell,  68 
Miss.  1,  8  South.  510. 

40  See  §'  309;  West.  U.  Tel.  Co.  v.  Patrick,  92  Ga.  607,  18  S.  E.  980,  44  Am. 
St.  Rep.  90 ;  West.  U.  Tel.  Co.  v.  McDaniel,  103  Ind.  294,  2  N.  E.  709 ;  West.  U. 
Tel.  Co.  V.  Rawls  (Tex.  Civ.  App.)  62  S.  W.  136 ;  Hargrave  v.  West.  U.  Tel.  Co. 
(Tex.  Civ.  App.)  60  S.  W.  687.  See,  also,  West.  U.  Tel.  Co.  v.  Wofford,  32  Tex. 
Civ.  App.  427,  72  S.  W.  620,  74  S.  W.  943 ;  Deslottes  v.  Baltimore,  etc.,  Tel.  Co., 
40  La.  Ann.  183,  3  South.  566. 

41  West.  U.  Tel.  Co.  v.  Patrick,  92  Ga.  607,  18  S.  E.  980,  44  Am.  St.  Rep.  90 ; 
West.  U.  Tel.  Co.  v.  McDaniel,  103  Ind.  294,  2  N.  E.  709 ;  Hargrave  v.  West.  U. 
Tel.  Co.  (Tex.  Civ.  App.)  60  S.  W.  687.  Compare  Beasley  v.  West.  U.  Tel.  Co. 
(C.  C.)  39  Fed.  181.  See,  also,  Lambert  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.) 
45  S.  W.  1034. 

42  Deslottes  v.  Baltimore,  etc.,  Tel.  Co.,  40  La.  Ann.  183,  3  South.  560. 

43  West.  U.  Tel.  Co.  v.  McDaniel,  103  Ind.  294,  2  N.  E.  709. 

44  West.  U.  Tel.  Co.  v.  Parsons,  72  S.  W.  800,  24  Ky.  Law  Rep.  2008. 

Jones  Tel.(2d  Ed.)— 29 


450  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  328 

and  then  to  transmit  them;  when  he  goes  beyond  this  duty  he  does 
not  act  as  the  company's  agent.*^  While  this  is  the  general  holding, 
it  seems  there  is,  and  ought  to  be,  an  apparent  exception  to  the  gen- 
eral rule.*^  Thus,  if  the  message  is  received  by  the  operator  over  a 
telephone  line  and  w^ritten  down  by  him,  the  operator  then  acts  for 
the  company,*^  especially  if  it  has  been  the  custom  to  so  receive 
messages.  Where  the  party  desiring  to  send  a  message  is  unable 
to  write  on  the  account  of  ignorance,  or  because  he  cannot  see  how 
to  write,  or  when  otherwise  unable  to  write,  the  company  should 
not  refuse  to  serve  him  for  this  purpose,  but  the  scope  of  the  opera- 
tor's agency  under  such  circumstances  should,  it  seems,  be  enlarged 
so  as  to  devolve  upon  him  the  duty  to  perform  this  service.*^ 

§  328.  Messages  not  stamped — contributory  negligence. — 
Where  there  is  an  act  of  Congress  requiring  all  messages  to  be 
stamped,  it  is  the  duty  of  the  sender  to  perform  this  duty  and  not 
that  of  the  company.*®  So,  if  a  telegraph  company  refuses  to  trans- 
mit a  message  because  it  has  not  been  stamped,  it  will  not  be  liable 
for  such  refusal,  or  for  a  penalty  for  a  refusal  to  transmit  such  a 
message.^^  If,  however,  the  sender  is  ignorant  of  such  an  act,  it 
seems  that  the  company  should  inform  him  of  same  and  state  this 
as  a  reason  for  refusing  to  accept  the  message.  While  it  is  an  old 
maxim  that  ignorance  of  law  excuses  no  one,  yet  the  operator,  hav- 
ing knowledge  of  such  a  law  and  knowing  that  the  sender  does  not 
have  this  knowledge,  should  surely  inform  him  of  the  reason  for 
not  accepting  the  message;  and,  in  doing  this,  he  necessarily  must 
tell  him  of  the  law. 

§  329.  Delay  in  sending — no  contributory  negligence. — A  tele- 
graph company  cannot  excuse  itself  from  liability  by  claiming  that 
the  sender  was  guilty  of  contributory  negligence  in  not  delivering 

4  5  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  668 ;  West.  U.  Tel.  Co.  v.  Foster,  64 
Tex.  220,  53  Am.  Rep.  754 ;  Gulf,  etc.,  R.  Co.  v.  Geer,  5  Tex.  Civ.  App.  349,  24 
S.  W.  86.  Compare  Garland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762, 
74  Am.  St.  Rep.  394.  43  L.  R.  A.  280. 

4  6  West.  U.  Tel.  Co.  v.  Hankins,  50  Tex.  Civ.  App.  513,  110  S.  W.  539.  See 
§   309. 

4  7  Garland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  74  Am.  St.  Rep.  394,  43  L.  R. 
A.  280,   76  N.  W.  762. 

48Carland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762,  74  Am.  St. 
Rep.  394,  43  L.  R.  A.  280;  Gordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S 
E.  71,  22  L.  R.  A.  (N.  S.)  540. 

49  West.  U.  Tel.  Go.  v.  Henley,  157  Ind.  90,  60  N.  E.  682 ;  Gray  v.  West.  U. 
Tel.  Co.,  85  Mo.  App.  123;  West.  U.  Tel.  Co.  v.  Waters,  139  Ala.  652,  36 
South.  773;  West.  U.  Tel.  Go.  v.  Tounjr,  138  Ala.  240,  36  South.  374;  Kirk 
V.  West.  U.  Tel.  Co.   (C.  C.)  90  Fed.  809. 

BO  Id. 


§    330)  NEGLIGENCE  "  451 

the  message  earlier  to  the  company,  instead  of  waiting  until  the  last 
minute. ^^  In  determining  this  question,  the  fact  must  be  considered 
as  to  whether  or  not  the  negligence  of  the  company  was  the  proxi- 
mate cause  of  the  loss ;  since,  if  it  is  not,  the  company  will  not  be 
liable. ^=^  The  company  may  be  guilty  of  negligence,  but  if  it  is 
shown  that  the  sender  failed  to  exercise  reasonable  care  in  this  par- 
ticular matter,  wherein  the  company  is  guilty  of  negligence — or,  in 
other  words,  where  the  sender  is  guilty  of  contributory  negligence 
— he  cannot  recover.^^ 

§  330.  Injured  party — should  minimize  loss. — When  a  telegraph 
company  has  been  guilty  of  negligence  in  the  transmission  and  de- 
livery of  its  messages,  whereby  the  plaintiff  has  been  injured  or  has 
suffered  loss,  it  is  incumbent  upon  the  latter  to  minimize  the  loss, 
if  he  can  do  so  at  a  trifling  expense  or  with  reasonable  exertion.^* 
This  is  a  principle  of  law  which  has  been  upheld  by  almost  all  the 
courts, ^^  and  which  has  been  supported  by  the  public  interest  and 
sound  morality.^^     If  the  injured  party  fails  to  exercise  reasonable 

51  Pope  V.  West.  U.  Tel.  Co.,  14  111.  App.  531;  West.  U.  Tel.  Co.  v.  Bruner 
(Tex.)  19  S.  W.  149. 

52  See   §  324. 

53  West.  U.  Tel.  Co.  v.  Housewright,  5  Tex.  Civ.  App.  1,  23  S.  W.  824. 
See  §  324. 

5  4  Miller  v.  Mariners'  Church,  7  Greenl.  (Me.)  51,  20  Am.  Dec.  341;  Postal 
Tel.  Cable  Co.  v.  Schaefer,  110  Ky.  907,  62  S.  W.  1119,  23  Ky.  Law  Rep. 
344;  West.  U.  Tel.  Co.  v.  Reid,  S3  Ga.  401,  10  S.  E.  919;  Jones  v.  West. 
U.  Tel.  Co.,  75  S.  C.  208,  55  S.  E.  318 ;  West.  U.  Tel.  Co.  v.  Jeanes,  88  Tex. 
230,  31  S.  W.  186;  West.  U.  Tel.  Co.  v.  Witt,  110  S.  W.  889,  33  Ky.  Law 
Rep.  685.  It  is  not  incumbent  upon  the  plaintiff  to  enter  into  litigation  to 
rescind  a  contract  which  had  already  been  entered  into  before  the  com- 
pany's negligence  had  been  discovered.  Reed  v.  West.  U.  Tel.  Co.,  135  Mo. 
661,  37  S.  W.  904,  58  Am.  St.  Rep.  609,  34  L.  R.  A.  492;  Hasbrouck  v.  West. 
U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  10.34,  70  Am.  St.  Rep.  181.  See  Maddux 
V.  West.  IT.  Tel.  Co.,  92  Kan.  619,  141  Pac.  585. 

5o  Alahama,. — Daughtery  v.  American  Union  Tel.  Co.,  75  Ala.  168,  51  Am. 
Rep.  435;  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844;  West.  U. 
Tel.  Co.  V.  Crawford,  110  Ala.  460,  20  South.  Ill;  West.  U.  Tel.  Co.  v. 
Chamblee,  122  Ala.  428,  25  South.  232,  82  Am.  St.  Rep.  89. 

Ar/>-ansas.— Brewster  v.  West.  U.  Tel.  Co.,  65  Ark.  537,  47  S.  W.  560. 

Ca7i/onMa.— Germain  Fruit  Co.  v.  West.  U.  Tel.  Co.,  137  Cal.  598,  70  Pac. 
658,  59  L.  R.  A.  575. 

District  of  Columbia.— Ferevro  v.  West.  U.  Tel.  Co.,  9  App.  D.  C.  455,  35 
L.  R.  A.  548. 

Florida.— McMiWan  v.  West.  U.  Tel.  Co.,  60  Fla.  131,  53  South.  329,  29 
L.  R.  A.  (N.   S.)  891. 

Oeorgia.—West  U.  Tel.  Co.  v.  Reid,  83  Ga.  401,  10  S,  E.  919.  See,  also, 
West.  U.  Tel.  Co.  v.  Bailey,  115  Ga.  725,  42  S.  E.  89,  61  L.  R.  A.  933 ;  Haber, 
etc.,  Hat  Co.  v.  Southern  Bell  Tel.,  etc.,  Co.,  118  Ga.  874,  45  S.  E.  696. 

/«inois.— West.  U.  Tel.  Co.   v.  Hart,  62  HI.  App.  120;    West.   U.  Tel.  Co. 

5  6  Hamilton  v.  McPherson,  28  N.  Y.  72,  84  Am.  Dec.  330. 


452  TEL*EGRAPH   AND   TELEPHONE   COMPANIES  (§    330 

diligence  to  make  the  loss  as  light  as  possible,  he  can  only  recover 
such  damages  as  actually  arise  from  the  negligent  act  of  the  com- 
pany, and  not  such  as  may  have  been  minimized  by  a  reasonable 
exertion  on  his  part.  It  is  not  presumed  that  he  knows  of  the  com- 
pany's negligence,  but  if  he  is  informed  of  this  fact,  either  directly 
or  by  circumstances  which  would  lead  him  to  inquire  for  such  in- 
formation, it  is  his  duty  to  make  th€  loss  as  light  as  possible,  if  he 
can  do  so  at  a  small  expense  or  by  reasonable  exertion.  Thus, 
where  a  telegraph  company  fails  to  transmit  a  message  in  which  the 
plaintiff  directs  his  agent  to  make  a  sale  of  certain  property,  it  is 
the  duty  of  the  plaintifif,  on  discovering  this  fact,  to  use  reasonable 
diligence  in  repeating  the  order  to  sell.^'^  But  what  his  duty  would 
be  in  any  case  depends  upon  the  circumstances  in  the  particular 
case  at  issue.     The  criterion  is  always  what  a  reasonably  prudent 

V.  North  Packing,  etc.,  Co.,  ISS  111.  366,  58  N.  E.  958,  52  L.  R.  A.  274,  affirming 
89  111.  App.  301 ;    Smith  v.  West.  U.  Tel.  Co.,  154  111.  App.  499. 

Indiana.—West.  U.  Tel.  Co.  v.  Briscoe,  18  Ind.  App.  22,  47  N.  E.  478. 

Jotca.— Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  1034,  70 
Am.  St.  Rep.  181. 

Kansas.— Maddux  v.  West.  U.  Tel.  Co.,  92  Kan.  619,  141  Pac.  585. 

Kentucly.—V>' est.  U.  Tel.  Co.  v.  JIatthews,  113  Ky.  188,  67  S.  W.  849,  24 
Ky.  Law  Rep.  3;  Postal  Tel.  Cable  Co.  v.  Schaefer,  110  Ky.  907,  62  S.  W. 
1119,  23  Ky.  Law  Rep.  344. 

Mississippi.— ShingleuT  v.  West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425, 
48  Am.  St.  Rep.  604,  30  L.  R.  A.  444. 

J/fs.so»/-i.— Reynolds  v.  AVest.  U.  Tel.  Co..  81  Mo.  App.  223;  Miller  v.  West. 
U.  Tel.  Co.,  157  Mo.  App.  580.  138  S.  W.  887. 

New  York. — Leonard  v.  N.  Y.,  etc..  Electro  Magnetic  Tel.  Co.,  41  N.  Y. 
544,  1  Am.  Rep.  446 ;  Rittenhouse  v.  Independent  Tel.  Line,  44  N.  Y.  263,  4 
Am.  Rep.  673. 

North  Carolina.— Crantord  v.  West.  U.  Tel.  Co.,  138  N.  C.  162,  50  S.  E. 
585 ;    Hocutt  v.  West.  U.  Tel.  Co.,  147  N.  C.  186,  60  S.  E.  980. 

0/iio.— Postal  Tel.  Cable  Co.  v.  Akron  Cereal  Co.,  23  Ohio  Cir.  Ct.  R.  516. 

So^ith  Carolina.— Key  v.  West.  U.  Tel.  Co.,  76  S.  C.  301,  56  S.  E.  962; 
Cason  V.  West.  U.  Tel.  Co.,  77  S.  C.  157,  57  S.  B.  722;  Jones  v.  West.  U. 
Tel.  Co.,  75  S.  C.  208,  55  S.  E.  318 ;  Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531, 
48  S.  E.  o38,  104  Am.  St.  Rep.  828,  2  Ann.  Cas.  52;  Mitchiner  v.  West.  U. 
Tel.  Co.,  75  S.  C.  182,  55  S.  E.  222. 

Tennessee. — Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  550,  3  S.  W.  496;  Pepper 
V.  West.  U.  Tel.  Co.,  87  Tenn.  5.54.  11  S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St. 
Rep.  699;    West.  U.  Tel.  Co.  v.  Mellon,  96  Tenn.  66,  33  S.  W.  725. 

7'e£ras.— Womack  v.  West.  U.  Tel.  Co.,  58  Tex.  176,  44  Am.  Rep.  614; 
West.  U.  Tel.  Co.  v.  Jeanes,  88  Tex.  230,  31  S.  W.  186;  Mitchell  v.  West. 
U.  Tel.  Co.,  23  Tex.  Civ.  App.  445,  56  S.  W.  4.39 ;  West,  U.  Tel.  Co.  v.  Hearne, 
7  Tex.  Civ.  App.  67,  26  S.  W.  478.  See,  also.  West.  U.  Tel.  Co  v.  Salter 
(Tex.  Civ.  App.)  95  S.  W.  549. 

Virginia. — Washington,  etc.,  Tel.  Co.  v.  Hobson,  15  Grat.  (Va.)  122. 
United  States.— West.  U.  Tel.  Co.  v.  Baker,  140  Fed.  315,  72  C.  C.  A.  87. 
5v  Daughtery  v.  American  Union  Tel.  Co.,  75  Ala.  168,  51  Am.  Rep.  435; 
Leonard  v.  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446;    True  v.  Int.  Tel.  Co.,  60 
Me.  9,  11  Am.  Rep.  156 ;   N.  Y.  &  W.  Pr.  Tel.  Co.  v.  Dryburg,  35  Pa.  298,  78 


I    332)  NEGLIGENCB3  453 

man  would  have  done  under  similar  circumstances,''^  and  it  is  al- 
ways incumbent  upon  the  company  to  show  that  this  duty  has  not 
been  performed.^® 

§  331.  Presumed  to  perform  contract. — Telegraph  companies 
contract  with  their  patrons  for  a  valuable  consideration  to  exercise 
reasonable  care  in  transmitting  and  delivering  correctly  and 
promptly  all  messages  accepted  by  them,  and  it  is  presumed  that 
they  are  carrying  out  their  part  of  the  contract.^"  Therefore  it  is 
not  the  duty  of  the  sender  to  anticipate  in  this  respect  negligence 
of  the  company,  nor  is  it  his  duty  to  exercise  diligence  to  ascertain 
by  inquiry  from  the  company  or  otherwise  as  to  whether  or  not  the 
sendee  has  received  the  message  correctly;  ^^  but  it  seems,  that  if 
such  a  fact  has  come  to  his  knowledge  from  a  responsible  source,  it 
is  his  duty  to  inquire  into  the  truth  of  such  information.  For  in- 
stance, if  it  is  clear  on  the  face  of  an  answer  to  a  telegram  that  there 
is  a  mistake  in  the  original,  and  on  account  of  which  loss  may  be 
incurred,  it  is  the  duty  of  the  sender  to  inquire  into  the  mistake  in 
order  that  he  may  minimize  the  loss;  ^'  but  if  the  loss  has  been  in- 
curred and  there  is  no  means  by  which  it  may  be  made  lighter,  it  is 
not  his  duty  to  notify  the  company  of  the  error  made  in  the  mes- 
sage.^^ 

§  332.  Should  resort  to  other  means  when  necessary. — When  a 
sender  ascertains  the  fact  that  the  company  has  been  guilty  of  neg- 
ligence, he  should  resort  to  other  available  means  of  communica- 
tion, if  he  thinks  it  would  be  impossible  for  the  former  to  accom- 

Am.  Dec.  338;  U.  S.  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751;  W. 
&  N.  O.  Tel.  Co.  V.  Hobson.  15  Grat.  (56  Va.)  122 ;  West.  U.  Tel.  Co.  v.  Ward, 
23  Ind.  377,  85  Am.  Dec.  462 ;  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am. 
Rep.  38 ;    West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  280. 

58  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  .364.  18  S.  W.  701;  West.  U.  Tel. 
Co.  V.  Bryson,  25  Tex.  Civ.  App.  74,  61  S.  W.  548;  West.  U.  Tel.  Co.  v. 
Cain  (Tex.  Civ.  App.)  40  S.  W.  624 :  Southwestern,  etc.,  Tel.  Co.  v.  Taylor,  26 
Tex.  Civ.  App.  79,  63  S.  W.  1076 ;  West.  U.  Tel.  Co.  v.  Matthews,  113  Ky.  188, 
67  S.  W.  849;  West.  U.  Tel.  Co.  v.  Lavender  (Tex.  Civ.  App.)  40  S.  W.  1035; 
West.  U.  Tel.  Co.  v.  Johnson,  16  Tex.  Civ.  App.  546,  41  S.  W.  367;  Gulf, 
etc.,  R.  Co.  V.  Loonie,  82  Tex.  323,  18  S.  W.  221,  27  Am.  St.  Rep.  891. 

50  Costigan  v.  Mohawk  &  Hudson  R.  Co.,  2  Denio  (N.  Y.)  609,  43  Am.  Dec. 
758. 

CO  See  note  to  Chicago,  etc.,  R.  Co.  v.  Wilson,  116  Am.  St.  Rep.  108. 

61  West.  U.  Tel.  Co.  v.  Chamblee,  122  Ala.  428,  25  South.  234,  82  Am.  St. 
Rep.  89. 

6  2Haslirouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  1034,  70  Am. 
St.  Rep.  185;  Beymer  v.  McBride,  37  Iowa,  114;  Greenleaf  on  Evidence,  § 
261. 

63  Rittenhouse  v.  Independent  Line  of  Telegraph,  1  Daly  (N.  T.)  474,  Id., 
44  N.  T.  263,  4  Am.  Rep.  673. 


454  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  333 

plish  the  purpose  by  a  reappHcation  to  it ;  ®*  but  if  the  party  to 
whom  the  message  is  addressed  is  the  plaintiff  and  the  injured 
party,  the  company  cannot  set  up  the  fact  as  a  ground  of  defense 
that  the  sender  failed  to  resort  to  these  means. ''^  If  the  sender  can- 
not prevent  the  entire  loss,  but  only  lessen  it,  he  will  not  be  pre- 
vented from  recovering  all  the  loss,  but  only  such  as  he  might  have 
prevented  by  reasonable  exertions. ^^ 

§  333.  Misinterpreting  message — addressee. — If  the  message  as 
received  by  the  addressee  is  intelligible  and  not  doubtful  in  its 
terms,  he  may  act  according  to  its  intents ;  and  should  he  have  mis- 
interpreted its  meaning  on  account  of  an  error  made  by  the  com- 
pany, the  sender  cannot  be  defeated  by  the  defense  of  contributory 
negligence  on  the  part  of  the  sendee. °'^  Thus,  where  a  message  was 
sent  by  a  client  to  his  attorney  to  attach  a  certain  creditor  for  "seven 
hundred  and  ninety  dollars,"  and  when  the  message  read  as  received 
"even  hundred  and  ninety  dollars,"  it  was  held  that  the  attorney  was 
not  guilty  of  contributory  negligence  in  interpreting  the  message 
as  meaning  "one  hundred  and  ninety  dollars."  ^®  But  if  there  is 
anything  in  the  message  itself  which  would  lead  him  to  believe  that 
an  error  had  been  made,  or  if  there  are  any  circumstances  connected 
with  it  which,  with  reasonable  prudence,  would  lead  him  to  suspect 
that  an  error  had  been  made,  he  will  be  guilty  of  contributory  neg- 
ligence if  he  fail  to  inquire  into  such  information  when  the  oppor- 
tunity is  afforded.*'^  If,  however,  on  suspecting  an  error  he  re- 
quests the  operator  to  wire  to  the  relay  station  to  verify  the  mes- 
sage, and  the  same  is  done,  he  will  have  discharged  his  duty  and 
will  not  be  guilty  of  any  negligence.'^*'  When  the  message  is  am- 
biguous, but  still  the  sendee  acts  on  it,  guessing  at  its  intended 

64  Southwestern  Tel.,  etc.,  Co.  v.  Gotcher,  9.3  Tex.  114,  53  S.  W.  686.  But 
see  West.  U.  Tel.  Co.  v.  Wisdom,  85  Tex.  261,  20  S.  W.  56,  34  Am.  St.  Rep. 
805;  Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531,  48  S.  E.  538,  104  Am.  St. 
Rep.  828,  2  Ann.  Cas.  52. 

C5  West.  U.  Tel.  Co.  v.  Wisdom,  85  Tex.  261,  20  S.  W.  56,  34  Am.  St. 
Rep.  805. 

6  6  Mitchell  V.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016. 

6  7  West.  U.  Tel.  Co.  v.  Beals,  56  Neb.  415,  76  N.  W.  903,  71  Am.  St.  Rep. 
682;  Tobin  v.  West.  U.  Tel.  Co.,  146  Pa.  375,  20  Atl.  324,  28  Am.  St.  Rep. 
802 ;  Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  70  Am.  St.  Rep.  181,  77 
N.   W.  1034. 

6  8  West.  U.  Tel.  Co.  v.  Beals,  56  Neb.  415,  76  N.  W.  903,  71  Am.  St.  Rep. 
682. 

69  West.  U.  Tel.  Co.  v.  Adair,  115  Ala.  441,  22  South.  73 ;  Manly  Mfg.  Co. 
V.  West.  U.  Tel.  Co.,  105  Ga.  235,  31  S.  E.  156;  West.  U.  Tel.  Co.  v.  Neill, 
57  Tex.  283,  44  Am.  Rep.  589;  West.  U.  Tel.  Co.  v.  Harper,  15  Tex.  Civ. 
App.  37,  39  S.  W.  599. 

70  Efird  V.  West.  U.  Tel.  Co.,  132  N.  C.  267,  43  S.  E.  825. 


§    334)  NEGLIGENCE  455 

meaning,  he  will  be  responsible  for  all  losses  occurring  from  his 
incorrect  guessing.  The  company  cannot  even  be  held  liable  for  his 
wrongful  guessing;''^  and  where  the  message  is  intelligible  and 
unambiguous,  it  is  a  question  of  fact  as  to  whether  the  sendee  was 
misled  in  its  meaning.'^^  The  nature  of  the  telegram  and  the  cir- 
cumstances surrounding  the  sendee's  position  with  respect  to  the 
business  about  which  it  was  sent,  should  be  considered  by  a  jury 
in  determining  this  question. '^^  For,  if  he  has  had  other  communi- 
cations respecting  this  business,  or  if  he  is  familiar  with  it,  his  in- 
terpretation should  be  considered  more  carefully. 

§  334.  Should  read  carefully — sendee. — It  is  the  duty  of  the  sen- 
dee of  a  telegram  to  read  it  carefully  before  acting  thereon ;  and 
should  he  fail  to  do  so,  whereby  loss  is  incurred  which  might  have 
been  avoided,  or  at  any  rate  could  have  been  minimized,  had  the 
message  been  considered  with  more  care  he,  and  not  the  company, 
must  suffer  for  such  negligence.'^*  It  is  very  true  that  telegraph 
companies  may  be  guilty  of  negligence  in  transmitting  messages, 
but  if  the  same  is  received,  apparently  intelligible,  the  sendee  may 
safely  act  according  to  its  terms;  yet  if  there  is  any  ambiguity  in 
the  message  which  could  be  easily  observed  by  an  ordinarily  pru- 
dent business  man  by  careful  reading,  the  negligence  of  the  com- 
pany will  be  excused  on  account  of  the  contributory  negligence  of 
the  sendee.''^  And  again  these  companies  cannot  be  held  liable 
for  a  loss  caused  by  the  sendee  acting  on  a  misinterpreted  or  vague 
message.''®  These  companies  endeavor  to  teach  their  patrons  that 
brevity  of  their  messages  is  the  mainspring  of  the  former's  exist- 
ence; it  is  better  for  the  patron,  in  that  it  lessens  his  expenses; 
and  it  is  to  the  interest  of  the  companies,  in  that  it  enables  them  to 
do  more  work  in  a  shorter  time.     But  while  this  is  the  case,  it  is  not 

71  Hart  V.  Direct  U.  S.  Cable  Co.,  86  N.  Y.  63.3;  De  Rutt  v.  New  York, 
etc.,  Electric  Magnetic  Tel.  Co.,  1  Daly  (N.  Y.)  547;  West.  U.  Tel.  Co.  v. 
Neill,  57  Tex.  292,  44  Am.  Rep.  589. 

7  2  Manly  Mfg.  Co.  v.  West.  U.  Tel.  Co.,  105  Ga.  235,  31  S.  E.  156;  Has- 
brouck  V.  West.  U.  Tel.  Co.,  107  Iowa,  160,  70  Am.  St.  Rep.  181,  77  N 
W.  1034. 

73  Id. 

7*  We.st.  U.  Tel.  Co.  v.  Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599. 

7  5  Hart  V.  Direct  U.  S.  Cable  Co.,  86  N.  Y.  633;  Manly  Mfg.  Co.  v.  West. 
U.  Tel.  Co.,  105  Ga.  235,  31  S.  E.  156;  Nusbaum  v.  West.  U.  Tel.  Co,  17 
Phila.  (Pa.)  340. 

7  6  Davis  V.  West.  U.  Tel.  Co.,  46  W.  Va.  48,  32  S.  E.  1026.  See  Hart  v. 
Direct  U.  S.  Cable  Co.,  86  N.  Y.  633 ;  Manly  Mfg.  Co.  v.  West.  U.  Tel.  Co., 
105  Ga.  235,  31  S.  E.  156;  Nusbaum  v.  West.  U.  Tel.  Co.,  17  Phila.  (Pa.) 
340;  West.  U.  Tel.  Co.  v.  Wright,  IS  111.  App.  337;  West.  U.  Tel.  Co.  v. 
Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599. 


456  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  334 

to  be  understood  that  they  have  obligated  themselves  to  write  the 
message  for  the  sender,  nor  to  tell  him  how  it  should  be  written. 
This  fact  is  attempted  to  be  impressed  on  all  who  do  business  with 
them  and  it  is  presumed  that  they  know  of  this  when  they  apply 
for  service.  The  company,  then,  can  only  transmit  such  messages 
as  may  be  presented  to  it  for  transmission,  and,  if  they  are  vague 
in  any  wise,  it  is  not  the  duty  of  the  company  to  inform  either  the 
sender  or  addressee  of  its  vagueness,  since  it  may  appear  to  the 
former  as  being  vague  when  it  would  not  so  appear  to  either  of  the 
other  parties.  But,  if  it  is  vague  to  the  sendee,  he  should  use  rea- 
sonable exertions  to  find  out  its  meaning,  and,  on  failure  to  do  so, 
whereby  injury  has  been  incurred,  he  will  be  charged  with  con- 
tributory negligence.'''^ 

7  7  See  West.  U.  Tel.  Co.  v.  Wright,  18  111.  App.  337;    West.  U.  Tel.  Co.  v. 
Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599. 


§    335)  LIABILITIES RULES   AND   REGULATIONS  457 

CHAPTER  XIV 
LIABILITIES  AS  AFFECTED  BY  RULES  AND  REGULATIONS 

§  335.  Right  to  make  reasonable  regulations — in  general. 

336.  Must  be  reasonable. 

337.  Must  be  reasonably  applied. 

338.  Same  continued — reasonableness — who  should  decide. 

339.  Distinction  between  by-laws  and  rules  and  regulations  or  resolutions. 

340.  Same  continued — particular  regulations. 

341.  Information  as  to  meaning  of  message — cannot  demand. 

342.  Delivery  at  company's  office — reasonable. 

343.  Prepayment  of  charge — reasonable  regulation. 

344.  Extra  charges  for  delivering  beyond  free  delivery  limit — not  always 

reasonable. 

845.  Deposit  for  answer — not  always  reasonable. 

346.  May  waive  prepayment. 

347.  Regulation  of  office  hours. 

348.  Same  continued — statutory  penalty  for  delay — hours  not  the  same. 

349.  Reasonableness  of  the  rule. 

350.  Same  continued — waiver  of  regulations. 

351.  Employes  need  not  be  informed  of  other  office  hour.'J. 

352.  Office  hours  as  affects  company's  duty — night  message. 

353.  Knowledge  of  sender  as  to  office  hours. 

354.  Telephone  companies — enforcement  of  tolls. 

355.  May  waive  regulations. 

§  335.     Right  to   make   reasonable  regulations — in   general. — It 

gives  us  pleasure  to  discuss,  at  some  length,  the  right  of  telegraph, 
telephone,  and  electric  companies  to  make  reasonable  regulations 
for  the  purpose  of  conveniently  performing  their  duties  toward 
the  public  and  the  effect  they  have  upon  their  rights  and  liabilities. 
It  is  an  unquestionable  fact  that  these  companies  have  the  same 
right  as  any  other  corporation  or  private  individual,  to  prescribe, 
adopt  and  enforce  all  reasonable  rules  and  regulations  for  the 
purpose    of     conveniently     discharging    their    duties.^       In     fact, 

1  West.  U.  Tel.  Co.  v.  McGuire,  104  Ind.  130,  2  N.  E.  201,  54  Am.  Rep.  293 ; 
Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  18  S.  E.  1008,  44  Am.  St.  Rep.  95; 
West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172 ;  Roche  v.  West.  U. 
Tel.  Co.,  70  S.  W.  39,  24  Ky.  Law  Rep.  845;  McDaniel  v.  Faubush  Tel.  Co., 
106  S.  W.  825,  32  Ky.  Law  Rep.  572 ;  Pugh  v.  City,  etc.,  Tel.  Ass'n,  8  Ohio 
Dec.  (Reprint)  644;  Birney  v.  N.  Y.,  etc.,  Tel.  Co.,  IS  Md.  341.  81  Am.  Dec. 
607 ;  West.  U.  Tel.  Co.  v.  McMillan  (Tex.  Civ.  App.)  30  S.  W.  298 ;  West.  U. 
Tel.  Co.  V.  Neel,  86  Tex.  368,  25  S.  W.  15,  40  Am.  St.  Rep.  847;  Davis  v. 
West.  U.  Tel.  Co.,  46  W.  Va.  48,  32  S.  E.  1026 ;  Hewlett  v.  West.  U.  Tel.  Co. 
(C.  C.)  28  Fed.  181;  True  v.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep. 
156;  Bartlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437;  West.  U. 
Tel.  Co.  V.  Jones,  95  Ind.  228,  48  Am.  Rep.  713;    West.  U.  Tel.  Co.  v.  Bu- 


458  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  335 

it  would  be  impossible  for  them  to  carry  on  their  business  with 
any  amount  of  safety,  either  to  themselves  or  to  those  with  whom 
they  may  deal  without  clothing  themselves  with  these  rights,  with 
which  all  must  comply.  It  may  be  said  that  it  is  one  of  their  in- 
herent rights,  by  means  of  which  they  may  perform  and  carr}^ 
out  the  objects  for  which  they  were  incorporated.  There  is  a  lim- 
it, however,  to  the  extent  to  which  they  may  exercise  these  rights. 
They,  being  institutions  having  a  legal  entity  and  thereby  as- 
suming public  functions,  cannot  prescribe  and  enforce  a  rule  which 
would  release  them  from  liability  for  any  act  of  negligence  of  their 
servants  or  employes ;  ^  nor  would  any  of  their  regulations  be 
binding  which  would  infringe  upon  public  policy,  or  be  in  conflict 
with  the  general  principles  of  the  common  law ;  and  yet  they  may 
limit  to  a  certain  extent  their  common-law  liability.^  It  has  long 
been  a  controverted  fact  as  to  whether  or  not  they  could  enforce 
a  rule  against  one  of  their  patrons  who  had  no  knowledge  of  the 
existence  of  such  a  rule;  but  a  number  of  these  rules  which  we  are 
specially  discussing  are  to  be  found  in  full  on  the  blank  forms 
furnished  to  their  customers,  and  on  which  messages  are  required 
to  be  written. ;  When  the  fact  of  the  knowledge  of  these  particu- 
lar rules  is  in  question,  it  is  presumed  that  the  patron  has  knowl- 
edge of  and  gives  his  assent  to  them  when  he  signs  the  telegram. 
He  will  be  bound  by  any  other  rule  or  regulation  of  which  he  has 
knowledge,  or  of  which  he  is  presumed  to  have  knowledge,  and  to 
which  he  has  directly  or  indirectly  assented.*, 

chanan,  35  Ind.  429,  9  Am,  Rep.  744;  Huffman  v.  Marcy  Mut.  Tel.  Co.,  143 
Iowa,  590,  121  N.  W.  1033,  23  L.  R.  A.  (N.  S.)  1010;  Smith  v.  Southwestern 
U.  Tel.  Co.  (Ark.)  158  S.  W.  975;  Woodley  v.  Carolina  Tel.,  etc.,  Co.,  163 
N.  C.  2S4,  79  S.  E.  598,  Ann,  Cas,  1914D,  116 ;  State  v.  West.  U.  Tel.  Co.,  172 
Ind.  20,  87  N,  E.  641;  Campbell  v.  West.  U.  Tel.  Co.,  74  S.  C.  300,  54  S,  E. 
571 ;  West.  U.  Tel.  Co.  v.  Bibb,  136  Ky.  817,  125  S.  W.  257,  29  L.  R.  A.  (N.  S.) 
502,  Sunday  closing;  Twin  Valley  Tel.  Co.  v.  Mitchell,  27  Okl.  388,  113  Pac. 
914,  38  L.  R.  A.  (N.  S.)  235,  Ann.  Cas.  1912C,  582;  Halsted  v.  Postal  Tel. 
Cable  Co.,  193  N.  Y.  293,  85  N.  E.  1078,  19  L.  R.  A.  (N.  S.)  1021,  127  Am,  St. 
Rep.  952 ;  Tismer  v.  New  York  Edison  Co.,  170  App.  Div.  647,  156  N.  Y.  Supp. 
28,  P.  U.  R.  1916A,  949. 

2  True  V.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156 ;  Hibbard  v. 
West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775;  Bartlett  v.  West,  U,  Tel, 
Co,,  62  Me.  209,  16  Am,  Rep,  437;  Tyler  v.  West,  U,  Tel,  Co,,  60  111,  421,  14 
Am.  Rep.  38 ;  Id.,  74  111.  168,  24  Am.  Rep.  279.  But  see,  contra,  Grinnell  v. 
West.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep.  485;  Becker  v.  West,  U,  Tel. 
Co.,  11  Neb.  87,  38  Am.  Rep.  356,  7  N.  W.  868, 

3  True  V,  International,  etc,  Tel,  Co,,  60  Me.  9,  11  Am.  Rep.  156 ;  West. 
U.  Tel.  Co.  V.  Bibb,  136  Ky.  817,  125  S,  W.  257,  29  L.  R.  A.  (N,  S.)  502. 

4  Id. 


§    336)  LIABILITIES RULES   AND   REGULATIONS  459 

§  336.  Must  be  reasonable. — The  rules  and  regulations  adopted 
by  these  companies  must  be  reasonable  ^  and  not  such  as  would  re- 
lieve them  of  the  obligations  which  the  law  "^  and  public  policy- 
imposes.'^  Telegraph  and  telephone  companies  have  become  the 
most  important  factors  in  the  commercial  world,  by  means  of 
which  the  most  important  business  transactions  are  being  consum- 
mated and  with  far  greater  celerity  than  by  any  other  means  or 
device  known.  They,  having  placed  themselves  before  the  people 
as  public  servants,^  always  ready  and  willing  to  be  the  means  or 
instruments  of  performing  with  reasonable  diligence  and  care  ° 
and  within  the  shortest  possible  time  all  such  business  as  may  be 
intrusted  to  them,^°  should  for  this  reason  provide  themselves  with 
proper  instruments  and  skilled  operators. ^^  The  public  may,  and 
does,  regulate  many  other  affairs  respecting  the  manner  in  which 
they  shall  construct  and  manage  their  business  ;^^  but  it  is  not 
within  its  power  to  say  who  shall  operate  and  control  the  manage- 
ment of  telegraph  or  telephone  instruments ;  ^^  and  yet  it  may 
prohibit  these  companies  from  enforcing  regulations  which  tend 
to  relieve  them  from  liabilities  caused  by  negligent  acts  of  such 
operators.^*  With  respect  to  who  shall  operate  the  instruments  in 
transmitting  messages,  the  sender  is  wholly  and  entirely  at  the 
mercy  of  the  telegraph  company.  And,  further,  messages  which 
are  to  be  sent  on  telegraph  lines  are,  as  a  general  rule,  prepared 
and  delivered  to  the  company  on  very  short  notice,  and  it  becomes 

5  True  V.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156;  Bartlett  v. 
West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437;  Atlantic,  etc.,  Tel.  Co.  v. 
West.  U.  Tel.  Co.,  4  Daly  (N.  Y.)  527 ;  Gillis  v.  West.  U.  Tel.  Co.,  61  Vt.  461, 
17  Atl.  736,  15  Am.  St.  Rep.  917,  4  L.  R.  A.  611 ;  West.  U.  Tel.  Co.  v.  Reynolds, 
77  Va.  173,  46  Am.  Rep.  715.  The  test  of  reasonableness  of  the  rule  is  whether 
it  is  fairly  and  generally  beneficial  to  the  company  and  its  customers.  Hew- 
lett V.  West.  U.  Tel.  Co.  (C.  C.)  28  Fed.  181. 

6  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am,  Rep.  715 ;  Atlantic, 
etc.,  Tel.  Co.  v.  West.  U.  Tel.  Co.,  4  Daly  (N.  Y.)  527. 

7  Ellis  V.  American  Tel.  Co.,  18  Allen  (Mass.)  226 ;  West.  U.  Tel.  Co.  v. 
Griswold,  37  Ohio  St.  313,  41  Am.  Rep.  500;  West.  U.  Tel.  Co.  v.  Reynolds, 
77  Va.  173,  46  Am.  Rep.  715;  Gillis  v.  West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl. 
736,  15  Am.  St.  Rep.  917,  4  L.  R.  A.  611,  note ;  West.  U.  Tel.  Co.  v.  Blanchard, 
68  Ga.  299,  45  Am.  Rep.  480;  Seaton  Mtn.,  etc.,  Co.  v.  Idaho  Springs  In- 
vestment Co.,  49  Colo.  122,  111  Pac.  834,  33  L.  R.  A.  (N.  S.)  1078,  a  rule  of  a 
company  organized  to  supply  electric  light  and  steam  heat  to  the  inhabitants 
of  a  municipality  that  steam  for  heat  will  be  supplied  only  to  persons  taking 
electricity  from  the  company  is  unreasonable.  See  State  ex  rel.  v.  Butte 
Electric,  etc.,  Co.,  43  Mont.  118,  115  Pac.  44 ;  Snell  v.  Clinton  Elec.  Light  Co., 
196  111.  626,  63  N.  E.  1082,  89  Am.  St.  Rep.  341,  58  L.  R.  A.  284. 

8  See  chapter  II. 

9  See  chapter  XII.  12  See  chapters  IV,  V. 

10  See  chapter  XII.  13  See  §  211  et  seq, 

11  See  chapter  XI.  14  See  chapter  XIII. 


460  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  337 

the  most  earnest  desire  of  the  sender  that  they  be  immediately 
transmitted  and  promptly  delivered  ;^^  for  in  them  much  may  be 
at  stake,  and  so  a  failure  to  make  haste  and  diligent  effort  to  deliver 
them  at  their  destination  might  mean  financial  ruin,  or  even  a 
greater  loss,  to  either  the  sender  or  he  to  whom  the  message  is 
addressed.  Then,  to  say  that  telegraph  companies  may  relieve 
themselves  from  all  or  any  of  these  responsibilities,  when  the  public 
is  at  the  mercy  of  them  in  this  respect,  and  at  a  time  when  it  per- 
haps would  not  be  in  a  condition  to  refuse  openly  to  assent  to  such 
rules  and  regulations,  would  be  unjust  and  therefore  against  public 
policy.^^  The  effect  of  these  regulations,  with  respect  to  these 
companies  attempting  to  enforce  them  against  any  particular  in- 
dividual who  may  apply  to  the  former  for  their  services,  is  not 
limited  to  sUch  person ;  but  they  also  affect  the  public,  and  are 
therefore  against  public  policy,  because  they  take  from  the  public 
a  part  of  the  security  it  otherwise  would  ^ave.^'^ 

§  337.  Must  be  reasonably  applied. — These  rules  and  regula- 
tions must  not  only  be  reasonable,  generally,  but  they  must  be  such 
as  can  be  reasonably  applied,  under  the  special  circumstances  of 
any  particular  case,  and  while  they  may  ordinarily  be  reasonable, 
yet  they  may  operate  unreasonably  in,a  particular  case ;  so,  in  such 
a  case,  they  will  not  be  enforced.^ ^'^^  As  was  very  ably  said  by  an 
eminent  court,  while  discussing  this  point:  "Reasonable  regula- 
tions of  public  corporations  like  these  must  be  reasonably  applied, 
and  a  rule  which  is  generally  fair  may,  under  special  circumstances, 
become  oppressive  and  unreasonable  as  applied  in  the  particular 
case ;  and  so  these  corporations  must  exercise  ordinary  prudent 
discretion  in  relaxing  their  regulations. '^^^  This  is  ably  illustrated 
by  Judge  Hammond,  in  a  case  arising  out  of  the  unreasonableness 
of  a  regulation  requiring  a  prepayment  of  the  charges  for  an  an- 
swer to  a  telegram,  sent  by  a  poor  person,  who  notified  the  com- 
pany of  his  destitute  circumstances.  In  a  case  of  this  nature,  the 
court  held  that  this  rule  should  be  relaxed  and  not  enforced  as 
where  the  sender  were  able  to  prepay  for  the  answer.^" 

15  See  chapter  XII. 

16  True  V.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156;  West.  U.  Tel. 
Co.  V.  Reynolds,  77  Va.  173,  46  Am.  Ilep.  715;  Gillis  v.  West.  U.  Tel.  Co.,  61 
Yt.  461,  17  Atl.  736,  15  Am.  St.  Rep.  917,  4  L.  R.  A.  611 ;  West.  U.  Tel.  Co.  v. 
Blanchard,  68  Ga.  299,  45  Am.  Rep.  4S0. 

17  Telegraph  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500;  Gillis  v. 
West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  736.  15  Am.  St.  Rep.  917,  4  L.  R.  A.  611 ; 
West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480. 

1 8  Hewlett  V.  West.  U.  Tel.  Co.  (C.  C.)  28  Fed.  181 ;  Twin  Valley  Tel.  Co.  v. 
Mitchell,  27  Okl.  388,  113  Pac.  914,  38  L.  R.  A.  (N.  S.)  235,  Ann.  Cas.  1912C,  582. 

19  Id.  20  Id. 


8    339)  LIABILITIES RULES   AND   REGULATIONS  461 

§  338.  Same  continued — reasonableness — who  should  decide. 
After  considering  the  fact  that  these  companies  may  prescribe, 
adopt  and  enforce  all  necessary  rules  and  regulations  for  the  con- 
venient performance  of  their  duties,  and  that  the  same  to  be  bind- 
ing must  be  reasonable,  the  question  which  necessarily  follows  is, 
Who  must  determine  the  reasonableness  of  these  rules  and  regula- 
tions? These  companies,  surely,  cannot  say  that  they  are  or  that 
they  are  not  reasonable;  ^^  then  it  should  be  decided  either  by  the 
court  or  by  a  jury,  or  by  both.  Some  courts  have  held  that  it  was 
a  question  of  fact  to  be  decided  by  a  jury.--  But  it  seems  that  this 
should  be  a  question  of  law  for  the  court  to  decide,  if  any  fixed  and 
permanent  regulations  are  to  be  established;  and  the  better  au- 
thorities are  in  accord  with  this  holding,  for  the  reason  that  a  jury 
in  one  case  may  hold  a  certain  rule  reasonable,  while  another  jury 
in  another  case  might  hold  the  same  rule  unreasonable.^^  The  cir- 
cumstances in  no  two  cases  are  always  similar  throughout.  And 
so,  where  the  facts  pertaining  to  the  rule  in  question  are  in  dispute, 
some  courts  hold  that  the  question  of  the  reasonableness  of  the  rule 
is  a  matter  for  the  jury  under  proper  instructions  from  the  court,  as 
a  mixed  question  of  law  and  fact,  and  that  it  is  never  a  question 
for  the  court  except  when  the  facts  are  undisputed.-'^  We  are  in- 
clined to  believe  that  the  latter  holding  is  the  correct  one.  That  is, 
when  the  reasonableness  of  the  rule  depends,  in  the  particular  in- 
stance, upon  disputed  facts,  it  is  a  mixed  question  of  law  and  fact; 
but  if  the  facts  are  not  disputed,  it  is  clear,  both  upon  principle  and 
according  to  the  weight  of  authority,  that  the  question  is  one  of 
law  for  the  court. -^ 

§  339.  Distinction  between  by-laws  and  rules  and  regulations 
or  resolutions. — In  this  country  there  is  clearly  a  distinction  be- 

21  True  V.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  160. 

22  State  V.  Overton,  24  N.  J.  Law,  435,  61  Am.  Dec.  671 ;  Ayres  v.  ^lorris, 
etc.,  R.  Co.,  29  N.  J.  Law,  393.  80  Am.  Dec.  215;  State  v.  Cbovin,  7  Iowa, 
204 ;  Texas,  etc.,  R.  Co.  v.  Adams,  78  Tex.  372,  14  S.  W.  666,  22  Am.  St.  Rep. 
56;  Prather  v.  Railway  Co.,  SO  Ga.  427,  9  S.  E.  530,  12  Am.  St.  Rep.  263; 
Ileimann  v.  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32 ;  Box  v.  Postal  Tel. 
Cable  Co.,  91  C.  C.  A.  172,  165  Fed.  138,  28  L.  R.  A.  (N.  S.)  566. 

23  Com.  V.  Power,  7  Mete.  (Mass.)  596,  41  Am.  Dec.  465;  Pittsburgh  &  R. 
Co.  V.  Lyon,  123  Pa.  140,  16  Atl.  607,  10  Am.  St.  Rep.  517,  2  L.  R.  A.  489 ; 
West.  U.  Tel.  Co.  v.  Gillis,  89  Ark.  483,  117  S.  W.  749,  131  Am.  St.  Rep.  115. 

24  Id. 

2  5  St.  Louis,  etc.,  R.  Co.  v.  Hardy,  55  Ark.  134,  17  S.  W.  711;  Old  Colony  R. 
Co.  V.  Tripp.  147  Mass.  35,  17  N.  E.  89,  9  Am.  St.  Rep.  661 ;  Louisville,  etc..  R. 
Co.  V.  Fleming,  14  Lea  (Tenn.)  128 ;  Wolsey  v.  Railroad  Co.,  33  Ohio  St.  227 ; 
Hoffbauer  v.  Railway  Co.,  52  Iowa,  342,  3  N.  W.  121,  35  Am.  Rep.  278; 
Shepard  v.  Gold,  etc.,  Tel.  Co.,  38  Hun  (N.  Y.)  338;  Smith  v.  Gold,  etc.,  Tel. 
Co.,  42  Hun  (N.  Y.)  454. 


462  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  340 

tween  the  by-laws  of  the  company — which  are  adopted  for  the  pur- 
pose of  regulating  and  controlling  the  business  affairs  of  the  com- 
pany with  its  servants  and  employes,  and  which  can  only  be  adopt- 
ed by  the  stockholders  or  by  the  directors,  when  this  right  is  dele- 
gated to  them — and  the  rules  and  regulations  which  are  adopted, 
generally,  by  some  officer  or  servant  of  the  company  to  be  enforced 
against  all  who  apply  to  it  for  services,  for  the  purpose  of  con- 
venience and  safety,  both  to  the  company  and  its  patrons.  A  by- 
law is  adopted,  specially,  for  the  internal  management  of  the  com- 
pany, and  can  only  be  enforced  against  the  company  and  its  em- 
ployes, and  those  who  transact  business  with  the  former,  with  no- 
tice of  such.  The  rules  and  regulations,  on  the  other  hand,  are 
adopted,  more  especially  for  the  external  management  of  the  com- 
pany, and  can  be  enforced,  when  reasonable,  against  all  who  do 
business  with  it.^^  These  rules  and  regulations  are  not  to  be  un- 
derstood as  meaning  the  same  thing  as  resolutions  passed  by  the 
company,  in  that  the  latter  is  merely  an  act  of  temporary  enforce- 
ment against  some  particular  object  or  person.  They  are  adopted 
not  to  be  enforceable  against  the  public,  generally,  at  all  times, 
but  are  passed  at  some  of  the  directors'  meetings  as  a  temporary 
enforcement  against  some  particular  person  or  thing.^^ 

§  340.  Same  continued — particular  regulations. — Should  the  tel- 
egraph company  adopt  a  rule  providing  for  all  messages  to  be  de- 
livered to  it  in  writing,  the  same  would  be  reasonable;  ^^  and, 
should  the  company  refuse  to  accept  the  message  for  this  reason, 
it  would  not  be  liable  for  any  injury  caused  by  the  message  not 
being  transmitted.'^  However,  if  the  company  were  to  accept  the 
message,  and  be  paid  for  its  transmission,  or  if  it  had  been  in  the 
habit  of  receiving  oral  messages,^"  or  messages  over  the  tele- 
phone,^^ for  transmission,  and  refuse  to  transmit,  it  would  be  liable 
for  any  injury  arising  thereby.^^    The  message  should  be  fully  and 

2  6  state  V.  Overton,  24  N.  J.  Law,  435,  61  Am.  Dec.  671;  Ayres  v.  Morris, 
etc.,  R.  Co.,  29  N.  J.  Law,  393,  SO  Am.  Dec.  215;  Com.  v.  Power,  7  Mete. 
(IMass.)  596,  41  Am.  Dec.  4G5 ;  Pugh  v.  City,  etc.,  Tel.  Ass'n,  8  Ohio  Dec. 
(Reprint)  644;  Gardner  v.  Providence  Tel.  Co.,  23  R.  I.  262,  49  Atl,  1004; 
Smith  V.  Southwestern  U.  Tel.  Co.,  109  Ark.  35,  158  S.  W.  975. 

2  7  10  Cyc.  p.  350. 

2  8  People  V.  West.  U.  Tel.  Co.,  166  111.  15,  46  N.  E.  731,  36  L.  R.  A.  637. 
See  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23. 
See,  also,  §  276. 

2  9  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  415,  30  Am.  St.  Rep.  23; 
Cumberland  Tel.  Co.  v.  Sanders,  S3  Miss.  357,  35  South.  653. 

3  0  See  §§  276,  277. 

31  Tex.,  etc.,  Tel.  Co.  v.  Seiders,  9  Tex.  Civ.  App.  431,  29  S.  W.  258.  See, 
also,  §§  276,  277. 

32  West.  U.  Tel.  Co.  v.  Dozier,  67  Miss.  288,  7  South.  325.    See  §  277. 


§    341)  LIABILITIES RULES  AND   REGULATIONS  463 

clearly  written, ^^  without  the  use  of  numerals,  when  delivered  to 
the  company,  and  in  the  language  prevailing  at  the  place  where 
the  contract  is  made;  since  the  company  has  no  right  to  change  the 
message,^*  so  as  to  make  it  clearer,  and  that,  too,  at  the  request  of 
the  sender.^^  A  telegraph  company  may  require  that  the  messages 
shall  not  only  be  written  legibly  ^®  but  that  they  shall  not  contain 
any  immoral  or  indecent  language,^^  nor  be  such  as  would  subject 
the  company  to  an  actioa  of  libel  or  to  a  criminal  prosecution.^^ 
If  the  message  relates  to  any  gambling  contract,  the  company  may 
refuse  to  accept  it  for  transmission ;  ^^  and  any  rule  adopted  by 
such  company  whereby  it  is  prescribed  that  such  messages  shall 
not  be  accepted  is  reasonable.*"  But  a  company  acts  upon  its  peril 
when  it  refuses  to  accept  such  messages,  and  should  it  be  mistaken 
or  misjudge  the  tenor  or  purposes  of  the  messages,*^  it  will  be  held 
responsible  to  the  injured  party  for  any  damages  sustained  by  rea- 
son of  a  refusal  to  accept  them.*^  Every  message  should  have  the 
signature  of  the  sender,*^  yet  it  has  been  held  that  a  company  could 
not  enforce  a  rule  that  all  messages  tendered  for  transmission  shall 
bear  the  autograph  signature  of  the  sender,  unless  a  power  of  at- 
torney from  him  is  produced.**  This  holding,  however,  was  in  a 
case  in  which  the  message  was  tendered  by  a  connecting  line,*^ 
and  in  view  of  the  fact  that  these  companies  are  often  liable  for 
forged  messages,  it  may  be  well  to  question  whether  it  may  not 
enforce  such  regulation.*^ 

§  341.  Information  as  to  meaning  of  message — cannot  demand. 
Where  a  message  is  ambiguous  on  its  face,  a  telegraph  company 
cannot  demand  of  the  sender  that  it  be  informed  of  the  nature 
and  purport  of  the  message.*^     It  cannot,  therefore,  enforce  a  reg- 

3  3  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098,  38  L.  Ed.  883. 
See  §§  276,  277. 

3  4  Pegram  v.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557. 
3  5  West.  U.  Tel.  Co.  v.  Foster,  64  Tex.  220,  53  Am.  Rep.  754. 

36  See  §  325. 

37  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495;  Archambault  v.  Great  North- 
western Tel.  Co.,  14  Quebec,  8. 

3  8  See  §  258  et  seq. 
3  8  See  §  258, 

40  See  §  273. 

41  See  §  258. 

42  Smith  V.  West.  U.  Tel.  Co.,  84  Ky.  664,  2  S.  W.  483. 

43  See  §  277.  See,  also,  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S.  E. 
71,  22  L.  R.  A.  (N.  S.)  540. 

44  Atlantic,  etc.,  Tel.  Co.  v.  West.  U.  Tel.  Co.,  4  Daly  (N.  Y.)  527. 

45  Id. 

46  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495. 

47  See  §  406  et  seq. 


464  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  342 

ulation  which  provides  that  the  patrons  shall  inform  its  operators 
of  the  true  meaning  of  every  message  tendered  it  for  transmis- 
sion.*® The  messages  must  be  clearly  and  legibly  written  out,  and 
this  is  all  that  is  necessary  in  order  for  the  operator  to  be  able  to 
transmit  it  in  the  language  in  which  it  is  tendered.  It  is  not  neces- 
sary for  him  to  know  the  meaning  of  the  message  to  be  able  to 
transmit  it  correctly.  "A  regulation  of  this  description  would 
simply  seek  to  pry  into,  without  cause,  the  private  affairs  of  those 
who  wish  to  employ  the  company,  and,  in  its  tendency  to  check 
the  unreserved  communication  of  intelligence  by  telegraph,  would 
be  peculiarly  inconsonant  with  public  policy."  *®  If  the  company 
should  be  subjected  to  a  civil  action,  or  to  a  criminal  prosecution, 
for  transmitting  certain  messages,  and  if  it  should  be  in  doubt  as 
to  whether  or  not  a  certain  particular  message  tendered  for  trans- 
mission would  subject  it  to  one  of  these  actions,  and  as  the  com- 
pany could  not  demand  information  of  the  meaning,  the  doubt 
should  be  construed  in  favor  of  the  company,  since  to  hold  other- 
wise, would  often  place  these  companies  in  an  embarrassing  at- 
titude.^*^  So  no  rule  laid  down  by  the  company  can  be  so  stringent 
and  enforceable,  as  that  the  parties  could  be  compelled  to  divulge 
the  meaning  of  such  message;  this  being  the  case,  the  company 
should  receive  the  benefit  of  every  ambiguous  telegram.  The  com- 
pany may  have  this  right  against  the  sender  of  a  meaningless  tel- 
egram, where  he  fails  to  inform  its  agent  of  its  meaning.  And  if 
the  company  is  guilty  of  negligence  in  the  transmission  and  deliv- 
ery of  such  a  message,  whereby  injury  has  been  incurred,  the 
injured  party  could  only  recover  nominal  damages."^  So,  it  might 
be  better  on  the  part  of  the  sender  to  voluntarily  give  such  in- 
formation, even  when  he  cannot  be  compelled  by  the  company  to 
do  so. 

§  342.  Delivery  at  company's  office — reasonable. — A  telegraph 
company  may  provide  in  its  regulations  that  all  messages  shall 
be  delivered  at  one  of  its  transmitting  offices. ^^  According  to  such 
regulation,  a  delivery  to  one  of  the  company's  messengers  is  not 
a  delivery  to  the  company,  unless  it  has  been  the  custom  of  the 
latter  to  consider  this  as  a  proper  delivery.^^     In  such  cases  the 

4s  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495,  approved  in  Gray  v.  West.  U. 
Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259,  14  L.  R.  A.  95. 

4  9  Gray  on  Tel.  p.  24. 

5  0  See  §  431  et  seq. 
ei  See  §  280. 

52  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  44  Am.  St.  Rep.  95,  18  S.  E.  1008. 
See  §  277. 

6  3  See  §  278. 


R    343)  LIABILITIES RULES   AND   REGULATIONS  465 

messenger  acts  as  agent  for  the  sender  in  that  particular  matter, 
and  not  for  the  company.^''  The  company,  doubtless,  is  better 
posted  about  the  working  order  of  its  lines  and  its  ability  to  trans- 
mit messages  intrusted  to  it,  and  the  sender,  on  the  other  hand, 
is  of  course,  better  informed  as  to  the  contents  of  the  message; 
should  there  be  any  ambiguity  on  the  face  of  the  message,  the  lat- 
ter could,  if  he  were  at  the  transmitting  office,  make  clear  the  am- 
biguities, and  thereby  aid  and  assist  the  operator  materially  in 
making  a  correct  transmission.  If  the  company  could  be  forced 
to  accept  the  message  as  given  to  its  messenger,  it  could  not,  of 
course,  have  him  present  to  explain  the  meaning  of  the  message ; 
and  yet  it  would  be  under  obligation  to  transmit  it  in  its  ambigu- 
ous state. ^^ 

§  343.  Prepayment  of  charge— reasonable  regulation. — A  regu- 
lation of  these  companies  which  provides  that  the  sender  shall  pre- 
pay all  the  charges  for  transmitting  and  delivering  messages  is 
reasonable  and  enforceable.^^  In  this  respect  these  companies  are 
similar  to  common  carriers  of  passengers,  in  that  each  may  exact 
of  its  patrons  a  prepayment  of  a  reasonable  compensation  for  the 
service  which  they  hold  themselves  out  to  the  public  as  ready  and 
willing  to  perform.  These  are  the  considerations  they  obligate 
themselves  to  accept,  in  lieu  of  their  respective  public  duties  as- 
sumed. Like  all  other  contracts,  this  consideration  may  be  either 
a  subsequent  "  or  a  precedent  ^^  condition  to  the  performance  of 
such  contract ;  and  whether  or  not  the  condition  is  either  precedent 
or  subsequent  depends,  as  in  other  contracts,  upon  the  custom  of 
the  companies  or  upon  the  expressed  agreement  to  that  effect.^" 

5  4  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495. 

5  5  See  §  278. 

5«  Langley  v.  West.  U.  Tel.  Co.,  88  Ga.  777,  15  S.  E.  291 ;  Harkness  v.  West. 
U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  Smith  v.  West.  U. 
Tel.  Co.,  S3  Ky.  104,  4  Am.  St.  Rep.  120.  See,  also,  §  279 ;  West.  U.  Tel.  Co.  v. 
Archer,  90  Ark.  213,  131  S.  W.  702,  Ann.  Cas.  1912B,  593 ;  State  v.  West.  U. 
Tel.  Co.,  172  Ind.  20,  87  N.  B.  641 ;  Campbell  v.  West.  U.  Tel.  Co.,  74  S.  C.  300, 
54  S.  E.  571. 

5  7  See  §  279. 

5  8  The  company  may  waive  this  privilege  and  be  bound  thereby;  thus  where 
it  undertakes  to  serve  a  deadhead.  West.  U.  Tel.  Co.  v.  Snodgrass,  94  Tex.  284, 
60  S.  W.  308,  86  Am.  St.  Rep.  851,  or  to  collect,  at  other  end  of  line.  West.  U. 
Tel.  Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  West.  U.  Tel.  Co. 
V.  Cunningham,  99  Ala.  314,  14  South.  579 ;  Cogdell  v.  West.  U.  Tel.  Co.,  135 
N.  C.  431,  47  S.  E.  490 ;  or  extends  credit  to  the  sender.  West.  U.  Tel.  Co.  v. 
Cunningham,  99  Ala.  314,  14  South.  579. 

5  9  May  waive  rule.    West.  U.  Tel.  Co.  v.  Henley,  157  Ind.  90,  60  N.E.  682; 
West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579. 
Jones  Tel.(2d  Ed.)— 30 


466  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  344 

The  consideration  of  a  contract  for  the  transmission  of  a  telegram 
is  generally  made  with  respect  to  the  company's  rules  and  regula- 
tions to  that  effect. ^°  An  expressed  stipulation  which  provides  that 
this  consideration  shall  be  a  condition  precedent  to  the  performance 
of  its  duty — and  all  who  apply  to  such  companies  for  services  are 
presumed  to  have  notice  of  such  a  condition — must  be  complied 
with,  before  the  company  can  be  forced  to  accept  the  message  for 
transmission.®^  The  main  ground  on  which  this  reason  is  founded 
is  that  they  may  be  instrumental  in  preventing  these  companies 
from  suffering  a  probable  loss.  When  parties  to  a  telegram  are 
so  much  interested  in  a  business  affair  as  to  seek  the  aid  of  a  tel- 
egraph company — which  is  not  interested  in  the  results  of  the 
message — to  assist  them  in  consummating  their  business  arrange- 
ments, it  is  more  reasonable  for  the  company  to  demand  a  pay- 
ment of  the  charges  for  its  assistance  before  the  same  is  rendered ; 
furthermore,  it  is  easier  to  collect  then,  than  it  would  be  after  the 
services  have  been  rendered  and  after  the  interested  parties  have 
accomplished  their  desired  purposes.  In  other  words,  if  the  sender 
has  a  hesitancy  in  prepaying  the  company  for  its  services  rendered 
in  transmitting  a  telegram — and  in  the  performance  of  which  the 
former,  doubtless,  is  much  more  interested,  than  the  latter — sure- 
ly he  will  have  a  much  greater  hesitancy  in  paying  for  same  after 
the  purposes  of  the  telegram  have  been  accomplished  and  possibly, 
too,  at  his  loss. 

§  344.  Extra  charges  for  delivering  beyond  free  delivery  limit — 
not  always  reasonable. — It  has  been  held  by  some  courts  that  a 
rule  of  a  telegraph  company  which  required  an  extra  deposit  by 
the  sender,  or  a  guaranty  of  same,  to  pay  for  the  delivery  when 
the  addressee  lived  beyond  the  free  delivery  limit,  was  reasonable, 
whether  or  not  the  sender  knew  of  the  addressee's  residence  with 
respect  to  the  distance  from  the  central  offfce  of  the  company. ^- 
We  agree  with  these  authorities  that  this  is  a  reasonable  rule  and 
that  the  company  may  exact  of  the  sender  an   extra  deposit  for 

6  0  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109 ; 
West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579 ;  West.  U.  Tel.  Co. 
V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  West.  U.  Tel.  Co.  v.  Hen- 
ley, 157  Ind.  90,  60  N.  E.  682 ;  Macpherson  v.  West.  U.  Tel.  Co.,  52  N.  Y.  Super. 
Ct.  232 ;  West.  U.  Tel.  Co.  v.  Liddell,  68  Miss.  1,  8  South.  510 ;  Cogdell  v.  West. 
U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490 ;  West.  U.  Tel.  Co.  v.  Snodgrass,  94  Tex. 
284,  60  S.  W.  308,  86  Am.  St.  Rep.  851. 

61  See  Pugh  v.  City,  etc.,  Tel.  Ass'n,  8  Ohio  Dec.  (Reprint)  644;  Gardner  v. 
Providence  Tel.  Co.,  23  R.  I.  262,  49  Atl.  1004. 

6  2  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep. 
148. 


§    345)  LIABILITIES RULES   AND   REGULATIONS  467 

this  extra  service;    provided  the  sender  knew  that  the  addressee 
lived  beyond  the  free  delivery  limit. ®^ 

§  345.  Deposit  for  answer — not  always  reasonable. — As  a  gen- 
eral rule,  a  regulation,  which  imposes  the  duty  upon  a  transient  per- 
son to  deposit  a  sufficient  amount  of  money  with  the  company  to 
pay  for  as  many  as  ten  words  in  answer  to  his  telegram,  is  reason- 
able ;  °*  yet  there  may  be  some  few  exceptions  to  the  rule.  The  rea- 
son of  the  rule,  in  one  case,  was  based  on  the  ground  that  it  was  a 
matter  of  social  etiquette,  due  by  the  sender  to  the  addressee,  that 
the  former  pay  for  the  answer  to  his  telegram.«^  While  this  cour- 
tesy should  be  extended  to  the  addressee,  especially  when  these 
telegrams  are  concerning  the  business  of  the  sender,  yet  this  is  no 
reason  why  these  companies  should,  by  their  regulations,  enforce 
the  laws  of  social  etiquette.®^  Almost  the  same  reason  given  for 
holding  that  the  company  may  exact  of  the  sender  a  prepayment  of 
the  charges  for  transmitting  the  original  message  "  may  be  appli- 
cable here.  The  natural  inference  is  that,  where  the  original  tele- 
gram demands  an  answer  to  the  business  matter  about  which  it 

6  3  See  §  302  et  seq. 

"Such  a  regulation  as  we  are  now  considering  would,  as  it  seems  to  us,  be 
harsli,  inequitable,  and  unnecessary.  When  the  patron  pays  to  the  company 
the  amount  which  he  believes,  in  good  faith,  covers  the  entire  charge  for  the 
service,  and  the  company  receives  it  and  the  message,  he  has  a  right ^to  expect 
that  the  company  will  carry  the  message  to  the  person  addressed,  if  within  the 
statutory  delivery  limits,  and  present  it  for  delivery.  If  there  be  then  an  ad- 
ditional sum  due,  the  company  may  require  its  payment  before  it  surrenders 
the  message  to  the  sendee,  if  it  prefers  to  do  so  rather  than  rely  solely  upon 
the  sender  for  its  payment.  The  company  will  thus  be  furnished  ample  protec- 
tion, and  the  expectations  and  purposes  of  the  sender  of  the  message  will  not 
be  disappointed.  This  course  seems  to  us  to  afford  a  much  fairer  and  more 
equitable  solution  of  the  problem  as  to  what  is  the  duty  of  the  company  than 
to  hold  that  it  may  stop  the  message  half  way  upon  its  course,  and  thus  really 
render  to  the  sender  no  service,  after  receiving  from  him  what  both  thought 
to  be  the  full  price  therefor.  We  apprehend  that,  if  such  a  course  were  fol- 
lowed, there  would  be  few  instances  where  the  sendee  would  refuse  to  receive 
the  message,  and  pay  the  delivery  charge,  if  proper.  If  he  did,  a  notification 
to  the  sender  would,  in  the  most  of  those  few  instances,  bring  the  money  from 
him.  If,  however,  the  company  might  occasionally  lose  a  delivery  charge,  the 
loss  to  it  would  be  trifling  and  inconsiderable  when  compared  with  the  pos- 
sible loss  and  inconvenience  to  the  public  and  patrons  who  have  relied  in  good 
faith  upon  their  delivery  of  the  message."  West.  U.  Tel.  Co.  v.  Moore,  12  Ind. 
App.  136,  39  N.  E.  874,  54  Am.  St.  Rep.  519;  West.  U.  Tel.  Co.  v.  Archer,  96. 
Ark.  213,  131  S.  W.  702,  Ami.  Cas.  1912B,  593 ;  State  v.  West.  U.  Tel.  Co.,  172 
Ind.  20,  87  N.  E.  641. 

64  West.  U.  Tel.  Co.  v.  McGuire,  104  Ind.  130,  2  N.  E.  201,  54  Am.  Rep.  296 ; 
Hewlett  V.  West.  U.  Tel.  Co.  (C.  C.)  28  Fed.  181. 

65  West.  U.  Tel.  Co.  v.  McGuire,  104  Ind.  130,  54  Am.  Rep.  296,  2  N.  E.  201. 

6  6  Hewlett  V.  West.  U.  Tel.  Co.  (C.  C.)  28  Fed.  181. 

07  See  §  279. 


468  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  346 

relates,  it  is  of  more  interest  to  the  sender  than  it  is  to  the  addressee, 
.a  transient  man  with  the  likelihood  of  being  at  another  place  when 
the  answer  is  received  and  at  a  place  where  it  could  not  conveniently 
be  delivered,  the  company  would  probably  lose  the  charges  for  the 
answer,  and  for  this  reason  the  company  may  enforce  this  regula- 
tion. But  suppose  the  transient  person  desires  that  the  answer  be 
sent  to  another  place,^^  or  over  another  line;  or  suppose  he  is  a 
tramp  or  a  person  in  destitute  circumstances,  which  acts  are  made 
known  to  the  company's  operator.  Is  it  then  presumed  that  these 
regulations,  under  such  circumstances,  would  be  reasonable?  Most 
assuredly  they  v/ould  not.  In  the  first  instance,  it  would  be  an  act 
of  courtesy  which  the  company  would  owe  its  patron ;  '^^  in  the  sec- 
ond, it  would  be  something  in  the  nature  of  an  act  of  charity,  which 
the  company,  however  being  a  person  only  in  the  contemplation  of 
law,  owes  to  the  poor  and  wayfaring;  ''^  and,  in  either  instance,  the 
operator  should  not  refuse  the  request  of  such  persons. 

§  346.  May  waive  prepayment. — While  a  company  may  enforce 
the  rule  prescribing  a  prepayment  of  the  charges,^^  yet  if  it  accepts 
a  message  without  a  prepayment,  and  without  notifying  the  sender 
of  such  rule,  it  is,  nevertheless,  under  obligations  to  the  former  to 
transmit  and  deliver  the  message;  ^^  and  on  a  failure  so  to  do,  the 
company  cannot  use  this  as  a  defense  in  an  action  against  it  for  a 
negligent  transmission. '^^  And  should  a  company  accept  a  message 
for  transmission  with  the  understanding  that  the  charges  would  be 
afterwards  paid,  it  is  compelled  to  send  the  message,  notwithstand- 
ing that  it  has  a  rule  prescribing  a  prepayment  of  the  charges,  and 
one  which  the  operator  could  not  in  anywise  disregard.''*  The  court 
held,  in  a  case  in  which  the  sender  was  an  employe  of  the  com- 
pany, that  it  was  duty  bound  to  transmit  his  message  and  was  liable 
for  a  failure  to  so  do,  even  though  the  company  offered  to  show  that 
the   service  of  the   company   was   gratuitously   tendered. '^^     The 

68  See  §  299. 

ea  See  West.  U.  Tel.  Co.  v.  McGuire,  104  Ind.  130,  54  Am.  Rep.  296,  2  N.  E. 
201. 

7  0  Hewlett  v.  West.  U.  Tel.  Co.  (0.  C.)  28  Fed.  181. 

71  See  §  279. 

7  2  West.  U.  Tel.  Co.  v.  CunniBgham.  99  Ala.  314,  14  South.  579.  See,  also, 
§§  279,  304. 

7  3  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579. 

7  4  West.  TJ.  Tel.  Co.  v.  Snodgrass,  94  Tex.  284,  60  S.  W.  308,  86  Am.  St.  Rep. 
851.     See  §§  279,  290,  304. 

75  West.  U.  Tel.  Co.  v.  Snodgrass,  94  Tex.  284,  60  S.  W.  308,  80  Am.  St.  Rep. 
851.  See,  also,  Glavin  v.  Rhode  Island  Hospital,  12  R.  I.  411,  34  Am.  Rep.  675 ; 
Gray  v.  Merriam,  148  111.  179,  35  N.  E.  810,  39  Am.  St.  Rep.  172,  32  L.  R.  A. 


§    347)  LIABILITIES RULES   AND   REGULATIONS  469 

ground  on  which  these  rights  are  based  is  that  it  has  waived  all 
rights  it  may  have  had.''" 

§  347.  Regulation  of  office  hours. — Telegraph  and  telephone 
companies  have  the  right  to  make  reasonable  regulations  as  to  the 
time  during  which  their  offices  shall  be  open  for  the  dispatch  of 
business."  As  a  general  thing,  such  rule  will  be  as  convenient  and 
beneficial  to  the  public  as  to  the  companies.  While  it  might  in- 
commode some  persons,  at  some  particular  time,  to  enforce  such  a 
regulation,  yet  as  a  general  convenience  to  the  public  it  would  be 
better  for  the  rule  to  be  imposed,  since  not  to  do  so  would  necessi- 
tate the  company  increasing  its  working  force,  and  thereby  increase 
the  expenses  for  carrying  on  the  business — which  would  have  to  be 
borne  indirectly  by  the  public.  As  was  ably  said  on  this  subject: 
"It  may  be  to  the  interest  of  some  individual,  upon  a  particular 
occasion,  or  even  at  all  times,  that  every  office  of  a  telegraph  com- 
pany should  be  kept  open  at  all  hours,  and  that  the  working  force 
should  be  sufficient  to  receive  and  deliver  a  dispatch  without  a 
moment's  delay.  So  also  it  may  be  to  the  interest  of  a  very  few 
that  an  office  should  be  kept  at  some  point  on  the  line  where  an 
office  could  not  be  maintained  in  any  way  without  a  loss  to  the  com- 
pany. If  in  the  first  instance  the  company  should  be  required  to 
keep  the  necessary  servants  to  keep  its  business  going  at  all  hours, 
it  would  result  in  the  necessity  of  closing  many  offices  or  in  the  im- 
position of  additional  charges  upon  its  customers  in  general,  in 
order  to  recoup  the  loss  incident  to  their  being  maintained.  So,  on 
the  other  hand,  if  they  should  be  required  to  keep  offices  wherever 
it  might  result  to  the  convenience  of  a  few  persons,  additional  bur- 

769,  note ;  Hibernia  Bldg.  Ass'n  v.  McGrath,  154  Pa.  296,  26  AtL  377,  35  Am. 
St.  Rep.  S2S. 

7c  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579. 

T7  West.  U."  Tel.  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  S27,  22  Ky.  Law 
Rep.  53,  92  Am.  St.  Rep.  366 ;  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N. 
E.  172 ;  Roche  v.  West.  U.  Tel.  Co.,  70  S.  W.  39,  24  Ky.  Law  Rep.  845 ;  Sweet 
V.  Postal  Tel.,  etc.,  Co.,  22  R.  I.  344,  47  Atl.  881,  53  L.  R.  A.  732 ;  Suttle  v. 
West.  U.  Tel.  Co.,  148  N.  C.  480,  62  S.  E.  593,  128  Am.  St.  Rep.  631 ;  West.  U. 
Tel.  Co.  V.  Neel,  86  Tex.  36S,  25  S.  W.  15,  40  Am.  St.  Rep.  847 ;  West.  U.  Tel. 
Co.  V.  Wingate,  6  Tex.  Civ.  App.  394,  25  S.  W.  439 ;  Davis  v.  West.  U.  Tel.  Co., 
46  W.  Va.  48,  32  S.  E.  1026 ;  West.  U.  Tel.  Co.  v.  Gillis,  89  Ark.  483,  117  S.  W. 
749,  131  Am.  St.  Rep.  115 ;  Id.,  97  Ark.  226,  133  S.  W.  833 ;  Given  v.  West.  U. 
Tel  Co.  (C.  C.)  24  Fed.  119 ;  West.  U.  Tel.  Co.  v.  Georgia  Cotton  Co.,  94  Ga. 
444,  21  S.  E.  835 ;  Bateman  v.  West.  U.  Tel.  Co.,  97  Ga.  338,  22  S.  E.  920;  Bir- 
ney  v.  N.  Y.,  etc.,  Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  607 ;  West.  U.  Tel.  Co.  v. 
Gibson  (Tex.  Civ.  App.)  53  S.  W.  712 ;  Womack  v.  West.  U.  Tel.  Co.,  58  Tex. 
176,  44  Am.  Rep.  614 ;  Twin  Valley  Tel.  Co.  v.  Mitchell,  27  Okl.  388,  113  Pac. 
914,  38  L.  R.  A.  (N.  S.)  235,  Ann.  Cas.  1912C,  582. 

Telephone— ?,ee  §  301.  See,  also,  Taylor  v.  West.  U.  Tel.  Co.,  181  Mo.  App. 
288,  168  S.  W.  895. 


470  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  347 

dens  upon  the  general  public  would  in  like  manner  result.''^  It 
being  conceded  that  these  companies  may  enforce  these  regulations, 
they  will  not  be  liable  for  any  injury  caused  by  a  failure  to  deliver 
a  message  received  by  their  operators  at  a  time  when  the  office  at 
the  other  end  of  the  line  is  closed ;  ^®  but  if  this  latter  office  should 
receive  the  message  after  the  closing  hours,  and  when  the  messen- 
gers have  retired  from  services,  the  company  could  not  set  this  reg- 
ulation up  as  a  defense  to  an  action  brought  against  it  for  a  failure 
to  deliver,  if  the  message  showed  on  its  face  the  necessity  of  an  im- 
mediate delivery.^"  Thus,  where  a  message  is  received  after  office 
hours,  requesting  the  sendee  to  meet  a  corpse  at  the  place  to  which  it 

7  8  West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  368,  25  S.  W.  15,  40  Am.  St.  Rep.  847. 

7  9  West.  U.  Tel.  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  22  Ky.  Law 
Rep.  53 ;  92  Am.  St.  Rep.  366 ;  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3 
N.  E.  172 :  Davis  v.  West.  U.  Tel.  Co.,  66  S.  W.  17,  23  Ky.  Law  Rep.  1758 ; 
Smith  V.  West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Ann.  Gas.  654 ;  Sweet  v. 
Postal  Tel.,  etc.,  Co.,  22  R.  I.  344,  47  Atl.  881,  53  L.  R.  A.  732;  Bonner  v. 
West.  U.  Tel.  Co.,  71  S.  C.  303,  51  S.  E.  117 ;  Starkey  v.  West.  U.  Tel.  Co.,  53 
Tex.  Civ.  App.  333,  115  S.  W.  853 ;  West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  368,  25 
S.  W.  15,  40  Am.  St.  Rep.  847 ;  West.  U.  Tel.  Co.  v.  Rawls  (Tex.  Civ.  App.)  62 
S.  W.  136 ;  West.  U.  Tel.  Co.  v.  May,  8  Tex.  Civ.  App.  176,  27  S.  W.  760 ;  Davis 
V.  West.  U.  Tel.  Co.,  46  W.  Va.  48,  32  S.  E.  1026 ;  West.  U.  Tel.  Co.  v.  Win- 
gate,  6  Tex.  Civ.  App.  394,  25  S.  W\  4.39 ;  West.  U.  Tel.  Co.  v.  Gillis,  97  Ark. 
226,  133  S.  W.  833 ;  Cates  v.  West.  U.  Tel.  Co.,  151  N.  C.  497,  66  S.  E.  592,  24 
L.  R.  A.  (N.  S.)  1286 ;  West.  U.  Tel.  Co.  v.  Turley,  108  Ark.  92,  156  S.  W.  836 ; 
West.  U,  Tel.  Co.  v.  Jackson,  163  Ala.  9,  50  South.  316 ;  Roberts  v.  West.  U. 
Tel.  Co.,  73  S.  C.  520,  53  S.  E.  985,  114  Am.  St.  Rep.  100 ;  Bolton  v.  West.  U. 
Tel.  Co.,  76  S.  C.  529.  57  S.  E.  543 ;  West.  U.  Tel.  Co.  v.  McConuico,  27  Tex.  Civ. 
App.  610,  66  S.  W.  592 ;  Starkey  v.  West.  U.  Tel.  Co.,  53  Tex.  Civ.  App.  333, 
115  S.  W.  853;  Harrison  v.  West.  U.  Tel.  Co.,  71  S.  C.  386,  51  S.  E.  119; 
Smith  V.  West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Ann.  Cas.  654 ;  Mitch- 
iner  v.  West.  U.  Tel.  Co.,  75  S.  C.  182,  55  S.  E.  222.  But  see  Dowdy  v.  West. 
U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E.  802 ;  Brown  v.  West.  U.  Tel.  Co.,  6  Utah, 
219,  21  Pac.  988. 

Receiving  opei'ator  at  point  of  destination  not  agent  of  company. — Sweet  v. 
Postal  Tel.,  etc.,  Co.,  22  R.  I.  344,  47  Atl.  881,  53  L.  R.  A.  732 ;  Harrison  v. 
West.  U.  Tel.  Co.,  71  S.  C.  386,  51  S.  E.  119 ;  West.  U.  Tel.  Co.  v.  Rawls  (Tex. 
Civ.  App.)  62  S.  W.  136.  Rule  applicable  whex-e  operator  is  Also  the  agent  of 
the  railroad  company,  and  the  oflice  is  kept  open  for  the  receiving  and  trans- 
mission of  dispatches,  but  after  messengers  go  off  duty.  Davis  v.  West.  U. 
Tel.  Co.,  66  S.  W.  17,  23  Ky.  Law  Rep.  1758 ;  West.  U.  Tel.  Co.  v.  Crider,  107 
Ky.  600,  54  S.  W.  963,  21  Ky.  Law  Rep.  1336 ;  Roberts  v.  West.  U.  Tel.  Co.,  73 
S.  C.  520,  53  S.  E.  985,  114  Am.  St.  Rep.  100 ;  Sweet  v.  Postal  Tel.,  etc.,  Co.,  22 
R.  I.  344,  47  Atl.  881,  53  L.  R.  A.  732 ;  Harrison  v.  West.  U.  Tel.  Co.,  71  S.  C. 
386,  51  S.  E.  119;  West.  U.  Tel.  Co.  v.  McConnico,  27  Tex,  Civ.  App.  610,  66 
S.  W.  592 ;  Bonner  v.  West.  U.  Tel.  Co.,  71  S.  C.  303,  51  S.  E.  117.  But  see 
Dowdy  V.  West.  U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E.  802. 

so  Dowdy  V.  West.  U.  Tel.  Co.,  124  N.  C.  522,  .32  S.  E.  802;  Brown  v.  West. 
U.  Tel.  Co.,  6  Utah,  219,  21  Pac.  988 ;  West.  U.  Tel.  Co.  v.  Merrill,  144  Ala.  618, 
39  South.  121,  113  Am.  St.  Rep.  66 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  IS,  50 
South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058 ;  West.  U.  Tel.  Co.  v.  Love 
Banks,  73  Ark.  205,  S3  S.  W.  949,  3  Ann.  Cas.  712 ;  Bright  v.  West.  U.  Tel. 


§    349)  LIABILITIES RULES  AND   REGULATIONS  471 

is  to  be  shipped  and  at  the  place  to  which  the  message  is  addressed 
at  a  time  prior  to  the  opening  of  the  latter  office,  it  is  the  duty  of 
the  company  to  deliver  the  message. '^^ 

§  348.  Same  continued — statutory  penalty  for  delay — hours  not 
the  same. — In  some  states  there  are  statutes  which  impose  a  pen- 
alty on  these  companies  for  a  failure  to  promptly  transmit  and 
deliver  a  message,*^  but  it  is  understood  that  this  penalty  cannot  be 
enforced  unless  the  message  is  delivered  to  the  company  during 
office  hours;  and  this  means  the  office  hours  at  each  end  of  the  line, 
provided  they  are  reasonable.®^  It  may  be,  therefore,  inferred  from 
this  statement  that  the  office  hours  of  all  the  company's  offices  are 
not  the  same,  and  it  is  this  fact  which  we  intend  to  impart.  If  it 
were  required  that  the  office  hours  should  be  the  same,  this  of  it- 
self would  destroy  the  fundamental  reason  for  the  enforcement  of 
such  a  rule;®*  since  the  business  of  some  of  the  offices  is  much 
greater  than  that  of  others,  and  it  would,  therefore,  be  necessary, 
under  such  a  condition  of  affairs,  for  these  particular  offices  to  be 
kept  open  longer  than  others.  Most  often,  in  cities,  it  is  necessary 
that  they  be  required  to  be  kept  open  all  the  time.  So  to  require 
all  of  the  offices  to  have  the  same  hours  would,  as  the  reader  will 
clearly  see,  destroy  the  reasonableness  of  the  rule.®^ 

§  349.  Reasonableness  of  the  rule. — The  rule  establishing  office 
hours  must  be  reasonable,®^  and  the  reasonableness  of  this  regula- 
tion with  respect  to  any  particular  office,  depends  largely  upon  the 
locality  of  the  office  and  the  amount  of  business  done  at  that 
place. ®^     Ten  hours  a  day  has  been  held  to  be  a  reasonable  time 

Co.,  132  N.  C.  317,  43  S.  E.  841 ;  Carter  v.  West.  U.  Tel.  Co.,  141  N.  C.  374,  54 
S.  E.  274 ;  Edwards  v.  West.  U.  Tel.  Co.,  147  N.  C.  126,  60  S.  E.  900 ;  Box  v. 
rostal  Tel.  Cable  Co.,  91  C.  C.  A.  172,  165  Fed.  138,  28  L.  R.  A.  (N.  S.)  566 ; 
West.  U.  Tel.  Co.  v.  Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251 ;  West.  U. 
Tel.  Co.  V.  Price,  137  Ky.  758,  126  S.  W.  1100,  29  L.  R.  A.  (N.  S.)  836,  holdin,^' 
should  telephone  addressee;  West.  U.  Tel.  Co.  v.  Hearn,  110  Ark.  176,  161  S. 
W.  1025,  Ann.  Cas.  1915D,  378. 

81  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St.  Rep. 
843. 

8  2  See  chapter  XXV. 

83  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172;  Taylor  v.  West. 
U.  Tel.  Co.,  181  Mo.  App.  288.  168  S.  W.  895. 

&•*  Sweet  V.  Postal  Tel.,  etc.,  Co.,  22  R.  I.  344,  47  Atl.  881,  53  L.  R.  A.  732; 
West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172. 

8  5  West.  U.  Tel.  Co.  v.  Harding.  103  Ind.  505,  3  N.  E.  172. 

8  6  West.  U.  Tel.  Co.  v.  Crider,  107  Ky.  600,  54  S.  W.  963,  21  Ky.  Law  Rep. 
1336;  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W.  528;  West.  U.  Tel. 
Co.  V.  Gibson  (Tex.  Civ.  App.)  53  S.  W.  712;  Brown  v.  West.  U.  Tel.  Co.,  6 
Utah,  219,  21  Pac.  988. 

8  7  Tel.  Co.  V.  Crider,  107  Ky.  600,  54  S.  W.  963,  21  Ky.  Law  Rep.  1336; 
West.  U.  Tel.  Co.  v.  Bryson,  25  Tex.  Civ.  App.  74,  61  S.  W.  548;    West.  U. 


472  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  350' 

during  which  to  keep  the  office  open  in  a  town  of  only  a  few  thou- 
sand people;  ^^  and  when  the  business  of  a  town  is  not  sufficiently- 
large  to  justify  the  employment  of  a  special  messenger,  a  regulation 
that  telegrams  received  after  seven  o'clock  in  the  evening  will  not 
be  delivered  until  the  next  morning,  is  reasonable.*^  The  burden 
is  on  the  company  to  show  that  the  office  hours  are  reasonable;  ^° 
and  while  it  has  been  held  that  the  reasonableness  of  the  time  was 
a  question  for  the  court,  yet,  the  sounder  holding  is  that  it  is  a 
mixed  question  of  law  and  fact.**^  The  time,  where  there  have  been 
no  definite  hours  fixed,  may  be  made  with  reference  to  the  quantity 
of  business  of  that  particular  office;  ^^  and  it  is  a  question  for  the 
jury  as  to  what  the  office  hours  were.  So  evidence  is  admissible  to 
show  what  hours  had  usually  been  observed  at  the  office  in  ques- 
tion."^ 

§  350.  Same  continued — waiver  of  regulations. — While  a  tele- 
graph company  may  fix  its  office  hours, °*  and  is  not  liable  for  a  fail- 
ure to  deliver  a  message  which  has  been  received  after  this  time,^^ 
yet  if  it  continues  to  hold  open  for  business  after  the  usual  time  for 
closing,  it  cannot  set  this  up  as  a  defense  to  an  action  of  negligence 
claimed  to  have  been  committed  in  the  transmission  and  delivery 
of  a  message."^  A  general  principle  of  the  law  of  agency  is  that 
the  principal  is  liable  for  all  acts  of  the  agent  done  within  the  actual 
or  apparent  scope  of  his  duties.     It  is  within  the  apparent  scope  of 

Tel.  Co.  V.  Rawls  (Tex.  Civ.  App.)  02  S.  W.  136;  Brown  v.  West.  U.  Tel. 
Co.,  6  Utah,  219,  21  Pac.  9SS ;  Davis  v.  West.  U.  Tel.  Co.,  46  W.  Va.  48,  32 
S.  E.  1026;  Heimann  v.  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32;  Twin 
Valley  Tel.  Co.  v.  Mitchell,  27  Old.  3SS,  113  Pac.  914,  Ann.  Cas.  1912C,  582, 
38  L.  R.  A.    (N.  S.)  235,  telephone. 

88  West.  U.  Tel.  Co.  v.  Gibson  (Tex.  Civ.  App.)  53  S.  W.  712;  Twin  Valley 
Tel.  Co.  V.  Mitchell,  27  Okl,  388,  113  Pac.  914,  38  L.  R.  A.  (N.  S.)  235,  Ann. 
Cas.  1912C,  582. 

89  Davis  V.  West.  U.  Tel.  Co.,  66  S.  W.  17,  23  Ky.  Law  Rep.  1758;  West. 
U.  Tel.  Co.  V.  Steenbergen,  107  Ky.  4G9,  54  S.  W.  829;  West.  U.  Tel.  Co.  v. 
Crider,  107  Ky.  600,  54  S.  W.  963. 

90  West.  U.  Tel.  Co.  v.  Luck  (Tex.  Civ.  App.)  40  S.  W.  753. 

91  See  §  519  et  seq.  See,  also,  Box  v.  Postal  Tel.  Cable  Co.,  91  C.  C.  A.  172, 
165  Fed.  138,  28  L.  R.  A.  (N.  S.)  566. 

9  2  West.  U.  Tel.  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  92  Am.  St. 
Rep.  366. 

9  3  West.  U.  Tel.  Co.  v.  Bryson,  25  Tex.  Civ.  App.  74,  61  S.  W.  548. 

94  See  §  347. 

95  See  §§  281-289. 

9  6  Suttle  V.  AVest.  U.  Tel.  Co.,  148  N.  C.  480,  62  S.  E.  593,  128  Am.  St.  Rep. 
631;  Robertson  v.  Telephone  Co.,  95  S.  C.  356,  78  S.  E.  977;  West.  U.  Tel. 
Co.  V.  Hill,  163  Ala.  81,  50  South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas. 
1058.  See  Carswell  v.  West.  U.  Tel.  Co.,  154  N.  C.  112,  69  S.  E.  782,  32  L.  R. 
A.  (N.  S.)  611. 


§    350)  LIABILITIES RULES   AND   REGULATIONS  473 

the  operator's  duties  to  extend  the  hours  fixed  for  his  office;  ^'^  and 
any  one  doing  business  with  the  agent  with  the  belief  that  he  is 
acting  within  his  apparent  authority,  may  hold  the  company  liable 
for  any  injury  arising  out  of  such  act.**®  Thus  it  is  within  the  ap- 
parent scope  of  the  agent's  authority  to  undertake  the  delivery  of  a 
message  after  office  hours;  and  if  he  does  so,''^  he  is  bound  to  ex- 
ercise due  diligence  to  make  a  prompt  delivery. ^°°  These  regula- 
tions are  not  waived  where  the  operator  in  accepting  a  message 
expressly  informs  the  sender  that  he  does  not  know  of  the  office 
hours  of  the  office  at  the  other  end  of  the  line,  but  will  make  an 
effort  to  deliver;  ^°^  such  an  acceptance  does  not  amount  to  a  spe- 
cial undertaking  to  transmit  without  reference  to  office  hours  pre- 
vailing at  the  latter  office. ^°^  So  a  mere  agreement  of  the  agent 
to  use  his  best  efforts  to  effect  an  immediate  transmission  will  not 
render  the  company  liable  where  its  receiving  office  is  closed  pur- 
suant to  established  office  hours.^"^  The  failure  of  the  operator  to 
observe  the  office  hours,  when  habitual,^"*  may  be  shown  in  evi- 
dence as  indicating  that  no  rule  on  the  subject  prevailed  or  was 

87  West.  U.  Tel.  Co.  v.  Cavin,  30  Tex.  Civ.  App.  152,  70  S.  W.  229 ;  McPeek 
V.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St.  Rep.  205,  43 
L.  R.  A.  214 ;    Robertson  v.  Telephone  Co.,  95  S.  C.  356,  78  S.  E.  977. 

88  Dowdy  V.  West.  U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E.  802 ;  West.  U.  Tel. 
Co.  V.  Bryson,  25  Tex.  Civ.  App.  74,  65  S.  W.  548 ;  West.  U.  Tel.  Co.  v.  Pierce 
(Tex.  Civ.  App.)  70  S.  W.  361. 

9  9  Expressly  agreeing  to  deliver  by  a  certain  time,  is  bound  thereby.  Sut- 
tle  V.  West.  U.  Tel.  Co.,  148  N.  C.  480,  62  S.  E.  593,  128  Am.  St.  Rep.  631; 
McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St.  Rep.  205, 
43  L.  R.  A.  214;  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841; 
West.  U.  Tel.  Co.  v.  Cavin,  30  Tex.  Civ.  App.  152,  70  S.  W.  229 ;  West.  U. 
Tel.  Co.  V.  Perry,  30  Tex.  Civ.  App.  243,  70  S.  W.  439. 

Nothing  appearing  to  the  contrary,  it  is  presumed  that  an  agent  intrusted 
with  the  duty  of  receiving  messages  has  authority  to  bind  the  telegraph  com- 
pany as  to  time  of  sending  them,  even  to  the  extent  of  disregarding  the  regu- 
lations as  to  hours  of  opening  and  closing  the  terminal  office.  West.  U.  Tel.  Co. 
V.  Crumpton,  138  Ala.  632,  36  South.  517;  West.  U.  Tel.  Co.  v.  Merrill,  144 
Ala.  618,  39  South.  121,  113  Am.  St.  Rep.  66;  West.  U.  Tel.  Co.  v.  Cavin,  30 
Tex.  Civ.  App.  152,  70  S.  W.  229. 

100  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  70  Am.  St.  Rep.  205,  43  L.  R. 
A.  214,  78  N.  W.  63. 

101  See  West.  U.  Tel.  Co.  v.  McConnico,  27  Tex.  Civ.  App.  610,  66  S.  W.  592 ; 
West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  368,  25  S.  W.  15,  40  Am.  St.  Rep.  847. 

102  Dowdy  V.  West.  U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E.  802;  West.  U.  Tel. 
Co.  V.  Bryson,  25  Tex.  Civ.  App.  74,  61  S.  W.  548 ;  AVest.  U.  Tel.  Co.  v  Pierce 
(Tex.  Civ.  App.)  70  S.  W.  361. 

10  3  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St. 
Rep.  205,  43  L.  R.  A.  214. 

104  Smith  V.  West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Aim.  Cas.  654; 
West.  U.  Tel.  Co.  v.  Georgia  Cotton  Co.,  94  Ga.  444,  21  S.  E.  835 ;  Bonner  v. 
West.  U.  Tel.  Co.,  71  S.  C.  303,  51  S.  E.  117. 


474  TELEGRAPH  AND  TELEniONE  COMPANIES         (§  351 

enforced ;  ^°^  but  proof  merely  of  an  occasional  transmission  or  de- 
livery after  the  office  hours  will  not  be  sufficient  to  establish  a 
waiver  of  the  regulations.^"^ 

§  351.  Employes  need  not  be  informed  of  other  ofBce  hours. — 
It  is  not  the  duty  of  the  operators  at  any  receiving  office  to  know 
the  hours  of  any  other  office  of  the  company. ^°^  The  immense 
number  of  these  offices  all  over  the  United  States,  the  frequent 
changes  among  them,  and  the  time  of  closing  seems  to  make  this 
onerous  and  inconvenient  to  a  degree  which  forbids  it  to  be  treated 
as  a  duty  to  its  customers  for  neglect,  and  for  which  it  should  be 
held  liable  in  damages.  Furthermore,  there  is  no  more  obligation 
to  do  this  in  regard  to  offices  in  the  same  state  than  in  those  four 
thousand  miles  away;  since  the  communication  is  between  them 
all  and  of  equal  importance.^"^  And  where  the  operator  has  habitu- 
ally kept  the  office  open  after  the  established  hours,  this  will  not 
deprive  the  company  of  the  benefit  of  the  regulation.^"®  It  has 
been  held,  however  that  if  the  message  has  been  accepted  by  the 
company  at  a  time  when  the  office  at  the  other  end  was  closed,  it 
would  nevertheless  be  liable  for  a  failure  to  transmit  and  deliver 

105  West.  U.  Tel.  Co.  v.  Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251; 
Bright  V.  West.  U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841. 

106  West.  U.  Tel.  Co.  v.  Georgia  Cotton  Co.,  94  Ga.  444,  21  S.  E.  835;  Bon- 
ner V.  West.  U.  Tel.  Co.,  71  S.  C.  303,  51  S.  E.  117;  West.  U.  Tel.  Co.  v. 
McConnico,  27  Tex.  Civ.  App.  610,  66  S.  W.  592 ;  Harrelson  v.  Telephone  Co., 
90  S.  C.  132,  72  S.  E.  882 ;  West.  U.  Tel.  Co.  v.  Weeks  (Tex.  Civ.  App.)  128 
S.  W.  674.  See,  also,  West.  U.  Tel.  Co.  v.  Crider,  107  Ky.  600,  54  S.  W.  963, 
21  Ky.  Law  Rep.  1336.  It  is  a  question  for  the  jury  whether  the  company's 
violation  of  its  established  office  hours  has  been  habitual  as  to  amount  to  a 
waiver  thereof.  Smith  v.  West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Ann. 
Cas.  654. 

10  7  Given  v.  West.  U.  Tel.  Co.  (C.  C.)  24  Fed.  119;  West.  U.  Tel.  Co.  v. 
Harding,  103  Ind.  505,  3  N.  E.  172;  Sweet  v.  Postal,  etc.,  Tel.  Co.,  22  R.  I. 
344,  47  Atl.  881,  53  L.  R.  A.  732;  West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  368, 
25  S.  W.  15,  40  Am.  St.  Rep.  847;  West.  U.  Tel.  Co.  v.  McConnico,  27  Tex. 
Civ.  App.  610,  66  S.  W.  592;  Stevenson  v.  Montreal  Tel.  Co.,  16  N.  C.  Q.  B. 
559;  Thompson  v.  West.  U.  Tel.  Co.,  32  Mo.  App.  197;  Bonner  v.  West.  U. 
Tel.  Co.,  71  S.  C.  303,  51  S.  E.  117;  West.  U.  Tel.  Co.  v.  Harvey,  67  Kan. 
729,  74  Pac.  250 ;  West.  U.  Tel.  Co.  v.  Matthews,  113  Ky.  188,  67  S.  W.  849, 
24  Ky.  Law  Rep.  3;  West.  U.  Tel.  Co.  v.  Scott,  87  S.  W.  289,  27  Ky.  Law 
Rep.  975;  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W.  856;  McCaul 
V.  West.  U.  Tel.  Co.,  114  Tenn.  601,  88  S.  W.  325;  West.  U.  Tel.  Co.  v. 
Swearingen,  95  Tex.  420,  67  S.  W.  767,  reversing  (Tex.  Civ.  App.)  65  S.  W. 
1080;  West.  U.  Tel.  Co.  v.  Byrd,  34  Tex.  Civ.  App,  594,  79  S.  W.  40;  West. 
U.  Tel.  Co.  V.  Christensen  (Tex.  Civ.  App.)  78  S.  W.  744 ;  Taylor  v.  West.  U. 
Tel.  Co.,  181  Mo.  App.  288,  168  S.  W.  895. 

108  Given  v.  West.  U.  Tel.  Co.  (C.  C.)  24  Fed.  119. 

109  West.  U.  Tel.  Co.  v.  Georgia  Cotton  Co.,  94  Ga.  444,  21  S.  E.  835,  See 
other  cases  in  note  79. 


§    352)  LIABILITIES RULES   AND   REGULATIONS  475 

same;""   but  this  was  where  the  message  showed  on  its  face  the 
importance  of  an  immediate  delivery. 

§  352.  Office  hours  as  affects  company's  duty— night  message. 
Where  a  telegraph  company  has  fixed  certain  hours  within  which 
all  business  transactions  should  be  consummated,  it  is  under  no 
obligation  to  receive,  for  transmission,  any  message  outside  of  such 
office  hours;  "^  but  if  it  should  receive  a  message  at  a  time  when 
the  office  at  the  other  end  of  the  line  was  closed,  it  may  transmit 
the  message  within  a  reasonable  time  after  the  opening  of  the  latter 
office."^  Such  state  of  facts  very  often  happens  where  the  mes- 
sage is  received  by  the  company  after  the  terminal  office  has  closed 
for  the  night,  and  it  is  invariably  held  that  the  message  may  be 
transmitted  within  a  reasonable  time  after  the  office  has  opened 
on  the  following  morning."^  If,  however,  the  office  at  the  other 
end  of  the  line  is  only  open  for  the  receiving  of  messages,  and  the 
general  messenger  boys  have  retired  from  service,  the  company 
will,  nevertheless,  be  under  obligations  to  deliver  the  message,  if 
the  sendee  prepays  extra  charges  for  the  delivery  of  a  night  mes- 
.  sage.^"  It  is  very  often  the  case  that  the  sender  pays  an  extra 
charge  to  have  the  message  delivered  after  the  offices  have  closed, 
and  when  the  company  accepts  the  message  with  such  an  under- 
standing, it  is  duty  bound  to  make  diligent  and  prompt  delivery.^^^ 
But  a  mere  attempt  to  make  immediate  delivery,  where  there  is  no 
duty  to  deliver  until  the  next  morning,  will  not  render  the  company 
liable  for  a  failure  to  deliver;  ^^^  and  a  verbal  agreement  between 
the  agent  and  the  sender  that  the  message  need  not  be  delivered 

110  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St. 
Rep.  843;  West.  U.  Tel.  Co.  v.  Bruner  (Tex.)  19  S.  W.  149;  West.  U.  Tel. 
Co.  V.  Harris,  91  Ark.  G02,  121  S.  W.  1051,  24  L.  R.  A.  (N.  S.)  12S3.  See,  also, 
note  80,  for  other  cases. 

111  See  §  347. 

112  See  Bonner  v.  West.  U.  Tel.  Co.,  71  S.  C.  303,  51  S.  E.  117;  Harrison  v. 
West.  U.  Tel.  Co.,  71  S.  C.  386,  51  S.  E.  119;  McCaul  v.  West.  U.  Tel.  Co., 
114  Tenn.  661,  88  S.  W.  325 ;  West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  368,  25  S.  W. 
15,  40  Am.  St.  Rep.  847 ;  West.  U.  Tel.  Co.  v.  De  Jarles,  8  Tex.  Civ.  App.  109, 
27  S.  W.  792 ;  West.  U.  Tel.  Co.  v.  Bruner  (Tex.)  19  S.  W.  149 ;  Cates  v.  West. 
U.  Tel.  Co.,  151  N.  C.  497,  66  S.  E.  592,  24  L.  R.  A.  (N.  S.)  1286. 

113  West.  U.  Tel.  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  92  Am.  St. 
Rep.  366.     See  other  cases  in  notes  81  and  112,  supra. 

114  West.  U.  Tel.  Co.  v.  Berry,  30  Tex.  Civ.  App.  243,  70  S.  W.  439;  West. 
U.  Tel.  Co.  V.  Cavin,  30  Tex.  Civ.  App.  152,  70  S.  W.  229 ,  West.  U.  Tel.  Co. 
V.  Hill  (Tex.  Civ.  App.)  26  S.  W.  252. 

115  West.  U.  Tel.  Co.  v.  Perry,  30  Tex.  Civ.  App.  243,  70  S.  W.  439;  West. 
U.  Tel.  Co.  V.  Cavin,  30  Tex.  Civ.  App.  152,  70  S.  W.  229;  West.  U.  Tel. 
Co.  V.  Hill  (Tex.  Civ.  App.)  26  S.  W.  252;  West.  U.  Tel.  Co.  v.  Van  Cleave, 
107  Ky.  464,  54  S.  W.  827,  92  Am.  St.  Rep.  366. 

116  West.  U.  Tel.  Co.  v.  Rawls  (Tex.  Civ.  App.)  62  S.  W.  136.     See,  also, 


476  TELEGRAPH  AND  TELEPHONE  COMPANIES  '        (§  353 

at  night  is  binding.^^^  Where  a  message  summoning  a  physician 
has  been  received  after  the  close  of  office  hours  the  physical  suffer- 
ings endured  by  the  plaintiff  during  that  time  cannot  be  considered 
in  determining  the  amount  of  damages  to  be  awarded,  even  though 
the  company  negligently  delays  delivering  the  message  after  the 
office  opened  on  the  following  morning.^^^ 

§  353.  Knowledge  of  sender  as  to  office  hours. — These  compa- 
nies, having  the  right  to  adopt  and  enforce  regulations  respecting 
office  hours,  may  bind  all  who  apply  to  them  for  service,  even 
though  they  may  not  have  knowledge  of  the  office  hours  of  the 
company.  It  is  the  duty  of  the  sender,  when  he  delivers  a  message 
to  the  company  at  an  unusual  hour,  to  inquire  as  to  whether  or  not 
the  message  can  then  be  sent;  failing  to  do  so,  and  the  message  is 
delayed  by  reason  of  its  having  been  received  after  the  closing  hours 
of  the  office  to  which  it  is  to  be  sent,  the  company  will  not  be  liable 
for  any  injuries  arising  thereby."®  It  has  been  held  that  it  was 
not  the  duty  of  the  operator  to  ascertain  upon  accepting  a  message, 
and  inform  the  sender,  whether  the  office  hours  at  the  point  of  des- 
tination are  such  that  the  message  may  be  promptly  transmitted.^^" 
But  an  operator  taking  an  important  message  filed  for  immediate 
transmission  to  and  delivery  at  an  office  which  he  knows,^^^  or 
should  know,  will  be  closed  when  the  message  reaches  it,  so  that 
it  cannot  be  promptly  delivered,  must  notify  the  sender  of  that  fact, 
in  order  to  give  him  the  opportunity  of  adopting  other  means  of 
communication,  if  available.^-^ 

West.  U.  Tel.  Co.  v.  McConnico,  27  Tex.  Civ.  App.  610,  66  S.  W.  592 ;  West. 
U.  Tel.  Co.  Y.  Neel,  86  Tex.  368,  25  S.  W.  15,  40  Am.  St.  Rep.  847. 

117  West.  U.  Tel.  Co.  v.  Wiiigate,  6  Tex.  Civ.  App.  394,  25  S.  W.  439. 

118  West.  U.  Tel.  Co.  v.  Merrill  (Tex.  Civ.  App.)  22  S.  W.  826;  West.  U. 
Tel.  Co.  V.  Rosentreter,  80  Tex.  406,  16  S.  W.  25.  See  cases  in  notes  79  and 
80,  supra,  taking  both  views. 

119  See  cases  in  note  107,  supra.  See  §  301.  Given  v.  West.  U.  Tel.  Co. 
(C.  C.)  24  Fed.  119,  holding  not  necessary  to  inform  employes  of  closing  of 
other  offices.  To  the  same  effect,  see  West.  U.  Tel.  Co.  v.  Georgia  Cotton 
Co.,  94  Ga.  444,  21  S.  E.  835.  See,  also,  Bateman  v.  West.  U  Tel.  Co.,  97 
Ga.  338,  22  S.  E.  920 ;  West.  U.  Tel.  Co.  v.  Jseel,  86  Tex.  368,  25  S.  W.  15, 
40  Am.  St.  Rep.  847;  West.  U.  Tel.  Co.  v.  May,  8  Tex.  Civ.  App.  176,  27 
S.  W.  760.  See,  however,  West.  U.  Tel.  Co.  v.  Bruner  (Tex.  Civ.  App.)  19 
S.  W.  149. 

120  West.  U.  Tel.  Co.  v.  Neel,  86  Tex.  368,  25  S.  W.  15,  40  Am.  St.  Rep.  847. 
But  see  Bierhaus  v.  West.  U.  Tel.  Co.,  8  Ind.  App.  246,  34  N.  E.  581. 

121  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R  A.  (N.  S.) 
648,  19  Ann.  Cas.  1058. 

122  West.  U.  Tel.  Co.  v.  Harris,  91  Ark.  602,  121  S.  W.  1051,  24  L,  B.  A. 
(N.  S.)  1283;  Box  v.  Postal  Tel.  Cable  Co.,  91  C.  C.  A.  172,  165  Fed.  138, 
28  L.  R.  A.  (N.  S.)  566 ;  AVest.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South.  248, 
23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058 ;   Bolton  v.  West.  U.  Tel.  Co.,  76  S.  C. 


§   354)  LIABILITIES RULES  AND  REGULATIONS  477 

§  354.  Telephone  companies — enforcement  of  tolls. — Telephone 
companies  have  the  same  right  to  adopt,  prescribe  and  enforce  all 
reasonable  regulations  for  the  convenience  of  their  business  as 
telegraph  companies;  ^^^  and  that  which  has  already  been  said 
of  certain  particular  regulations  of  the  latter  is  applicable  to  tele- 
phone companies. ^^*  Thus  they  may  have  reasonable  office  hours 
and  are  not  under  obligation  to  render  service  to  any  one  outside 
of  such  hours.^^^  There  is  this  distinction,  however,  between  these 
companies  in  this  respect:  The  party  calling  does  not  have  to  pay 
the  toll  until  the  communicant  has  been  summoned  to  the  tele- 
phone ;  and,  if  he  cannot  be  found,  the  former  knows  immediate- 
ly that  he  cannot  communicate  with  him.  It  is  no  duty  of  the 
company  to  make  an  effort  to  get  the  party  called  to  the  telephone 
after  the  office  at  his  end  of  the  line  has  closed. ^^^  They  may  en- 
force the  payment  of  the  rental;  and  on  the  failure  of  the  sub- 
scriber to  make  such  payment,  his  telephone  may  be  removed  from 
his  premises,  after  giving  timely  notice  to  that  effect. ^-^  The  sub- 
scriber, it  seems,  cannot  object  to  this  act  of  the  company  on  the 
ground  that  it  has  not  given  efficient  service, ^^^  or  that  the  com- 
pany is  indebted  to  him.^^'^  They  may  require  the  party  calling, 
to  go  to  the  exchange  office,  and  prepay  the  toll  or  that  he  deposit 
a  sufficient  amount  at  the  toll  station  before  any  services  shall  be 
rendered. ^^°     We  think  that  they  could  not  enforce  a  regulation 

529,  57  S.  E.  543 ;  West.  U.  Tel.  Co.  v.  Crumpton,  138  Ala.  632,  36  South.  517 ; 
Carter  v.  West.  U.  Tel.  Co.,  141  N.  C.  374,  54  S.  E.  274;  Edwards  v.  West. 
U.  Tel.  Co.,  147  N.  C.  126,  60  S.  E.  900.  See  other  cases  collated  to  Swan  v. 
West.  U.  Tel.  Co.,  129  Fed.  318,  63  C.  C.  A.  550,  67  L.  R.  A.  153.  But  see 
Carswell  v.  West.  U.  Tel.  Co.,  154  N.  O.  112,  69  S.  E.  782,  32  L.  R.  A.  (N.  S.)  611. 
i23McDaniel  v.  Faubush  Tel.  Co.,  lOG  S  W.  825,  32  Ky.  Law  Rep.  572; 
People  V.  Hudson  River  Tel.  Co.,  19  Abb.  N.  C.  (N.  T.)  466.  Pugh  v.  City,  etc., 
Tel.  Ass'n,  8  Ohio  Dec.  (Rep.)  644 ;  Twin  Valley  Tel.  Co.  v.  Mitchell,  27  Okl. 
388,  113  Pac.  914,  Ann.  Cas.  1912C,  582,  38  L.  R.  A.  (N.  S.)  235;  Buffalo 
County  Tel.  Co.  v.  Turner,  82  Neb.  841,  118  N.  W.  1064,  19  L.  R.  A.  (N.  S.) 
693,  130  Am.  St.  Rep.  699. 

124  See  §  256. 

125  Twin  Valley  Tel.  Co.  v.  Mitchell,  27  Okl.  388,  113  Pac.  914,  Ann.  Cas. 
1912C,  582,  38  L.  R.  A.  (N.  S.)  235. 

120  See  §  316  et  seq. 

127  See  §  251  et  seq.;  Woodley  v.  Carolina  Tel.,  etc.,  Co.,  163  N.  0.  284, 
79  S.  E.  598,  Ann.  Cas.  1914D,  116;  Buffalo  County  Tel.  Co.  v.  Turner,  82 
Neb.  841,  118  N.  AV.  1064.  19  L.  R.  A.  (N.  S.)  693,  130  Am.  St.  Rep.  609,  re- 
quirement of  rural  telephone  company  to  pay  six  months  in  advance. 

12  8  Cumberland  Tel.  Co.  v.  Baker,  85  Miss.  486,  37  South.  1012;  Buffalo 
County  Tel.  Co.  v.  Turner,  82  Neb.  841,  118  N.  W.  1064,  19  L.  R.  A.  (N.  S.) 
693,  130  Am.  St.  Rep.  699.    See,  also,  §  256  et  seq. 

129  Rushville  Co-operative  Tel.  Co.  v.  Irvin,  27  Ind.  App.  62,  59  N.  E.  327. 
See,  also,  §  251  et  seq. 

130  See  §  251  et  seq. 


478  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  355 

whereby  the  subscriber  is  required  to  contract  for  a  telephone  for 
one  year,  before  one  is  placed  on  his  premises;  but  that  they  are 
under  obligations  to  give  him  the  same  service,  as  any  other  sub- 
scriber, even  though  he  may  not  desire  the  service  so  long.^^^  It 
is  a  reasonable  rule  of  these  companies  that  so  much  extra  toll  shall 
be  paid  after  the  conversation  has  extended  beyond  the  regular 
time  allowed  for  conversations ;  and  they  may  limit  the  length  of 
time  of  conversation  over  long-distance  telephones.  As  these  com- 
panies are  intended  for  general  use,  by  persons  of  all  classes,  and 
for  both  sexes,  those  who  use  them  may  be  required  to  conduct 
their  conversation  in  a  becoming  manner,  free  from  obscenity  or 
profanity,^^^  and  for  a  violation  of  this  requirement  may  be  denied 
the  further  use  of  the  telephone. ^^^  No  regulation  will  be  tolerated 
which  prevents  the  public  from  having  a  fair  and  reasonable  use 
of  its  telephones  and  exchanges,  or  denies  to  any  one  the  rights 
secured  to  him  by  statute,  or  requires  him  to  conduct  his  business 
with  particular  persons  or  agencies. ^^*  Thus  a  regulation  is  un- 
reasonable and  invalid  if  it  prohibits  subscribers  from  calling  mes- 
sengers otherwise  than  through  the  central  office. ^^^ 

§  355.  May  waive  regulations. — Rules  and  regulations  of  these; 
companies  which  are  merely  for  their  convenience  may  be  waiv- 
ed,^^^  either  expressly  or  by  implication, ^^'^  and  whether  or  not  they 
have  been  waived  is  a  mixed  question  of  law  and  fact.^^^  It  may 
be  inferred  that  they  have  been  waived,  if  the  company  has  failed 
repeatedly  to  enforce  such  a  rule.^^^     Thus,  as  has  been  hereto- 

131  See  chapter  XI.  132  gee  §  273  et  seq. 

133  Pugh  V.  City  &  S.  Tel.  Co.,  9  Cen.  L.  B.  104,  27  Alb.  Law  J.  162.  See, 
also,  §  273  et  seq. 

134  See  chapter  XI. 

135  People  V.  Hudson  River  Tel.  Co.,  19  Abb.  N.  C.  (N.  Y.)  466,  10  N.  Y. 
St.  Rep.  282. 

136  West.  U.  Tel.  Co.  v.  Stevenson,  128  Pa.  442,  18  Atl.  441,  5  L.  R.  A. 
515,  15  Am.  St.  Rep.  687 ;  People  v.  West.  U.  Tel.  Co.,  166  111.  15,  46  N.  E.  731, 
36  Lr.  R.  A.  637 ;  Suttle  v.  West.  U.  Tel.  Co.,  148  N.  C.  480,  62  S.  E.  593,  128 
Am.  St.  Rep.  631;  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South. 
579;  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St. 
Rep.  205,  43  L.  R.  A.  214. 

137  Bright  V.  W^est.  U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841;  West.  U.  Tel. 
Co.  V.  Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251;  West  U.  Tel.  Co.  v. 
Georgia  Cotton  Co.,  94  Ga.  444,  21  S.  E.  835 ;  Smith  v.  West.  U.  Tel.  Co.,  77 
S.  C.  378,  58  S.  E.  6,  12  Ann.  Cas.  654;  Bonner  v.  West.  U  Tel.  Co.,  71  S. 
€.  303,  51  S.  E.  117 ;  Alexander  v.  West.  U.  Tel.  Co.,  158  N.  O.  473,  74  S.  E. 
449,  42  L.  R.  A.  (N.  S.)  407 ;  Stone  &  Co.  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498, 
87  Atl.  319.  46  L.  R.  A.  (N.  S.)  180. 

138  Smith  v.  W^est.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Ann.  Cas.  654. 
See  Vinson  v.  Southern  Bell  Tel.,  etc.,  Co.,  188  Ala.  292,  66  South.  100,  L. 
R.  A.  1915C,  450. 

13  9  Bright  V.  West.  U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841;    West  U.  Tel. 


§    355)  LIABILITIES RULES  AND   REGULATIONS  479 

fore  said,  they  may  enforce  a  rule  prescribing  reasonable  office 
hours/*"  yet  if  they  accept  messages  for  transmission  and  delivery 
after  the  closing  of  the  office,  it  will  be  presumed  that  they  have 
waived  the  regulation. ^^^  They  may  require  all  messages  tendered 
them  to  be  in  writing,^*^  but  if  they  receive  such  orally  they  can- 
not set  up  this  rule  as  a  defense  to  an  action  brought  for  negli- 
gently transmitting  or  delivering  a  message. ^*^  As,  where  the 
local  office  makes  a  practice  of  receiving  for  transmission  messages 
telephoned  to  it,  and  it  does  not  appear  that  the  company  had  for- 
bidden the  practice,  it  seems  that  the  operator,  in  writing  out  the 
message,  must  be  deemed  the  company's  agent  to  render  it  liable 
for  an  error  made  by  him  in  transcribing,^**  or,  if  the  operator  has 
been  in  the  habit  of  receiving  messages,  verbally  through  the  mes- 
senger,^*°  or  messages  have  been  conveyed  to  him  by  means  of  a 
speaking  tube,  it  will  be  presumed  that  the  company  has  waived  the 
regulation.^*®  So  also  if  the  company  has  failed  to  require  prepay- 
ment of  the  charges, ^*'^  or  has  deferred  the  collection  of  same  un- 
til some  subsequent  time,  or  if  the  extra  charge,  which  may  be  ex- 
acted of  the  sender  for  a  delivery  beyond  the  free  delivery  limits 
has  not  been  deposited,^ *^  it  will  have  waived  its  rights  to  enforce 
the  regulation ;  and  cannot,  therefore,  set  up  the  fact  of  a  non- 
compliance with  the  rule,  as  a  defense  to  an  action  brought  against 
j^  149  These  companies  may  have  the  right  to  refuse  certain 
messages  tendered  them  for  transmission,^^"  but  if  the  operator 
should  accept  such  a  message,  knowing  that  the  company  would 

Co.  V.  Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251;  West  U.  Tel.  Co.  v. 
Georgia  Cotton  Co.,  94  Ga.  444,  21  S.  E.  S35 ;  Smitti  v.  West,  U.  Tel.  Co.,  77 
S.  C.  378,  58  S.  E.  6,  12  Ann.  Cas.  654;  Bonner  v.  West.  U.  Tel.  Co.,  71  S. 
C.  303,  51  S.  E.  117 ;  West.  U.  Tel.  Co.  v.  Stevenson,  128  Pa.  442,  18  Atl.  441, 
15  Am.  St.  Rep.  687,  5  L.  R.  A.  515. 

140  See  §  347  et  seq. 

141  See  §  350. 
14  2  See  §  276. 

143  See  §  276  et  seq. 

144  West.  U.  Tel.  Co.  v.  Todd,  22  Ind.  App.  701,  54  N.  E.  446.     See  §  277. 

145  See  §  278. 

146  West.  U.  Tel.  Co.  v.  Stevenson,  128  Pa.  442,  18  Atl.  441,  15  Am.  St. 
Rep.  687,  5  L.  R.  A.  515. 

147  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  814,  14  South.  579.  See  §  279. 
See,  also,  §  251.  See  Vinson  v.  Southern  Bell  Tel.,  etc.,  Co.,  ISS  Ala.  292, 
66  South.  100,  L.  R.  A.  1915C,  450,  evidence  of  waiver  of  prepayment  of  toll. 

14  8  See  §  302  et  seq. 

149  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224, 
note.  But  see,  Southwestern  Tel.  etc.,  Co.  v.  Sharp,  IIS  Ark.  541,  177  S. 
W.  25,  L.  R.  A.  1915E,  323. 

150  See  §  273  et  seq. 


480  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  365 

refuse  such,  and  negligently  transmits  or  delivers  it,^"  whereby 
damages  have  been  incurred,  the  company  nevertheless  will  be  lia- 
ble.1^2 

151  See  chapter  XIII. 

152  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181;  West.  U.  Tel.  Co.  v. 
Todd,  22  Ind.  App.  701,  54  N.  E.  446;  Garland  v.  West.  U.  Tel.  Co.,  118 
Mich.  369,  76  N.  W.  762,  74  Am.  St.  Rep.  394,  43  L.  R,  A.  280;  Tex.  Tel. 
Co.  V.  Seiders,  9  Tex.  Civ.  App.  431,  29  S.  W.  258. 


§    356)  DUTIES  UNDER   COMMON   LAW  481 

CHAPTER  XV 

DUTIES  UNDER  THE  COMMON  LAW. 

§  356.  In  general. 

357.  Act  of  God — not  liable  for — contract. 

358.  Same  continued — express  contract. 

359.  Same  continued — burden  of  proof. 

360.  Public  enemy. 

361.  Same  continued — reason  for  rule. 

362.  Same  continued — mobs,  strikes,  etc. 

363.  Same  continued — strikes,  not  liable — must  supply  places. 

364.  Same  continued — in  cases  of  express  contracts. 

365.  Connecting  lines. 

366.  Negligence  of  the  sender  or  sendee. 

§  356.  In  general. — Telegraph  and  telephone  companies  are  not, 
strictly  speaking,  common  carriers,  and  are  not,  therefore,  held  to 
such  strict  accountability  as  are  the  latter.^  The  public,  however, 
is  interested  in  their  business,  in  that  they  are  exercising  a  public 
function  and  must,  to  that  extent,  as  has  been  seen,  manage  and 
control  their  business  affairs.^  The  sources  from  which  the  pub- 
lic has  obtained  the  power  to  exercise  this  control  are  now  de- 
rived from  statutes  and  the  common  law,  and  to  these  it  is 
necessary  to  resort  in  order  to  ascertain  such  powers.  Common  car- 
riers, under  the  common  law,  were  held  to  the  most  strict  account- 
ability for  their  services  to  the  public,  and  the  question  of  neg- 
ligence did  not  enter  into  the  consideration  of  the  courts  in  de- 
termining a  loss  incurred.  In  other  words,  they  were  held  strictly 
liable  as  insurers,  and  were  responsible  for  all  losses  incurred, 
except  such  as  may  have  been  caused  by  the  act  of  God,  or  the 
public  enemy.  On  account  of  these  companies  enlarging  their  lines 
of  business  and  thereby  holding  themselves  out  to  the  public  as 
willing  to  transport  many  and  varied  things  which  were  not  con- 
templated as  subjects  of  transportation  at  the  time  the  business 
was  first  begun — and  many  of  which  were  of  a  peculiar  perishable 
nature  and  otherwise  more  subject  to  loss  or  injury — the  common- 
law  rule  has  been  somewhat  relaxed  and  they  are  not  now  held 
liable  for  every  loss  as  they  formerly  were.  Telegraph  companies 
are  not  insurers,  but  in  every  other  respect  they  are  held  to  the 
same   liability    for    losses   and    injuries    as    are   common    carriers.^ 

1  See  chapter  II.  2  gee  chapter  X. 

3  See  chapter  II.    See,  also,  §  19S  et  seq. 

Jones  Tel.(2d  Ed.)— 31 


482  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  357 

They  may,  however,  as  will  be  seen  hereafter,  limit  their  common- 
law  liabilities ;  and  in  most  states  there  are  statutes  which,  more 
or  less,  give  them  the  power  to  exercise  this  right.* 

§  357.  Act  of  God — not  liable  for — contract. — As  may  be  seen, 
the  common  law  holds  that  telegraph,  telephone,  and  electric  com- 
panies are  not  liable  in  those  cases  where  the  act  of  God  has  been 
the  proximate  cause  of  the  loss  or  injury — and  in  this  respect  there 
is  no  diversity  of  opinion — but  what  are  such  causes  as  may  be 
considered  the  act  of  God,  and  such  as  will  be  sufficient  to  relieve 
them  for  losses  resulting  therefrom,  is  not  clearly  defined  by  the 
courts;  and  this  fact  has  brought  about,  to  a  certain  extent,  a  di- 
versity of  opinion.  It  may  be  safely  said,  however,  that  if  there 
is  intervening  any  human  agency  which  contributes  in  any  manner 
to  the  production  of  the  loss  or  injury,  and  without  which  the 
company  would  be  exonerated,  on  the  ground  that  the  loss  was 
caused  by  the  act  of  God,  it  will  be  liable.^  Thus,  if  the  condi- 
tion of  the  company's  lines  or  instruments  are  such  that  they  can- 
not be  used — and  such  conditions  were  originally  caused  by  the 
act  bf  God — the  company  will,  nevertheless,  be  liable  for  any  loss 
thereby  incurred,®  if  it  is  negligent,  in  any  wise,  in  making  a  rea- 
sonable effort  to  repair,  as  speedily  as  possible,  the  defects.'^  It 
is  fairly  well  settled  that  these  companies  will  not  be  liable  for 
losses  caused  by  extraordinary  tempest,  storms  or  the  like,  unless 
their  own  negligence  contributed  to  the  production  of  the  loss.^ 
Thus  it  has  been  held  that  they  are  not  liable  for  losses  caused 
by  severe  windstorms,^  or  where  the  lines  have  been  broken  or  oth- 

4  See  §  371. 

5  See  chapter  IX.  Compare  Friend  v.  Woods,  6  Grat.  (Va.)  189,  52  Am.  Dec. 
119 ;  New  Brunswick,  etc.,  Co.  v.  Tiers,  24  N.  J.  Law,  697,  64  Am.  Dec.  396 ; 
Read  v.  Spaulding,  30  N.  Y.  630,  86  Am.  Dec.  426;  Hill  v.  Sturgeon,  2S  Mo. 
323 ;  Strouss  v.  Wabash,  etc.,  R.  Co.  (C.  C.)  17  Fed.  209 ;  Graff  v.  Bloomer,  9 
Pa.  114 ;  Parker  v.  Flagg,  26  Me.  181,  45  Am.  Dec.  101 ;  Miller  v.  Steam  Navi- 
gation Co.,  10  N.  Y.  431 ;  Hays  v.  Kennedy,  41  Pa.  378,  SO  Am.  Dec.  627. 

e  See  chapter  IX. 

7  See  chapter  IX. 

8  See  chapter  IX.  Compare  Nashville,  etc.,  R.  Co.  v.  King,  6  Heisk.  (Term.) 
269 ;  Nashville,  etc.,  R.  Co.  v.  David,  6  Heisk.  (Tenn.)  261,  19  Am.  Rep.  594 ; 
Ballentine  v.  North  Missouri,  etc.,  R.  Co.,  40  Mo.  491,  93  Am.  Dec.  315 ;  Wallace 
V.  Clayton,  42  Ga,  443;  Pearce  v.  The  Thomas  Newton  (D.  C.)  41  Fed.  106; 
Packard  v.  Taylor,  35  Ark.  402,  37  Am.  Rep.  37 ;  Bowman  v.  Teall,  23  Wend. 
{N.  Y.)  306,  35  Am.  Dec.  562 ;  Harris  v.  Rand,  4  N.  H.  259,  17  Am.  Dec.  421 ; 
Slater  v.  South  Carolina  R.  Co.,  29  S.  C.  96,  6  S.  E.  936. 

9  See  chapter  IX.  Compare  Blythe  v.  Denver,  etc.,  R  Co.,  15  Colo.  333,  25 
Pac.  702,  11  L.  R.  A.  615,  22  Am.  St.  Rep.  403 ;  Insurance  Co.  v.  Transportation 
Co.,  12  Wall.  194,  20  L.  Ed.  378 ;  Milwaukee,  etc.,  R.  Co.  v.  Kellogg,  94  U.  S. 
469,  24  L.  Ed.  256 ;  Insurance  Co.  v.  Boon,  95  U.  S.  117,  24  L.  Ed.  395. 


§    358)  DUTIES   UNDER   COMMON   LAW  483 

erwise  injured  by  sudden  and  unexpected  freezes.^"  Where  there 
have  been  losses  caused  by  other  atmospheric  conditions,  they  will 
not  be  held  liable  therefor. 

§  358.  Same  continued — express  contract. — Telegraph  compa- 
nies may,  however,  bind  themselves  in  such  way  as  to  be  under 
obligation  to  transmit  and  deliver  a  message,  irrespective  of  any 
loss  from  which  they  might  have  otherwise  been  relieved  by  the 
fact  that  the  proximate  cause  of  the  loss  was  the  result  of  the  act 
of  God.^^  In  other  words,  they  may  make  an  express  contract  to 
transmit  the  message,  or  risk  all  hazards  in  the  attempt,  but  in 
order  to  hold  them,  under  such  an  agreement,  the  terms  of  the 
contract  must  be  very  clear  and  expressive;  ^^  since,  if  there  is 
any  doubt  as  to  the  purport  of  the  agreement,  they  will  not  be 
held  liable.^^  They  may,  furthermore,  enlarge  their  common-law 
liabilities;  ^*  but  at  the  same  time  this  additional  undertaking  may 
not  be  such  as  would  hold  them  liable  for  losses  caused  by  the 
act  of  God.^^  In  other  words,  they  may  contract  to  insure  a  safe  and 
correct  transmission  of  messages  intrusted  to  them;  however,  it 
would  not  be  understood  by  such  contract  that  they  could  be  held 
liable  for  losses  caused  proximately  from  what  is  termed  the  act 
of  God.  Where  there  is  an  agreement  entered  into  whereby  they 
enlarge  their  common-law  liabilities  in  either  way,  they  may  ex- 
act of  the  sender  an  additional  compensation  for  the  extra  risk  as- 
sumed.^® It  seems  that  it  should  be  discretionary  with  the  com- 
pany as  to  whether  it  should  assume  the  risk  in  either  instance, 
since,  if  the  undertaking  should  appear  unsurmountable,  caused  by 
the  varied  climatic  changes — and  they  are  better  able  to  determine 
these  conditions  of  affairs  than  any  other — they  should  not  be 
forced  to  accept  a  message  for  transmission  under  such  contract, 
but  it  should  be  left  entirely  to  their  own  sound  discretion. ^^     For 

10  See  chapter  IX. 

11  Milton  V.  Denver,  etc.,  R.  Co.,  1  Colo.  App.  307,  29  Tac.  22. 

12  Compare  Fitcliburg,  etc.,  R.  Co.  v.  Hanna,  6  Gray  (Mass.)  539,  66  Am. 
Dec.  427 ;  Leonard  v.  Hendrickson,  IS  Pa.  40,  55  Am.  Dec.  587. 

13  Compare  Neal  v.  Saundersou,  2  Smedes  &  M.  (Miss.)  572,  41  Am.  Dec. 
609 ;  :siorrison  v.  Davis,  20  Pa.  171,  57  Am.  Dec.  095. 

1*  Hee  cases  in  note  12,  supra. 

15  See  cases  in  note  13,  supra. 

16  See  cases  in  note  12,  supra. 

17  Compare  Murphy  Hardware  Co.  v.  Southern  R.  Co.,  150  N.  C.  703,  04  S. 
E.  873,  22  L.  R.  A.  (N.  S.)  1200,  17  Ann.  Cas.  481,  a  carrier  may  refuse  to  ac- 
cept property  for  transportation  as  a.  result  of  a  strike  which  prevents  it  for- 
warding the  property  should  it  be  received.  See  Garrison  v.  Southern  K.  Co., 
150  N.  C.  575,  04  S.  E.  578 ;  Wampum  Cotton  Mills  v.  Carolina,  etc.,  R.  Co.,  150 
N.  C.  612,  64  S.  E.  588 ;  St.  Louis,  etc.,  R.  Co.  v.  State,  84  Ark.  150,  104  S.  W. 


484  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  359 

the  reason  that  they  are  public  enterprises,  discharging  public  du- 
ties,^® and  occasionally  enlarging  those  duties,  is  no  reason  why 
undue  advantage  should  be  taken  of  them,  and  that  additional,  ex- 
cessive and  unnecessary  burdens  should  be  imposed  upon  them. 

§  359.  Same  continued — burden  of  proof. — Where  a  telegraph, 
telephone,  or  an  electric  company  relies  upon  the  defense  of  the 
act  of  God,  it  must  prove  affirmatively  that  the  loss  or  injury  com- 
plained of  was  proximately  caused  by  the  act  of  God.^^  There 
seems,  however,  to  be  a  difference  of  opinion  among  the  courts 
as  to  whether  the  company  must  supplement  the  evidence  that  the 
loss  was  the  result  of  the  act  of  God,  by  evidence  to  the  effect 
that  the  loss  was  not  the  result  of  any  negligence  on  its  own 
part.  Some  of  the  courts  hold  that  all  that  is  necessary  for  the 
company  to  prove  is,  that  the  loss  or  injury  arose  from  what  is 
termed  the  act  of  God,^*'  while  other  courts  hold  that  they  must 
not  only  prove  that  the  loss  was  caused  by  the  act  of  God,  but  also 
that  no  act  on  their  part  contributed  to  the  loss.^^  In  other  words, 
they  must  affirmatively  show  that  there  was  no  negligence  or  fault 
on  their  part.  If  the  negligence  of  the  company  intervened  or  con- 
tributed to  the  production  of  the  loss,  the  rule  that  the  company 
may  be  exonerated  by  the  act  of  God  does  not  apply,  since  the 
negligence  of  the  company  will  be  considered  the  proximate  cause 
of  the  loss  or  injury. ^^  If  this  rule  should  be  resorted  to  by  the 
company  for  its  own  protection,  it  must  be  shown  that  the  act  of 
God  was  the  proximate,  and  not  the  remote,  cause  of  the  loss;^^ 

1106.    See  Sullivan  v.  West.  U.  Tel.  Co.,  S2  S.  C.  569,  64  S.  E.  752,  129  Am.  St. 
Rep.  903,  22  L.  R.  A.  (N.  S.)  1214,  17  Ami.  Cas.  23S. 

18  See  chapter  II. 

19  See  chapter  IX.  Compare  Wallingford  v.  Columbia,  etc.,  R.  Co.,  26  S.  C. 
258,  2  S.  E.  19 ;  Denton  v.  Chicago,  etc.  R.  Co.,  52  Iowa,  161,  2  N.  W.  1093,  35 
Am.  Rep.  263 ;  Colton  v.  Cleveland,  etc.,  R.  Co.,  67  Pa.  211,  5  Am.  Rep.  424 ; 
Agnew  V.  Steamer  Contra  Costa,  27  Cal.  425,  87  Am.  Dec.  87 ;  Southern,  etc., 
Co.  V.  Newbj-,  36  Ga.  635,  91  Am.  Dec.  783 ;  Leonard  v.  Hendricksou,  18  Pa.  40, 
55  Am.  Dec.  587 ;  Craig  v.  Childress,  Peck  (Temi.)  270,  14  Am.  Dec.  751 ;  Lamb 
V.  Camden,  etc.,  R.  Co.,  46  N.  Y.  271,  7  Am.  Rep.  327. 

2  0  Compare  Railroad  Co.  v.  Reeves,  10  Wall.  176,  19  L.  Ed.  909;  Magnin  v. 
Dinsmore,  56  N.  Y.  168 ;  Wolf  v.  American,  etc.,  Co.,  43  Mo.  421,  97  Am.  Dec. 
406 ;  Little  Rock,  etc.,  R.  Co.  v.  Corcoran,  40  Ark.  375. 

21  Compare  Brown  v.  Adams,  etc.,  Co.,  15  W.  Va.  812 ;  Ryan  v.  Missouri,  etc., 
R.  Co.,  65  Tex.  13,  57  Am.  Rep.  589 ;  Steele  v.  Townsend,  37  Ala.  247,  79  Am. 
Dec.  49 ;  Grey  v.  INIobile,  etc.,  Co.,  55  Ala.  387,  28  Am.  Rep.  729. 

2  2  Compare  McGraw  v.  Baltimore,  etc.,  R.  Co.,  18  W.  Va.  361,  41  Am.  Rep. 
696;  Williams  v.  Grant,  1  Conn.  487,  7^Am.  Dec.  235;  Packard  v.  Taylor,  35 
Ark.  402,  37  Am.  Rep.  37. 

23  Compare  Hays  v.  Kennedy,  41  Pa.  378,  80  Am.  Dec.  627;  Merritt  v.  Earle, 
29  N.  Y.  115,  86  Am.  Dec.  292 ;  Read  v.  Spaulding,  30  X.  Y.  630,  86  Am.  Dec. 
426 ;  Steele  v.  McTyer,  31  Ala.  667,  70  Am.  Dec.  516. 


§    360)  DUTIES  UNDER   COMMON   LAW  485 

and  the  burden  is  cast  upon  the  company  to  make  such  showing, 
for,  surely,  when  it  makes  this  defense — and  that  about  which  it 
knows  more  than  any  other — it  should  be  able  to  sustain  it  by 
proof.  It  seems  to  us  that  this  proof  should  be  very  clearly  and  af- 
firmatively shown,  since  to  hold  otherwise  might  have  the  tenden- 
cy to  give  these  companies  an  easy  defense  to  avoid  many  of  their 
liabilities.  Some  of  the  courts  have  held  that  these  companies 
must  show  that  the  act  of  God  was  the  sole  cause  of  the  loss.^* 

§  360.  Public  enemy. — As  has  been  heretofore  adverted  to,  tel- 
egraph or  telephone  companies  are  not  liable  for  losses  caused  by 
acts  of  the  public  enemy;  and  in  considering  this  question,  it  might 
be  well  to  say  something  about  what  is  meant  by  the  term  "public 
enemy."  The  term  "public  enemy"  means  those  people  with  whom 
the  country  is  at  war,  and  does  not  include  thieves,  rioters  or  in-' 
surgents.  Thus,  when  the  war  between  the  United  States  and 
Mexico  was  raging,  the  latter  was  a  public  enemy  to  this  country ; 
however,  there  were  few  adjudications  arising  out  of  losses  to  per- 
sons during  this  war,  and  there  are  few  to  be  found  in  our  country 
up  until  the  beginning  of,  or  during,  the  Civil  War,  and  all  of  these 
pertained  to  the  destruction  of  goods  in  the  charge  of  common  car- 
riers. In  these  cases  it  was  held  that,  as  to  goods  in  the  posses- 
sion of  carriers  operating  within  the  territory  under  the  control 
of  the  federal  government,  the  destruction  by  the  Confederate  forc- 
es was  a  destruction  by  the  public  enemy  for  which  the  carrier 
would  not  be  responsible.^^  Likewise  it  was  held  that  destruction 
by  the  federal  troops  of  goods  in  the  possession  of  carriers  operat- 
ing within  the  Confederate  lines  was  also  a  destruction  by  the  pub- 
lic enemy.-"  But  if  the  goods  had  been  received  within  the  Con- 
federate lines  and  destroyed  by  their  troops  therein, 2'  or  vice  versa, 
if  they  had  been  received  and  destroyed  within  the  federal  lines 
by  their  own  military  troops,-^  the  destruction  would  not  be  con- 
sidered as  that  done  by  the  public  enemy  and  the  carriers  could 
not,  therefore,  relieve  themselves  of  liability.  The  business  of  a 
carrier,  in  many^  respects,  is  similar  in  character  to   that  of  tele- 

2  4  Compare  Read  v.  Spaulding,  30  N.  Y.  630,  86  Am.  Dec.  426;  Michaels  v. 
New  York,  etc.,  R.  Co.,  30  N.  Y.  564,  86  Am.  Dec.  415;  Crosby  v.  Fitch,  12 
Coun.  410,  31  Am.  Dec.  745;  Harmony  v.  Bingham,  12  N.  Y.  99,  62  Am.  Dec. 
142. 

25  See  Morse  v.  Slue,  2  Keb.  866,  3  Keb.  72,  112,  135,  2  Lev.  69,  1  Mod.  85.  T. 
Raym.  220,  1  Vent.  190,  238 ;  Bland  v.  Adams  Express  Co.,  1  Duv.  (Ky.)  233.  S5 
Am.  Dec.  623 ;  Lewis  v.  Ludwiek,  6  Cold.  (Tenn.)  368,  98  Am.  Dec.  454 ;  Nash- 
ville, etc.,  R.  Co.  V.  Estes,  10  Lea  (Tenn.)  749 ;  Nashville,  etc.,  R.  Co.  v.  Estis,  7 
Heisk.  (Tenn.)  622,  24  Am.  Rep.  289. 

20  Id.  2  7  Id.  28  Id. 


486  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  361 

graph  companies ;  and,  as  the  former  has  been  in  use  much  longer 
than  the  latter,  whereby  there  are  to  be  found  many  more  deci- 
sions on  points  of  law  now  considered  with  respect  to  telegraph 
companies,  we  are  often  found  resorting  to  such  decisions,  since 
they  in  most  instances  are  applicable  to  the  latter  companies. 

§  361.  Same  continued — reason  for  rule. — It  was  said  in  the 
previous  paragraph  that  insurgents  were  not  classed  as  the  public 
enemy ;  but  if  they  have  become  so  hostile  and  ravenous  and  have 
gathered  such  strength  of  force  as  to  involve  the  country  in  civil 
war,  they  will  be  considered  a  public  enemy. ^®  It  is  not  necessary 
for  the  government  to  declare  war  against  those  who  are  in  arms 
against  it  to  make  them  a  public  enemy ;  but  if  the  condition  of 
affairs  is  such  as  to  place  the  country  in  an  actual  state  of  war, 
such  insurgents  then  will  be  nothing  less  than  an  enemy  to  the 
public.  One  of  the  great  reasons  why  all  corporations  exercising 
public  functions  are  relieved  from  losses  caused  by  the  public  ene- 
my is  that  the  public  has  failed  to  discharge  its  part  of  the  agree- 
ment— under  which  these  business  enterprises  assumed  public  du- 
ties— in  protecting  them  in  their  inheritable  rights  and  guarantee- 
ing them  a  free  exercise  of  their  business,  unmolested  by  any  act 
which  should  be  protected  by  the  g-overnment.  As  the  government 
has  failed  to  carry  out  its  part  of  the  agreement,  the  other  con- 
tracting party,  as  in  all  contracts,  cannot  be  forced  to  continue 
operating  under  the  same  agreement;  and  any  loss  or  injury  which 
has  been  brought  about  by  the  party  at  fault  cannot  afterwards 
be  taken  advantage  of  by  this  party  or  any  of  his  agencies.  It  is 
the  duty  of  telegraph  and  telephone  companies,  however,  when  their 
business  is  being  interfered  with  by  the  public  enemy,  to  use  due 
care  and  diligence  to  prevent  any  loss  which  might  likely  be  caused 
by  the  latter;  and  so,  where  they  are  derelict  in  this  respect,  or 
where  their  own  negligent  acts  have  intervened  and  contributed  to 
the  production  of  the  loss,  they  will  not  be  exonerated  for  such 
acts,  since  their  negligence  will  be  deemed  the  proximate  cause  of 
the  loss.  They  can  never  be  relieved  from  liability  for  the  acts  of 
the  public  enemy  until  such  fact  is  proven  affirmatively  by  them 
to  be  the  proximate  cause  of  the  loss.^"  Not  only  is  the  burden 
of  proof  cast  upon  these  companies,  but  they  must  further  show 
by  competent  and  sufficient  evidence  that  the  loss  was  not  the  re- 

20  Nashville,  etc.,  R.  Co.  v.  Estes,  10  Lea  (Tenn.)  740;  MeCranie  v.  Wood,  24 
La.  Ann.  406;  HoUaday  v.  Kennard,  12  Wall.  254,  30  L.  Ed.  300;  Southern, 
etc.,  Co.  V.  Womack,  1  Heisk.  (Tenn.)  256 ;  United  States  v.  Palmer,  3  Wheat. 
CIO,  4  L.  Ed.  471. 

30  Holladay  v.  Kennard,  12  Wall.  254,  30  L.  Ed.  390. 


§    362)  DUTIES  UNDER  COMMON  LAW  487 

suit  of  any  negligence  or  want  of  care  on  their  part.  It  may  seem 
strange,  from  what  has  been  said  with  respect  to  the  government 
failing  to  perform  its  part  of  the  contract  in  protecting  these  com- 
panies in  their  business,  that  there  should  be  any  duty  on  the  part 
of  the  latter  to  exercise  care  in  attempting  to  avoid  losses  arising 
from  acts  of  the  public  enemy.  But  it  must  be  understood  that, 
while  these  companies  stand  in  a  most  peculiar  relation  toward  the 
government,  in  that  they  do  not  have,  strictly  speaking,  the  same 
senses  which  a  real  human  possesses,  and  that  their  privileges,  du- 
ties and  exemptions  are  different,  in  some  respects,  to  a  private 
citizen,  yet  they  are  considered,  under  the  rules  of  law,  to  be 
classed  and  comprehended  under  the  term  "citizen."  It  is  the  duty 
of  every  citizen — whether  he  be  but  a  common  layman,  toiling 
through  the  chilly  climes  of  the  North,  or  the  sultry  suns  of  the 
South,  in  the  faithful  performance  of  his  manual  services,  or  wheth- 
er he  be  a  bonded  officer  in  the  discharge  of  his  official  duties — - 
to  protect  the  government  in  its  laws  and  in  its  property.  To  this 
extent,  as  all  other  citizens,  these  companies  must  extend  a  willing 
hand.  And  whenever  it  is  possible  for  them,  by  exercising  due  and 
reasonable  care,  to  protect  any  property  of  the  government,  or  any 
citizen  thereof,  from  the  depredation  or  destruction  of  the  public 
enemy,  it  most  assuredly  is  part  of  their  duty  to  do  so. 

§  362.  Same  continued — mobs,  strikes,  etc. — Under  the  ancient 
rule,  carriers  were  not  exonerated  for  losses  caused  by  the  acts  of 
mobs,  or  other  riotous  persons ;  but  the  stringency  of  this  rule  has 
been  somewhat  relaxed  by  the  more  modern  authorities.^^  They 
are  still  held  liable  for  all  losses  caused  by  such  acts,  but  are  not 
liable  for  loss  in  the  transportation  of  goods  by  any  delay  caused 
thereby.  There  is  a  difference,  however,  in  the  application  of  this 
rule  to  carriers  and  to  telegraph  and  telephone  companies. ^^  As  a 
general  rule,  the  latter  companies  are  not  liable  for  losses  arising 
from  acts  of  mobs  and  other  riotous  persons. ^^  The  acts  of  the 
mob  stand,  with  respect  to  these  companies,  in  almost  the  same 
category  as  those  of  the  public  enemy. ^^  The  different  means 
and  instrumentalities  through  which  they  accomplish  their  respec- 
tive corporate  purposes  bring  about  the  difference  in  the  applica- 
tion of  this  rule.'^  It  is  never  presumed  that  mobs  intend  to  take 
possession  of  goods  and  convert  them  to  their  own  use :    and,  the 

31  See  monographic  headnote,  97  Am.  St.  Rep.  52G. 

3  2  Sullivan  v.  West.  U.  Tel.  Co.,  82  S.  C.  5G9,  64  S.  E.  752,  129  Am.  St.  Rep. 
903,  22  L.  R.  A.  (N.  S.)  3214,  17  Ann.  Cas.  23S,  quoting  author. 

3  3  1(1.  84  Id.  8  5  la. 


488  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  363 

tangible  property  to  such  being  in  the  custody  of  the  carriers,  they 
are  more  able  to  protect  and  deliver  them  safely  to  the  consignee ; 
and,  as  has  been  said,  they  are  not  liable  for  losses  caused  by  such 
delay.^^  On  the  other  hand,  the  main  and  principal  object  of  mobs 
and  other  riotous  persons  who  interfere  with  the  business  of  tele- 
graph companies  is  to  prevent  and  obstruct  the  transmission  of 
news ;  especially  until  they  shall  have  accomplished  some  particu- 
lar purpose.^''  As  has  been  said,  they  are  never  held  liable  as  in- 
surers,^® unless  an  express  agreement  has  been  entered  into  to  that 
effect.^®  And  for  the  reason  that  they  are  not  in  possession  of 
the  tangible  property  of  the  message  in  transit,  they  do  not  have 
the  same  opportunity  to  protect  it  as  the  carrier  has  his  goods.*" 
It  is  the  duty,  however,  of  these  companies,  where  they  have  been 
thus  interfered  with,  to  make  a  reasonable  effort  to  transmit  the 
telegram  by  other  lines  or  by  other  means  ;*^  and  on  a  failure  to 
do  so,  they  will  be  held  liable  for  all  losses  suffered.*^ 

§  363.  Same  continued — strikes,  not  liable — must  supply  places. 
The  same  rule  applies  where  the  mob  is  composed  of  employes  of 
the  company  who  are  on  a  strike.*-''  One  of  the  most  puzzling 
questions  which  confront  these  large  corporations  and  other  pub- 
lic institutions  in  this  day  and  time  is.  How  they  may  be  able 
to  manage  and  control  their  employes  to  their  best  interest,  and 
at  the  same  time  faithfully  discharge  the  duties  they  owe  to  the 
public?  The  term  "strike"  is  applied  commonly  to  a  combined  ef- 
fort on  the  part  of  a  body  of  workmen  employed  by  the  same  mas- 
ter to  enforce  a  demand  for  higher  wages,  shorter  hours,  or  some 
other  concession,  by  stopping  work  in  a  body  at  a  prearranged 
time,  and  refusing  themselves  to  resume  work,  or  often  allowing 
others  to  tender  their  services  to  assist  in  carrying  on  such  work, 
until  the  demanded  concession  shall  have  been  granted.**  There 
is  a  distinction  to  be  drawn  between  the  liabilities  of  common  car- 

3  6  Id.  3  7  Id.  3  8  See  §  19Sb. 

3  9  See  §  358. 

4  0  Sullivan  v.  West.  U.  Tel.  Co.,  82  S.  C.  569,  64  S.  E.  752,  129  Am.  St.  Rep. 
903,  22  L.  R.  A.  (N.  S.)  1214,  17  Ann.  Cas.  238,  quoting  author;  Halsted  v. 
Postal  Tel.  Cable  Co.,  193  N.  Y.  293,  So  N.  E.  1078,  19  L.  R.  A.  (N.  S.)  1021, 
127  Am.  St.  Rep.  952. 

41  Sullivan  v.  West.  U.  Tel.  Co.,  82  S.  C.  5G9,  64  S.  E.  752,  129  Am.  St.  Rep. 
903,  22  L.  R.  A.  (N.  S.)  1214,  17  Ann.  Cas.  238,  quoting  author. 

4  2  Id. 

4  3  Id.  See  West.  U.  Tel,  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132 
Am.  St.  Rep.  46. 

4  4  Anderson's  L.  Diet.;  Black's  L.  Diet.;  Bouvier's  L.  Diet;  Delaware,  etc., 
R.  Co.  V.  Bowns,  58  X.  Y.  582.  See  Kemp  v.  Div.  No.  241,  etc.,  255  111.  213,  99 
N.  E.  389.  Ann.  Cas.  1913D,  347. 


§    363)  DUTIES   UNDER   COMMON   LAW  489 

riers  and  telegraph  companies  for  the  acts  of  their  respective  em- 
ployes whose  object  is  to  accomplish  some  of  the  above-mentioned 
concessions.  Common  carriers,  being  insurers,  are  liable  for  all 
losses  caused  by  the  acts  of  their  employes  while  on  a  strike ; 
provided  the  same  has  not  become  such  as  would  be  considered  a 
crime  or  an  unlawful  act  of  the  employes.  For  a  loss  resulting 
solely  from  lawless  violence  of  men  not  in  the  employment  of  the 
company,  the  latter  will  not  be  responsible,  even  though  the  men, 
whose  violence  caused  the  loss,  had  but  a  short  time  before  been 
employed  by  the  company.*^  If  they  have  employed  other  com- 
petent men  within  a  reasonable  titne  to  supply  the  places  of  the 
striking  employes,  but  these  have  been  prevented  from  accepting 
employment  by  the  violent  acts  of  the  latter,  they  will  not  be  liable 
for  any  loss  resulting  thereby.**'  Telegraph  companies  are  not 
insurers  and  are  not,  therefore,  liable  for  losses  caused  by  the  acts 
of  their  employes  while  on  a  strike.*^  If,  however,  the  strike  has 
been  caused  by  any  fault  of  the  company,  in  unreasonably  reduc- 
ing the  wages  of  the  employes,  or  increasing  the  time  of  service 
unreasonably  long,  or  in  otherwise  refusing  to  grant  reasonable 
concessions  to  them,  it  will  be  liable.  Telegraph  and  telephone 
companies  must  exercise  reasonable  diligence  in  making  an  efifort 
to  supply  the  places  of  the  employes  with  competent  men ;  and  on 
a  failure  so  to  do,  they  will  be  liable  for  all  losses  resulting  there- 
from. If  the  strike  is  among  the  employes  discharging  a  certain 
particular  line  of  business,  and  the  same  can  be  performed  by  those 
who  have  not  made  a  strike,  it  is  the  duty  of  the  company  to  see 
that  the  latter  discharge  this  duty."*^ 

4  5  Pittsburgh,  etc.,  R.  Co.  v.  Hazen,  84  111.  36,  25  Am.  Rep.  422, 

*'6  Pittsburgh,  etc.,  R.  Co.  v.  Hazen,  84  111.  36,  25  Am.  Rep.  422.  See  Few- 
ings  V.  Meudenhall,  88  Minn.  336,  93  N.  W.  127,  60  L.  R.  A.  601,  97  Am.  St. 
Rep.  519,  and  note  to  the  latter  report. 

4  7  Sullivan  v.  West.  U.  Tel.  Co.,  82  S.  C.  569,  64  S.  E.  752,  129  Am.  St.  Rep. 
903,  22  L.  R.  A.  (N.  S.)  1214,  17  Ann.  Cas.  238,  quoting  author. 

Strikes  as  an  excuse  for  delay  in  transmitting  messages. — See  Telegraph 
Co.  V.  Miller,  97  Miss.  225,  52  South.  701 ;  Telephone  Company  v.  Guiun  (Tex. 
Civ.  App.)  130  S.  W.  616 ;  Telephone  Co.  v.  Ivy,  177  Fed.  63,  100  C.  C.  A.  481. 
See  note  197  Am.  St.  Rep.  519. 

4  8  However,  in  ^Marvin  v.  West.  U.  Tel.  Co.,  15  Chi.  Leg.  N.  410,  it  appeared 
that  on  account  of  a  strike  of  its  operators  and  linemen,  which  caused  a  short 
and  insufficient  force  in  the  number  of  its  operators  and  employes,  the  com- 
pany refused  to  accept  a  message  for  transmission  unless  the  sender  would 
agree  in  writing  that  it  be  stamped  and  "accepted  subject  to  delay."  He  re- 
fused to  allow  the  message  to  be  so  stamped,  and  sued  the  company  for  the 
statutory  penalty  for  not  receiving  and  transmitting  the  message.  The  court, 
holding  the  company  liable,  said:  "The  uses  and  benefits  of  the  franchises 
conferred  by  the  laws  of  the  state  are  immeasurably  of  interest  to  the  public 
as  well  as  for  the  corporation ;  and  the  corporation  is  held  in  its  duty  to  the 


490  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  364 

§  364.  Same  continued — in  cases  of  express  contracts. — Where 
a  telegraph  company  makes  an  express  contract  with  the  sender, 
wherein  it  undertakes  without  limitation  or  qualification  to  safely 
transmit  and  deliver  a  message  within  a  time  definitely  fixed  by 
contract,  the  fact  that  a  mob,  or  the  employes  while  on  a  strike, 
prevents  the  company  from  performing  the  contract,  will  not  re- 
lieve it  from  liability  for  a  loss  suffered  during  the  transmission 
of  the  message.*"  It  is  necessary  in  these  contracts,  as  in  those 
expressly  made,  wherein  these  companies  enlarge  their  common- 
law  liability  with  respect  to  losses  caused  by  the  act  of  God  or 
the  public  enemy,  that  the  extra  risk  or  hazard  assumed  must  be 
very  explicitly  given ;  for  if  there  is  any  doubt  or  ambiguity  on  the 
face  of  the  contract,  it  will  be  construed  most  forcibly  in  favor 
of  the  company. ^°  So  it  will  be  very  clearly  seen  that  there  is  a 
marked  distinction  between  cases  where  there  is  no  express  con- 
tract to  transmit  and  deliver  within  a  limited  time  and  cases  where 
there  is  such  an  express  contract.  An  express  contract  binding 
a  telegraph  company  to  transmit  a  message  irrespective  of  its  being 
interfered  with  by  the  act  of  God  will  not  necessarily  bind  the  com- 
pany for  losses  caused  by  the  acts  of  a  strike. 

§  365.  Connecting  lines. — As  has  been  seen,  a  telegraph  com- 
pany may  enter  into  an  express  contract  to  transmit  and  deliver 
safely  certain  messages  intrusted  to  it,  irrespective  of  the  liabilities 
from  which  it  may  have  been  relieved  under  the  common  law.^^  In 
other  words,  it  may  make  an  express  contract  to  transmit  a  message 
correctly  or  be  liable  for  any  losses  incurred  by  a  failure  to  do  so, 
although  such  loss  may  be  the  result  of  an  act  of  God  or  the  public 
enemy,  or  acts  of  mobs  or  strikes.  But  where  such  contract  is  en- 
sender,  and  the  sender  is  entitled,  on  tlie  presentation  of  liis  message,  and  the 
payment  to  the  corporation  of  the  compensation  established  by  it  for  its  trans- 
mission, to  have  the  same  transmitted  through  its  electric  wires  within  a  rea- 
sonable time  for  electric  transmission,  and  the  company  is  bound  to  furnish 
all  necessary  facilities  for  such  transmission,  and  any  difference  which  may 
arise  between  the  company  and  its  employes  in  respect  to  their  employment 
is  a  subject  with  which  the  sender  has  nothing  to  do.  It  is  a  public  franchise, 
granted  to  the  company  for  the  purpose  of  providing  a  mode  of  rapid  trans- 
mission of  messages  for  the  public  and  presumably  (the  company)  engages  on 
its  part  to  use  it  in  such  manner  as  will  accomplish  the  object  for  which  the 
legislature  designed  it.  On  assuming  the  duty  of  functions  of  a  corporate 
body  under  state  authority,  for  the  transaction  of  business  for  the  public,  the 
corporation  is  bound  to  supply  all  the  necessary  facilities,  either  in  material 
or  labor,  to  transact  the  business  which,  by  the  terms  of  its  incorporation,  it 
vindertakes." 
4  0  See  §  358. 

60  See  §  358. 

61  Smith  V.  West.  U.  Tel.  Co.,  84  Tex.  359,  ]9  S.  W.  441,  31  Am.  St.  Rep.  59; 
Leonard  v.  N.  Y.,  etc.,  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446. 


§    366)  DUTIES  UNDER  COMMON  LAW  491 

tered  into  between  the  sender  and  a  telegraph  company,  it  will 
not  bind  a  connecting-  company  over  whose  lines  it  is  necessary  to 
transmit  the  message,  even  though  it  is  the  custom  to  transmit 
messages  over  these  connecting  lines. ^^  If,  however,  there  is  an 
express  agreement  with  the  connecting  company  to  assume  all  risk 
or  undertaking  of  the  initial  lines,"  or  if  they  are  carrying  on  a 
partnership  business,^*  or  if  they  are  leased  ^^  or  owned  by  the 
initial  company,  they  will  be  bound  by  the  contracts  of  the  former. 
It  seems  that  where  they  are  bound  only  by  an  express  agreement, 
this  should  be  conditional  on  the  connecting  company  accepting 
the  message. ^^  As  was  said,  the  companies  could,  under  certain 
circumstances,  refuse  to  enter  into  a  contract  to  this  effect,"  and 
the  same  right  should  be  extended  to  a  connecting  company;  be- 
cause the  conditions  there  stated,  which  would  give  the  initial  com- 
pany the  right  to  refuse  to  enter  into  a  contract  of  this  nature, 
might  not  exist  with  respect  to  this  company  at  the  time  the  mes- 
sage was  tendered  to  it,  but  would  with  the  connecting  line.  Of 
course  the  initial  company  would,  nevertheless,  be  liable.  Where 
there  is  such  an  extraordinary  risk  assumed,  and  it  is  necessary  for 
the  message  to  be  transmitted  over  connecting  lines  to  reach  the 
destination,  the  initial  company  should  ascertain  as  to  whether  the 
connecting  company  would  accept  the  message,  before  the  former 
accepts  it.  When  this  is  done,  and  all  the  connecting  lines  agree 
to  accept  the  message,  under  the  contract  of  the  initial  company, 
they  will  then  be  liable. °^ 

§  366.  Negligence  of  the  sender  or  sendee. — Another  ground 
allowed,  under  the  common  law,  for  relieving  a  telegraph  com- 
pany for  losses  caused  in  a  failure  to  correctly  transmit  and  deliver 
a  message,  is  by  acts  of  either  the  sender  or  sendee. ^'^  There  is  no 
consideration  of  policy  which  demands  that  these  companies  should 
be  held  to  account  for  an  injury  occasioned  by  the  sender  or  sen- 
dee's own  act ;  and  it  is  immaterial  whether  or  not  such  act  of  either 
of  these  parties,  causing  the  loss,  amounts  to  negligence.^"  Thus, 
if  the  sender  fails  to  address  the  message  correctly, °^  or  where  he 

5  2  Smith  V.  West.  U.  Tel.  Co.,  84  Tex.  359,  31  Am.  St.  Rep.  59,  19  S.  W.  441. 

6  3  See  §  447  et  seq. 
5 -t  See  §  459  et  seq. 
5  5  See  §  447  et  seq. 
5  0  See  §  457. 

5  7  See  §  358. 
5  8  See  §  457. 
5  9  See  §  276  et  seq.    See,  also,  §  324  et  seq. 

60  See  Hart  v.  Chicago,  etc.,  R.  Co.,  69  Iowa,  485,  29  N.  W.  597;  Choate  v. 
Crowninshield,  3  Cliff.  1S4,  Fed.  Cas.  No.  2,691. 

61  See  §§  309,  325,  326. 


492  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  366 

fails  to  make  prepayment  of  charges  on  demand,''^  or  where  the 
operator,  who  is  the  sender,  fails  to  correctly  transmit  and  loss  is 
incurred,"^  the  company  will  not  be  liable.  When  the  addressee 
misconstrues  an  ambiguous  telegram,^*  or  when  he  refuses  to  pay 
the  extra  charges  for  delivery  beyond  the  free  delivery  limit,^^  his 
acts  will  relieve  the  company  for  any  loss  caused  thereby. 

6  2  See  §  279. 
6  3  See  §  327. 
6  4  See  §§  38.3,  334. 
65  See  §§  348,  344. 


COMMON-LAW  LIABILITIES  493 

CHAPTER  XVI 

COMMON-LAW  LIABILITIES 

367.  Stipulation  in  contract  of  sending — in  general. 

368.  Negligence — cannot  contract  against — in  most  states. 

369.  Applicable  to  statutory  penalty. 

370.  May  contract  against  negligence  in  some  states. 

371.  Prohibited  by  statutes  in  some  states. 

372.  Gross  negligence. 

373.  Gross  negligence — what  constitutes. 

374.  Ignorance  of  operator  of  the  locality  of  the  place. 

375.  Conflict  of  laws. 

376.  Stipulation  for  repeating  messages. 

377.  Same  continued — validity  of  such  a  stipulation. 

378.  Same  continued — further  reasons  for  their  own  protection. 

379.  Same  continued — extra  charge — no  increase  of  duty. 

380.  Same  continued — delay  in  delivery — nondelivery. 

381.  Same  continued — not  a  contract— compared  to  a  bill  of  lading, 

382.  Same  continued — contract — no  consideration. 

383.  Same  continued — duress. 

384.  When  requested  to  be  repeated — question  of  fact. 
38.5.  Same  continued — binding  on  sender  only. 

386.  Times  within  which  claims  are  to  be  presented. 

387.  Same  continued — reasons  for  rule. 

388.  Same  continued — statutory  penalty — applicable. 

389.  Same  continued — not  to  be  prosecuted  by  the  public. 

390.  Stipulation  held  void  as  against  public  policy. 

391.  When  limitation  begins  to  run. 

392.  Same  continued — delay  in  receiving  messages — does  not  modify  stipu- 

lation. 

393.  Same  continued — unaware  of  wrong — not  binding. 

394.  Compliance  with  stipulation — what  constitutes. 

395.  Same  continued — waiver  of  written  claims. 

396.  Same  continued — nature  of  the  claim. 

397.  Must  be  presented  to  proper  officer. 

398.  Commencement  of  suit — whether  sufHcient  notice. 

399.  Contrary  holding — better  view. 

400.  Limiting  liability  to  specific  amount. 

401.  Same  continued — nature  of — liquidated  damages. 

402.  Same  continued — insured — same  rule. 

403.  Night  messages — time  to  be  delivered. 

404.  Unavoidable  interruption — special  contract. 

405.  Over  connecting  lines — stipulation^exemptions. 

406.  Stipulation  against  cipher  messages — valid. 

407.  Same  continued — contrary  view. 

408.  Where  and  when  messages  accepted. 

409.  Delivery  to  messenger — valid. 

410.  Waiver  of  stipulation  limiting  company's  liability, 


494  TELEGRAPH   AND   TELEPHONE   COMPANIES  (§    367 

§  411.  Burden  of  proof. 

412.  Proof  of  assent  to  stipulation. 

413.  Contrary  holding. 

414.  Special  contracts — not  applicable. 

415.  Small  type — not  fraud. 

416.  Assent  of  addressee. 

417.  Same  continued — illustrations. 

418.  Same  continued — actions  in  tort. 

419.  The  correct  view  as  considered. 

420.  Assent — proof  of — what  amounts  to. 

421.  Stipulation  posted  in  company's  office — not  binding. 

422.  Messages  written  on  blanks  of  another  companj' — binding. 

423.  Same  continued — knowledge  of  company's  stipulations. 

424.  Messages  delivered  to  company  by  telephone  or  verbally. 

425.  Principal  bound  by  the  knowledge  of  the  agent. 

§  367.  Stipulation  in  contract  of  sending — in  general. — Tele- 
grams are  invariably  written  on  blanks  furnished  by  telegraph  com- 
panies, on  the  backs  of  which  are  generally  found  stipulations  ex- 
empting them  from  certain  liabilities,  and  which  are  apparently 
agreed  to  by  the  sender  when  he  attaches  his  signature  thereto.  The 
question  with  which  the  courts  have  been  and  are  still  confronted  is 
whether  such  contracts  or  stipulations  are  binding,  either  on  the 
sender^  or  on  the  addressee,-  or  on  both?  The  courts  are  not  in 
harmony  on  this  subject.  Some  hold  that  some  of  these  stipula- 
tions are  reasonable  and  binding  "  and  others  hold  that  none  of  them 
can  be  enforced ;  *  still  others  hold  that  all  of  them  are  binding 
where  they  are  not  in  conflict  with  any  statute  or  against  public 
policy.^  Many  states  have  adopted  statutes  which  provide  that 
telegraph  companies  may  adopt  and  enforce  reasonable  rules  and 
regulations  for  the  purpose  of  carrying  on  their  business,  and 
thereby  relieve  themselves  from  some  of  their  common-law  liabili- 
ties ;  ^  and  where  statutes  have  not  been  enacted  to  this  effect,  the 
courts,  in  some  of  those  states,  have  held  that  they  had  the  right, 
without  such  statutes,  to  make  such  rules  and  regulations.  It  is 
held  in  most,  if  not  in  all,  of  the  states  that  the  company  may,  by  a 
special  express  contract,  limit  its  common-law  liability.  There  is, 
however,  some  conflict  among  the  courts  as  to  how  far  they  may  be 
limited  and  what  is  sufficient  to  constitute  a  valid  special  contract. 

1  See  §  385.  2  See  §  416.  s  See  §  376. 

4  West.  U.  Tel.  Co.  v.  Beals,  56  Neb.  415,  76  N.  W.  903,  71  Am.  St,  Rep. 
682 ;  Kemp  v.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep. 
363;  West.  U.  Tel.  Co.  v.  Eubanks.  100  Ky.  591,  38  S.  W.  1068,  66  Am.  St. 
Rep.  361,  36  L.  R.  A.  711.     See  §  407. 

5  See  chapter  XIV. 

8  Examine  the  local  statute. 


§    368)  COMMON-LAW   LIABILITIES  495 

The  various  phases  of  these  stipulations  will  be  considered  in  the 
following  sections. 

§  368.  Negligence — cannot  contract  against — in  most  states. — 
The  general  rule,  supported  by  the  weight  of  authority,  is  that  tele- 
graph, telephone  or  electric  companies  cannot  by  any  kind  of  a 
contract  exempt  themselves  from  losses  caused  by  their  own  negli- 
gence or  that  of  their  servants.''  The  rule  rests  upon  the  considera- 
tion of  public  policy  and  upon  the  fact  that  to  allow  the  companies 

T  Willock  V.  Pennsylvania  R.  Co.,   166  Pa.   184,  30  Atl.  948,  27  L.   R.   A. 
228    45  Am.  St.  Rep.  674;    Thomas  v.  Wabash,  etc.,  R.  Co.    (C.  C.)  6.3  Fed. 
200';    Eells  v.  St.  Louis,  etc.,  R.  Co.    (C.  C.)   52  Fed.  903;    Mobile,  etc.,  R. 
Co.  V.  Hopkins,  41  Ala.  486,  94  Am.   Dec.  607;    Louisville,   etc.,   R.   Co.   v. 
Grant,  99  Ala.  325,  13  South.  599;    Stanard,  etc.,  Co.  v.  White  Line,  etc.,  Co., 
122  Mo.  258,  26  S.  W.  704 ;    Johnson  v.  Alabama,  etc.,  R.  Co.,  69  Miss.  191,  11 
South.  104,  30  Am.  St.  Rep.  5.34 ;    Squire  v.  New  York,  etc.,  R.  Co.,  98  ]\Lass. 
2.39,  93  Am.  Dec.  162;    American  U.  Tel.  Co.  v.  Daughtery,  89  Ala.  191,  7 
South.  660;    Stiles  v.  West.  U.  Tel.  Co.,  2  Ariz.  .308,  15  Pac.  712;    West.  U. 
Tel.  Co.  V.  Short,  53  Ark.  434,  14  S.  W.  &49,  9  L.  R.  A.  744 ;    West.  U.  Tel.  Co. 
V.  Graham,  1  Colo.  2.30,  9  Am.  Rep.  136;    West.   U.  Tel.  Co.  v.  Blanchard, 
68  Ga.  299,  45  Am.  Rep.  480.     Compare  West.  U.  Tel.  Co.  v.  Fontaine,   58 
Ga.  4.33;    Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38;    West.  U. 
Tel.  Co.  V.  Tyler,  74  111.  168,  24  Am.  Rep.  279;    West.  U.  Tel.  Co.  v.  Meek, 
49  lud.  53;    West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1;    West.  U.  Tel.  Co.  v. 
Adams,  87  Ind.  598,  44  Am.  Rep.  776;    West.   U.  Tel.  Co.  v.  Meredith,   95 
Ind.  93 :    Central  U.  Tel.  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E.  1035 ; 
Sweatland   v.   Illinois,  etc.,  Tel.  Co.,  27   Iowa,  433,  1  Am.   Rep.   285;     Man- 
ville  V.  West.  U.  Tel.  Co.,  37  Iowa,  214,  IS  Am.  Rep.  8;    Harkness  v.  West 
U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;    Camp  v.  West. 
U.  Tel.  Co.,  1  Mete.  (Ky.)  164,  71  Am.  Dec.  461;    Smith  v.  West.  U.  Te].  Co., 
8:3  Ky.  104,  4  Am.  St.  Rep.  126 ;    La  Grange  v.  Southwestern  Tel.  Co.,  25  La. 
Ann.  383 ;   Bartlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437 ;    Ayer  v. 
West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.   St.  Rep.  3.53;    West.   U. 
Tel.  Co.  V.  Goodbar  (IMiss.)  7  South.  214;    Reed  v.  West.  U.  Tel.  Co.,  135  Mo. 
661,  37  S.  W.  904,  34  L.  R.  A.  492,  58  Am.  St.  Rep.  609,  overruling  Wann  v. 
West.  U.  Tel.  Co.,  37  Mo.  472,  90  Am.  Dec.  .395;    Kemp  v.  West.  U.  Tel.  Co., 
28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep.  363.    Compare  Becker  v.  West.  U. 
Tel.  Co.,  11  Neb.  87,  7  N.  W.  868.  38  Am.  Rep.  356;    Sherrill  v.  West.  U. 
Tel.  Co.,  116  N.  C.  6.55,  21  S.  E.  429;    Brown  v.  Postal  Tel.  Co.,  Ill  N.  C. 
187,  16  S.  E.  179,  17  L.  R.  A.  648,  32  Am.  St.  Rep.  793;    West.  U.  Tel.  Co. 
V.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500;    INIarr  v.  West.  U.  Tel.  Co., 
85  Tenn.  529,  3  S.  W.  496;    Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  .5.54,  11 
S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St.  Rep.  699 ;    West.  U.  Tel.  Co.  v.  Broesche, 
72  Tex.  654,  10  S.  W.  734,  13  Am.  St.  Rep.  843 ;    West.  U.  Tel.  Co.  v.  Neill, 
57  Tex.  283,  44  Am.  Rep.  589 ;    Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11 
S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St.  Rep.  699;    Womack  v.  West.  U.  Tel. 
Co.,  58  Tex.  176.  44  Am.  Rep.  614 ;    Wertz  v.  West.  U.  Tel.  Co.,  7  Utah,  446. 
27  Pac.  172,  13  L.  R.  A.  510,  note;    Gillis  v.  West.  U.  Tel.  Co.,  61  Vt.  461,  17 
Atl.  736,  4  L.  R.  A.  611,  note,  15  Am.  St.  Rep.  917 ;    Candee  v.  West.  U.  Tel. 
Co.,  34  Wis.  471,  17  Am.  Rep.  452;    Thompson  v.  West.  U.  Tel.  Co.,  64  Wis. 
531,  25  N.  W.  789,  54  Am.   St.  Rep.  644;    Bailey  v.  West.  U.  Tel.  Co.,  227 
Pa.  522,  76  Atl.  7.36.  43  L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas.  895;    West.  U.  Tel. 
Co.  V.  Alford,  110  Ark.  379,  161  S.  W.  1027,  50  L.  R.  A.   (N.  S.)  94. 


496  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  369 

to  absolve  themselves  from  the  duty  of  exercising  care  and  fidelity, 
would  be  inconsistent  with  the  very  nature  of  their  undertaking.® 
It  is  the  duty  of  every  citizen,  while  following  his  daily  vocation, 
to  exercise  due  care  and  fidelity  toward  the  rights  of  his  fellow 
man;  and  for  any  negligent  failure  to  do  so,  whereby  the  latter 
suffers  loss,  the  former  will  be  liable.  These  companies  have  as- 
sumed public  functions  and  the  care  and  fidelity  which  they  owe 
the  public  is  even  much  greater  than  those  of  private  citizens.  In 
other  words,  private  citizens  do  not  stand  on  equal  footing  with 
these  companies,  but  the  latter  have  acquired,  in  consideration  of 
public  duties  assumed,  certain  privileges  and  exemptions,  under  the 
articles  of  incorporation,  which  are  not  enjoyed  by  the  public  in 
general ;  ^  therefore  to  permit  them  to  exempt  themselves  from 
liability  caused  by  their  negligence  would,  in  effect,  authorize  them 
to  abandon  the  most  essential  duties  of  their  employment.^" 

§  369.  Applicable  to  statutory  penalty. — The  rule  that  a  tele- 
graph company  cannot  exempt  itself  by  contract  from  losses  caused 
by  its  own  negligence  or  that  of  its  servants  is  applicable  to  statu- 
tory penalties. ^^  Thus,  where  a  company  is  sued  for  negligently 
transmitting  or  delivering  a  message,  under  a  statute  imposing  a 
penalty  on  telegraph  companies  for  failing  to  exercise  reasonable 
care  and  diligence  in  transmitting  or  delivering  messages,  it  will  be 
liable  although  the  message  was  written  on  a  blank  form  of  the 
company,  on  the  back  of  which  was  a  stipulation  purporting  to  be 
a  contract  exempting  the  company  for  any  loss  caused  by  its  neg- 
ligence, provided  the  same  was  not  ordered  to  be  repeated. ^^ 

§  370.  May  contract  against  negligence  in  some  states. — In 
those  states  where  the  lines  are  sharply  drawn  as  to  their  character 
as  common  carrier,^^  and  where  their  business  is  considered  as 

8  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  7.S6,  43  L.  R.  A.  (N.  S.) 
502,  19  Ann.  Cas.  895;  West.  U.  Tel.  Co.  v.  Alford,  110  Ark.  379,  161  S.  W. 
1027,  50  L.  R.  A.  (N.  S.)  94;  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  4S4,  43 
South.  495,  11  L.  R.  A.   (N.  S.)  560,  125  Am.  St.  Rep.  1077. 

Not  necessary  to  use  the  word  "negligence."  Halsted  v.  Postal  Tel.  Cable 
Co.,  193  N.  Y.  293,  85  N.  E.  1078,  127  Am.  St.  Rep.  952,  19  L.  R.  A.  (N.  S.) 
1021;  Moulton  v.  St.  Paul,  etc.,  R.  Co.,  31  Minn.  85,  16  N.  W.  497,  47  Am. 
Rep.   781. 

»  See  chapter  11. 

10  West.  U.  Tel.  Co.  v.  Graham,  1  Colo.  230,  9  Am.  Rep.  140. 

11  See  chapter  XXV. 

12  West.  U.  Tel.  Co.  v.  Adams,  87  Ind.  598,  44  Am.  Rep.  776;  West.  TJ. 
Tel.  Co.  V.  Cobbs,  47  Ark.  334,  1  S.  W.  558.  58  Am.  Rep.  756;  West.  U.  Tel. 
Co.  V.  Buchanan,  35  Ind.  429,  9  Am.  Rep.  744 ;  West.  U.  Tel.  Co.  v.  Young,  93 
Ind.   118. 

13  Where  telegraph  companies  are  declared  by  constitution  or  statute  to 
be  common  carriers:    West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W. 


8    370)  COMMON-LAW  LIABILITIES  497 

purely  of  private  concern,  it  is  held  that  telegraph  companies  may 
limit  their  liability  for  their  own  negligence  or  errors  especially 
when  arising  from  any  cause  except  willful  misconduct  or  gross 
negligence;^*  but  the  weight  of  authority  is  to  the  contrary/^ 
And  in  these  states  it  seems  that  there  is  a  distinction  between 
slight  or  ordinary  negligence  and  such  as  amounts  to  gross  negli- 
gence or  willful  default;  ^^  and  they  hold  that  these  companies  can 
only  contract  against  liabilities  caused  by  slight  or  ordinary  neg- 
ligence "  and  not  such  as  are  caused  by  gross  negligence. ^^  As 
was  said,  '"The  exemption  is  not  extended  to  acts  or  omissions  in- 
volving gross  negligence,  but  is  confined  to  such  as  are  incident  to 
the  service,  and  may  occur  when  there  is  slight  attaching  culpabil- 
ity in  its  officers  and  employes."  ^^  It  has  also  been  held  that  these 
companies  could  contract  against  liabilities  of  inadvertence,  but 
not  against  gross  negligence,  misconduct  or  bad  faith. ^^  The  rule 
in  New  York  seems  to  be  that,  while  a  telegraph  company  cannot 

1068,  18  Ky.  Law  Rep.  90.5,  66  Am.  St.  Rep.  361,  .S6  L.  R.  A.  711;  Black- 
well  Milling,  etc.,  Co.  v.  West.  U.  Tel.  Co.,  17  Okl.  .376,  89  Pac.  23.5,  10  Ann. 
Cas.  855 ;    Postal  Tel.,  etc.,  Co.  v.  Wells,  82  Miss.  733,  35  South.  190. 

lowest.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525;  Birkett  v.  West.  11.  Tel. 
Co.,  103  Mich.  361,  50  Am.  St.  Rep.  374,  61  N.  W.  645,  .33  L.  R.  A.  404 ;  Red- 
path  V.  West.  U.  Tel.  Co.,  112  Mass.  71,  17  Am.  Rep.  69 ;  Wann  v.  West.  U. 
Tel.  Co..  .37  Mo.  472,  90  Am.  Dec.  .395;  U.  S.  Tel.  Co.  v.  Gildersleve,  29  Md. 
232,  96  Am.  Dec.  519 ;  Hart  v.  West.  U.  Tel.  Co.,  66  Cal.  579,  6  Pac.  637,  56 
Am.  Rep.  119.  This  question,  with  full  citation  of  the  earlier  cases,  is  fully 
and  learnedly  considered  in  a  note  of  71  Am.  Dec.  463,  466,  467,  etc. ;  West. 
U.  Tel.  Co.  V.  Stevenson.  128  Pa.  442,  15  Am.  St.  Rep.  687,  18  Atl.  441,  5  L. 
R.  A.  515 ;  Pearsall  v.  W>st.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am. 
St.  Rep.  662. 

15  See  §   390. 

16  See  §§  372,  373. 

17  Illinois  Central  R.  Co.  v.  Morrison,  19  111.  1.36;  Wabash,  etc.,  R.  Co.  v. 
Brown.  1-52  111.  484,  39  N.  E.  273. 

18  Mowry  v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  Y.  Supp.  666;  Postal  Tel. 
Cable  Co.  v.  Nichols,  1.59  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870 ; 
U.  S.  Tel.  Co.  V.  Gildersleve,  29  Md.  2.32,  96  Am.  Dec.  519;  Fleischner  v. 
Pacific  Postal  Tel.  Cable  Co.  (C.  C.)  55  Fed.  7.38;  White  v.  West.  U.  Tel. 
Co.  (C.  C.)  14  Fed.  710 ;  Construction  Co.  v.  Tel.  Co.,  103  Cal.  298,  125  Pac. 
242.  See,  also,  Halsted  v.  Postal  Tel.  Cable  Co.,  193  N.  Y.  293,  85  N.  E. 
1078,  127  Am.  St.  Rep.  9.52,  19  L.  R.  A.   (N.  S.)  1021. 

loLassiter  v.  West.  U.  Tel.  Co.,  89  N.  C.  ,336;  Becker  v.  West.  U.  Tel. 
Co.,  11  Neb.  87,  7  N.  W.  868,  38  Am.  Rep.  356;  Grinnell  v.  West.  U.  Tel.  Co., 
113  IMass.  299,  18  Am.  Rep.  4S5 ;  Redpath  v.  West.  U.  Tel.  Co.,  112  Mass. 
71,  17  Am.  Rep.  69. 

20  Wann  v.  West.  U.  Tel.  Co.,  37  Mo.  472,  90  Am.  Dec.  395;  U.  S.  Tel.  Co. 
v.  Gildersleve,  29  Md.  232.  96  Am.  Dec.  519;  Hart  v.  West.  U.  Tel.  Co.,  60 
Cal.  .579,  6  Pac.  637.  56  Am.  Rep.  119;  White  v.  West.  U.  Tel.  Co.  (C.  C.) 
14  Fed.  710.  5  McCraiT,  103 ;  MacAndrew  v.  Electric  Tel.  Co.,  17  C.  B.  3,  84 
E.  C.  L.  3. 


fa 


Jones  Tel.(2d  Ed.)— 32 


498  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  371 

contract  against  its  own  negligence,  yet  it  may  against  the  negli- 
gence of  its  servants  in  any  degree.^^  And  it  seems  to  be  the  hold- 
ing in  other  states  that  they  can  relieve  themselves  from  liability 
for  negligence  where  the  services  are  done  gratuitously.^^  In  those 
states  which  hold  that  these  companies  may  contract  against  lia- 
bilities for  negligence,  the  contract  under  which  they  claim  the 
exemption  must  be  clear  and  free  from  doubt,  for  the  exemption 
will  not  be  granted  where  the  language  of  the  contract  is  ambigu- 
ous.^^ 

§  371.  Prohibited  by  statutes  in  some  states. — In  some  states 
in  which  it  may  have  formerly  been  the  rule  that  telegraph  com- 
panies could  contract  against  their  own  negligence,  to  some  extent 
at  least,  the  same  has  been  changed  either  by  statute  or  later  de- 
cisions. Thus  the  rule  in  Nebraska  has  been  established  by  a  stat- 
ute which  eliminates  considerations  of  degree  of  negligence  in  this 
connection.-*  In  Georgia  it  was  intimated  in  one  case  that  these 
companies  might  restrict  their  liability  except  for  gross  negli- 
gence,^^ but  in  a  later  case  the  rule  was  announced  that  they  could 
not  contract  against  their  negligence  in  any  degree. -**  In  Texas  it 
was  held  that  the  stipulations  of  these  companies  will  not  extend  to 
injuries  caused  by  the  "misconduct,  fraud  or  want  of  due  care  on 

21  ISIynard  v.  Syracuse,  etc.,  R.  Co.,  71  N.  Y.  ISO,  27  Am.  Rep.  28;  Nicholas 
V.  New  York,  etc.,  R.  Co.,  89  N.  Y.  370;  Smith  v.  New  York,  etc.,  R.  Co., 
24  N.  Y.  222 ;    Cragin  v.  New  York,  etc.,  R.  Co.,  51  N.  Y.  61,  10  Am.  Rep.  559. 

2  2  Griswold  v.  New  York,  etc.,  R.  Co.,  53  Conn.  371,  4  Atl.  261,  55  Am.  Rep. 
115;  Higgins  v.  New  Orleans,  etc.,  R.  Co.,  28  La.  Ann.  133;  Quimby  v. 
Boston,  etc.,  R.  Co.,  150  Mass.  365,  23  N.  E.  205,  5  L.  R.  A.  846 ;  Kinney  v. 
Central  R.  Co.,  32  N.  J.  Law,  407,  90  Am.  Dec.  675;  Id.,  34  N.  J.  Law,  513,  3 
Am.  Rep.  265 ;  Annas  v.  Milwaukee,  etc.,  R.  Co.,  67  Wis.  46,  30  N.  W.  282,  58 
Am.  Rep.  848. 

2  3Lassiter  v.  West.  U.  Tel.  Co.,  89  N.  C.  336;  Pegram  v.  West.  U.  Tel. 
Co.,  97  N.  C.  57,  2  S.  E.  256;  Becker  v.  West.  U.  Tel.  Co.,  11  Neb.  87,  7 
N.  W.  868,  38  Am.  Rep.  356 ;  Grinnell  v.  West.  U.  Tel.  Co.,  113  Mass.  299.  18 
Am.  Rep.  485;  Redpath  v.  West.  U.  Tel.  Co.,  112  Mass.  71,  17  Am.  Rep.  69; 
Mynard  v.  Syracuse,  etc.,  R.  Co.,  71  N.  Y.  ISO,  27  Am.  Rep.  28.  They  should 
be  strictly  construed,  Fleischner  v.  Pacific  Postal  Cable  Co.  (C.  C.)  55  Fed. 
738;  and  include  only  exemptions  mentioned,  Baldwin  v.  U.  S.  Tel.  Co.,  54 
Barb.  (N.  Y.)  505.  reversed  on  other  grounds  in  45  N.  Y.  744,  6  Am.  Rep. 
165;  Sprague  v.  West.  U.  Tel.  Co.,  6  Daly  (N.  Y.)  200,  affirmed  in  67  N.  Y. 
590;  Bryant  v.  American  Tel.  Co.,  1  Daly  (N.  Y.)  575;  Beatty  Lumber  Co. 
V.  West.  U.  Tel.  Co.,  52  W.  Va.  410,  44  S.  E.  309. 

2  4  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep. 
363. 

2  5  West.  U.  Tel.   Co.  v.  Fontaine,  58  Ga.  433. 

2  6  West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299.  45  Am.  Rep.  480.  See,  also, 
West.  U.  Tel.  Co.  v.  Goodbar  (Miss.)  7  South.  214. 


S    372)  COMMON-LAW   LIABILITIES  499 

the  part  of  company,  its  servants  or  agents."  ^^  It  is  held,  however, 
that  this  statute  does  not  extend  to  interstate  messages.-^''  Stat- 
utes similar  to  these  have  been  passed  in  other  states,  and  in  one 
of  these,  at  least,  it  was  held  that  such  a  statute  was  not  repugnant 
to  the  federal  constitution  as  a  regulation  of  commerce.^'' 

§  372.  Gross  negligence.— As  has  been  seen,  there  seems  to  be 
a  holding  among  some  of  the  courts  that  there  are  different  de- 
grees of  negligence,  or  that  there  is  a  difference  between  negligence 
and  gross  negligence,  but  the  weight  of  authority  is  that  there  are 
no  degrees  of  negligence  ;  and  yet  what  the  term  "gross  negligence" 
means  is  not  to  be  easily  ascertained.  There  is  authority  for  hold- 
ing it  to  be  equivalent  to  fraud  or  intentional  wrong.^<*  But  a  ma- 
jority of  the  cases  seem  to  hold  it  to  be  a  failure  to  exercise  ordi- 
nary care.  It  was  said  by  Baron  Rolfe  that  he  could  "see  no  differ- 
ence between  gross  negligence  and  negligence;  that  it  was  the 
same  thing  with  vituperative  epithet."  ^i  There  is  really  no  intelli- 
gible distinction  existing  between  the  two  words,^^  but  if  the  act  of 
the  company  should  extend  to  what  might  be  considered  a  willful 
or  intentional  wrong — if  this  is  meant  to  be  gross  negligence — there 
is  a  distinction.  Telegraph  companies  which  hold  themselves  out 
to  the  public  must  exercise  the  same  diligence  and  care  that  any 
prudent  and  careful  person  would  do  under  similar  circumstances,^^^ 
and  whenever  they  attempt  to  shield  themselves  from  performing 
such  duties  by  claiming  an  exemption  therefrom  by  any  contract  or 
regulation  entered  into  by  them  with  their  patrons,  they  then  step 
beyond  the  bounds  of  right,  justice  and  good  conscience.^*  When 
they  fail  to  discharge  their  duty  it  is  negligence,  whether  it  be 
simply  ordinary  or  gross  negligence.^"* 

27  West.  U.  Tel.  Co.  v.  Neill,  57  Tex.  283,  44  Am.  Rep.  5S9 :  Wouiack  v. 
West.  U.  Tel.  Co.,  58  Tex.  176,  44  Am.  Rep.  614. 

2  8  Missouri  Pac.  R.  Co.  v.  Sherwood,  84  Tex.  125,  19  S.  W.  455,  17  L.  R.  A. 
643;  Missouri  Pac.  R.  Co.  v.  International,  etc.,  Co.,  84  Tex.  149,  19  S. 
W.  459. 

2  9  Hart  V.  Chicago,  etc.,  R.  Co.,  69  Iowa,  485,  29  N.  W.  597, 

3  0  Jones  on  Bailees,  8-46  et  seq. 
31  Wilson  V.  Brett,  11  M.  &  W.  113. 

32Hinton  v.  Dibbon,  2  Ad.  &  El.  (N.  S.)  646;  Austin  v.  Manchester  R. 
Co.,  11  Eng.  L.  &  Eq.  573. 

33  See  §  285 ;  Strong  v.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  30 
L.  R.  A.  (N.  S.)  409,  Ann.  Cas.  1912A,  .55. 

34  Strong  V.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  30  L.  R.  A. 
(N.  S.)  409,  Ann.  Cas.  1912A,  55. 

35  Gillis  V.  West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  736,  4  L.  R.  A.  611,  15 
Am.  St.  Rep.  917;  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C  358;  Beal  v.  South 
Devon  Co.,  3  H.  &  C.  337. 


.500  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  373 

§  373.  Gross  negligence — what  constitutes. — In  those  states 
where  it  is  claimed  that  there  is  a  distinction  between  negligence 
and  gross  negligence  it  seems  that  it  is  rather  difficult  for  the 
courts  therein  to  determine  what  facts  are  necessary  to  constitute 
gross  negligence.  It  has  been  held  by  some  authorities  that,  where 
a  message  is  improperly  transmitted,  this  is  sufficient  evidence  to 
show  gross  negligence  in  the  absence  of  proof  showing  why  such 
error  was  made ;  but  the  weight  of  authority  is  to  the  contrary.^" 
Thus,  where  the  only  evidence  of  negligence  is  that  the  operator 
sent  in  the  message  the  word  "bain"  for  "bail,"  it  was  held  that 
there  was  no  proof  of  gross  negligence."  The  same  rule  is  true 
where  the  word  "fourths"  is  written  instead  of  "eighths"  in  a  mes- 
sage from  an  agent  informing  his  principal  of  the  price  of  cotton. ^^ 
But  to  make  as  many  as  three  errors  in  a  message  containing  only 
nine  simple  words  is  held  to  be  gross  negligence.  Thus  a  message 
tendered  to  be  sent  contained  the  following  words:  "Ship  Bones, 
sulky  and  traps  to  Valley  Falls,  immediately,  G.  Grail."  And  the 
message  received  by  the  addressee  read  thus :  "Ship  Beans,  sulky 
and  trap  to  Neosha  Falls  immediately,  G.  Crawley."  Here  it  was 
held  that  the  evidence  showed  gross  negligence.^ ^  In  another  case 
it  appeared  that  the  message  was  plainly  written  out  and  not  to  be 
easily  mistaken  by  anybody  with  ordinary  understanding  who 
should  examine  it  with  ordinary  care.  The  operator  materially 
changed  the  message  by  transmitting  the  word  "Salina"  for  "Sa- 
lene."  There  being  no  exonerating  or  explanatory  evidence  offered 
by  the  company,  the  court  held  that  it  was  a  case  of  gross  negli- 
gence.^°  It  was  held  gross  negligence  for  the  receiving  operator, 
who  had  been  informed  that  the  message  contained  nine  words,  to 
deliver  the  message  with  only  seven  words. *^  In  order  for  any 
court  to  arrive  at  an  accurate  determination  as  to  whether  a  tele- 
graph company  has,  in  the  transmission,  committed  an  error  which 
amounts  to  gross  negligence  within  the  meaning  of  the  rule  stated, 
it  is  necessary  for  all  the  facts  and  circumstances  surrounding  the 
particular  case  to  be  carefully  considered.    Because  of  the  fact  that 

36  Pegram  v.  West.  U.  Tel.  Co.,  97  N.  C.  57,  2  S.  C.  256 ;  West.  U.  Tel.  Co. 
V.  Neill,  57  Tex.  2S3,  44  Am.  Rep.  589;  Becker  v.  West.  U.  Tel.  Co.,  11 
Neb.  87,  7  N.  W.  868,  38  Am.  Rep.  356;  Jones  v.  West.  U.  Tel.  Co.  (C.  C) 
18  Fed.  717. 

37  Har^        West.  U.  Tel.  Co.,  66  Cal.  579,  6  Pac.  637,  56  Am.  Rep.  119. 

38  Lassicer  v.  West.  U.  Tel.  Co.,  89  N.  C.  334 ;  White  v.  West.  U.  Tel.  Co. 
(C.  C.)  14  Fed.  710. 

39  West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  679,  5  Am.  St.  Rep.  795,  17  Pac.  309. 

40  West.  U.  Tel.  Co.  v.  Howell,  38  Kan.  685,  17  Pac.  313. 

41  West.  U.  Tel.  Co.  v.  Goodbar  (Miss.)  7  South.  214. 


§    375)  COMMON-LAW   LIABILITIES  501 

different  circumstances  alter  all  cases,  it  would  be  difficult  to  lay 
down  any  fixed  rule  by  which  courts  might  be  guided.  An  error 
of  a  single  word  in  the  transmission  of  a  message  may  or  may  not 
amount  to  gross  negligence. 

§  374.  Ignorance  of  operator  of  the  locality  of  the  place. — It  is 
the  duty  of  telegraph  operators  to  know  the  localities  of  the  towns 
in  the  state  to  which  their  lines  extend/^  and  it  is  held  that  the 
ignorance  of  the  operator  of  such  a  fact,  especially  where  it  is  of 
sufficient  nearness  to  the  office  in  which  he  works  or  is  of  some 
importance,  whereby  he  fails  to  make  a  transmission  thereto,  is  evi- 
dence of  gross  negligence.  Thus,  where  the  message  was  addressed 
to  a  party  at  the  county  seat  of  the  adjoining  county,  it  w^as  held 
gross  negligence  in  him  sending  it  to  another  place. ''^  The  court 
said  in  this  case :  "That  if  the  agent  of  a  company  should  not  know 
of  the  existence  of  a  town  which  is  the  county  seat  of  a  neighboring 
county,  the  town  being  one  of  the  stations  on  the  lines  of  the  com- 
pany, shows  his  utter  unfitness  for  the  position,  *  *  *  the  com- 
pany was  guilty  of  gross  negligence  in  employing  such  an  opera- 
tor." In  another  case  it  was  held  by  the  court  that  the  operators 
are  bound  to  know  the  locality  of  any  state  to  which  a  message  is 
sent.**  So  it  was  held  that  an  error  in  the  name  of  the  destination, 
unexplained,  is  evidence  of  gross  negligence.*^  And  where  the 
message  has  not  been  sent  at  all,  it  is  purely  evidence  of  gross  neg- 
ligence.*" 

§  375.  Conflict  of  laws. — Contracts  exempting  telegraph  com- 
panies from  some  of  the  common-law  liabilities  for  transmitting 
interstate  messages  must  be  proved,  as  a  matter  of  evidence,  accord- 
ing to  the  law  of  the  forum ;  *''  but,  the  general  rule  is  that  the  law 
of  the  place  where  the  contract  of  sending  is  made,  and  not  that  of 
the  state  to  which  the  message  is  sent  or  where  the  error  occurred, 
governs  as  to  its  nature,  validity  and  interpretation.*®     So  it  has 

4  2  See  §  275. 

43  West.  U.  Tel.  Co.  v.  Buchanan,  35  Ind.  429,  9  Am.  Rep.  744. 

4  4  West.    U.  Tel.    Co.    v.    Simpson,    73   Tex.   422,    11    S.    W.   385. 

45  West.  U.  Tel.  Co.  v.  Howell,  38  Kan.  685,  17  Pac.  313;  Postal  Tel.  Cable 
Co.  V.  Roliertson,  36  Misc.  Rep.  785,  74  N.  Y.  Supp.  876,  message  directed  to 
Toledo  sent  to  Chicago. 

4'-.  Garrett  v.  West.  U.  Tel.  Co.,  83  Iowa,  257,  49  N.  W.  88. 

4  7  See  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  IS,  50  South.  248,  23  L.  R.  A. 
(N.  S.)  648,  19  Ann.  Cas.  1058;  West.  U.  Tel.  Co.  v.  Phillips  (Tex.  Civ. 
App.)  30  S.  W.  494;  Tlie  Guildhall  (D.  C.)  58  Fed.  796;  Hoadley  v.  Northern 
Transfer  Co.,  115  Mass.  304,  15  Am.  Rep.  106;  West.  U.  Tel.  Co.  v.  Lovely 
(Tex.  Civ.  App.)  52  S.  W.  563.     See  cases  in  following  note. 

4s  The  Missouri  Supreme  Court,  in  Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  001,  37 
S.  W.  904,  58  Am.  St.  Rep.  G09,  34  L.  R.  A.  492,  relying  upon  the  authorities 


502  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  375' 

been  held  that,  if  the  state  in  which  the  contract  of  sending  is  made 
does  not  give  these  companies  the  right  by  statute  to  contract 
against  common-law  liabilities,  they  cannot  exonerate  themselves 

with  reference  to  a  contract  for  the  transportation  of  persons  or  property,  held 
that  a  contract  made  in  Iowa  for  the  transmission  of  a  telegram  from  a  point 
in  that  state  to  a  point  in  Missouri  was  governed  by  the  law  of  Iowa  with  re- 
spect to  the  liability  of  the  company,  notwithstanding  that  the  contract  was 
to  be  partially  performed  in  Missouri.  It  was  accordingly  held  that  it  was 
not  error  to  admit  in  evidence  the  statute  of  Iowa  making  the  proprietor  of  a 
telegraph  company  liable  for  all  mistakes  in  transmitting  messages  made  by 
any  person  in  his  employment,  and  for  all  damages  resulting  from  a  failure  to 
perform  any  of  the  duties  required  by  law.  This  case  also  involved  the  valid- 
ity of  a  stipulation  limiting  the  liability  of  the  company  for  mistakes  in  un- 
repeated  messages,  whether  happening  through  the  negligence  of  the  com- 
pany's servants  or  otherwise,  to  the  amount  received  for  sending  the  same. 
This  stipulation  was  held  invalid  so  far  as  it  attempted  to  limit  the  liability 
for  negligent  mistakes,  but  the  court,  notwithstanding  this  general  position 
that  the  contract  was  governed  by  the  law  of  Iowa,  seems  to  have  determined 
this  question  upon  general  practice  and  according  to  its  own  ideas  as  to  the 
correct  rule,  and  without  a  special  reference  to  decisions  in  Iowa  upon  the  sub- 
ject. 

The  Supreme  Court  of  Mississippi,  in  Shaw  v.  Postal  Tel.  &  Cable  Co.,  79 
Miss.  G70,  31  South.  222,  89  Am.  St.  Rep.  666,  56  L.  R.  A.  486,  also  takes  the 
position  that  whether  the  action  be  ex  contractu  or  ex  delicto,  arising  out  of 
the  contract,  it  must  be  controlled  by  the  lex  loci  of  the  contract,  and  in  this 
case  it  was  held  that  the  stipulation  in  a  contract  for  the  transmission  of  a 
cipher  telegram  which  exempts  the  company  from  liability  for  mistakes  unless 
a  small  additional  fee  is  paid,  being  valid  under  a  statute  of  Maine,  where  the 
contract  was  made,  and  from  which  the  despatch  was  sent  to  a  point  in  Mis- 
sissippi, would  be  upheld,  notwithstanding  that  such  a  provision  would  be  in- 
valid by  the  law  of  Mississippi.  It  is  intimated  in  this  case  that,  if  the  law  of 
^Massachusetts  on  the  subject  had  been  nonstatutory,  the  Mississippi  court 
would  have  applied  the  rule  of  law  as  laid  down  by  the  courts  of  Mississippi, 
not  because  the  law  of  Mississippi  ought  to  govern,  but  because  the  courts  of 
Mississippi  are  not  bound  by  decisions  of  courts  of  Massachusetts  on  a  ques- 
tion of  common  law. 

Burgess  v.  West.  U.  Tel.  Co.,  92  Tex.  125,  46  S.  W.  794,  71  Am.  St.  Rep.  833, 
reversed  the  decision  of  the  Court  of  Civil  Appeals  (Tex.  Civ.  App.)  43  S.  W. 
1033,  that  the  Texas  statute  invalidated  any  stipulation  in  a  contract  by  a 
telegraph  company  whereby  the  time  for  giving  notice  of  a  claim  for  damages 
as  a  condition  precedent  to  the  right  to  sue  in  less  than  ninety  days  was  an 
unlawful  interference  with  interstate  commerce  as  applied  to  a  telegram  sent 
from  New  Orleans  to  a  point  in  Texas,  applied  the  Texas  statute  upon  the  pre- 
sumption that  the  Louisiana  statute  was  the  same,  there  being  no  difference 
on  that  point.  This  case,  therefore,  apparently  assumed  that  the  law  of  Louisi- 
ana would  have  been  applied  if  proved,  even  if  it  conflicted  with  the  law  of 
Texas.  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E.  938 ;  Hancock  v. 
West.  U.  Tel.  Co.,  137  N.  C.  497,  49  S.  E.  952,  69  L.  R.  A.  403 ;  West.  U.  Tel. 
Co.  V.  Cooper,  29  Tex.  Civ.  App.  591,  69  S.  W.  427 ;  West.  U.  Tel.  Co.  v.  Waller, 
96  Tex.  580,  74  S.  W.  751,  97  Am.  St.  Rep.  936 ;  Stone  &  Co.  v.  Post.  Tel.  Co., 
31  R.  I.  174,  76  Atl.  762,  29  L.  R.  A.  (N.  S.)  795,  holding  that  the  liability  of  a 
telegraph  company  in  tort  for  error  in  the  transmission  of  a  message  is  gov- 
erned by  the  law  of  the  state  where  the  message  originated. 

In  the  case  of  Heath  v.  Postal  Tel.  &  Cable  Co.,  87  S.  C.  219,  69  S.  E.  293, 


§    375)  COMMON-LAW   LIABILITIES  503 

from  losses  or  injuries  caused  in  another  state,  and  one  in  which 
they  may  limit  their  liabilities,  even  though  the  action  is  brought 
in  the  latter  state.*^  As  said  in  the  above  case,  "One  state  cannot 
be  made  the  dumping  ground  for  lawsuits  between  citizens  of  an- 
other state  when  they  cannot  recover  from  each  other  in  their  own 
state,  where  they  made  the  contract."  But  if  the  law  of  the  state 
in  which  the  contract  is  made  is  not  pleaded  or  shown,  it  will  be 
presumed  to  be  the  same  as  that  in  which  the  suit  is  brought,^" 
especially  where  the  common  law  prevails  in  the  latter  state.^^ 

the  Southern  Carolina  Supreme  Court  held  that,  while  an  action  against  a 
telegraph  company  for  nondelivery,  delayed  delivery,  or  delivery  of  an  er- 
roneous message  is  an  action  ex  delicto,  and  the  cause  of  action  always  arises 
at  the  place  where  the  message  is  to  be  delivered,  and  sometimes  elsewhere, 
yet  it  is  true  that  in  cases  ex  delicto  arising  out  of  contract  all  questions  af- 
fecting the  nature,  validity  and  interpretation  of  the  contract  are  to  be  gov- 
erned by  the  law  of  the  state  in  which  the  contract  was  made,  and  is  to  be 
determined  in  whole  or  in  part.  It  was  accordingly  held  that,  the  telegram  in 
that  case,  having  been  sent  from  a  point  in  New  York  to  a  point  in  South 
Carolina,  the  law  of  New  York  governed,  the  question  apparently  being  as  to 
the  right  to  recover  special  damages,  not,  however,  damages  for  mental  an- 
guish. In  Gray  v.  West.  U.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  10G3,  91  Am.  St. 
Hep.  700,  56  L.  R.  A.  301,  conceded  that  the  law  of  the  state  in  which  the  con- 
tract was  made,  and  from  which  the  telegram  was  sent,  was  probably  control- 
ling when  the  remedy  of  the  plaintiff  was  on  the  contract  alone. 

Based  on  the  laiv  relating  to  common  carriers. — This  rule  of  law  is  based 
upon  that  applied  to  common  carriers,  for  it  is  a  well-established  rule  that  the 
validity  of  a  stipulation  in  a  contract  for  transportation  of  persons  or  prop- 
erty from  one  state  or  country  to  another  limiting  the  carriers'  common-law 
liability  is  to  be  determined  by  the  law  of  the  place  where  the  contract  was 
made  and  transportation  commenced,  without  reference  to  the  law  of  the  place 
of  destination,  or  to  the  law  of  the  place  where  the  alleged  breach  of  contract 
or  loss  or  injury  occurred.  See  The  Henry  B.  Hyde  (D.  C.)  82  Fed.  681 ;  Hale 
V.  N.  J.  Steam  Navigation  Company,  15  Conn.  546,  39  Am.  Dec.  398. 

Exemption  for  liabilities  for  negligent  loss  or  injury. — See  Liverpool,  etc., 
Steam  Company  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  9  Sup.  Ct.  469,  32  L.  Ed. 
788;  Mexican  National  R.  R.  Co.  v.  Jackson,  5&  C.  C.  A.  315,  118  Fed.  549; 
Fonseca  v.  Cunard,  etc.,  Co.,  153  Mass.  553,  27  N.  El.  665,  12  L.  R.  A.  340,  25 
Am.  St.  Rep.  660 ;  Davis  v.  Chicago,  etc.,  R.  Co.,  93  Wis.  470,  67  N.  W.  16,  1132, 
33  L.  R.  A.  654,  57  Am.  St.  Rep.  935. 

Limitation  of  amount  of  carriers'  liability. — See  Potter  v.  The  Majestic,  9 
C.  C.  A.  161,  60  Fed.  624,  23  L.  R.  A.  746,  reversed  on  another  point  in  The 
Majestic,  166  U.  S.  375,  17  Sup.  Ct.  597,  41  L.  Ed.  1039. 

49  Shaw  V.  Postal  Tel.  &  Cable  Co.,  79  Miss.  670,  31  South.  222,  89  Am.  St. 
Rep.  666,  56  L.  R.  A.  486.     See,  also,  §  488. 

Interstate  messages. — See  §  433. 

5  0  See  Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R.  A.  492, 
58  Am.  St.  Rep.  609 ;  West.  U.  Tel.  Co.  v.  McNairy,  34  Tex.  Civ.  App.  389,  78 
S.  W.  969 ;  Cherry  v.  Sprague,  187  Mass.  113,  72  N.  E.  456,  67  L.  R.  A.  33,  105 
Am.  St.  Rep.  381,  and  exhaustive  note  thereunder ;  §  488 ;  Burgess  v.  West.  U. 
Tel.  Co.,  92  Tex.  125,  46  S.  W.  794,  71  Am.  St.  Rep.  833. 

51  Shaw  V.  Postal  Tel.  &  Cable  Co.,  79  Miss.  670,  31  South.  222,  89  Am.  St. 
Rep.  666,  59  L.  R.  A.  486. 


504  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  376 

While  this  is  the  general  rule,  yet  there  are  exceptions  to  it," 
founded  upon  the  supposed  intention  of  the  parties,  gathered  from 
surrounding  circumstances.  Thus,  if  it  be  gathered  from  circum- 
stances surrounding  the  particular  case  that  it  was  the  intention  of 
the  parties  to  be  bound  by  the  laws  of  the  state  in  or  through  which 
the  message  was  sent,  and  not  by  those  of  the  state  in  which  the 
contract  of  sending  was  made,  the  rule  of  law  in  the  former  state 
must  control  in  the  construction  of  the  contract. ^^  It  is  also  a  gen- 
eral rule  that  the  contract  will  not  be  enforced  if  it  would  be  against 
the  policy  and  institution  of  the  state  in  which  it  is  sought  to  be  en- 
forced.^'* 

§  376.  Stipulation  for  repeating  messages. — The  blanks  com- 
monly used  by  telegraph  companies  contain  a  stipulation  to  the 
effect  that  they  will  not  be  liable  for  errors,  delays  or  nondelivery 
of  messages  for  more  than  the  amount  received  by  them  for  trans- 

5  2  Some  authorities  refuse  to  adopt  this  rule  on  the  ground  that  the  place 
of  delivery  of  the  telegram  is  the  sole  place  of  i^erformance  of  the  contract. 
Thus,  in  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  1068,  66  Am.  St 
Rep.  361,  36  L.  R.  A.  711,  the  court  applied  a  provision  of  the  Kentucky  Con- 
stitution preventing  common  carriers,  including  telegraph  companies,  from  con- 
tracting for  relief  from  either  common-law  liability  to  a  contract  made  in 
Georgia  for  the  transmission  of  a  telegram  from  a  point  in  that  state  to  a 
point  in  Kentucky,  upon  the  ground  that  Kentucky  was  the  sole  place  of  per- 
'  formance.  The  delay  in  the  delivery  of  the  message  in  that  case  was  due  to  a 
mistake  in  the  name  of  the  addressee  that  seems  to  have  been  made  at  the 
sending  office  in  Georgia. 

In  Howard  v.  West.  U.  Tel.  Co.,  119  Ky.  625,  27  Ky.  Law  Rep.  858,  84  S.  W. 
764,  86  S.  W.  982,  7  Ann.  Cas.  1065,  it  was  held  that  the  law  of  Kentucky  is 
the  law  of  the  place  of  performance,  permitting  the  recovery  of  damages  for 
mental  anguish  governed  in  case  of  a  telegram  sent  from  a  point  in  West 
Virginia  to  a  point  in  Kentucky,  irrespective  of  the  question  whether  the  neg- 
ligence was  that  of  a  West  Virginia  or  Kentucky  agent  of  the  telegraph  com- 
pany.    See  §  488. 

5  3  In  the  case  of  Liverpool,  etc.,  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  9  Sup. 
Ct.  469.  32  L.  Ed.  788,  involving  the  validity  of  a  stipulation  limiting  the  car- 
rier's common-law  liability,  the  court  said:  "According  to  the  common  prac- 
tice, if  not  to  uniform  concurrence  of  authority,  the  general  rule  that  the  na- 
ture, the  obligation  and  interpretation  of  a  contract  are  to  be  governed  by  the 
law  of  the  place  where  it  is  made,  unless  the  parties  at  the  time  of  making  it 
have  some  other  law  in  view,  regards  a  contract  of  affreightment  made  in  one 
country  between  citizens  and  residents  thereof,  and  the  performance  of  which 
begins  there,  to  be  governed  by  the  law  of  that  country,  unless  the  parties 
when  entering  into  the  contract  clearly  manifest  a  mutual  intention  that  it 
shall  be  governed  by  the  law  of  some  other  country."     See  §  488. 

5i  See  Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R.  A.  492, 
58  Am.  St.  Rep.  609;  Shaw  v.  Postal  Tel.  Cable  Co.,  79  Miss.  670,  31  South. 
222,  56  L.  R.  A.  486,  89  Am.  St.  Rep.  666.  See,  also,  The  Kensington,  183  U.  S. 
263,  22  Sup.  Ct.  102,  46  L.  Ed.  190 ;  The  Brantford  City  (D.  C.)  29  Fed.  373 ; 
The  Iowa  (D.  C.)  50  Fed.  561 ;  Chicago,  etc.,  Co,  v.  Gardiner,  51  Neb.  70,  70 
N.  W.  508 ;  Halt  v.  Pa.  R.  Co.,  112  U.  S.  331,  5  Sup.  Ct.  151,  28  L.  Ed.  717. 


§    377)  COMMOX-LAW   LIABILITIES  505 

mission,  unless  the  same  is  ordered  to  be  repeated.  The  stipulation 
has  not  varied  in  form  or  language  from  that  now  used  by  the 
Western  Union  Telegraph  Company.  It  provides  that :  "To  guard 
against  mistakes,  the  sender  of  the  message  should  order  it  re- 
peated, that  is,  telegraphed  back  to  the  original  office.  For  repeat- 
ing, one-half  the  regular  rate  is  charged  in  addition.  And  it  is 
agreed  between  the  sender  of  the  following  message  and  this  com- 
pany, that  the  said  company  shall  not  be  liable  for  mistakes  or 
delays  in  the  transmission  or  delivery,  or  for  nondelivery  of  any  un- 
repeated  message,  beyond  the  amount  received  for  sending  the 
same ;  nor  for  mistakes  or  delays  in  the  transmission  or  delivery, 
or  for  nondelivery  of  any  repeated  messages  beyond  fifty  times  the 
sum  received  for  sending  the  same,  unless  specially  insured." 

§  377.  Same  continued — validity  of  such  a  stipulation. — The 
validity  of  the  stipulations  in  the  blank  form  by  which  these  com- 
panies have  attempted  to  exonerate  themselves  for  all  losses  caused 
by  errors  made  in  the  transmission  or  delays  in  delivering  messages, 
except  the  amount  received  for  sending,  unless  the  message  is 
ordered  to  be  repeated,  has  been  variously  viewed  by  the  courts, 
some  of  which  hold  them  to  be  valid ;  ^^   yet  the  weight  of  author- 

5  3  Wheelock  v.  Postal  Tel.  &  Cable  Co.,  197  Mass.  119,  83  N.  E.  313,  14  Ann. 
Cas.  188 ;  Grlnnell  v.  West.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep.  485 ;  Clem- 
ent V.  West.  U.  Tel.  Co..  137  Mass.  463;  Redpath  v.  West.  U.  Tel.  Co.,  112 
Mass.  71,  17  Am.  Rep.  69 ;  U.  S.  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am. 
Dee.  519 ;  Jacob  v.  West.  U.  Tel.  Co.,  135  Mich.  600,  98  N.  W.  402 ;  Hart  v. 
West.  U.  Tel.  Co.,  66  Cal.  579,  6  Pac.  637,  56  Am.  Rep.  119 ;  Birkett  v.  West.  U. 
Tel.  Co.,  103  Mich.  361,  61  N.  W.  645,  50  Am.  St.  Rep.  374,  33  L.  R.  A.  404 ; 
Coit  V.  West.  U.  Tel.  Co.,  130  Cal.  657,  63  Pac.  83,  80  Am.  St.  Rep.  153,  53  L. 
R.  A.  678;  West.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525;  Kiley  v.  West.  U.  Tel. 
Co.,  109  N.  Y.  231,  16  N.  E.  75 ;  Halsted  v.  Post.  Tel.  Cable  Co.,  193  N.  Y.  293, 
85  X.  E.  1078,  127  Am.  St.  Rep.  952,  19  L.  R.  A.  1021 ;  Passmore  v.  West.  U. 
Tel.  Co.,  78  Pa.  238 ;  Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.  132,  8  Am.  Rep.  526 ; 
Harris  v.  West.  U.  Tel.  Co.,  9  Phila.  (Pa.)  88 ;  Ayres  v.  West.  U.  Tel.  Co.,  65 
App.  Div.  149,  72  N.  Y.  Supp.  634 ;  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1, 

14  Sup.  Ct.  1098,  38  L.  Ed.  S83 ;  Box  v.  Postal  Tel.  Cable  Co.,  165  Fed.  138,  91 
C.  C.  A.  172,  28  L.  R.  A.  (N.  S.)  .566 ;  West.  U.  Tel.  Co.  v.  Coggin,  68  Fed.  137, 

15  C.  C.  A.  231 ;  Weld  v.  Cable  Co.,  199  N.  Y.  88,  92  N.  E.  415 ;  Stone  &  Com- 
pany V.  Postal  Tel.  Cable  Co.,  31  R.  I.  174,  76  Atl.  762,  29  L.  R.  A.  (N.  S.)  795 ; 
AAilliams  v.  Tel.  Co.  (D.  C.)  203  Fed.  140;  MacAndrew  v.  Electric  Tel.  Co.,  17 
C.  B.  3,  1  Jur.  N.  S.  1073,  25  L.  J.  C.  P.  26 ;  Baxter  v.  Dominion  Tel.  Co.,  37 
U.  C.  Q.  B.  470.  See  Beatty  Lumber  Co.  v.  West.  U.  Tel.  Co.,  52  W.  Va.  410, 
44  S.  E.  309 ;  Milling  Co.  v.  Tel.  Co.,  151  Mich.  425,  115  N.  W.  698,  15  L.  R.  A. 
(X.  S.)  1170,  14  Ann.  Cas.  287 ;  West.  U.  Tel.  Co.  v.  Milling  Co.,  218  U.  S.  406, 
31  Sup.  Ct.  59,  54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas.  815 ;  Stone 
&  Co.  V.  Postal  Tel.  &  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46  L.  R.  A.  (N.  S.) 
ISO ;  West.  U.  Tel.  Co.  v.  Dant,  42  App.  D.  C.  398,  Ann.  Cas.  1916A,  1132,  L.  R. 
A.  1915B,  685 ;  Leedy  v.  West.  U.  Tel.  Co.,  130  Tenn.  547,  172  S.  W.  278,  gross 
negligence ;  Weld  v.  Postal  Tel.  Cable  Co.,  210  N.  Y.  59,  103  N.  E.  957,  revers- 
ing 148  App.  Div.  588,  133  N.  Y.  Supp.  228 ;  West.  U.  Tel.  Co.  v.  Bennett,  58 


506  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  37T 

ity  is  that  they  are  void  and  unenforceable.^^  The  latter  courts 
considered  these  stipulations  as  a  mere  device  for  avoiding  liabili- 
ties for  acts  of  their  own  negligence  or  willful  wrongs.    As  has  been 

Tex.  Civ.  App.  60,  124  S.  W.  151 ;  West.  U.  Tel.  Co.  v.  Anniston  Cordage  Co.,  6 
Ala.  App.  351,  59  South.  757 ;  West.  U.  Tel.  Co.  v.  Dobyns,  41  Okl.  403,  138  Pac. 
570;  Williams  v.  West.  U.  Tel.  Co.  (D.  C.)  203  Fed,  140;  Rhyne  v.  West.  U. 
Tel.  Co.,  164  N.  C.  394,  SO  S.  E.  152.  Under  West.  U.  Tel.  Co.  v.  Daut,  supra. 
Act  of  Congress  of  June  18,  1910,  impliedly  warrants  a  contract  limitation  of 
liability  in  case  of  an  unrepealed  interstate  message. 

5u  AlaMma.—Araev.  U.  Tel.  Co.  v.  Daugbtery,  89  Ala.  191,  7  South.  660 ;  West. 
U.  Tel.  Co.  V.  Crawford,  110  Ala.  460,  20  South.  Ill;  West.  U.  Tel.  Co.  v. 
Chamblee,  122  Ala.  428,  25  South.  232,  82  Am.  St.  Rep.  89 ;  Tel.  Co.  v.  Cordage 
Co.,  6  Ala.  App.  351,  59  South.  757. 

Arizona.— Utiles  v.  West.  U.  Tel.  Co.,  2  Ariz.  308,  15  Pac.  712. 

Arkansas.— West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A. 
744. 

California.— JJnion  Const.  Co.  v.  West.  U.  Tel.  Co.,  163  Cal.  208,  125  Pac.  242. 

Colorado.— West.  U.  Tel.  Co.  v.  Graham,  1  Col.  239,  9  Am.  Rep.  136. 

Florida.— West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  125  Am. 
St.  Rep.  1077,  11  L.  R.  A.  (N.  S.)  560. 

Georgia.— West.  U.  Tel.  Co.  v.  Blancbard,  68  Ga.  299,  49  Am.  Rep.  480.  Com- 
pare West.  U.  Tel.  Co.  v.  Fontaine,  58  Ga,  433. 

/rfa/io.— Strong  v.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  30  L.  R.  A. 
(N,  S.)  409. 

/ZZiuois.— Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38 ;  West.  U. 
Tel.  Co.  V.  Tj'ler,  74  111.  168,  24  Am.  Rep.  279;  West.  U.  Tel.  Co.  v.  Harris,  19 
111.  App.  347 ;  North  Packing,  etc.,  Co.  v.  West.  U.  Tel.  Co.,  70  111.  App.  279, 

Indiana.— West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1;  West.  V.  Tel.  Co.  v.  Todd, 
22  Ind.  App.  701,  54  N.  E.  446 ;  West.  U.  Tel.  Co.  v.  Buchanan,  35  Ind.  429.  9 
Am.  Rep.  744 ;  West.  U.  Tel.  Co.  v.  Adams,  87  Ind.  598,  44  Am.  Rep.  777 ;  West. 
U.  Tel.  Co.  V.  Meek,  49  Ind.  53 ;  W^est.  U.  Tel.  Co.  v.  Meredith,  95  Ind.  93 ;  Cen- 
tral Union  Tel.  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E.  1035. 

/otta.— Sweatland  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285; 
Manville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214,  18  Am.  Rep.  8 ;  Harkness  v.  West. 
U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672. 

Kansas.— West.  U,  Tel,  Co,  v.  Crall,  38  Kan.  679,  17  Pac.  309,  5  Am.  St.  Rep. 
795. 

Kentucky.— West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  1068,  66  Am. 
St,  Rep.  361,  36  L.  R.  A.  711 ;  Postal  Tel,  Cable  Co,  v,  Schaefer,  110  Ky,  907,  62 
S,  W,  1119,  23  Ky.  Law  Rep,  344;  Smith  v.  West,  U,  Tel,  Co.,  83  Ky.  104,  4 
Am.  St.  Rep.  126.  Compare  Camp  v.  West.  U.  Tel.  Co.,  1  Mete.  (Ky.)  164,  71 
Am.  Dec.  461. 

Louisiana. — La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383. 

Maine.— Ayer  v.  West,  U.  Tel.  Co.,  79  Me.  493, 10  Atl.  495,  1  Am.  St.  Rep.  353 ; 
Bartlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437. 

J/iH>ieso?a.— Francis  v.  West.  U.  Tel.  Co.,  58  Minn.  252,  59  S.  W,  1078,  42 
Am,  St.  Rep.  507,  25  L.  R.  A.  406. 

Mississippi.— Fostal  Tel.,  etc.,  Co,  v.  Wells,  82  Miss.  733,  35  South.  190;  West. 
U.  Tel.  Co.  V.  Goodbar   (Miss.)  7  South.  214. 

Af/ssoMri.— Reed  v.  West,  U,  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am,  St, 
Rep,  609.  34  L.  R.  A.  492,  overruling  Wann  v.  West.  U.  Tel.  Co.,  37  Mo.  472, 
90  Am.  Dec.  395. 

Xebraska.—West.  U.  Tel.  Co.  v.  Lowrey,  .32  Neb,  732,  49  N.  W,  707 ;  Kemp 
V,  West,  U.  Tel.  Co..  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep.  366;  West.  U. 
Tel.  Co.  V.  Beals,  56  Neb.  415,  76  N.  W.  903,  71  Am.  St.  Rep.  682.     Compare 


§    377)  COMMON-LAW   LIABILITIES  507 

seen,  they  cannot  enforce  any  regulation  or  contract,  by  means  of 
which  they  may  reHeve  themselves  for  any  losses  caused  by  their 
own  negligence  or  that  of  their  servants."  Any  rule  which  seeks 
to  relieve  them  from  exercising  their  employment  with  diligence, 
skill  and  integrity  contravenes  public  policy  as  well  as  the  law;^^ 
and  whenever  they  attempt  to  avoid  these  duties,  they  do  so  at  the 
expense  of  and  injury  to  their  patrons.^»  Telegraph  companies 
claim  that,  as  they  are  required  to  exercise  very  great  care  and  dili- 

Becker  v.  West.  U.  Tel.  Co.,  11  Neb.  87,  7  N.  W.  868,  38  Am.  St.  Rep.  356.  See 
American  Ex.  Co.  v.  Postal  Tel.  Cable  Co.,  97  Neb.  701,  151  N.  W.  240. 

New  Mexico.— V^ est.  U.  Tel.  Co.  v.  Longwill,  5  N.  M.  308,  21  Pac.  339. 
North  Carolina.— Brov^n  v.  Postal  Telegraph  Cable  Co.,  Ill  N.  C.  187,  16 
S.  E.  179,  32  Am.  St.  Rep.  793,  17  L.  R.  A.  618,  overruling  Lassiter  v.  West. 
U.  Tel.  Co.,  89  N.  C  334 ;  Thompson  v.  West.  U.  Tel.  Co.,  107  N.  C.  449,  12 
S.  E.  427 ;  Williamson  v.  Postal  Telegraph  Co.,  151  N.  C  223,  65  S.  E.  974 : 
Sherrill  v.  West.  U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429;  Young  v.  West. 
U.  Tel.  Co.,  168  N.  C.  36,  84  S.  E.  45. 

Ohio.— West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio   St.  301,  41  Am.  Rep.  500. 

Oklahoma.— BlRckweW  Milling,  etc.,  Co.  v.  West.  U.  Tel.  Co.,  17  Okl.  376, 
89  Pac.  235,  10  Ann.  Cas.  855. 

Tennessee.— Mar r  v.  West.  U.  Tel.  Co.,  85'  Tenn.  529,  3  S.  W.  496 ;  Pepper 
V.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep.  699,  4  L. 
R.  A.  660. 

Texas.— West.  U.  Tel.  Co.  v.  Burrow,  10  Tex.  Civ.  App.  122,  30  S.  W.  378 ; 
Gulf,  etc.,  R.  Co.  V.  Wilson,  69  Tex.  7.39,  7  S.  W.  653;  West.  U.  Tel.  Co.  v. 
Tobin  (Tex.  Civ.  App.)  56  S.  W.  540 ;  West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ. 
App.  43,  60  S.  W.  982 ;  West.  U.  Tel.  Co.  v.  Ragland  (Tex.  Civ.  App.)  61  S. 
W.  421 ;  Mitchell  v.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016 ; 
West.  U.  Tel.  Co.  v.  Nagle,  11  Tex.  Civ.  App.  539,  32  S.  W.  707;  Postal 
Tel.  Cable  Co.  v.  Sunset  Construction  Co.,  102  Tex.  148,  114  S.  W.  98 ;  West. 
U.  Tel.  Co.  V.  Broesche,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St.  Rep.  843; 
Womack  v.  West.  U.  Tel.  Co.,  58  Tex.  176,  44  Am.  Rep.  614 ;  West.  U.  Tel. 
Co.  V.  Neill,  57  Tex.  283,  44  Am.  Rep.  589;  West.  U.  Tel.  Co.  v.  Hines,  22 
Tex.  Civ.  App.  315,  54  S.  W.  627;  West.  U.  Tel.  Co.  v.  Odom,  21  Tex.  Civ. 
App.  .537,  52  S.  W.  632 ;  Mitchell  v.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262, 
33  S.  W.  1016 ;    Telegraph  Co.  v.  Smith  (Tex.  Civ.  App.)  1.30  S.  W.  622. 

Utah.— Wertz  v.  West.  U.  Tel.  Co.,  7  Utah,  446,  27  Pac.  172,  13  L.  R.  A. 
510. 

yermowf.— Gillis  v.  West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  736,  15  Am.  St. 
Rep.  917,  4  L.  R.  A.  611. 

Wiscousin. — Thompson  v.  Western  Union,  64  Wis.  531,  25  N.  W.  789,  54 
Am.  Rep.  (U4 ;  Fox  v.  Postal  Telegraph  Cable  Co.,  138  Wis.  648,  120  N.  W. 
399,  28  L.  R.  A.  (N.  S.)  490 ;  Caudee  v.  West.  U.  Tel.  Co.,  34  Wis.  471.  17  Am. 
Rep.  4.52;    Hibbard  v.  West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775. 

Federal— West.  U.  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S.  406,  37 
Sup.  Ct.  59,  54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas.  815,  holding 
that  statutes  prohibiting  such  contracts  for  interstate  messages  do  not  deny 
the  company  of  equal  protection  of  the  law  where  common  carriers  may 
contract  against  common-law  liability ;  Postal  Tel.  Cable  Co.  v.  Nichols, 
159  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870,  14  Ann.  Cas.  369. 

BT  See  §  368. 

58  West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  229,  45  Am.  Rep.  480. 

6  9Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  493,  1  Am.  St.  Rep.  353,  10  Atl.  495. 


508  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  378 

gence  in  making  an  accurate  transmission  of  messages,^"  this  is 
the  best  means  of  performing  this  duty,  and  for  this  reason  the 
regulation  is  a  reasonable  one.  This  is  unquestionably  true,  but 
that  is  no  reason  why  they  should  not  in  the  exercise  of  reasonable 
care  in  transmitting  the  messages  delivered  to  them,  repeat  such 
messages  in  order  to  avoid  mistakes  and  errors,  irrespective  of  an 
agreement  to  that  effect.  It  does  not  require  very  much  more  time 
to  repeat  the  message,  and  the  expense  is  but  little  increased. 

§  378.  Same  continued — further  reasons  for  their  own  protec- 
tion.— Telegraph  companies  have  accepted  valuable  privileges  from 
the  public,  and  in  consideration  of  these  they  have  undertaken  to 
do  certain  duties  for  the  public — that  is,  to  exercise  due  care  in 
transmitting  all  messages  presented  to  them  after  payment  of  the 
charges,^^  and  to  exercise  due  diligence  to  find  and  deliver  to  the 
addressee  a  copy  of  the  same.®^  In  order  for  them  to  perform  these 
duties,  they  must  provide  themselves  with  proper  and  suitable  in- 
struments, and  employ  skilled  operators. ''^  When  a  message  is 
presented,  with  payment  of  charges,  the  sender  has  done  what  the 
law  requires  of  him.^*  He  has  performed  his  part  of  the  contract 
entered  into  between  him  and  the  company,  the  same  being  that 
which  the  latter  holds  itself  out  to  the  public  to  be  ever  willing  and 
ready  to  perform.*'^  It  then  devolves  upon  the  company  to  comply 
with  its  part  of  the  contract — that  is,  to  exercise  good  faith,  due 
care  and  diligence  in  the  transmission  and  delivery  of  the  message.''* 
As  was  said :  "If  their  wires  and  instruments  are  in  proper  order, 
and  their  operators  skillful,  and  careful,  it  will  traverse  the  wires 
precisely  in  the  words  and  figures  which  composed  it  when  placed 
upon  the  wires,  and  is  sure,  in  that  shape  and  form,  to  reach  its 
destination,  no  atmospheric  causes  intervening  to  prevent."  *''  To 
hold  that  a  telegraph  company  could  exempt  itself  from  any  liability 
by  such  a  stipulation  would  be  relieving  it  from  duties  which  have 
been  placed  upon  it  in  exchange  for  a  valuable  right  which  none 
save  it  could  enjoy — the  right  of  eminent  domain.  They  are  as 
much  bound  to  perform  this  duty  as  a  public  carrier  is  to  deliver 
safely  the  goods  in  its  charge. 

60  See  chapter  XII. 

61  See  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  E.  A. 
(N.  S.)  561,  125  Am.  St.  Rep.  1077. 

6  2  See  §  288,  et  seq. 

63  See  §  249. 

64  See  chapter  XIX. 
6  5  See  chapter  II. 

66  See  chapter  XII. 

67  "West.  U.  Tel.   Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  280. 


§    380)  COMMON-LAW   LIABILITIES  509 

§  379.     Same  continued — extra  charge — no  increase  of  duty. — 

The  additional  charges  for  repeating  the  message  do  not  increase 
the  duty  which  the  company  owes  to  the  pubHc  and  that  which  was 
prescribed  inferentially  in  the  granted  privileges.  There  is  nothing 
on  the  part  of  the  sender's  contract  which  could  be  considered  as 
increasing  this  duty.  It  is  not  such  a  charge  as  to  make  the  com- 
pany insurers,^^  since  they  are  not  so  held  by  the  common  law.  It 
is  not  a  contractual  consideration,  for  there  is  nothing  given  by  the 
company  in  return  for  the  consideration.  Then,  it  must  only  be  an 
additional  source  of  revenue  to  the  company  and  a  protection  to  the 
latter  for  its  own  negligence;  it  can  be  nothing  else — a  free  gift 
which  is  within  the  discretion  of  the  sender  to  make.  The  sender 
presents  a  telegram  to  be  sent  and  the  company  says  what  it  will 
charge  for  sending  same ;  this  being  paid,  the  company  must  then 
exercise  that  care  and  diligence  in  transmitting  and  delivering  the 
message  correctly  that  any  person  would  exercise  under  similar 
circumstances  for  himself.*'^  How  this  duty  must  be  performed  is 
left  entirely  with  the  company.  If  it  should  deem  it  proper  and 
advisable  that  the  message  should  be  repeated  in  order  to  determine 
whether  or  not  the  duty  had  been  performed,  then  it  should  repeat 
the  message,^''  and  that,  too,  without  any  extra  charge  or  consulta- 
tion with  the  sender.  If  it  cannot  correctly  transmit  messages  with- 
out repeating  them,  they  should  be  repeated,  but  in  either  instance 
it  cannot  exempt  itself  from  losses  caused  by  a  failure  to  transmit 
correctly. 

§  380.  Same  continued — delay  in  delivery — nondelivery. — An- 
other reason  why  these  stipulations  should  not  be  binding  is  that 
they  are  not  provided  for  with  a  view  to  enable  telegraph  com- 
panies to  make  a  correct  transmission  of  messages,  but  rather  to 
protect  them  from  liability.  In  these  contracts  it  is  stipulated  that 
the  company  will  not  be  liable  for  a  failure  to  make  a  prompt  de- 
livery, or,  in  other  words,  they  will  not  be  liable  for  losses  caused 
by  a  delay  in  the  delivery  or  nondelivery  of  the  message,  unless  it 
is  ordered  to  be  repeated.''^     As  it  may  be  clearly  seen,  the  object 

6  8  West.  U.  Tel.  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  280. 

60  See  chapter  XII. 

TO  Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  493,  1  Am.  St.  Rep.  353,  10  Atl.  495; 
West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  R.  A.  (N.  S.t 
561,  125  Am.  St.  Rep.  1077,  quoting  author. 

Ti  Some  courts  sustain  this  idea.  Jacob  v.  West.  U.  Tel.  Co.,  135  Mich. 
600,  98  N.  W.  402;  Clement  v.  West.  U.  Tel.  Co.,  137  Mass.  463;  Birl^ett 
V.  West.  U.  Tel.  Co..  103  Mich.  361,  61  N.  W.  645,  50  Am.  St.  Rep.  374,  33 
L.  R.  A.  404;  Mousees  v.  West.  U.  Tel.  Co.,  127  App.  Div.  289,  111  N.  Y. 
Supp.  53;    Ayres  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634. 


510  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  380 

in  repeating  a  message  is  to  ascertain  whether  it  has  been  correctly 
transmitted  and  not  whether  it  has  been  promptly  delivered  at  all/^ 
If,  after  having  the  message  repeated,  it  was  ascertained  that  it  had 
been  correctly  transmitted,  this  fact  would  not  remedy  a  loss  caused 
by  a  failure  to  deliver  promptly  or  for  a  nondelivery.  To  exonerate 
a  company  from  losses  caused  by  acts  of  the  company  which  could 
not  be  prevented  by  repeating  the  message  would  of  course  be 
absurd."  As  will  be  seen,  some  courts  hold  that  while  the  stipula- 
tion may  be  reasonable  in  so  far  as  its  object  is  to  protect  the  com- 
pany from  loss  caused  by  errors  made  in  the  transmission,  yet  it  is 

See  Purdom  Naval  Stores  Co.  v.  West.  U.  Tel.  Co.  (C.  C.)  153  Fed.  327; 
Thompson  v.  West.  U.  Tel.  Co.,  107  N.  C.  449,  12  S.  E.  427;  Barnes  v. 
West.  U.  Tel.  Co.,  24  Nev.  125,  54  Pac.  438,  77  Am.  St.  Rep.  791;  West.  U. 
Tel.  Co.  V.  Way,  83  Ala.  542,  4  South.  844;  Amer.  U.  Tel.  Co.  v.  Daughtery, 
89  Ala.  191,  7  South.  660;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7 
South.  419,  18  Am.  St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1; 
We-st.  U.  Tel.  Co.  v.  Henley,  157  Ind.  90,  60  N.  E.  682;  Gulf,  eto.,  R.  R. 
Co.  V.  Wilson,  69  Tex.  739,  7  S.  W.  653 ;  West.  U.  Tel.  Co.  v.  Linn,  87  Tex. 
7,  26  S.  W.  490,  47  Am.  St.  Rep.  58;  West.  U.  Tel.  Co.  v.  Burrow,  10  Tex. 
Civ.  App.  122,  30  S.  W.  378;  West.  U.  Tel.  Co.  v.  Lyman,  3  Tex.  Civ.  App. 
460.  22  S.  W.  656;  West.  U.  Tel.  Co.  v.  Reeves,  8  Tex.  Civ.  App.  37,  27 
S.  W.  318. 

7  2  West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1;  West.  U.  Tel.  Co.  v.  Graham, 
1  Colo.  230,  9  Am.  Rep.  136 ;  Barnes  v.  West.  U.  Tel.  Co.,  24  Neb.  125,  50  Pac. 
438,  77  Am.  St.  Rep.  791 ;  Box  v.  Post.  Tel.  Co.,  165  Fed.  138,  91  C.  C.  A.  172, 
28  L.  R.  A.  (N.  S.)  566 ;  Purdom  Naval  Stores  Co.  v.  West.  U.  Tel.  Co.  (C.  C.) 
153  Fed.  327. 

7  3  Some  of  the  courts  hold  that  these  stipulations  do  not  purport  to  re- 
lieve telegraph  companies  from  liabilities  vphich  a  repetition  would  not 
have  prevented.  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18 
Am.  St.  Rep.  148;  North  Packing,  etc.,  Co.  v.  West.  U.  Tel.  Co.,  70  111.  App. 
275;  West.  U.  Tel.  Co.  v.  Graham,  1  Colo.  230,  9  Am.  Rep.  136;  West.  U. 
Tel.  Co.  V.  Fenton,  52  Ind.  1;  Barnes  v.  West.  U.  Tel.  Co.,  24  Nev.  125,  50 
Pac.  438,  77  Am.  St.  Rep.  791;  Beatty  Lumber  Co.  v.  West.  U.  Tel.  Co., 
52  W.  Va.  410,  40  S.  E.  309 ;  Box  v.  Post.  Tel.  Co.,  165  Fed.  138,  91  C.  O.  A. 
172,  28  L.  R.  A.  (N.  S.)  566;  Fleischner  v.  Pac.  Postal  Tel.  Cable  Co.  (C. 
C.)  55  Fed.  738 ;  as  in  case  of  a  total  failure  to  transmit,  Birney  v.  N.  Y., 
etc.,  Tel.  Co.,  18  Md.  341,  81  Am.  Dec.  607 ;  West.  U.  Tel.  Co.  v.  Way,  83  Ala. 
544,  4  South.  844;  Beatty  Lumber  Co.  v.  West.  U.  Tel.  Co.,  52  W.  Va.  410, 
44  S.  E.  309;  Mowry  v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  T.  Supp.  666; 
Birkett  v.  West.  U.  Tel.  Co.,  103  Mich.  361,  61  N.  W.  645,  50  Am.  St.  Rep. 
374,  33  L.  R.  A.  404 ;  or  deliver  the  message.  Smith  v.  West.  U.  Tel.  Co.,  83 
Ky.  104,  4  Am.  St.  Rep.  126 ;  Gulf,  etc.,  Co.  v.  Wilson,  69  Tex.  739,  7  S.  W. 
653;  West.  U.  Tel.  Co.  v.  Broesch,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St. 
Rep.  843 ;  West.  U.  Tel.  Co.  v.  Nagle,  11  Tex.  Civ.  App.  539.  32  S.  W.  707 ; 
West.  U.  Tel.  Co.  v.  Burrow,  10  Tex.  Civ.  App.  122,  30  S.  W.  378;  Beatty 
Lumber  Co.  v.  West.  U.  Tel.  Co.,  52  W.  Va.  410,  44  S.  E.  309 ;  Purdom  Naval 
Stores  Co.  v.  West.  U.  Tel.  Co.  (C.  C.)  153  Fed.  329;  Bell  v.  Dominion  Tel. 
Co.,  25  L.  C.  Jur.  248;  or  a  negligent  delay  in  transmission.  Box  v.  Post. 
Tel.  Cable  Co.,  165  Fed.  138,  91  C.  C.  A.  172,  28  L.  R.  A.  (N.  S.)  566 ;  Thomp- 
son V.  West.  U.  Tel.  Co.,  107  N.  C.  449,  12  S.  E.  427;  Fleischner  v.  Pac. 
Postal  Tel.   Cable  Co.    (C.  C.)   55  Fed.  73S;    or  delivery,  West.  U.  Tel.  Co. 


§    381)  COMMON-LAW  LIABILITIES  511 

not  reasonable  when  its  further  olDJect  is  to  protect  the  company 
from  loss  caused  by  a  delay  in  delivery  or  for  nondelivery. 

§  381.  Same  continued — not  a  contract — compared  to  a  bill  of 
lading. — Whether  or  not  the  paper  on  which  the  sender  writes  the 
message,  and  to  which  he  attaches  his  name,  is  a  contract  and  such 
as  will  bind  him  to  all  the  stipulations  contained  therein,  depends 
upon  circumstances.^*  The  general  rule  is  that  a  receipt  or  bill  of 
lading,  when  assented  to  by  the  consignor,  is  a  contract  between 
him  and  the  shipper,  and  all  reasonable  stipulations  therein  con- 
tained are  binding  on  both.'^^  In  order,  however,  for  the  receipt  or 
bill  of  lading  to  be  binding,  the  minds  of  the  parties,  as  in  other 
cases,  must  meet;  that  is,  the  terms  of  the  contract  must  be  ac- 
cepted and  assented  to  by  the  consignor.  It  has  been  held  that 
when  the  terms  of  the  bill  of  lading,  or  the  stipulations  contained 
therein,  are  sufficiently  clear  and  conspicuous,  and  the  consignor 
has  signed  his  name  thereto,  this  fact  is  prima  facie  evidence  that  he 
has  assented  to  the  terms  of  the  contract.  The  blank  forms  fur- 
nished by  telegraph  companies  to  their  patrons,  and  on  which  the 
messages  are  required  to  be  written  cannot  be  compared  with  the 
receipts  or  bills  of  lading  of  carriers,  with  respect  to  their  special 
contractual  nature,  because  the  contract  is  not  the  same.  One  of 
the  main  incidents  to  telegraph  companies  is  to  accomplish  their 
purposes  in  the  shortest  time  possible.  Quickness  and  celerity  is 
the  life  and  mainspring  of  their  existence.  It  is  seldom  that  a  per- 
son applies  to  these  companies  for  service  unless  his  business  is  of 
the  utmost  importance  and,  therefore,  needs  immediate  attention. 
For  these  reasons  he  has  not  time  to  deliberate  and  consider  special 
contracts  contained  in  these  blank  forms  and  reject  them  if  they 
should  not  be  acceptable.  This  is  not  always  the  case  with  the  con- 
signor of  goods.  In  the  latter  case  the  advantages  of  each  are  more 
equal.  There  is  also  something  given  by  the  carrier  to  the  con- 
signor, in  the  nature  of  consideration,  to  enforce  the  stipulation, 
which  is  not  given  in  the  former  case,  and  which  will  be  hereafter 
considered.    It  may  be  proper  to  state  here  that,  where  the  stipula- 

V.  Graham,  1  Colo.  230,  9  Am.  Rep.  136 ;  West.  U.  Tel.  Co.  v.  Henderson,  89 
Ala.  510,  7  South.  419,  18  Am.  St.  Rep.  148;  North  Packing  Co.  v.  West.  U. 
Tel.  Co.,  70  111.  App.  279;  West.  U.  Tel.  Co.  v,  Fenton,  52  Ind.  1;  Barnes 
V.  West.  U.  Tel.  Co.,  24  Nev.  125,  50  Pac.  438,  77  Am.  St.  Rep.  791. 

T*  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  45. 

7  5  Steele  v.  Townsend,  37  Ala.  247,  79  Am.  Dec.  49;  Cincinnati,  etc.,  R. 
Co.  V.  Pontius,  19  Ohio  St.  221,  2  Am.  Rep.  391;  Hill  v.  Syracuse,  etc.,  R. 
Co.,  78  N.  T.  351,  29  Am.  Rep.  163;  Erie,  etc.,  R.  Co.  v.  Dater,  91  111.  195, 
33  Am.  Rep.  51;  Mobile,  etc.,  R.  Co.  v.  Weiner,  49  Miss.  725;  Levering  v. 
Union  Transp.  Co.,  42  Mo.  88,  97  Am.  Dec.  320. 


512  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  382 

tions  are  reasonable,  the  same  rule  will  appl}"  to  both  of  these  com- 
panies. The  above  variance  in  the  application  of  the  rule  is  where 
it  is  necessary  that  a  special  express  contract  shall  be  made  to 
exempt  these  companies  from  the  usual  common-law  liabilities.^^ 

§  382.  Same  continued — contract — no  consideration. — It  is  a 
general  rule  of  the  law  of  contracts  that,  in  order  for  an  agreement 
between  two  parties  to  be  valid  and  enforceable,  their  minds  must 
not  only  come  together  at  the  same  time  with  respect  to  the  same 
subject-matter,  but  there  must  be  a  mutual  consideration.  In  the 
cases  in  which  the  courts  held  that  the  receipts  or  bills  of  lading 
were  contracts,  there  were  mutual  considerations.  The  consignor 
agreed  to  release  the  carrier  of  some  of  the  common-law  liabilities 
in  consideration  of  the  latter  making  a  reduction  in  the  charges  for 
shipping.'^  In  the  case  of  a  telegram,  however,  the  facts  are  differ- 
ent. It  is  very  clear  that  there  is  an  additional  charge  exacted  of 
the  sender,  and  it  is  presumed  to  be  a  consideration ;  but,  in  order 
for  it  to  be  such,  there  must  be  given  something  in  return  for  its 
value,  and  unless  there  is,  the  first  is  not  a  consideration,  but  rather 
a  gift — as  said,  an  additional  source  of  revenue.  Telegraph  com- 
panies are  public  servants,  and  it  is  their  duty  as  such  to  exercise 
a  very  great  degree  of  care  to  make  correct  and  accurate  transmis- 
sion of  all  messages  tendered  to  them.^^  In  order  to  do  this  it  de- 
volves upon  them  to  employ  skilled  and  competent  servants  ^^  and 
prepare  themselves  with  all  the  modern  facilities  and  improve- 
ments.®" Then,  any  act  on  the  part  of  the  sender  in  compensating 
them  additionally  for  repeating  the  message  increases  this  obliga- 
tion or  duty.  Telegraph  companies  hold  themselves  out  to  the  pub- 
lic to  be  ready  and  willing  to  perform  certain  duties  with  the  high- 
est degree  of  care  and  fidelity. ^^  Then,  is  it  possible  for  them  or 
any  other  party  entering  into  a  contract  for  a  valuable  consideration 
to  promise  and  not  to  promise,  or  to  create  and  not  to  create,  an 
obligation  or  duty,  at  one  and  the  same  moment  and  by  one  and 
the  same  act?  The  inconsistency  and  impossibility  of  such  things 
are  obvious.®^  A  further  question  which  presents  itself  is.  Can  this 
stipulation  be  considered  a  contract  whereby  the  company  has 
bound  itself  as  an  insurer?     These  companies  are  not  insurers  un- 

76  See  §§  412-414. 

77  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Eep.  50.  Compare  I.  C. 
R.  Co.  V.  Morrison,  19  111.  136. 

7  8  See  chapter  XII. 

7  9  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  50. 

8  0  See  §  249. 

81  See  §  285. 

82  Bartlett  v.  West  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  444. 


I 


§   383)  COMMON-LAW  LIABILITIES  513 

der  the  common  law,  and,  unless  made  so  either  by  statute  or  by  a 
special  express  contract  to  that  effect,  they  will  be  required  to  exer- 
cise only  the  highest  degree  of  care,  and  not  as  insurers  of  absolute 
correct  transmission  of  messages  under  any  and  all  circumstances. 
They  may,  as  has  been  seen,  bind  themselves  as  insurers,  but  in 
order  to  do  so,  it  must  be  done  by  an  express  contract  made  by  a 
properly  authorized  officer  of  the  company. ^^  The  amount  of  the 
risk  must  also  be  specified  in  the  contract,  and  paid  at  the  time  of 
sending  the  message.^*  So  it  is  very  clear  that  for  these  reasons 
these  stipulations  cannot  be  considered  contracts  whereby  the  com- 
panies bind  themselves  as  insurers.  Neither  can  it  be  said  that 
there  is  any  consideration  given  by  these  companies  in  exchange  for 
the  extra  charges  paid  by  the  sender  for  repeating  the  message.^^ 
§  383.  Same  continued — duress. — Telegraph  companies  have 
become  very  important  factors  in  the  commercial  world,  and,  in 
fact,  they  have  become  almost  matters  of  necessity  without  which 
the  progress  of  our  country  would  be  seriously  retarded. ^^  Being 
of  such  vital  interest  to  our  commercial  welfare,  and  clothed  with 
many  privileges  and  exemptions  not  enjoyed  by  the  people  at  large, 
they  must  exercise  their  business  with  care  and  fidelity  and  not 
take  any  advantage  of  their  position  over  the  patrons  who  seek 
their  services.  As  has  been  said,  their  services  are  most  often  em- 
ployed at  a  time  when  the  party  employing  them  is  not  in  a  posi- 
tion to  consider  contracts  which  attempt  to  exempt  them  from 
performing  their  public  duties,  and  at  a  time  when  the  employer 
would  be  willing  to  undergo  almost  any  risk  to  accomplish  the  pur- 
pose for  which  the  message  is  to  be  sent.  To  give  the  companies 
the  power  to  enforce  these  stipulations  would  not  only  have  a  ten- 
dency to  destroy  and  hamper  the  objects  for  which  they  Avere  in- 
corporated, but  it  would  also  give  them  the  power  to  take  advantage 
of  their  situation,  and  be  able  to  enforce  a  contract  induced  by  a 
species  of  moral  duress. ^^  The  weight  of  authority,  for  these  rea- 
sons, seems  to  be  opposed  to  upholding  such  stipulation.®^ 

8  3  See  §  364. 

84  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  50. 

8s  West.  U.  Tel.  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  279;  Candee  v.  West. 
U.  Tel.  Co.,  34  Wis.  471,  17  Am.  Rep.  4.52. 

8c  Smith  V.  West.  U.  Tel.  Co.,  S3  Ky.  104,  4  Am.  St.  Rep.  130. 

8  7  "If  it  be  a  contract,  the  sender  entering  into  it  was  under  a  species  of 
moral  duress.  His  necessities  compelled  him  to  resort  to  the  telegraph  as 
the  only  means  through  which  he  could  speedily  transact  the  business  in 
hand,  and  was  compelled  to  submit  to  such  conditions  as  the  company,  in 

8  8  See  note  SS  on  following  page. 
Jones  Tel.(2d  Ed.)— 33 


514  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  384: 

§  384.  When  requested  to  be  repeated — question  of  fact. — In 
those  jurisdictions  in  which  it  is  held  that  telegraph  companies 
may  exempt  themselves  from  losses  caused  by  errors  made  in  the 
transmission  of  messages,  unless  the  same  is  ordered  repeated,  it 
is  a  question  of  fact  to  be  decided  by  a  jury  as  to  whether  or  not 
the  company  was  ordered  to  repeat  the  message.  In  a  certain  case 
deciding  this  point,  when  it  appeared  that  on  receipt  of  the  dispatch 
the  plaintiff,  the  addressee,  went  at  once  to  the  operator  and  re- 
quested him  to  ask  the  sender  whether  certain  words  were  "five 
six"  or  "five  sixty,"  it  was  held  that  this  amounted  to  a  request 
by  the  plaintiff  to  have  the  message  repeated,  and  that  it  was  im- 

their  corporate  greed,  might  impose  and  sign  such  papers  as  the  company 
might  present.  Credentials,  rules  and  regulations,  such  as  the  company  is 
authorized  by  statute  to  establish,  cannot  be  understood  to  embrace  such 
regulations  as  shall  deprive  a  party  of  the  use  of  their  instrumentality,  save 
by  coming  under  most  onerous  and  unjust  conditions."  Tyler  v.  West.  U. 
Tel.  Co.,  60  111.  421,  14  Am.  Rep.  51.  In  Gillis  v.  West.  U.  Tel.  Co.,  61 
Vt.  461,  17  Atl.  736,  4  L.  R.  A.  611,  note,  15  Am.  St.  Rep.  917,  the  court 
said:  "Telegraph  companies  do  not  deal  with  their  employers  on  equal 
terms.  There  is  a  necessity  for  their  employment.  *  *  *  Neither  the 
commercial  world  nor  the  general  public  can  dispense  with  their  services. 
It  is  therefore  just  and  reasonable  that  they  should  not  be  allowed  to  take 
advantage  of  their  situation,  and  of  the  necessities  of  the  public,  to  exact 
exemption  from  that  measure  of  duty  that  the  law  imposes  upon  them,  and 
that  public  policy  imposes."  See,  also,  Dorgan  v.  West.  U.  Tel.  Co.,  1  Am. 
L.  T.  Rep.,  N.  S.  406;  West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  311,  41 
Am.  Rep.  500 ;    Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496. 

8  8  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744; 
American  U.  Tel.  Co.  v.  Daughtery,  89  Ala.  191,  7  South.  660;  West.  U. 
Tel.  Co.  T.  Graham,  1  Colo.  230,  9  Am.  Rep.  136;  West.  U.  Tel.  Co.  v. 
Blanchard.  68  Ga.  299,  45  Am.  Rep.  480 ;  West.  U.  Tel.  Co.  v.  Meek,  49  Ind. 
53;  West.  U.  Tel.  Co.  v.  Fenton.  52  Ind.  1:  West.  U.  Tel.  Co.  v.  Harris,  19 
111.  App.  347 ;  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38 ;  West. 
I'.  Tel.  Co.  V.  Tjler,  74  111.  168,  24  Am.  Rep.  279;  Sweatland  v.  Illinois, 
etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285;  Ayer  v.  West.  U.  Tel.  Co.,  79 
Me.  493,  1  Am.  St.  Rep.  353,  10  Atl.  495;  West.  U.  Tel.  Co.  v.  Lowrey,  32 
Neb.  7.32,  49  N.  W.  707;  Kemp  r.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W. 
1064,  26  Am.  St.  Rep.  363,  stipulation  declared  invalid  by  statute;  Brown  v. 
Postal  Tel.  Cable  Co.,  Ill  N.  C.  187.  16  S.  E.  179,  17  L.  R.  A.  648,  .32  Am.  St. 
Rep.  793,  overruling  Lassiter  v.  West.  U.  Tel.  Co.,  89  N.  C.  334;  Marr  v. 
West.  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496 ;  Pepper  v.  West.  U.  Tel.  Co., 
87  Tenn.  554,  11  S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St.  Rep.  699;  Wertz  v. 
West.  U.  Tel.  Co.,  7  Utah,  446,  27  Pac.  172,  13  L.  R.  A.  510 ;  Gillis  v.  West. 
U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  7.36,  4  L.  R.  A.  611,  note,  15  Am.  St.  Rep.  917 ; 
Thompson  v.  West.  U.  Tel.  Co..  64  Wis.  531,  25  N.  W.  789,  54  Am.  Rep.  644 ; 
Bartlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437;  True  v.  Interna- 
tional Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156 ;  Candee  v.  West.  U.  Tel.  Co.,  34 
Wis.  471,  17  Am.  Rep.  452;  West.  U.  Tel.  Co.  v.  Richman  (Pa.)  8  Atl.  171; 
Birney  v  New  York.,  etc.,  Tel.  Co.,  18  Md.  341,  81  Am,  Dec.  607;  Man- 
ville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214,  18  Am.  Rep.  8;  U.  S.  Ex.  Co.  v. 
Backman,  28  Ohio  St.  155;  Lamb  v.  Camdens,  etc.,  Co.,  46  N.  Y.  271,  7 
Am.  Rep.  327 ;    So.  Ex.  Co.  v.  Moon,  39  Miss.  822. 


§    386)  COMMON-LAW   LIABILITIES  515 

material  whether  or  not  the  forms  established  by  the  company  for 
the  repeating  of  messages  were  complied  with.*^ 

§  385.  Same  continued — binding  on  sender  only. — The  above 
case  was  brought  by  the  addressee  and  not  by  the  sender ;  it  seems 
that  the  stipulation  as  to  repeating  is  not  a  matter  to  be  considered 
— except  under  certain  circumstances — when  the  suit  is  brought 
by  the-  addressee.  "The  receiver  can  be  guided  or  informed  solely 
by  what  is  delivered  to  him,  and  has  no  opportunity  to  agree  upon 
any  such  conditions  before  delivery."  ^°  But  whether  this  is  al- 
ways the  case  depends  upon  the  view  in  which  the  addressee's 
right  of  action  is  regarded. ^^  It  was  held,  in  one  case,  that  the 
express  stipulation  in  the  contract  of  sending  binds  the  receiver 
as  well  as  the  sender,""  and  it  is  considered  by  Mr.  Thompson,  in 
his  work  on  Electricity,  that  in  so  far  as  the  receiver's  right  of 
action  rests  in  contract,  he  is  bound  by  the  agreement  entered  into 
by  the  sender  as  much  so  as  the  sender  himself.  But,  "if  the  tele- 
graph company,  when  it  delivers  an  erroneous  message  to  the  per- 
son to  whom  it  is  addressed  by  the  sender,  puts  itself  in  the  con- 
dition of  a  mere  tort-feasor,  one  guilty  of  a  misfeasance  toward  a 
stranger  by  which  that  stranger  has  incurred  a  loss,  then  this  con- 
clusion (i.  e.,  that  the  receiver  is  not  bound)  is  supportable."  °^ 

§  386.  Times  within  which  claims  are  to  be  presented. — The 
blank  forms  on  which  the  messages  are  to  be  written  generally 
contain  stipulations  providing  that  all  claims  against  the  company 
for  failure  to  transmit  messages  correctly  must  be  presented  in 
writing,  and  within  a  certain  prescribed  time.  The  language  of 
these  stipulations  is  generally  as  follows :  "The  company  will  not 
be  liable  for  damages  or  statutory  penalties,  in  any  case,  where 
the  claim  is  not  presented  in  writing  within  thirty  days  after  the 
message  is  filed  with  the  company  for  transmission."     When  the 

89  West.  U.  Tel.  Co.  v.  Landis   (Pa.)  12  Atl.  467. 

90  La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383;  Tobin  v.  West. 
U.  Tel.  Co.,  146  Pa.  375,  20  Atl.  324,  28  Am.  St.  Rep.  802;  Baily  v.  West. 
U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas. 
895;  West.  U.  Tel.  Co.  v.  Alford,  110  Ark.  379,  161  S.  W.  1027,  50  L.  R.  A. 
(N.  S.)  94. 

9iIIalsted  V.  Postal  Tel.  Cable  Co.,  193  N.  Y.  293,  85  N.  E.  1078,  19  L. 
R.  A.  (N.  S.)  1021,  127  Am.  St.  Rep.  9.52.  Sender  acting  as  agent  for  sendee, 
thereby  binding  the  latter.     See  §§  385,  416,  425. 

9  2  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  358.  See,  also,  Stone  &  Company 
V.  Postal  Tel.  Co.,  31  R.  I.  174,  76  Atl.  762,  29  L.  R.  A.  (N.  S.)  795 ;  Halsted 
V.  Postal  Tel.  Cable  Co.,  193  N.  Y.  293,  85  N.  E.  1078,  19  L.  R.  A.  (N.  S.) 
1021,  127  Am.  St.  Rep.  9.52;  West.  U.  Tel.  Co.  v.  Dant,  42  App.  D,  C.  398, 
L.  R.  A.  1915B,  685,  Ann.  Cas.  1916A,  1132. 

93  Thompson  on  Electricity,  §  237.  See,  also,  Bailey  v.  West.  U.  Tel. 
Co.,  227  Pa.  522.  76  Atl.  7.36,  43  L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas.  89.5. 


516  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  386 

sender  signs  these  forms,  these  stipulations  enter  into  and  become 
a  part  of  the  contract  of  sending.***  There  is  a  difference  of  opin- 
ion as  to  whether  they  are  reasonable  and  enforceable,  but  the  bet- 
ter weight  of  authority  is  that  they  are  valid  stipulations.''^  They 
do  not  at  all  exempt  or  relieve  the  company  from  performing  its 
duties  in  a  faithful,  diligent  and  careful  manner,  being  still  held 

94  Hill  V.  West.  U.  Tel.  Co.,  85  Ga.  425,  11  S.  E.  874,  21  Am.  St.  Rep.  166; 
West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844;  West.  U.  Tel.  Co.  v. 
Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep.  148;  West.  U.  Tel. 
Co.  V.  Cobbs,  47  Ark.  344,  1  S.  W.  558,  58  Am.  Rep.  756 ;  West.  U.  Tel.  Co. 
V.  Dunfield,  11  Colo.  335;  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am. 
Rep.  713 ;  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E.  894 ;  West. 
U.  Tel.  Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224,  note;  Cole 
y.  West.  U.  Tel.  Co.,  33  Minn.  227,  22  N.  E.  385;  Massengale  v.  West.  U.  Tel. 
Co.,  17  Mo.  App.  257;  Young  v.  West.  U.  Tel.  Co.,  65  N.  Y.  163;  Wolf  v. 
West.  U.  Tel.  Co.,  62  Pa.  83,  1  Am.  Rep.  387 ;  West.  U.  Tel.  Co.  v.  Rains,  63 
Tex.  27 ;  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715 ;  Ilartzog 
V.  West.  U.  Tel.  Co.,  84  Miss.  448,  36  South.  539,  105  Am.  St.  Rep.  459; 
Heimann  v.  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32;  Beasley  v.  West. 
U.  Tel.  Co.  (C.  C.)  39  Fed.  181. 

Does  not  apply  to  forged  message.  Wells  v.  West.  U.  Tel.  Co.,  144  Iowa, 
605,  123  N.  W.  371,  138  Am.  St.  Rep.  317,  24  L.  R.  A.   (N.  S.)  1045. 

Tort. — Binding  although  the  action  is  in  tort  instead  of  contract.  Penn 
V.  West.  U.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A.   (N.  S.)  223. 

95  A/afjfl»!a.— Harris  v.  West.  U.  Tel.  Co.,  121  Ala.  519,  25  South.  910,  77 
Am.  St.  Rep.  70;  West.  U.  Tel.  Co.  v.  Heathcoat,  149  Ala.  623,  43  South. 
117 ;  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844 ;  McGehee  v.  West. 
U.  Tel.  Co.,  169  Ala.  109,  53  South.  205,  Ann.  Cas.  1912B,  512. 

Ark<insas.—\\eiit.  U.  Tel.  Co.  v.  Dougherty,  54  Ark.  221,  15  S.  W.  468,  26 
Am.  St.  Rep.  33,  11  L.  R.  A.  102 ;  West.  U.  Tel.  Co.  v.  Moxley,  80  Ark,  554, 
98  S.  W.  112 ;    Lavelle  v.  West.  U.  Tel.  Co.,  102  Ark.  607,  145  S.  W.  205. 

Co ?orf/(7o.— West.  U.  Tel.  Co.  v.  Dunfield,  11  Colo.  335,  18  Pac.  34. 

Georgia,— V^' est.  U.  Tel.  Co.  v.  Waxelbaum,  113  Ga.  1017,  39  S.  E.  443,  56  L. 
R.  A.  741 ;  West.  U.  Tel.  Co.  v.  James,  90  Ga.  254,  16  S.  E.  83 ;  Stamey  v. 
West.  U.  Tel.  Co.,  92  Ga.  613,  18  S.  E.  1008,  44  Am.  St.  Rep.  95;  Postal 
Tel.  Cable  Co.  v.  Moss,  5  Ga.  App.  503,  6:3  S.  E.  590 ;  Hill  v.  West.  U.  Tel. 
Co.,  85  Ga.  425,  11  S.  E.  874,  21  Am.  St.  Rep.  166. 

7/Z(«ois.— West.  U.  Tel.  Co.  v.  Beck,  58  111.  App.  564;  Webbe  v.  West.  U. 
Tel.  Co.,  64  111.  App.  331;    West.  U.  Tel.  Co.  v.  Fairbanks,  15  111.  App.  600. 

/Hrfiana.— West.  U.  Tel.  Co.  v.  Trumbull,  1  Ind.  App.  121,  27  N.  E.  313; 
West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  West. 
U.  Tel.  Co.  V.  Meredith,  95  Ind.  93;  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228, 
48  Am.  Rep.  713. 

/0H».— Albers  v.  West.  U.  Tel.  Co.,  98  Iowa,  51,  66  N.  W.  1040;  Heald 
V.  West.  U.  Tel.  Co.,  129  Iowa,  326,  105  N.  W.  588;  Free  v.  West.  U.  Tel. 
Co..  135  Iowa,  69,  110  X.  W.  143. 

Kansas.— RwsiieW  v.  W^est.  U.  Tel.  Co.,  57  Kan.  2.30,  45  Pac.  598;  Markley 
V.  West.  U.  Tel.  Co.,  144  Iowa,  105,  122  N.  W.  136,  138  Am.  St.  Rep.  263. 

Mon/?a>j(Z.— West.  U.  Tel.  Co.  v.  Lehman,  106  Md.  318,  67  Atl.  241,  14  Ann. 
Cas.  736. 

Massacnusetts.—\V\iQe\o(±  v.  Post.  Tel.  Cable  Co.,  197  Mass.  119,  83  N.  E. 
313,  14  Ann.  Cas.  188. 

Minnesota.— Co\Q  v.  We.st.  U.  Tel.  Co.,  33  Minn.  227,  22  N.  W.  385. 

Mississippi.— Clement  v.  West.  U.   Tel.   Co.,   77  Miss.  747,  27  South.  603; 


§    386)  COMMON-LAW   LIABILITIES  517 

to  the  same  responsible  duty.  Neither  does  it  lead  to  an  afifirmance 
of  a  right  to  contract  for  relief  against  responsibilities  for  negli- 
gence; nor  does  it  put  them  in  the  power  of  the  company  to  nullify 

Hartzog  v.  West.  U.  Tel.  Co.,  84  Miss.  448,  36  South.  539,  105  Am.  St.  Rep. 
459.  But  see  Dodson  v.  West.  U.  Tel.  Co.,  97  Miss.  104,  52  South.  693,  stip- 
ulations made  invalid  by  statute. 

Missouri.— Kendall  v.  West.  U.  Tel.  Co.,  56  Mo.  App.  192 :  Thorp  v.  West. 
U.  Tel.  Co.,  118  Mo.  App.  398,  94  S.  W.  554;  Montgomery  v.  West.  U.  Tel. 
Co.,  50  Mo.  App.  591 ;  Smith-Frazier  Boot,  etc.,  Co.  v.  West.  U.  Tel.  Co.,  49 
Mo.  App.  99;  Masseugale  v.  West.  U.  Tel.  Co.,  17  Mo.  App.  257;  Grant  v. 
West.  U.  Tel.  Co.,  154  Mo.  App.  279,  133  S.  AV.  673. 

^'ew  Yorfc.— Young  v.  West.  U.  Tel.  Co.,  65  N.  Y.  163. 

North  Carolina.— Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E.  9.38; 
Sykes  v.  West.  U.  Tel.  Co.,  150  N.  C.  431,  64  S.  E.  177 ;  Lewis  v.  West.  U. 
Tel.  Co.,  117  N.  C.  436,  23  S.  E.  319;  Sherrill  v.  West.  U.  Tel.  Co.,  109  N. 
C.  527,  14  S.  E.  94 ;  Penn  v.  West.  IT.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16, 
41  L.  R.  A.  (N.  S.)  223;  Forney  v.  Postal  Tel.  Cable  Co.,  152  N.  C.  494,  67 
S.  E.  1011 ;   Barnes  v.  Postal  Tel.  Cable  Co.,  156  N.  C.  150,  72  S.  E.  78. 

OkMhoma.— West.  U.  Tel.  Co.  v.  Hollis,  28  Old.  613,  115  Pac.  774.  But  see 
West.  U.  Tel.  Co.  v.  Crawford,  29  Okl.  143,  116  Pac.  925,  35  L.  R.  A.  (N.  S.) 
930. 

Rhode  Island.— Stone  v.  Postal  Tel.  Cable  Co.,  31  R.  I.  174,  76  Atl.  762,  29  L. 
R.  A.  (N.  S.)  795. 

Pennsj/lvania.— Wolf.  v.  West.  U.  Tel.  Co.,  62  Pa.  83,  1  Am.  Rep.  387. 

South  Carolina.— Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C  358;  Eaker  v.  West. 
U.  Tel.  Co.,  75  S.  C.  97,  55  S.  E.  129;  Smith  v.  West.  U.  Tel.  Co.,  77  S.  C. 
378,  58  S.  E.  6;  Broom  v.  West.  U.  Tel.  Co.,  71  S.  C.  506,  51  S.  E.  259; 
Young  V.  West.  U.  Tel.  Co.,  65  S.  C.  93,  43  S.  E.  448 ;  Hays  v.  West.  U.  Tel. 
Co.,  70  S.  C.  16,  48  S.  E.  608,  106  Am.  St.  Rep.  731,  67  L.  R.  A.  481,  3  Ann. 
Cas.  424. 

South  Dakota.— Kirhy  v.  West.  U.  Tel.  Co.,  7  S.  D.  623.  65  N.  W.  37.  30 
L.  R.  A.  621,  624,  46  Am.  St.  Rep.  765;  Id.,  4  S.  D.  105,  55  N.  W.  759,  46 
Am.  St.  Rep.  765,  30  L.  R.  A.  612. 

Tennessee.— Manier  v.  West.  U.  Tel.  Co.,  94  Tenn.  442,  29  S.  W.  732;  West. 
U.  Tel.  Co.  V.  Greer,  115  Tenn.  368,  89  S.  W.  327.  1  L.  R.  A.  (N.  S.)  525; 
West.  U.  Tel.  Co.  v.  Courtney,  113  Tenn.  482,  82  S.  W.  484. 

Te.ras.—ljester  v.  West.  U.  Tel.  Co.,  84  Tex.  313,  19  S.  W.  2.56;  Phillips 
V.  West.  U.  Tel.  Co.,  95  Tex.  638,  69  S.  W.  68 ;  West.  U.  Tel.  Co.  v.  Culber- 
son, 79  Tex.  6.5.  15  S.  W.  219;  West.  U.  Tel.  Co.  v.  Brown,  84  Tex.  54.  19 
S.  W.  3.36;  West.  U.  Tel.  Co.  v.  Rains,  63  Tex.  27;  West.  U.  Tel.  Co.  v. 
Murray,  29  Tex.  Civ.  App.  207,  68  S.  W.  549 ;  West.  U.  Tel.  Co.  v.  Vanway 
(Tex.  Civ.  App.)  54  S.  W.  414;  West.  U.  Tel.  Co.  v.  Hayes  (Tex.  Civ.  App.) 
63  S.  W.  171 ;  West.  U.  Tel.  Co.  v.  IMay,  8  Tex.  Civ.  App.  176,  27  S.  W.  760 ; 
West.  U.  Tel.  Co.  v.  Jobe,  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  1036;  West 
r.  Tel.  Co.  V.  Pells,  2  Willson,  Cas.  Ct.  App.  §  41;  West.  U.  Tel.  Co.  \. 
Ashley  (Tex.  Civ.  App.)  137  S.  W.  1165. 

[7a/i.— Brooks  v.  West.  U.  Tel.  Co.,  26  Utah,  147,  72  Pac.  499. 

lFuco7!sm.— Heinmann  v    West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32. 

United  States.— Southern  Express  Company  v.  Caldwell,  21  Wall.  264,  22 
L.  Ed.  556;  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098, 
38  L.  Ed.  883;  Whitehill  v.  West.  U.  Tel.  Co.  (C.  C.)  136  Fed.  499;  West. 
U.  Tel.  Co.  V.  Coggin,  68  Fed.  137,  15  C.  C.  A.  231 ;  Fiulay  v.  West.  U.  Tel.  Co. 
(C.  C.)  64  Fed.  459 ;   Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181. 

In  Stone  v.  Postal  Tel.  Cable  Co.,  supra,  the  court  said :  "This  regulation 
printed  on  the  back  of  the  blank  forms  and  quoted  in  the  question,  in  the 


518  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  386 

or  evade  the  law;°^  but  such  stipulations  d6  relieve  the  company 
somewhat  from  being  held  for  some  alleged  liabilities,  about  which 

circumstances  of  the  defendant's  business,  is  a  reasonable  one.  The  argu- 
ment of  the  defendant's  counsel  in  that  regard  appears  to  the  court  to  be 
sound.  The  number  of  messages  received  by  a  telegraph  company  daily  for 
transmission  is  so  great,  par'iicularly  in  the  large  cities,  that  it  is  imprac- 
ticable to  keep  them  on  file  for  a  long  time,  so  as  to  have  them  accessible 
for  examination  in  case  of  a  complaint  regarding  service.  It  is  necessary 
for  each  office  to  destroy  all  original  messages  after  a  brief  period  to  avoid 
encroachment  upon  its  limited  working  space.  Indeed,  even  if  all  messages 
were  kept,  it  would  soon  become  a  difficult  task  to  find  a  particular  message 
after  the  lapse  of  many  months.  Furthermore,  the  production  of  the  orig- 
inal message  would  not  give  full  information  about  the  service.  Many  of 
the  facts  are  dependent  upon  the  memory  of  operators  and  other  witnesses, 
and  the  passing  of  time  quickly  obscures  evidence  so  founded.  A  rule  that 
provides  that,  if  a  customer  intends  to  hold  the  company  responsible  for 
a  fault  in  the  service,  he  must  give  it  notice  of  his  claim  within  a  period 
sufficiently  short  to  allow  the  facts  to  be  investigated  while  fresh  and 
capable  of  accurate  knowledge,  is  a  reasonable  rule.  "Without  it  the  com- 
pany would  suffer  from  the  presentation  of  stale  and  fictitious  claims, 
against  which  it  would  be  unable  to  defend  itself." 

A  limitation  of  sixty  days  within  which  to  give  notice  of  a  claim  for  dam- 
ages has  been  upheld  as  a  reasonable  regulation,  where  it  appeared  that  the 
party  claiming  damages  knew  of  the  company's  default  more  than  sixty  days 
before  the  action  was  brought,  and  made  no  claim  therefor  in  that  time. 
Sykes  v.  West.  U.  Tel.  Co.,  l."50  N.  C.  431,  64  S.  E.  177. 

This  stipulation  exempting  the  company  from  liability  where  the  claim 
for  damages  is  not  presented  within  a  certain  time  is  not  a  condition  re- 
stricting its  liabilities  for  negligence,  nor  is  it  in  the  nature  of  a  provision 
limiting  the  time  within  which  an  action  may  be  commenced,  and  tiierefore 
having  the  force  and  effect  of  a  statute  of  limitations.  Sykes  v.  West.  U.  Tel. 
Co.,  150  N.  C.  431,  64  S.  E.  177 ;  Forney  v.  Postal  Tel.  Cable  Co.,  152  N.  C. 
494,  67  S.  E.  1011. 

The  Texas  statute  (Rev.  St.  1895,  art.  3379,  as  amended  by  Laws  1907, 
c.  129)  provides  as  follows:  "No  stipulation  in  any  contract  requiring  no- 
tice to  be  given  of  any  claim  for  damages  as  a  condition  precedent  to  the 
right  to  sue  thereon  shall  ever  be  valid  unless  such  stipulation  is  reason- 
able, and  any  such  stipulation  fixing  the  time  within  which  such  notice 
shall  be  given  at  a  less  period  than  ninety  days,  shall  be  void." 

Under  this  statute  it  was  held  in  Taber  v.  West.  U.  Tel.  Co.,  104  Tex.  272, 
137  S.  W.  106,  34  L.  R.  A.  (N.  S.)  185,  that  a  stipulation  requiring  any  claim 
to  be  made  within  ninety  days  after  the  message  is  filed  with  the  company 
for  transmission  is  void.  By  an  earlier  construction  of  the  same  statute  in 
West.  U.  Tel.  Co.  v.  Timmons  (Tex.  Civ.  App.)  136  S.  W.  1169,  it  was  held 
that  the  reasonableness  of  such  notice  is  a  question  of  fact  for  the  jury. 
And  in  the  still  earlier  case  of  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  130 
S.  W.  622.  it  was  held  that  the  stipulation  was  unreasonable  as  a  matter  of 
law.  Again,  in  West.  U.  Tel.  Co.  v.  Douglass  (Tex.  Civ.  App.)  124  S.  W.  488, 
it  was  held  that  under  this  statute  a  stipulation  that  notice  of  a  claim  for 
damages  should  be  given  within  sixty  days  was  void. 

90  Harris  v.  West.  U.  Tel.  Co.,  121  Ala.  519,  25  South.  910,  77  Am.  St. 
Rep.  70;  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am.  Rep.  713;  West. 
U.  Tel.  Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224;  West.  U 
Tel.  Co.  V.  Dougherty,  54  Ark.  221,  15  S.  W.  468,  11  L.  R.  A.  102,  26  Am.  St, 
Rep.  33;   So.  Ex.  Co.  v.  Caldwell,  21  Wall.  264,  22  L.  Ed.  556. 


1 


§    387)  COMMON-LAW  LIABILITIES  519 

it  would  be  unable  to  make  a  proper  and  expedient  defense. ^^  In 
order,  however,  for  these  stipulations  to  be  reasonable,  the  time 
within  which  the  presentation  is  to  be  made  must  be  reasonably- 
long  to  enable  the  party  claiming  damages  to  become  aware  of  the 
injury  and  to  present  his  claim  properly.^^  Thus  it  has  been  held 
that  a  stipulation  was  reasonable  which  required  all  claims  against 
the  company  to  be  presented  within  sixty  days  ^^  after  the  filing 
of  the  message  for  transmission.  It  has  also  been  held  that  thirty 
days,^^"  and  even  twenty  days,^"^  was  a  reasonable  time  to  limit 
the  presentation  of  these  claims.  But  the  reasonableness  of  any 
particular  time  may  vary  according  to  circumstances.^"^  It  was 
held  in  one  case  that  seven  days  was  a  reasonable  time  to  give  the 
injured  party  for  presenting  his  claim. ^"'^ 

§  387.  Same  continued — reasons  for  rule. — There  is  no  ques- 
tion that  these  regulations  are  enforceable,  provided  the  time  in 
which  they  are  to  be  made  is  reasonable.^"*  It  is  a  general  rule 
that  a  common  carrier  may  make  and  prescribe  a  certain  limited 
time  within  which  all  claims  must  be  presented.  These  companies 
are  insurers  of  the  goods  intrusted  to  them  and  can  only  be  reliev- 
ed of  liability  for  loss  caused  by  the  acts  of  God  or  the  public  ene- 

97  1(1. 

9  8  Helmann  v.  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32. 

99  West.  U.  Tel.  Co.  v.  Way,  S3  Ala.  .542,  4  South.  S44 ;  West.  U.  Tel. 
Co.  V.  Dougherty,  54  Ark.  221,  15  S.  W.  468,  11  L.  R.  A.  102,  26  Am.  St.  Rep. 
38 ;  Hill  V.  West.  U.  Tel.  Co.,  85  Ga.  425,  11  S.  E.  874,  21  Am.  St.  Rep.  166 ; 
West.  U.  Tel.  Co.  v.  Yopst,  118  Iiitl.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  West. 
U.  Tel.  Co.  V.  Jones,  95  Ind.  228,  48  Am.  Rep.  713 ;  Young  v.  West.  U.  Tel. 
Co.,  65  N.  T.  163 ;  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94 ; 
Wolf  V.  West.  U.  Tel.  Co.,  62  Pa.  83,  1  Am.  Rep.  387;  West.  U.  Tel.  Co.  v. 
Rains,  63  Tex.  27;  West.  U.  Tel.  Co.  v.  Brown,  84  Tex.  54,  19  S.  W.  336; 
Lester  v.  West.  U.  Tel.  Co.,  84  Tex.  313,  19  S.  W.  256;  Stone  v.  Postal  Tel. 
Co.,  31  R.  I.  174,  76  Atl.  7G2,  29  L.  R.  A.   (N.  S.)  795. 

100  West.  U.  Tel.  Co.  v.  Dunfield,  11  Colo.  33.5,  18  Pac.  34;  Cole  v.  West. 
U.  Tel.  Co.,  33  Minn.  227,  22  N.  W.  385;  Massengale  v.  West.  U.  Tel.  Co., 
17  Mo.  App.  257;  West.  U.  Tel.  Co.  v.  Culberson,  79  Tex.  65.  15  S.  W.  219; 
West.  U.  Tel.  Co.  \.  Pells,  2  Tex.  Law  R.  246;  Beasley  v.  West.  U.  Tel.  Co. 
(C.  C.)  39  Fed.  181 ;  West.  U.  Tel.  Co.  v.  Prevatt,  149  Ala.  617,  43  South.  106 ; 
Herron  v.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696;  West.  U.  Tel.  Co. 
V.  Lehman,  106  Md.  318,  67  Atl.  241,  14  Ann.  Cas.  736;  Martin  v.  Sunset 
Tel.,  etc.,  Co.,  18  Wash.  260,  51  Pac.  376;  Grant  v.  West.  U.  Tel.  Co.,  154 
Mo.  App.  270,   133  S.  W.  673. 

101  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  358;  Heimann  v.  West.  U.  Tel.  Co.. 
57  Wis.  562,  16  N.  W.  32. 

102  Massengale  v.  West.  U.  Tel.  Co.,  17  Mo.  App.  257;  Postal  Tel.  Cable  Co. 
V.  Nichols,  159  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870,  14  Ann. 
Cas.  369.     See,  also,  §  393. 

103  Louis  V.  Great  West.  R.  Co.,  5  H.  &  N.  867. 

104  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am.  Rep.  716.  See  §  393. 
See,  also,  cases  in  note  95,  ante. 


520  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  388 

my.  At  common  law  telegraph  companies  are  not  held  to  the  same 
strict  liability.  Then,  if  a  common  carrier  can  make  and  enforce 
such  stipulations,  there  should  be  a  greater  reason  why  telegraph 
companies  should  do  so.^°^  These  stipulations  do  not  operate  as 
a  limitation  of  the  time  within  which  suit  may  be  brought,  but 
they  are  designed  merely  to  give  the  company  notice  of  the  claim, 
in  order  that  it  may  be  investigated  promptly.^"®  Messages  are 
usually  destroyed  after  being  kept  six  months,  and  the  company's 
ability  to  defend  would  naturally  be  affected  by  a  delay  in  its  be- 
ing informed  of  a  claim.  If  a  sender  of  a  message  has  sustained  a 
loss  by  the  failure  of  the  company  to  properly  transmit  it,  he  could 
very  easily  ascertain  this  fact  within  sixty,  thirty,  twenty  days,  or  e\en 
within  a  shorter  time,  a'fter  the  message  was  filed,  and  it  would  be 
no  unreasonable  rule  to  require  him  to  promptly  notify  the  com- 
pany of  this  fact  in  order  that  the  latter  might  remedy  the  loss  or 
defend  itself  for  such.  The  object  in  transacting  business  over  tel- 
egraph lines  is  to  accomplish  the  desired  results  in  the  shortest 
time  possible,  and  surely  the  sender  of  the  message  would  find  out 
very  soon  after  it  was  filed  whether  or  not  the  message  had  ac- 
complished its  purpose ;  and  it  would  be  no  burden  or  inconven- 
ience on  his  part  to  notify  the  company  that  the  objects  had  not 
been  accomplished,  to  his  loss.  The  presumptions  are  that,  if  he 
fails  to  notify  the  company  of  the  improper  transmission  of  the 
message,  the  rights  acquired  under  this  agreement  are  waived. ^°" 
Another  reason  justifying  the  reasonableness  of  the  provision  for 
notice  of  the  claim  is  found  in  the  multitude  of  messages  transmit- 
ted requiring  a  speedy  knowledge  of  claims  to  enable  the  company 
to  keep  an  account  of  its  transactions  before,  by  reason  of  their 
great  number,  they  cease  to  be  within  their  recollection  and  con- 
trol.^«« 

§  388.  Same  continued — statutory  penalty — applicable. — In 
many  states  there  are  statutes  which  impose  a  penalty  upon  tele- 
graph companies  for  a  failure  to  properly  perform  their  duties,  and 
the  question  has  come  up  in  several  instances  as  to  whether  these 

105  Wolf  V.  West.  U.  Tel.  Co.,  62  Pa.  S3,  1  Am.  Rep.  387. 

lOGMcGehee  v.  West.  U.  Tel.  Co.,  169  Ala.  109,  53  South.  205,  Ann.  Gas. 
1912B,  512;  West.  U.  Tel.  Co.  v.  Trumbull,  1  Ind.  App.  121,  27  N.  E.  315; 
West.  U.  Tel.  Co.  v.  Dougherty,  54  Ark.  221.  15  S.  W.  468,  26  Am.  St.  Rep. 
33,  11  L.  R.  A.  102 ;  Sykes  v.  West.  U.  Tel.  Co.,  150  N.  C.  431,  64  S.  E.  177 ; 
Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94 ;  Southern  Express 
Co.  V.  Caldwell,  21  Wall.  264,  22  L.  Ed.  556.  But  see  Pacific  Tel.  Co.  v. 
Underwood,  37  Neb.  315,  55  X.  W.  1057,  40  Am.  St.  Rep.  490. 

107  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am.  Rep.  716. 

los  Wolf  V.  West.  U.  Tel.  Co.,  62  Pa.  83,  1  Am.  Rep.  387. 


§   389)  COMMON-LAW  LIABILITIES  521 

Stipulations  were  applicable  to  such  claims.  In  some  states,  as 
in  Arkansas,  it  has  been  held  that  they  were  not  applicable. ^^'^ 
In  Georgia  it  is  held  that,  while  the  stipulation  does  not  apply  to 
claims  for  the  statutory  penalty,  it  does  apply  to  all  claims  for  spe- 
cial damages,  and  operates  not  only  against  the  sender  of  a  mes- 
sage, but  also  against  the  receiver,  where  the  message  is  in  reply 
to  a  previous  message  sent  by  the  receiver.^^"'  While  this  is  the 
holding  in  some  states,  the  preponderance  of  authority  is  that  these 
stipulations  are  as  applicable  to  statutory  penalties  as  they  are  to 
any  other  claims. ^^^ 

§  389.  Same  continued — not  to  be  prosecuted  by  the  public. — 
As  was  ably  said  by  Judge  Elliott  on  this  subject:  "The  penalty 
provided  by  the  statute  is  given  to  one  who  contracts  with  a  tele- 
graph company  for  the  transmission  of  a  message,  and  it  is  not  a 
penalty  recoverable  by  public  prosecution,  but  is  one  for  which  a 
civil  action  will  lie.  Nor  is  the  civil  action  for  the  benefit  of  the 
public,  for  the  formal  right  of  action  and  the  entire  beneficial  in- 
terests are  exclusively  in  the  individual  who  contracts  with  the 
company  in  the  particular  instance.  The  case  is  therefore  entirely 
unlike  public  prosecutions  for  offenses  affecting  the  community  at 
large,  which  are  conducted  by  public  officers  and  in  which  indi- 
viduals have  no  private  interest.  Penalties  given  exclusively  to 
private  individuals  may  be  compounded,  while  penalties  prescribed 
for  purely  public  offenses  cannot  be,  even  though  part  of  the  pen- 
alty be  given  to  the  informer."  ^^^  But  it  has  been  held  that  these 
stipulations  were  not  applicable  to  an  addressee  who  was  attempt- 
ing to  recover  the  statutory  penalty.^ ^^  And  in  order  for  the  com- 
pany to  take  advantage  of  the  plaintiff's  failure  to  present  the 
claim  within  the  required  time,  it  must  be  specially  pleaded. ^^* 

100  West.  U.  Tel.  Co.  v.  Cobbs,  47  Ark.  344,  1  S.  W.  558,  58  Am.  Rep.  756. 
See,  also,  West.  U.  Tel.  Co.  v.  Sights,  34  Okl.  461,  126  Pac.  234,  42  L.  R. 
A.  (N.  S.)  419,  Ann.  Cas.  1914C,  204. 

110  West.  U.  Tel.  Co.  v.  James,  90  Ga.  254,  16  S.  B.  83. 

111  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am.  Rep.  713;  Barrett  v. 
West.  U.  Tel.  Co.,  42  Mo.  App.  546 ;  West.  U.  Tel.  Co.  v.  Meredith,  95  Ind. 
93;  West.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16;  West.  U.  Tel.  Co.  v. 
Trumbull,  1  Ind.  App.  121,  27  N.  E.  313;  West.  U.  Tel.  Co.  v.  Greer,  115 
Tenn.  368,  89  S.  W.  327,  1  L.  R.  A.  (N.  S.)  525.  Compare  Paul  v.  West.  U. 
Tel.  Co.,  164  Mo.  App.  2.33,  145  S.  W.  99.  In  West.  U.  Tel.  Co.  v.  Greer,  supra, 
it  was  held  that  a  minor  is  bound  by  a  provision  in  a  contract  for  the  trans- 
mission of  a  telegram  that  suit  must  be  brought  for  its  breach  within  sixty 
days. 

112  West.  U.  Tel.  Co,  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224, 
note. 

113  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  W.  894. 

114  West.  U.  Tel.  Co.  v.  Scircle.  103  Ind.  227.  2  N.  E.  604. 


522  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  390 

§  390.  Stipulation  held  void  as  against  public  policy. — It  is  held 
in  some  jurisdictions  that  these  stipulations,  requiring  all  claims 
against  telegraph  companies  to  be  presented  within  a  certain  fixed 
time,  are  void,  in  that  they  are  against  public  policy  and  as  an 
attempt  to  establish  limitations  which  are  fixed  by  the  general 
statutes  of  limitation. ^^^  As  was  said:  "It  would  introduce  into 
the  local  jurisprudence  of  every  state,  territory  and  country,  a 
species  of  private  statutes  of  limitation  or  nonclaim.  It  would 
avoid  the  policy  of  the  state  in  the  matter  of  the  time  in  which 
actions,  both  in  tort  and  contract,  should  be  brought."  ^^®  An- 
other reason  why  the  stipulation  is  not  reasonable  is  that  it  fur- 
nishes the  company  a  means  of  avoiding  liability  for  its  negligence, 
in  that  the  injured  party  may  possibly  not  know  of  his  loss  in  time 
to  comply  with  the  requirements  of  the  stipulation.^ ^'^  In  Ne- 
braska it  is  held  that  if  these  stipulations  are  viewed  as  a  contract 
between  the  telegraph  company  and  the  sender,  they  are  void,  as 
there  is  no  consideration  given. ^^^  It  will  be  observed,  however, 
that  in  most  of  the  cases  which  hold  that  these  stipulations  are 
unreasonable  and  void,  their  validity  was  denied  on  the  ground 
that  they  could  not  be  made  applicable  to  actions  for  the  statutory 

115  Johnston  v.  West.  U.  Tel.  Co.  (C.  C.)  33  Fed.  362 ;  West.  U.  Tel.  Co.  v.  Eu- 
banks,  100  Ky.  591,  38  S.  W.  106S,  18  Ky.  Law  Eep.  99-5,  66  Am.  St.  Rep.  361, 
36  L.  R.  A.  711 ;  Francis  v.  West.  U.  Tel.  Co.,  58  Minn.  252,  59  N.  W.  1078,  25 
L.  R.  A.  406,  49  Am.  St.  Rep.  507 ;  Pacific  Tel.  &  Tel.  Co.  v.  Underwood,  37 
Neb.  315,  55  N.  W.  1057,  40  Am.  St.  Rep.  490 ;  Davis  v.  West.  U.  Tel.  Co.,  107 
Ky.  527,  54  S.  W.  849,  41  Ky.  Law  Rep.  125,  92  Am.  St.  Rep.  371 ;  West.  U.  Tel. 
Co.  V.  Kemp,  44  Neb.  194,  62  X.  W.  451,  48  Am.  St.  Rep.  723 ;  West.  U.  Tel.  Co. 
V.  Longwill,  5  N.  M.  308,  21  Pac.  339 ;  West.  U.  Tel.  Co.  v.  Crawford,  29  Okl. 
143,  116  Pac.  925,  35  L.  R.  A.  (N.  S.)  930 ;  West.  U.  Tel.  Co.  v.  Sights.  34  Okl. 
461,  126  Pac.  234,  42  L.  R.  A.  (N.  S.)  419,  Ann.  Cas.  1912C,  204,  constitutional 
prohibition. 

116  West.  U.  Tel.  Co.  v.  Lonswill,  5  N.  M.  308,  21  Pac.  339.  But  see,  contra, 
Sykes  v.  West.  U.  Tel.  Co.,  150  N.  C.  431,  64  S.  B.  177 ;  West.  U.  Tel.  Co.  v. 
Trumbull,  1  Ind.  App.  121,  27  N.  E.  313 ;  West.  U.  Tel.  Co.  v.  Mellon,  96  Tenu. 
66,  33  S.  W.  725. 

The  statutory  time  within  which  an  action  for  damages  may  be  instituted 
against  a  company  is  in  no  manner  shortened  by  requiring  a  mere  claim  there- 
for to  be  made  within  a  reasonable  time.  The  action  may  be  brought  at  anj' 
time  within  the  statutory  limitation.  Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D.  623, 
65  N.  W.  37,  46  Am.  St.  Rep.  765,  30  L.  R.  A.  621,  624. 

117  In  Johnston  v.  West.  U.  Tel.  Co.  (C.  C.)  33  Fed.  362,  the  court  said:  "Is 
a  stipulation  which  has  the  effect  to  preclude  from  the  right  of  action  the  per- 
son to  whom  a  prepaid  telegram  is  directed  and  to  whom  it  has  never  been 
delivered,  no  matter  how  gross  the  negligence  of  the  company  may  be,  a  rea- 
sonable regulation?  In  the  opinion  of  this  court,  it  is  clearly  unreasonable 
and  is  contrary  to  public  policy." 

118  Pac.  Tel.  Co.  v.  Underwood,  37  Neb.  315,  40  Am.  St.  Rep.  480,  55  N.  W. 
1057. 


I 


391)  COMMON-LAW   LIABILITIES 


523 


penalty,  or  to  the  addressee.^ ^®  Thus  in  Indiana  it  has  been  held 
that  an  addressee  of  a  message,  suing  to  recover  damages,  is  not 
bound  by  these  stipulations,  although  the  validity  in  other  respects 
is  recognized.^20  j^  Texas  these  stipulations  are  valid  so  long 
as  the  time  for  filing  the  claim  is  not  less  than  ninety  days,^'^  but 
if  the  time  is  made  any  number  of  days  less  than  ninety,  they  be- 
come void/"  In  other  states  these  stipulations  are  held  invalid 
in  that  they  are  prohibited  by  positive  statutory  provisions.^ -^ 

§  391.  When  limitation  begins  to  run. — These  limitations  with- 
in which  claims  must  be  presented  to  the  company  begin  to  run 
from  the  time  specified  in  the  stipulation.  They  are  for  the  ex- 
clusive benefit  of  the  company  and  are  somewhat  in  the  nature  of 
conditions  precedent  to  the  bringing  of  a  suit,  and  in  order  for  the 
injured  party  to  take  advantage  of  his  loss  he  should  ordinarily 
comply  with  the  terms  of  the  conditions.^'*  As  tliey  are  for  the 
benefit  of  the  company,  and  must  be  complied  with  by  the  party 
injured,  the  former  must  also  be  held  to  their  conditions.^^^  The 
principal  condition  in  the  stipulation  is  that  the  claim  must  be 
presented  within  a  certain  fixed  time.  The  question,  then,  which 
presents  itself  is,  When  does  the  limitation  begin  to  run?  In  the 
old  blank  form,  used  by  these  companies  for  message  blanks,  the 
wording  of  these  stipulations  was  different  from  that  no\v  in  use. 
The  old  form  provided  for  a  presentation  within  "sixty  days  after 
sending  the  message."  Under  this  form  many  decisions  arose,  and 
it  was  held  in  all  these  that  the  limitation  did  not  begin  to  run 
until  after  the  message  was  actually  sent;  so,  if  there  was  a  total 
failure  to  transmit,  the  limitation  would  not  apply. ^^'^  Under  the 
present  forms  used  by  these  companies,  it  is  provided  that  the  com- 

119  Johnston  v.  West.  U.  Tel.  Co.  (C.  C.)  33  Fed.  3G2. 

120  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E.  894. 

121  Tex.  Rev.  St.  1895,  art.  3379.  See  question  also  discussed  in  note  95, 
ante. 

122  West.  U.  Tel.  Co.  v.  Jobe.  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  10-30;  Taber 
V.  West.  U.  Tel.  Co.,  104  Tex.  272,  137  S.  W.  lOG,  34  L.  R.  A.  (N.  S.)  1S5 ;  West. 
U.  Tel.  Co.  V.  Smith  (Tex.  Civ.  App.)  130  S.  W.  622. 

i23Dodson  v.  West.  U.  Tel.  Co.,  97  Miss.  104,  52  South.  093;  West.  U.  Tel. 
Co.  V.  Sights,  34  Okl.  468,  120  Pae.  234,  Ann.  Cas.  1914C,  204,  42  L.  R.  A.  (N. 
S.)  419.  See,  also.  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  1008, 
SO  L.  R.  A.  711,  66  Am.  St.  Rep.  361  ;  Davis  v.  West.  U.  Tel.  Co.,  107  Ky.  527, 

54  S.  W.  849,  92  Am.  St.  Rep.  371;  Pac.  Tel.  Co.  v.  Underwood,  37  Neb.  315, 

55  N.  W.  1057,  40  Am.  St.  Rep.  490 ;  West.  U.  Tel.  Co.  v.  Kemp,  44  Neb.  194,  48 
Am.  St.  Rep.  723,  62  N.  W.  451. 

12*  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  849. 

125  West.  U.  Tel.  Co.  v.  Trumbull,  1  Ind.  App.  121,  27  N.  E.  313;  West.  U. 
Tel.  Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  2  L.  R.  A.  224,  note. 

120  See  note  125.  supra,  for  reference  cases.  See,  also,  Sherrill  v.  West.  U. 
Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94. 


524  TELEGRAPH  AND  TELEPHONE  COMPANIEa         (§  392 

pany  will  not  be  liable  for  damages  or  for  statutory  penalties  in 
any  case  where  the  claim  is  not  presented  in  writing  within  sixty 
days  after  the  message  is  filed  with  the  company  for  transmission. 
There  have  been  but  few  decisions  on  these  new  forms  with  re- 
spect to  the  time  when  the  limitation  begins  to  run.  In  these 
cases  it  was  held  that  the  decisions  under  the  old  form  were  ap- 
plicable under  the  new  on  the  ground  that  these  companies  could 
not  avail  themselves  of  any  provision  in  a  contract  which  they 
failed  to  accept. ^-'^  We  think  this  is  the  proper  construction  to  be 
place4  on  these  stipulations. 

§  392.  Same  continued — delay  in  receiving  messages — does  not 
modify  stipulation. — The  fact  that  the  addressee  does  not  receive 
the  message  for  some  time  after  it  has  been  transmitted  does  not 
modify  the  stipulation  by  giving  the  injured  party  more  time,  al- 
though the  company  has  negligently  delayed  the  message ;  provid- 
ed, however,  he  has  a  reasonable  time  to  present  the  claim  after 
his  knowledge  of  the  error.^^^  And  the  mere  fact  that  the  exact 
amount  of  the  damage  suffered  by  the  addressee  cannot  be  ascer- 
tained within  sixty  days  is  no  excuse  for  his  failure  to  present  his 
claim  within  that  time.^^"  He  should  present  his  claim  within  the 
specified  time ;  and,  if  he  should  learn  after  the  expiration  of  the 
time  of  other  damages,  the  claim  may  be  so  amended  as  to  include 
these  latter  damages.  The  claim  should  be  presented  within  the 
limitation,  if  it  should  be  reasonable  in  the  particular  instance,  and 
if  the  court  should  instruct  the  jury  that  the  time  does  not  begin 
to  run  until  after  the  error  has  been  learned,  or  the  breach  of  the 
company's  duty  has  been  known  by  the  injured  party,  it  will  be  an 
error.^^°  If  the  complaint  shows  that  the  message  was  never  de- 
livered, the  action  having  been  instituted  by  the  receiver,  it  is 
not  demurrable  merely  because  it  fails  to  allege  that  the  claim  was 
made  within  the  limitation. ^^^ 


12T  West.  U.  Tel.  Co.  v.  Mielielson,  94  Ga.  436,  21  S.  E.  169;  West.  U.  Tel. 
Co.  V.  Way,  83  Ala.  542,  4  South.  844,  certain  time  after  the  "sending"  of  the 
message,  period  does  not  begin  to  run  until  the  message  is  actually  started; 
West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  and  if 
there  is  a  total  failure  to  transmit  necessary  to  present  claims ;  Postal  Tel. 
Cable  Co.  v.  Nichols,  1.59  Fed.  643,  89  C.  C.  A.  58,5,  16  L.  R.  A.  (N.  S.)  870,  14 
Ann.  Cas.  369,  from  the  receipt  of  notice  of  nondeliverj-. 

12  8  Heimann  v.  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32;  Massengale  v. 
West.  U.  Tel.  Co.,  17  Mo.  App.  258 ;  West.  U.  Tel.  Co.  v.  Phillips,  2  Tex.  Civ. 
App.  60S,  21  S.  W.  638. 

129  Manier  v.  West.  U.  Tel.  Co.,  94  Tenn.  442,  29  S.  W.  732. 

13  0  West.  U.  Tel.  Co.  v.  Phillips,  2  Tex.  Civ.  App.  60S,  21  S.  W.  638. 
131  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94. 


«    394)  COMMON-LAW  LIABILITIES  525 

§  393.  Same  continued — unaware  of  wrong — not  binding. — 
While  the  foregoing  rules  are  generally  accepted,  yet  there  are 
exceptions,  as  where  the  time  is  not  reasonable.  In  order  for  any 
rule  to  be  binding,  it  must  be  reasonable. ^^^  Cessante  ratione,  et  ipse 
lex.  The  length  of  time  given  in  these  stipulations  is  presumed  to 
be  reasonably  long  to  give  the  injured  party  ample  time  to  file  his 
claim  with  the  c(5mpany;  but  should  it  appear  that  he  did  not  be- 
come aware  of  the  wrong  until  after  the  expiration  of  the  limitation, 
and  this  was  no  fault  on  his  part,  or  if  he  does  not  have  a  reasonable 
time  to  file  the  claim  after  he  becomes  aware  of  the  company's 
breach  of  duty,  or  if  for  any  reason  he  is  unavoidably  prevented 
from  presenting  his  claim  before  the  expiration  of  the  limitation, 
but  does  so  as  soon  thereafter  as  it  is  in  his  power,  the  stipulation  is 
not  binding.^^^  So  it  will  be  seen  that  each  particular  case  must  be 
considered  with  respect  to  its  own  surrounding  circumstances.  In 
many  instances  the  addressee  is  the  only  interested  party  to  the 
business  transaction  about  and  for  which  a  message  is  sent,  the 
sender's  duty  and  interest  having  been  completed  at  the  filing  of  the 
message  for  transmission.  In  these  cases  the  message  may  not  be 
sent  at  all,  or  it  may  be  negligently  delayed  in  its  delivery  by  the 
company,  of  which  facts  the  addressee  may  have  no  knowledge 
whatever  until  after  the  expiration  of  the  limitation.  Under  such 
circumstances  the  addressee  should  surely  not  be  bound. 

§  394.  Compliance  with  stipulation — what  constitutes. — Having 
considered  the  limitation  within  which  all  claims  for  damages 
against  telegraph  companies  must  be  presented,  and  the  reasonable- 
ness of  the  same,  we  shall  now  set  out  something  of  what  is  neces- 
sary to  constitute  a  sufficient  compliance  with  said  stipulations. 
First,  the  claim  should  be  presented  in  writing;  second,  it  should 
set  forth  in  unmistakable  terms  the  nature  of  the  demand ;    and, 

* 

132  See  chapter  XIV. 

133  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715;  Sherrill  v. 
West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94 ;  Conrad  v.  West.  U.  Tel.  Co.,  162 
Pa.  204,  29  Atl.  888,  cable  message  from  Philadelphia  to  Shanghai,  where  de- 
fendant's negligence  was  not  and  could  not  have  been  discovered  in  the  ordi- 
nary course  of  business  within  sixty  days ;  Markley  v.  West.  U.  Tel.  Co.,  144 
Iowa,  105,  122  N.  W.  136,  138  Am.  St.  Rep.  263.  See  Postal  Tel.  Cable  Co.  v. 
Nichols,  150  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870,  14  Ann.  Cas.  369, 
holding  that,  where  a  telegram  was  filed  for  transmission  on  June  12th,  and 
the  sender  had  no  knowledge  prior  to  July  11th  of  the  company's  failure  to 
deliver  the  same,  and  notice  of  claim  was  tiled  on  August  17th.  the  claim  was 
filed  in  time  under  a  stiimlation  requiring  claims  to  be  presented  within  sixty 
days  after  the  message  was  filed  for  transmission.  But  see  Stone  v.  Postal 
Tel.  Cable  Co.,  31  R.  1.  174,  76  Atl.  762 ;  Heimaim  v.  West.  U.  Tel.  Co.,  57  Wis. 
562,  16  N.  W.  32. 


526  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  395 

third,  it  should  be  presented  to  a  proper  agent  of  the  company. 
And  first,  the  presentation  of  the  claim  must  be  in  writing.  The 
object  in  requiring  the  claim  to  be  in  writing,  further  than  for  the 
reason  that  the  stipulations  expressly  require  this  is  that  the  offi- 
cers of  the  company,  who  have  the  power  to  act  on  such  claims, 
may  have  the  nature  and  extent  of  the  claimant's  demand  directly. 
The  claim  agents  would  not  have  the  opportunity)^  to  give  the  no- 
tices proper  consideration  if  they  were  given  orally  through  the 
operator;  and  if  the  nature  of  the  claim  was  in  dispute,  in  an  action 
arising  out  of  the  claim,  the  written  notice  could,  and  should,  be 
introduced  to  show  the  true  nature  of  the  demand.  Another  reason 
for  holding  that  these  claims  should  be  in  writing  is  that,  in  the 
great  amount  of  business  of  these  companies,  an  oral  notice  would 
not  as  likely  reach  the  proper  officers  of  the  company,  where  it 
should  have  proper  consideration. 

§  395.  Same  continued — waiver  of  written  claim. — While  these 
companies  may  require  the  notice  of  the  claim  to  be  in  writing,  yet 
they  may  waive  this  right. ^^*  Notices  are  generally  presented  to 
the  local  agents,  who  are  impliedly  authorized  to  transact  all  the 
business  connected  with  the  messages  received  by  them;  and,  in 
the  capacity  of  an  agent,  they  may  have  the  power  to  waive  written 
notices  of  claims  for  damages. ^^^  Thus,  where  the  plaintiff  pre- 
sented an  oral  claim  within  sixty  days,  whereupon  the  company 
entered  into  a  correspondence  with  him  and  made  an  offer  in  settle- 
ment in  sixty  days,  the  company's  right  to  insist  on  a  written  notice 
was  waived.^'®  In  a  case  where  an  agent,  instead  of  objecting  to 
the  oral  complaint,  requests  time  for  investigating  the  merits  of  the 

134  West.  U.  Tel.  Co.  v.  Heathcoat,  149  Ala.  623,  43  South.  117;  West.  U.  Tel. 
Co.  V.  Yopst,  lis  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  Hill  v.  West.  U.  Tel. 
Co.,  85  Ga.  425,  11  S.  E.  874.  21  Am.  St.  Rep.  166;  West.  U.  Tel.  Co.  v.  Strate- 
meier,  6  Ind.  App.  125,  32  N.  E.  871;  Wheelock  v.  Postal  Tel.  Cable  Co.,  197 
Mass.  119,  S3  N.  E.  313,  14  Ann.  Cas.  ISS :  Hays  v.  West.  U.  Tel.  Co.,  70  S.  C. 
16,  48  S.  B.  608,  106  Am.  St.  Rep.  731,  67  L.  R.  A.  481,  3  Ann.  Cas.  424. 

135  An  ordinary  telegraph  operator,  as  such,  has  no  authority  to  waive  the 
benefit  of  the  stipulation.  Hays  v.  West.  U.  Tel.  Co.,  70  S.  C.  16,  48  S.  E.  60S, 
106  Am.  St.  Rep.  731,  67  L.  R.  A.  481,  3  Ann.  Cas.  424 ;  Young  v.  West.  U.  Tel. 
Co.,  65  N.  Y.  163 ;  West.  U.  Tel.  Co.  v.  Rains,  63  Tex.  27.  Neither  can  a  mes- 
senger make  such  waiver.  West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App.  60, 
30  S.  W.  70;  Given  v.  West.  U.  Tel.  Co.  (C.  C.)  24  Fed.  119.  The  manager  of 
an  office,  however,  on  whom  the  claim  might  properly  have  been  served,  has, 
ostensibly  at  least,  such  authority.  Hill  v.  West.  U.  Tel.  Co.,  85  Ga.  425,  11 
S.  E.  874,  21  Am.  St.  Rep.  166 ;  West.  U.  Tel.  Co.  v.  Heathcoat,  149  Ala.  623,  43 
South.  117 ;  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A. 
224 ;  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E,  871 ;  Toale  v. 
W^est.  U.  Tel.  Co.,  76  S.  C.  248,  57  S.  E.  117. 

136  Massengale  v.  West.  U.  Tel.  Co.,  17  Mo.  App.  257.  See  Stone  &  Ca 
V.  Postal  Tel.  Cable  Co..  35  R.  I.  498,  87  Atl.  319,  46  L.  R.  A.  (N.  S.)  ISO. 


§    396)  COMMON-LAW  LIABILITIES  527 

claim,  and  after  investigating  the  company  refuses  to  pay  anything 
not  upon  the  grounds  of  the  insufficiency  of  the  demand  but  upon 
the  nonliability  of  the  company,  it  was  held  that  this  constituted  a 
waiver  of  the  right  to  demand  a  written  notice.^"  But  the  promise 
of  an  agent,  when  the  complaint  is  made  orally,  to  look  into  the  mat- 
ter, is  not  a  waiver  of  the  right. ^^^  And  where  the  complaint  was 
made  to  a  telegraph  operator,  who  expressed  the  opinion  that  there 
was  no  liability,  he  having  no  authority  to  represent  the  company 
in  such  matters,  it  was  held  that  there  was  no  waiver.^^®  If  a  mes- 
sage is  written  and  paid  for  as  a  night  message,  which  contains  a 
stipulation  to  the  effect  that  all  claims  arising  out  of  the  improper 
transmission  shall  be  presented  in  thirty  days,  and  it  is  orally 
agreed  that  the  message  shall  not  be  transmitted  until  the  next 
morning,  this  does  not  of  itself  waive  the  right  to  demand  the  claim 
in  writing,  although  the  other  part  of  the  contract  may  be  chang- 
ed."'^ 

§  396.  Same  continued — nature  of  the  claim. — The  claim  should 
set  out  fairly  the  nature  and  extent  of  the  claimant's     demand.^* ^ 

137  Hill  V.  West.  U.  Tel.  Co.,  85  Ga.  425,  11  S.  B.  874,  21  Am.  St.  Rep.  16G ; 
West.  U.  Tel.  Co.  v.  Topst  (Ind.)  11  N.  E.  16. 

138  Massengale  v.  West.  U.  Tel.  Co.,  17  Mo.  App.  257;  Stone  Co.  v.  Postal 
Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46  D.  R.  A.  (N.  S.)  180. 

139  West.  U.  Tel.  Co.  v.  Rains,  03  Tex.  27;  Albers  v.  West.  U.  Tel.  Co.,  98 
Iowa,  51,  66  N.  W.  1040 ;  Stone  Co.  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87 
Atl.  319,  46  L.  R.  A.  (N.  S.)  ISO. 

140  West.  U.  Tel.  Co.  v.  Culberson,  79  Tex.  65,  15  S.  W.  219. 

:i*i  Postal  Tel.  Cable  Co.  v.  Moss.  5  Ga.  App.  503,  63  S.  E.  590;  West.  U.  Tel. 
Co.  V.  Moxley,  80  Ark.  554,  98  S.  W.  112 ;  Toale  v.  West.  U.  Tel.  Co.,  76  S.  C. 
248,  57  S.  E.  117;  West.  U.  Tel.  Co.  v.  Courtney,  113  Tenn.  482,  82  S.  W.  484. 
Compare  West.  U.  Tel.  Co.  v.  Brown,  84  Tex.  54,  19  S.  W.  336.  It  is  held  that 
notice  of  the  negligence  complained  of  is  not  sufficient,  Manier  v.  West.  U.  Tel. 
Co.,  94  Tenn.  442,  29  S.  W.  732 ;  West.  U.  Tel.  Co.  v.  Moxley,  80  Ark.  554,  98 
S.  W.  112 ;  or  that  to  demand  an  explanation  is  sufficient,  Toale  v.  West.  U. 
Tel.  Co.,  76  S.  C.  248,  57  S.  E.  117 ;  or  to  notify  the  company  that  a  claim  for 
damages  will  be  made.  Postal  Tel.  Cable  Co.  v.  Moss,  5  Ga.  App.  503,  63  S.  E. 
590.  The  party  injured  must  base  his  claim  on  his  own  notice,  and  not  on 
that  of  another.  Webbe  v.  West.  U.  Tel.  Co.,  64  111.  App.  331 ;  West.  U.  Tel. 
Co.  V.  Swearengen,  94  Ark.  336,  126  S.  W.  1071 ;  West.  U.  Tel.  Co.  v.  Beck,  58 
111.  App.  564;  Younker  v.  West.  II.  Tel.  Co.,  146  Iowa,  499,  125  N.  W.  577; 
Brockelsby  v.  West.  U.  Tel.  Co.,  148  Iowa,  273,  126  N.  W.  1105 ;  Swain  v.  West. 
U.  Tel.  Co.,  12  Tex.  Civ.  App.  385,  34  S.  W.  783 ;  West.  U.  Tel.  Co.  v.  Kinsley,  8 
Tex.  Civ.  App.  527,  28  S.  W.  831. 

Damages  for  mental  anguish. — A  stipulation  requiring  notice  of  claim  to  be 
given  within  .sixty  days  applies  to  claims  for  mental  anguish  in  actions  brought 
under  the  Arkansas  statute.  West.  U.  Tel.  Co.  v.  Moxley,  80  Ark.  ,554,  9S  S.  W. 
112 ;  West.  U.  Tel.  Co.  v.  Swearengen,  94  Ark.  336,  126  S.  W.  1071 ;  Lavelle  v. 
West.  U.  Tel.  Co.,  102  Ark.  607,  145  S.  W.  205.  See,  also,  Whitehill  v.  West. 
U.  Tel.  Co.  (C.  C.)  136  Fed.  499.  See,  also.  Broom  v.  West.  U.  Tel.  Co.,  71  S.  C. 
506,  51  S.  E.  259,  4  Ann.  Cas.  611 ;  Lester  v.  West.  U.  Tel.  Co.,  84  Tex.  313,  19 
S.  W.  265,  holding  regardless  of  the  fact  whether  the  action  is  in  tort  or  con- 


528  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  397 

The  object  of  this  requirement  is  to  give  the  company  cognizance 
of  facts  creating  the  liability,  in  order  that  it  may  use  these  for  in- 
vestigating the  cause  of  the  loss  or  injury.  It  is  impossible  for 
these  companies  to  keep  up  with  all  the  mistakes  of  their  em- 
ployes, and  the  injuries  arising  therefrom;  and,  while  they  may  be 
clearly  liable  for  claims  presented — and  for  which  they  would 
readily,  without  suit,  indemnify  the  injured  party — yet,  if  they  have 
no  facts  on  which  to  base  an  investigation  in  order  to  determine 
whether  they  are  liable,  they  would,  very  probably,  be  heavily 
taxed  with  an  expensive  litigation.  So,  if  the  plaintiff  should  have 
good  grounds  to  recover  damages,  he  should  impart  these  facts  to 
the  company,  in  order  to  avoid  litigation ;  and  on  these  only  could 
he  recover.^*^  He  should  also  state  the  extent  of  the  injury  ;^*^ 
however,  he  will  not  be  limited  to  the  amount  set  forth  in  his  claim, 
for,  as  said  before,  the  extent  of  the  damages  may  not  be  known 
until  after  the  claim  shall  have  been  presented. ^^*  In  a  case  on  this 
point,  a  claim  was  presented  by  a  sender,  classifying  the  damages 
as  "fifty  dollars  actual  damages  and  five  thousand  dollars  exem- 
plary damages."  At  the  trial  the  jury  returned  a  verdict  for  five 
hundred  dollars  actual  damages  alone.  It  was  held  that  the  plain- 
tiff was  not  prejudiced  by  his  classification,  so  the  verdict  was  al- 
lowed to  stand.  The  court  said :  "The  claim  was  for  five  thousand 
and  fifty  dollars  in  the  aggregate,  and  served  in  all  respects  to  give 
the  defendant  the  information  stipulated  for."  ^^^ 

§  397.  Must  be  presented  to  proper  officer. — As  to  what  will 
amount  to  a  sufficient  presentation  of  a  claim  must  depend  some- 
what upon  the  circumstances  of  the  case.  A  representation  to  the 
resident  agent  of  the  company,  who  made  the  contract  to  transmit 
the  message,  was  held  a  sufficient  presentation,^*''  although  such 
agent  had  no  authority  to  settle  the  claim.  The  manager  of  the 
company's  office  at  the  place  from  or  to  which  a  message  is  sent  is 
a  proper  party  to  whom  a  presentation  may  be  made.^*''    Where  the 

tract ;  Penn  v.  West.  U.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16,  41  D.  R.  A.  (N.  S.) 
223 ;  Markley  v.  West.  U.  Tel.  Co.,  144  Iowa,  105,  122  N.  W.  136,  138  Am.  St. 
Rep.  263 ;  West.  U.  Tel.  Co.  v.  Nelson,  86  Ark.  336,  111  S.  W.  274. 

14  2  West.  U.  Tel.  Co.  v.  Murray,  29  Tex.  Civ.  App.  207,  68  S.  W.  549 ;  Swain 
V.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  385,  34  S.  W.  783. 

143  West.  U.  Tel.  Co.  v.  Moxley,  SO  Ark.  554,  98  S.  W.  112;  West.  U.  Tel.  Co. 
V.  Nelson,  86  Ark.  ,336,  111  S.  W.  274 ;  West.  U.  Tel.  Co.  v.  Murray,  29  Tex.  Civ. 
App.  207,  68  S.  W.  549. 

144  West.  U.  Tel.  Co.  v.  Lehman,  106  Md.  318,  67  Atl.  241,  14  Ann.  Cas.  736. 

145  Manier  v.  West.  U.  Tel.  Co.,  94  Tenn.  442,  29  S.  W.  732 ;  West.  U.  Tel. 
Co.  v.  Murray,  29  Tex.  Civ.  App.  207,  68  S.  W.  549. 

14  6  West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480. 

147  Hill  V.  West.  U.  Tel.  Co.,  85  Ga.  425,  11  S.  E.  874,  21  Am.  St.  Rep.  166; 


1 


§    398)  COMMON-LAW  LIABILITIES  529 

plaintiff  informed  the  operator  of  a  mistake  made  in  sending  the 
message  and  was  referred  by  him  to  the  main  office,  where  a  clerk 
told  him  the  manager  was  busy,  but  took  down  his  complaint  in 
writing  and  handed  it  to  a  person  in  another  room  whom  he  intro- 
duced as  the  attorney  of  the  company,  which  attorney  promised  to 
investigate  the  matter,  and  afterwards,  in  reply  to  plaintift"'s  in- 
quiry, wrote  a  letter  rejecting  the  claim,  using  paper  and  envelope 
with  printed  headings  representing  him  to  be  the  attorney  of  the 
company,  this  was  held  a  proper  presentation.^**  The  party  on 
whom  the  notice  is  served  must  have  some  authority  to  accept  such 
for  the  company,  and  if  the  plaintiff  has  any  information  that  a 
certain  employe  of  the  company  has  no  authority  to  accept  claims, 
then  he  loses  his  rights  by  serving  it  on  such  person.  Thus,  where 
a  written  statement  of  plaintiff's  claim  was  handed  by  his  agent  to 
a  receiving  clerk  of  the  company,  who,  after  a  perusal  of  it,  handed 
it  back,  saying  he  had  nothing  to  do  with  it,  and  directing  him  to 
the  general  officers  of  the  company  in  another  part  of  the  building, 
but  nothing  more  was  done  until  after  the  time  had  elapsed,  it  was 
held  that  there  had  not  been  a  compliance  with  the  condition,  so 
the  plaintiff's  suit  was  defeated  on  that  ground. ^*^  And  so  it  has 
been  held  that  a  notice  of  claim  delivered  to  a  messenger  boy,  to  be 
by  him  delivered  to  the  proper  agent  of  the  company,  is  not  suffi- 
cient compliance  with  the  stipulation.^^*' 

§  398.  Commencement  of  suit — whether  sufficient  notice. — It 
has  been  held  by  many  courts  that  the  commencement  of  a  suit, 
within  the  limitation,  against  these  companies  for  damages,  was  not 
a  sufficient  compliance  with  these  stipulations,  requiring  claims  to 
be  presented  within  a  certain  fixed  time.^-*^^  The  ground  on  which 
these  courts  based  their  decisions  is  that  these  stipulations  are  con- 
ditions precedent  ^^-  and  must  be  filed  before  the  commencement  of 
a  suit;   and  until  they  are  complied  with  the  injured  party  has  no 

West.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16 ;  Hays  v.  West.  U.  Tel.  Co.,  70  S. 
C.  16,  48  S.  E.  60S,  106  Am.  St.  Rep.  731,  67  L.  R.  A.  4S1,  3  Ann.  Cas.  424 ; 
Markley  v.  West.  U.  Tel.  Co.,  144  Iowa,  105,  122  N.  W.  136,  138  Am.  St.  Rep. 
263. 

148  Bennett  v.  West.  U.  Tel.  Co.,  50  Hun,  600,  2  N.  Y.  Supp.  365. 

1*9  Young  V.  West.  U.  Tel.  Co.,  65  N.  Y.  163. 

15  0  West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App.  60,  30  S.  W.  70. 

151  West.  U.  Tel.  Co.  v.  McKinney,  2  Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  §  647; 
West.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16 ;  West.  U.  Tel.  Co.  v.  Hays  (Tex. 
Civ.  App.)  63  S.  W.  171 ;  Id.,  29  Tex.  Civ.  App.  25,  67  S.  W.  1072. 

152  West.  U.  Tel.  Co.  v.  McKinney,  2  Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  §  644; 
West.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16. 

Jones  Tel.(2d  Ed.)— 34 


530  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  399 

cause  of  action. ^^^  As  was  said  on  the  subject:  "The  company  was 
entitled,  unless  there  was  a  waiver,  to  a  written  claim,  before  the 
action  was  instituted,  in  order  to  enable  it  to  ascertain  the  facts, 
and  determine  whether  it  would  pay  to  restrict  the  claim,  *  *  * 
for  a  defendant  is  not  to  be  harassed  by  an  action  until  after  the 
stipulated  claim  has  been  presented  or  its  presentation  waived."  ^^* 
Under  these  rulings  it  was  held  that  the  stipulations  would  not  be 
sufficiently  complied  with  if  a  written  claim  was  presented  after  the 
commencement  of  the  suit  and  before  the  expiration  of  the  limita- 
tion, but  that  this  written  notice  would  be  a  good  ground  on  which 
to  base  another  suit.^^^  In  those  jurisdictions  in  which  these  deci- 
sions were  rendered,  the  company  could  waive  this  condition  and 
accept  the  service  of  a  suit  as  a  sufficient  notice. 

§  399.  Contrary  holding — better  view. — There  are  other  courts 
which  hold  that  the  commencement  of  a  suit  before  the  expiration 
of  a  limitation  is  a  sufficient  presentation  of  claim, ^^®  and  we  are 
inclined  to  think  that  this  is  the  better  view  to  take  of  the  subject. 
The  object,  as  said  before,  in  presenting  a  written  notice  of  the 
claim  to  these  companies,  is  to  enable  them  to  ascertain  whether 
they  are  liable  for  the  damages.  It  is  true  that  it  would  be  better 
to  give  a  written  notice  before  the  commencement  of  a  suit,  so  that 
the  company  might  be  given  an  opportunity  to  settle  without  ex- 
pense. The  main  point  is  that  the  company  is  entitled  to  notice  of 
plaintiff's  claim,  and  either  the  filing  of  the  claim  or  the  bringing  of 
suit  within  the  limitation  specified  in  the  contract  accomplishes 
this.^^'^  On  the  other  hand,  it  seems  to  us  that  it  could  be  better 
informed  of  these  facts  by  a  suit,  especially  where  the  rule  of  pro- 

153  West.  U.  Tel.  Co.  v.  Hays  (Tex.  Civ.  App.)  63  S.  W.  171;  West.  U.  Tel. 
Co.  V.  Yopst  (Ind.)  11  N.  E.  16 ;  West.  U.  Tel.  Co.  v.  McKinney,  2  Willson,  Civ. 
Cas.  Ct.  App.  (Tex.)  §  644. 

15*  West.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16,  affirming  118  Ind.  248,  20 
N.  E.  222,  3  L.  R.  A.  224,  note. 

15  5  West.  U.  Tel.  Co.  v.  McKinney,  5  Tex.  L.  Rev.  173. 

156  West.  U.  Tel.  Co.  v.  Henderson.  89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep. 
148 ;  East  Tennessee,  etc..  Railroad  Co.  v.  Bayliss,  74  Ala.  150 :  Bryan  v.  West. 
U.  Tel.  Co.,  133  X.  C.  603,  45  S.  E.  938 ;  West.  U.  Tel.  Co.  v.  Mellon,  96  Tenn. 
66,  33  S.  W.  725 ;  West.  U.  Tel.  Co.  v.  Cooper,  29  Tex.  Civ.  App.  591,  69  S.  W. 
427 ;  West.  U.  Tel.  Co.  v.  Finer,  9  Tex.  Civ.  App.  152,  29  S.  W.  66 ;  Phillips  v. 
West.  U.  Tel.  Co.,  95  Tex.  638,  69  S.  W.  63 ;  West.  U.  Tel.  Co.  v.  Karr,  5  Tex. 
Civ.  App.  60,  24  S.  W.  302 ;  West.  U.  Tel.  Co.  v.  Crawford  (Tex.  Civ.  App.)  75 
S.  W.  843 ;  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94 ;  Smith  v. 
West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Ann.  Cas.  654 ;  not  a  condition 
precedent,  but  subsequent.  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844 ; 
West.  U.  Tel.  Co.  v.  Finer,  supra. 

15  7  See  Fhillips  v.  West.  U.  Tel.  Co.,  (Tex.  Civ.  App.)  69  S.  W.  997 ;  Smith  v. 
West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Ann.  Cas.  654 ;  West.  U.  Tel.  Co. 
V.  Mellon,  96  Tenn.  66,  33  S.  W.  725. 


§    400)  COMMON-LAW  LIABILITIES  531 

cedure  is  that  the  filing  of  a  declaration  is  the  first  step  to  the  bring- 
ing of  a  suit/^®  since  it  is  very  evident  that  the  facts  on  which  the 
liability  arises  are  much  more  fully  stated  in  the  latter  way,  thereby 
giving  the  company  a  better  opportunity  to  make  a  full  investiga- 
tion of  the  complaint.  We  do  not  wish  to  be  understood  as  saying 
that  the  commencement  of  a  suit  is  always  a  better  way  to  settle 
these  matters,  but  that  the  bringing  of  a  suit  is  ordinarily  equivalent 
to  a  presentation  of  a  notice  of  claim  for  damages. 

§  400.  Limiting  liability  to  specific  amount. — Telegraph  com- 
panies have  attempted  to  limit  their  liabilities  for  sending  night 
messages  by  reducing  the  charges  for  transmission.  This  is  done 
by  stipulating  in  the  blank  forms  that  they  will  not,  for  the  consid- 
eration of  said  reduction,  be  liable  beyond  a  certain  amount.  It  has 
been  held,  with  few  exceptions,^^®  that  these  stipulations  were  un- 
reasonable, and,  so  far  as  they  sought  to  limit  the  liability  of  the 
company  for  the  consequences  of  its  own  negligence,  were  contrary 
to  public  policy  and  could  not  be  enforced. ^^°  These  companies 
have  a  perfect  right  to  make  all  rules  and  regulations,  and  by  these 
they  may  limit,  to  a  certain  extent,  their  common-law  liabilities ; 
however,  these  rules  must,  under  all  circumstances,  be  reasonable 
and  consistent  with  public  policy. ^^^  It  might  be  possible  that 
they,  as  contracts  between  individuals  or  between  the  company  and 
an  individual,  would  be  considered  reasonable ;  but  the  interest  the 
public  has  in  these  institutions,  and  the  effect  an  enforcement  of 
these  would  have  on  the  public,  will  make  them  against  public 
policy,  and  therefore  void ;  for,  where  the  interest  of  a  few  is  con- 
flicting with  the  interest  of  the  public,  the  former  must  give  way  to 

158  If  the  person  sufficiently  informs  the  company  of  the  different  facts 
which  a  written  claim  should  set  out,  this  is  sufficient.  West.  U.  Tel.  Co.  v. 
Greer,  115  Tenn.  368,  89  S.  W.  .327,  1  L.  R.  A.  (N.  S.)  525 ;  Postal  Tel.  Cable 
Co.  V.  Moss,  5  Ga.  App.  503,  63  S.  E.  590 ;  West.  U.  Tel.  Co.  v.  Courtney,  113 
Tenn.  482,  82  S.  W.  484 ;  Phillips  v.  West.  U.  Tel.  Co.,  95  Tex.  638,  69  S.  W. 
63.  But  a  mere  summons  to  answer  is  held  not  sufficient.  West.  U.  Tel.  Co. 
V.  Courtney,  supra.  But  see  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E. 
938,  holding  that  the  service  of  a  summons  puts  the  defendants  upon  inquiry, 
and  is  therefore  sufficient. 

159  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  358;  Schwartz  v.  Atlantic,  etc.,  Tel. 
Co.,  18  Hun  (N.  Y.)  158 ;  Bennett  v.  West.  U.  Tel.  Co.,  50  Ilun,  600,  2  N.  Y 
Supp.  365 ;  Jones  v.  West.  U.  Tel.  Co.  (C.  C.)  18  Fed.  717 ;  Clement  v.  West. 
U.  Tel.  Co.,  137  Mass.  463;  West.  U.  Tel.  Co.  v.  Alford,  110  Ark.  379,  161 
S.  W.  1027,  50  L.  R.  A.  (N.  S.)  94. 

160  See  §  407.  See  West.  U.  Tel.  Co.  v.  Baker  (Ala.  App.)  69  South.  246; 
West.  U.  Tel.  Co.  v.  Hearn,  110  Ark.  176,  161  S.  W.  1025,  Ann.  Cas.  1915D, 
378 ;  Rhyne  v.  West.  U.  Tel.  Co.,  164  N.  C.  394,  80  S.  E.  152 ;  Leedy  v.  West. 
U.  Tel.  Co.,  130  Tenn.  547,  172  S.  W.  278. 

161  See  chapter  XIV. 


532  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  401 

the  latter.  To  permit  these  companies,  therefore,  to  impose  these 
stipulations  would  open  to  them  an  opportunity  to  exercise  fraud 
upon  the  public  or  give  them  a  chance  to  become  negligent.  The 
amount  of  damages  to  which  they  would  be  liable  would  be  so 
trifling  that,  in  many  instances,  they  would  rather  pay  this  than  to 
be  bothered  with  the  duties  assumed.  As  was  said :  "The  operator 
may,  from  stupidness  or  haste  to  close  for  the  night,  prefer  to  pay 
back  the  trifle  paid,  and  leave  the  message  unsent,  or  a  message 
may  have  been  carelessly,  or  even  wantonly,  thrown  into  the  waste 
basket,  and  never  sent,  or,  if  sent,  it  may  have  been  treated  in  the 
same  manner  at  the  office  of  reception,  and  never  delivered  to  a  car- 
rier, or,  if  so  delivered,  it  may  have  been  thrown  aside  or  destroyed 
"by  the  carrier  to  save  himself  labor  or  trouble.  And  the  sender, 
under  this  rule,  must  be  debarred  from  all  remedy  beyond  a  repay- 
ment of  the  few  cents  paid."  ^^^  Another  reason  why  they  are  not 
reasonable  and  therefore  enforceable  is  that,  as  said  at  another 
place, ^^'^  the  sender  is  not  put  on  equal  footing  with  the  company  if 
the  stipulation  is  considered  as  a  contract.  In  other  words,  it  would 
be  in  the  nature  of  a  contract  made  under  duress.^®*  And  it  cannot 
be  said  that  a  reduction  of  the  charges  for  sending  would  increase 
the  duty  of  the  company  to  use  more  care  in  the  transmission  of 
messages. ^"^ 

§  401.  Same  continued — nature  of — liquidated  damages. — These 
stipulations,  in  this  respect,  contain  clauses  to  this  eff'ect:  "In 
consideration  of  the  reduced  rate  for  which  this  message  is  sent, 
the  company  shall  not  be  liable  beyond  the  amount  paid  for  trans- 
mission," or,  "to  ten  times  the  amount  paid  for  transmis- 
sion," or  "to  fifty  times  such  amount  where  the  message  is 
repeated,"  or  "to  twenty  per  cent,  of  the  amount  of  damage."  All 
of  such  stipulations  have  been  held  unreasonable.  In  some  juris- 
dictions, however,  it  has  been  held  that  it  was  an  agreement  made 
between  the  parties  upon  a  certain  sum  as  liquidated  damages.^®® 
Judge  Bonner  said,  v/hile  discussing  this  point:  "We  fail  to  per- 
ceive on  principle  why,  in  such  cases,  the  parties  may  not,  as  they 
did  here,  agree  upon  a  sum  certain  in  the  nature  of  liquidated  dam- 
ages for  an  error  or  delay  arising  from  a  cause  other  than  miscon- 
duct, fraud  or  the  want  of  proper  care."  ^^'^ 

§  402.  Same  continued — insured — same  rule. — In  other  blanks 
furnished  by  these  companies,  there  have  been  stipulations  to  the 
effect  that  they  would   not  be  liable  for  damages  beyond  a  cer- 

162  True  V.   International  Tel.  Co.,   CO  Me.  9,   11   Am.   Rep.  161. 

16  3  See  §  381  et  seq.  1 64  gee  §  S83.  les  Gray  on  Telegraph,  §  51. 

106  West.  U.  Tel.  Co.  v.  Neill,  57  Tex.  289,  44  Am.  Rep.  5S9. 

167  Id. 


§    403)  COMMON-LAW   LIABILITIES  533 

tain  amount,  unless  the  message  was  ordered  to  be  repeated,  or 
unless  an  extra  charge  was  given,  in  consideration  of  which  it 
would  insure  a  safe  and  correct  transmission  of  the  message. ^"^ 
These  stipulations  have  also  been  held  unreasonable  and  void  for 
the  reasons  as  given  above. ^^^ 

§  403.  Night  messages — time  to  be  delivered. — Telegraph  com- 
panies generally  have  two  different  blank  forms  to  be  furnished  to 
their  patrons,  and  these  are  to  be  respectively  used  at  the  time  at 
which  application  is  made  to  the  company  for  services.  For  in- 
stance, they  have  a  day  message  blank  and  a  night  message  blank. 
On  these  two  forms  are  to  be  found  stipulations  differing  from  each 
other  in  some  respects.  As  a  general  rule,  the  business  of  these 
companies  at  night  is  not  so  pressing  as  during  the  day,  and  for 
this  reason  they  have  adopted  rules  which  are  inscribed  on  these 
forms,  to  the  effect  that  they  will  transmit  messages  during  the 
night  at  a  reduced  rate,  to  be  delivered  at  or  by  a  certain  time 
on  the  following  morning.  These  stipulations  do  not  exonerate 
the  companies  for  any  negligence  in  the  transmission,  or  exempt 
them  from  liabilities  arising  from  the  want  of  due  diligence  in  a 
prompt  delivery,  but  they  must  exercise  the  same  diligence  in  de- 
livering these  messages  on  the  following  morning  as  if  the  message 
had  been  sent  as  a  day  message.  The  stipulations  are,  therefore,  rea- 
sonable.^^" It  has  been  held,  however,  that  a  stipulation  to  the  ef- 
fect that,  in  consideration  of  reduced  rates,  the  company's  duty 
to  deliver  shall  be  deemed  fulfilled  by  a  delivery  by  noon  of  the 
succeeding  day,  is  reasonable  and  valid. ^^^  This  latter  stipulation 
may  be,  and  is,  waived  by  a  parol  promise  to  the  operator  to  have 
the  message  transmitted  and  delivered  sooner.^'- 

§  404.  Unavoidable  interruption — special  contract. — As  else- 
where stated,  telegraph  companies  are  often  interfered  with  in 
the  transmission  of  messages  by  climatic  changes ;  ^''^  in  fact,  this 
is  the  most  serious  difficulty  with  which  they  have  to  contend. 
When  the  means  by  which  news  could  be  transmitted  by  electricity 

168  Brown  v.  Postal  Tel.  Cable  Co.,  Ill  N.  C.  1S7,  16  S.  E.  179.  32  Am. 
St.  Rep.  793,  17  L.  R.  A.  648 ;  Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa.  190, 
34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  West.  U.  Tel.  Co.  v.  Harris,  19  111.  App. 
347;    American  U.  Tel.  Co.  v.  Daughterj',  89  Ala.  191,  7  South.  660. 

169  Id. 

170  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381.  1,5  Atl.  29.  6  Am.  St.  Rep.  211; 
West.  U.  Tel.  Co.  v.  Van  Cleave,  107  Ky.  464.  54  S.  W.  827,  22  Kv.  Law, 
Rep.  53,  92  Am.  St.  Rep.  .366;  West.  U.  Tel.  Co.  v.  McCov  (Tex.  Civ.  App.) 
31  S.  W.  210 ;  .West.  IJ.  Tel.  Co.  v.  White  (Tex.  Civ.  App.)  149  S.  W.  790. 

171  West.  U.  Tel.  Co.  v.  McCoy  (Tex.  Civ.  App.)  31  S.  W.  210;  West.  U, 
Tel.  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  92  Am.  St.  Rep.  366;  West. 
IJ.  Tel.  Co.  V.  .lohnson.  107  Ky.  631,  55  S.  W.  427.  Compare  Hibbard  v.  West, 
r.  Tel.  Co.  33  Wis.  558.  14  Am.  Rc^p.  775. 

17  2  West.  U.  Tel.  Co.  v.  Bruner  (Tex.)  19  S.  W.  149. 
173  See  chapter  XII. 


534  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  404 

were  first  brought  into  use,  and  for  sometime  thereafter,  this  diffi- 
culty was  almost  beyond  the  control  of  these  companies ;  but  after 
many  years  of  close  study  by  scientists  on  this  subject,  these  in- 
terferences have,  to  a  very  great  extent,  been  overcome ;  yet  they 
are  still  often  prevented  from  making  a  correct  transmission  of  mes- 
sages on  account  of  these  interferences.  Not  only  is  their  business 
interfered  with  by  these  climatic  changes,  but  often  they  are  inter- 
rupted in  their  business  by  strikes. ^^*  In  order  to  guard  against 
these  unavoidable  interferences,  and  to  relieve  themselves  from  a 
limited  amount  of  liability  or  any  liability  at  all  for  failure  or  delay 
in  the  transmission  of  messages  caused  by  such  interferences,  they 
have  been  forced  to  make  special  contracts  with  the  sender  of 
messages,  whereby  it  is  agreed  that  the  former  will  not  be  liable 
for  losses  arising  therefrom ;  and  it  has  been  held  that  these  con- 
tracts were  valid  and  enforceable,  both  as  to  interferences  caused 
by  the  changes  of  climate,^'^^  and  also  by  strikes. ^'^  But  should 
the  operator  of  the  company  know  at  the  time  the  message  was 
received  that  the  wires  of  the  company  were  being  subjected  to 
such  interferences,  and  knew  that  for  this  reason  the  message 
would  necessarily  be  delayed,  it  is  his  duty  to  notify  the  sender 
of  such  fact ;  and,  on  a  failure  so  to  do,  the  contract  cannot  be 
used  as  a  defense  by  the  company. ^'^^  Neither  could  the  company 
use  this  stipulation  as  a  defense,  when  the  delay  was  caused  by 
the  wire  being  used  to  send  out  train  orders. ^'^* 

§  405.  Over  connecting  lines — stipulation — exemptions. — ^A 
stipulation  to  this  effect  is  found  on  the  blanks  of  these  companies: 
That  the  company  is  made  the  agent  of  the  sender,  without  lia- 
bility, to  forward  any  message  over  the  lines  of  any  other  company 
when  necessary  to  reach  its  destination.  As  may  be  seen,  by  a 
close  observance  of  this  stipulation,  the  company  attempts  to  ex- 
empt itself  from  liabilities  both  over  its  own  line  and  that  of  the 
connecting  company,  in  that  it  represents  itself  as  agent  for  the 
sender.     As  has  been  seen,  a  telegraph   company  may   stipulate 

I'-t  See  §  .362:  Sullivan  v.  West.  U.  Tel.  Co..  82  S.  C.  569,  64  S.  E.  752.  129 
Am.  St.  Rep.  903.  22  L.  R.  A.  (N.  S.)  1214.  17  Ann.  Cas.  2.38. 

175  Sweatlaud  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa.  4.33,  1  Am.  Rep.  285;  West. 
U.  Tel.  Co.  V.  Graham,  1  Colo.  237.  9  Am.  Rep.  136 ;  White  v.  West.  U.  Tel. 
Co.  (C.  C.)  14  Fed.  710;  Riley  v.  West.  U.  Tel.  Co.,  6  Misc.  Rep.  221.  20  X.  Y. 
Supp.  .532;  West.  U.  Tel.  Co.  v.  Cohen,  73  Ga.  522;  West.  U.  Tel.  Co.  v. 
Stiles  (Tex.  Civ.  App.)  35  S.  W.  76. 

1-6  Marvin  v.  West.  U.  Tel.  Co.,  16  Chic.  Les.  N.  416. 

177  West.  U.  Tel.  Co.  v.  Birge-Forl  es  Co..  29  Tex.  Civ.  App.  ,526.  69  S.  W. 
181;  Pac.  Postal  Tel.  Cable  Co.  v.  Fleischner,  6G  Fed.  899.  14  C.  C.  A.  166, 
29  U.  S.  App.  227;  West.  U.  Tel.  Co.  v.  Bierhaus.  12  Ind.  App.  17.  39  N.  E. 
881 ;  West.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46. 

178  See  note  175.  supra,  for  eases. 


§    405)  COMMON-LAW   LIABILITIES  535 

against  losses  caused  on  its  own  lines,  when  the  same  has  not  been 
brought  about  by  any  negligence  on  its  own  part/'^^  but  this  is 
as  far  as  it  can  go  by  stipulation,  and  any  scheme  by  which  it  at- 
tempts to  escape  this  liability — as  that  by  agency — cannot  be  up- 
held;  and  so  far,  in  this  respect,  the  stipulation  is  void.^^"  These 
companies  may,  however,  by  contract,  become  the  agent  of  the 
sender  with  respect  to  the  connecting  lines ;  and  it  may,  there- 
fore, stipulate  against  any  losses  caused  by  delays  or  even  a  failure 
to  transmit  over  the  connecting  line,  and  this,  too,  notwithstanding 
that  this  was  caused  by  the  latter's  negligence.^**^  The  initial  com- 
pany has  nothing  to  do  with  the  operation  or  management  of  the 

179  See  §.368. 

18  0  Does  not  protect  initial  carrier  against  its  own  negligence  prior  to  the 
transfer,  Weatherford,  etc.,  R.  R.  Co.  v.  Seals  (Tex.  Civ.  App.)  41  S.  W.  S41 ; 
West.  U.  Tel.  Co.  v.  Seals  (Tex.  Civ.  App.)  45  S.  W.  964;  see  Alexander  v. 
West.  U.  Tel.  Co.,  158  N.  C.  473,  74  S.  E.  449,  42  L.  R.  A.  fN.  S.)  407 :  nor  that 
of  the  connecting  line  after  its  receipt  of  the  message,  Smith  v.  West.  U.  Tel. 
Co.,  84  Tex.  359.  19  S.  W.  441,  31  Am.  St.  Rep.  59 ;  Squire  v.  West.  U.  Tel. 
Co.,  98  Mass.  2.32,  93  Am.  Dec.  157.  Compare  Keeting  v.  West.  .U.  Tel.  Co., 
167  Mo.  App.  601,  152  S.  W.  95.  Such  a  contract  or  stipulation  does  not  au- 
thorize the  transfer  of  a  message  to  a  telephone  company  if  there  is  a  con- 
necting telegraph  company.  West.  U.  Tel.  Co.  v.  INIcLoud  (Tex.  Civ.  App.)  24 
S.  W.  815 ;  nor  does  it  require  a  telegraph  company,  where  the  addressee 
lives  at  a  distance  from  its  office,  to  deliver  the  message  ])V  telephone,  Hellams 
V.  West.  U.  Tel.  Co.,  70  S.  C.  83,  49  S.  E.  12 :  West.  U.  Tel.  Co.  v.  Stratemeier, 
6  Ind.  App.  125,  32  N.  E.  871;  West.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525; 
La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383;  Pacific  Tel.  Co.  v. 
Underwood,  37  Neb.  315,  55  N.  W.  1057,  40  Am.  St.  Rep.  490;  De  Rutte  v. 
N.  Y.,  etc.,  Elec.  Magnetic  Tel.  Co.,  1  Daly  (N.  Y.)  547.  30  How.  Prac.  403 ; 
Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y.  751,  6  Am.  Rep.  165,  reversing  54  Barb. 
505,  6  Abb.  Prac.  (N.  S.)  405;  Hellams  v.  West.  U.  Tel.  Co.,  70  S.  C.  83.  49 
S.  E.  12;  West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500; 
Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496;  West.  U.  Tel.  Co.  v. 
Munford,  87  Tenn.  190,  10  S.  W.  318,  10  Am.  St.  Rep.  (^).30.  2  L.  R.  A.  601; 
West.  U.  Tel.  Co.  v.  Jones,  81  Tex.  271,  16  S.  W.  1006;  Smith  v.  West.  U. 
Tel.  Co.,  84  Tex.  359,  19  S.  W.  441,  31  Am.  St.  Rep.  59;  West.  U.  Tel.  Co.  v. 
aicDouald,  42  Tex.  Civ.  App.  229,  95  S.  W.  691 ;  West.  U.  Tel.  Co.  v.  Sorsby, 
29  Tex.  Civ.  App.  345,  69  S.  W.  122 ;  but  initial  company  must  notify  sender 
if  terminal  line  down.  Gulf,  etc.,  R.  R.  Co.  v.  Geer,  5  Tex.  Civ.  App.  349.  24 
S.  W.  86;  West.  U.  Tel.  Co.  v.  Taylor,  3  Tex.  Civ.  App.  310,  22  S.  W.  532; 
West.  U.  Tel.  Co.  v.  McLeod  (Tex.  Civ.  App.)  22  S.  W.  988 ;  West.  U.  Tel,  Co.  v. 
Carter  (Tex.  Civ.  App.)  156  S.  W.  332. 

181  Pacific  Tel.  Co.  v.  Underwood,  37  Neb.  315.  55  N.  W.  1057,  40  Am. 
St.  Rep.  490;  West.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525;  West.  U.  Tel. 
Co.  V.  Stratemeier,  6  Ind.  App.  125,  32  N.  E.  871 ;  West.  U.  Tel.  Co.  v.  Gris- 
wold, 37  Ohio  St.  .301,  41  Am.  Rep.  500;  Hellams  v.  West.  U.  Tel.  Co.,  70  S. 
C.  83,  49  S.  E.  12 ;  Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep.  165 ; 
De  Rutte  v.  New  York,  etc.,  Elec,  etc.,  Co.,  1  Daly  (N.  Y.)  547,  30  How.  Prac. 
403 ;  Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  .529,  3  S.  W.  496 ;  West.  U.  Tel.  Co. 
V.  Munford,  87  Tenn.  190.  10  S.  W.  318,  10  Am.  St.  Rep.  630.  2  L.  R.  A.  601 ; 
West.  U.  Tel.  Co.  v.  Jones,  81  Tex.  271,  16  S.  W.  1006;  Smith  v.  West.  U. 
Tel.  Co.,  84  Tex.  359,  19  S.  W.  441,  31  Am.  St.  Rep.  59;  West.  U.  Tel.  Co.  v. 
Sorsby,  29  Tex.  Civ.  App.  .345,  09  S.  W.  122 ;  West.  U.  Tel.  Co.  v.  McDonald, 
42  Tex.  Civ.  App.  229,  95  S.  W.  691 ;  West.  U.  Tel.  Co.  v.  McLeod  (Tex.  Civ. 
App.)  22  S.  W.  988;  Gulf,  etc.,  R.  Co.  v.  Geer,  5  Tex.  Civ.  App.  349.  24  S. 
W.  86;  West.  U.  Tel.  Co.  v.  Taylor,  3  Tex.  Civ.  App.  310,  22  S.  W.  532.  See 
Baxter  v.  Dominion  Tel.  Co.,  37  U.  C.  Q.  B.  470;  Stevenson  v.  Montreal  Tel. 
Co.,  16  U.  C.  Q.  B.  530. 


536  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  406 

connecting  line;  ^^^  so  to  hold  it  liable  for  any  losses  caused  over 
this  latter  line — and  against  which  it  has  stipulated — would  be  un- 
reasonable and  therefore  void. 

§  406.  Stipulation  against  cipher  messages — valid. — There  is  a 
conflict  of  opinion  as  to  whether  telegraph  companies  can  contract 
against  errors  or  delays  made  in  the  transmission  of  cipher,  or  oth- 
erwise obscure  messages,  where  the  same  has  been  assented  to  by 
the  sender.  Some  of  the  courts  hold  that  the  duty  of  the  company  to 
send  correctly  messages  which  are  written  in  cipher  is  the  same  as 
that  imposed  on  them  to  transmit  messages  which  are  fully  writ- 
ten out  and  clearly  understood  by  the  operator.  They  cannot  con- 
tract against  losses  caused  by  their  own  negligence  in  transmitting 
messages  which  are  clearly  understood  by  the  operator;  and  these 
courts  hold  that  they  cannot  make  such  a  contract  even  though 
it  be  in  cipher.^®^  Judge  Guffy,  in  rendering  a  decision  on  this  point, 
said :  "It  is  often  of  the  utmost  importance  to  the  sender  or  re- 
ceiver of  messages  that  the  same  should  be  in  cipher  or  obscure, 
because  if  sent  in  plain  language  the  contents  would  often  become 
known  and  the  object  in  view  defeated;  hence  public  policy  for- 
bids that  appellant  should  by  any  contract  exempt  itself  from  the 

182  See  §  447  et  seq. 

i«3West.  U.  Tel.  Co.  v.  Eiibaiiks,  100  Ky.  591,  38  S.  W.  1068,  36  L.  R.  A. 
711,  66  Am.  St.  Rep.  361;  Daughtery  v.  American  U.  Tel.  Co.,  75  Ala.  168, 
51  Am.  Rep.  435 ;  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844 ;  West. 
U.  Tel.  Co.  V.  Hyer,  22  Fla.  637,  1  South.  129,  1  Am.  St.  Rep.  222;  West.  U, 
Tel.  Co.  V.  Blanehard,  68  Ga.  299,  49  Am.  Rep.  480 ;  West.  U.  Tel.  Co.  v.  Fat- 
man,  73  Ga.  285,  54  Am.  Rep.  877 ;  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173, 
46  Am.  Rep.  715 ;  Postal  Tel.  Cable  Co.  v.  Wells,  82  Miss.  733,  35  South.  190 ; 
Baily  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L.  R.  A.  (N.  S.)  502, 
19  Ann.  Cas.  895 ;  American  Union  Tel.  Co.  v.  Daughtery,  89  Ala.  191,  7  South. 
6G0;  Dodd  Grocery  Co.  v.  Postal  Tel.  Cable  Co.,  112  Ga.  685,  37  S.  E.  981; 
Beggs  V.  Postal  Tel.  Cable  Co.,  159  111.  App.  247;  Postal  Tel.  Cable  Co.  v. 
Louisville  Cotton  Oil  Co.,  136  Ky.  843,  122  S.  W.  852,  125  S.  W.  266 ;  Garland 
V.  West.  U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762,  74  Am.  St.  Rep.  394,  43 
L.  R.  A.  280 ;  Postal  Tel.  Cable  Co.  v.  Robertson,  36  Misc.  Rep.  785,  74  N,  Y. 
Supp.  876 ;  U.  S.  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751 ;  West.  U. 
Tel.  Co.  V.  Nagle,  11  Tex.  Civ.  App.  539,  32  S.  W.  707;  Houston,  etc.,  Tel. 
Co.  V.  Davidson,  15  Tex.  Civ.  App.  334,  39  S.  W.  605 ;  West.  U.  Tel.  Co.  v. 
Bell,  24  Tex.  Civ.  App.  573,  59  S.  W.  918 ;  West.  U,  Tel.  Co.  v.  Birge-Forbes 
Co.,  29  Tex.  Civ.  App.  526,  69  S.  W.  181;  Abeles  v.  West.  U.  Tel.  Co.,  37 
Mo.  App.  554;  Hibbaid  v.  West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775; 
West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  St.  Rep. 
169;  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  738;  Postal  Tel. 
Cable  Co.  v.  Lathrop,  131  111.  575,  23  N.  E.  586,  19  Am.  St.  Rep.  55,  7  L.  R.  A. 
474 ;  West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  679,  17  Pac.  309,  5  Am.  St.  Rep.  795 ; 
Candee  v.  West.  U.  Tel.  Co.,  34  Wis.  471,  17  Am.  Rep.  452 ;  Kirby  v.  West. 
U.  Tel.  Co.,  4  S.  D.  105,  55  N.  W.  759,  46  Am.  St.  Rep.  765,  30  L.  R.  A.  612 ; 
Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep.  699, 
4  L.  R.  A.  660 ;    Marr  v.  West,  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496 ;    West. 


g    407)  COMMON-LAW  LIABILITIES  537 

damages  resulting  from  its  negligence  in  transmitting  such  mes- 
sages." ^«* 

§  407.  Same  continued — contrary  view. — While  the  above  is  the 
holding  of  a  goodly  number  of  decisions,  based  on  apparently  plau- 
sible reasoning,  yet  the  weight  of  authority — and  a  better  view, 
we  think,  in  which  to  consider  the  subject — is  to  the  contrary.^^^ 
There  is  a  distinction  between  the  two  kinds  of  messages  out  of 
which  the  duty  of  the  company,  with  respect  to  the  two  arises. 
It  is  very  true  that  it  is  as  much  the  duty  of  the  company  to  ex- 

U.  Tel.  Co.  V.  Edsall,  74  Tex.  ?,29,  12  S.  W,  41,  15  Am.  St.  Rep.  835 ;  Wertz 
V.  West.  U.  Tel.  Co.,  7  Utah,  446,  27  Pac.  172,  13  L.  R.  A.  510 ;  Shingleur  v. 
West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425,  48  Am.  St.  Rep.  604,  30  L.  R.  A. 
447. 

184  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  1068,  66  Am.  St. 
Rep.  368,  36  L.  R.  A.  711. 

185  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098,  38  L.  Ed. 
883 ;  Cannon  v.  West.  U.  Tel.  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St.  Rep. 
590 ;  Hill  v.  West.  U.  Tel.  Co.,  42  S.  C.  367,  20  S.  E.  135,  46  Am.  St.  Rep.  734 ; 
West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  1  L.  R.  A.  728,  10 
Am.  St.  Rep.  772. 

In  the  following  cases  the  sender  was  permitted  to  recover  nominal  dam- 
ages only :  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098,  38 
L.  Ed.  883;  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  AY.  1068,  66 
Am.  St.  Rep.  361,  36  L.  R.  A.  711 ;  Postal  Tel.  Cable  Co.  v.  Fleischner,  66  Fed. 
899,  14  C.  C.  A.  166;  Hart  v.  West.  U.  Tel.  Co.,  66  Cal.  579,  6  I'ac.  637,  56 
Am.  Rep.  119;  White  v.  West.  U.  Tel.  Co.  (C.  C.)  5  McCrary,  103,  14  Fed. 
710;  West.  U.  Tel.  Co.  v.  Coggin,  68  Fed.  137,  15  C.  C.  A.  2.31;  West.  U. 
Tel.  Co.  V.  Martin,  9  111.  App.  587;  Shields  v.  Washington  Tel.  Co.,  9  West. 
Law  J.  283 ;  Shaw  v.  Postal  Tel.  Cable  Co.,  79  Miss.  670,  31  South.  222,  89 
Am,  St.  Rep.  666,  56  L.  R.  A.  486;  Postal  Tel.  Cable  Co.  v.  Wells,  82  Miss. 
733,  35  South.  190;  Newsome  v.  West.  U.  Tel.  Co.,  137  N.  C.  513,  50  S.  E. 
279 ;  Fererro  v.  West.  U.  Tel.  Co.,  9  App.  D.  C.  455,  35  L.  R.  A.  548 ;  Harri- 
son V.  West.  U.  Tel.  Co.,  3  Willson,  Civ.  Cas.  Ct.  App.  §  43 ;  Postal  Tel.  Cable 
Co.  V.  Lathrop,  131  111.  575,  23  N.  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ; 
West.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  Postal 
Tel.  Cable  Co.  v.  Barwise,  11  Colo.  App.  329,  53  Pac.  252 ;  U.  S.  Tel.  Co.  v. 
Gildersleve.  29  Md.  232,  96  Am.  Dec.  519;  Wheelock  v.  Postal  Tel.  Cable 
Co.,  197  Mass.  119,  83  N.  E.  313,  14  Ann.  Cas.  188 ;  Beaupre  v.  Pacific  Tel. 
Co.,  21  Minn.  155;  Hughes  v.  West.  U.  Tel.  Co.,  79  Mo.  App.  133;  Melson 
V.  West.  t.  Tel.  Co.,  72  Mo.  App.  Ill;  Smith  v.  West.  U.  Tel.  Co.,  80  Neb. 
395,  114  N.  W.  288 ;  Cannon  v.  West.  U.  Tel.  Co.,  100  N.  C.  300,  0  S.  E.  731, 
6  Am.  St.  Rep.  596 ;  Frazier  v.  West,  U,  Tel.  Co.,  45  Or.  414,  78  Pac.  330,  67 
L.  R.  A.  319,  2  Ann.  Cas.  396;  Fergusson  v.  Anglo-American  Tel.  Co.,  178  Pa. 
377,  35  Atl.  979,  56  Am.  St.  Rep.  770,  35  L.  R.  A.  554 ;  Daniel  v.  West.  U. 
Tel.  Co.,  61  Tex.  452,  48  Am.  Rep.  305;  West.  U.  Tel.  Co.  v,  Adams,  75 
Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A.  844 ;  West.  U.  Tel. 
Co.  v.  Wilson,  32  Fla.  527,  14  South.  1,  37  Am.  St.  Rep.  125,  22  L.  R,  A  434, 
overruling  West,  U,  Tel.  Co.  v.  Hyer,  22  Fla.  637,  1  South.  129,  1  Am.  St.  Rep. 
222 ;  Candee  v.  West.  U.  Tel.  Co.,  34  Wis.  471,  17  Am,  Rep.  4-52.  The  stipula- 
tion does  not  apply  where  there  is  an  entire  failure  to  transmit  the  message, 
and  no  effort  made  to  do  so.  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South. 
444. 


538  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  408 

ercise  the  same  care  and  diligence  in  the  transmission  of  one  as 
in  the  other ;  but  the  duty  of  the  company  arising-  out  of  one  may 
be  very  greatly  lessened  by  a  clearer  knowledge  of  the  contents 
of  the  message.  In  other  words,  there  is  no  question  that  it  re- 
quires a  much  greater  degree  of  care  to  transmit  accurately  and 
correctly  a  cipher  or  obscure  message  than  it  does  one  which  is 
cleari}^  and  plainly  written  out.  Any  operator  or  interpreter  can, 
with  a  much  greater  degree  of  accuracy,  communicate  a  message 
or  statement  when  he  understands  the  meaning  of  it,  than  he  could 
if  the  message  or  statement  was  not  understood.  Then,  it  seems 
to  us  that  where  it  does  require  a  much  greater  degree  of  care  in 
transmitting  cipher  messages  that  the  company  might  relieve  it- 
self of  some  of  these  responsibilities  by  a  contract  to  that  effect. 
It  is  also  true  that  the  transmission  of  a  message  in  cipher  is  a 
good  scheme  by  which  the  nature  of  the  business  to  be  accomplish- 
ed may  be  kept  secret;  but,  as  elsewhere  said,  it  is  the  duty  of 
these  companies  not  to  divulge  the  contents  of  any  message  intrust- 
ed to  their  care."*'  This  duty  has  been  imposed,  in  many  states, 
by  statutes,  a  violation  of  which  would  subject  the  company  and 
its  operators  to  punishment. ^^^  This  is  a  duty  also  imposed  on 
these  companies  for  public  policy,  a  violation  of  which,  in  this 
sense,  would  subject  them  to  an  action  ex  delicto  or  ex  contractu^^^ 
So,  it  will  be  clearly  seen,  there  is  no  plausible  reason  for  holding 
that  these  contracts  could  be  made  on  the  ground  that  the  con- 
tents of  the  message  may  become  known.  This  being  the  condi- 
tion of  afifairs,  it  seems  that  a  contract  could  be  entered  into  by 
which  the  company  could  exempt  itself  for  losses  caused  by  errors 
made — not  negligently  but  after  exercising  due  care — in  the  trans- 
mission of  such  messages. 

§  408.  Where  and  when  messages  accepted. — Another  stipula- 
tion usually  found  on  these  blanks  is  that  the  liability  of  the  com- 
pany for  any  loss  arising  out  of  or  in  connection  with  the  transmis- 
sion of  messages  does  not  attach  until  the  message  is  delivered 
to  and  accepted  at  one  of  its  transmitting  offices.  This  has  been 
held,  on  good  reason,  to  be  a  valid  stipulation. ^^^  It  is  hardly  nec- 
essary to  go  into  the  reason  for  sustaining  this  rule,  for  it  is  en- 

186  See  chapter  XXIX. 

187  Id, 

188  Id.  See  Penn  v.  West.  U.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16.  41  L.  R.  A. 
(N.  S.)  223,  notice  of  claim. 

189  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  44  Am.  St.  Rep.  95,  18  S.  E. 
1008.     See,  also,  §  276  et  seq. 


8    409)  COMMON-LAW  LIABILITIES  539 

tirely  too  clear  for  argument  that  the  liability  of  the  company 
should  not  attach  until  after  the  message  is  received  at  its  place  of 
business.  The  most  essential  requirement  of  this  stipulation,  how- 
ever, is,  that  the  message  must  have  been  filed  in  one  of  the  trans- 
mitting offices  before  the  error  was  made ;  and  it  matters  not  so 
much  by  whom  it  was  delivered,  provided  it  was  accepted  by  a 
proper  employe  of  the  company.^^*^  Thus,  if  the  message  was  de- 
livered to  an  agent  of  the  company  when  absent  from  his  office,  but 
the  same  was  duly  filed  by  him  on  his  return,  and  its  delay  oc- 
curred after  such  filing,  the  company  cannot,  under  such  circum- 
stances, receive  any  protection  from  this  stipulation. ^^^ 

§  409.  Delivery  to  messenger — valid. — Another  stipulation, 
closely  connected  with  the  one  discussed  in  the  preceding  section, 
is  that,  if  a  message  is  sent  to  one  of  the  transmitting  offices  of  the 
company  by  one  of  its  messengers,  he  acts  for  that  purpose  as  the 
agent  for  the  sender.''*^  This  rule  has  been  held  reasonable,  even 
though  the  message  was  delivered  to  one  of  the  company's  delivery 
messengers  who  was  acting  in  that  capacity  at  that  time,  provided 
he  did  not  have  authority  from  the  company  to  receive  the  mes- 
sage.^^^  The  duty  of  these  messengers  is  to  deliver  the  message  to 
the  addressee,  and  when  this  shall  have  been  done  their  duty  is  at 
an  end.  As  was  said :  "They  are  not  sent  out  from  the  company's 
office  to  solicit  telegrams,  and  being  engaged  in  a  most  subordinate 
work  of  the  company's  service,  it  is  presumed  that  they  are  not 
invested  by  the  company  with  the  powers  of  receiving  the  com- 
pany's charges  or  fees  for  the  transmission  of  telegrams."  ^°*  This 
stipulation  affords  no  protection  to  the  company,  if  the  message 
delivered  by  the  messenger  request  a  reply,  and  the  company  di- 
rects the  messenger  to  obtain  from  the  addressee  such  reply. ^^^ 
And  the  company  may  waive  its  rights  acquired  under  the  stipula- 
tion.   Thus,  if  it  has  been  the  custom  of  the  company  to  consider  a 

190  Planters'  Cotton  Oil  Co.  v.  West.  U.  Tel.  Co.,  126  Ga.  621,  55  S.  E.  495, 
6  L.  R.  A.  (N.  S.)  1180,  holding  that,  where  plaintiff's  agent,  in  an  attempt  to 
deliver  a  message  for  transmission,  used  the  telephone,  was  not  sufficient  de- 
livery ;  West.  U.  Tel.  Co.  v.  Lillard,  SG  Arlv.  208,  110  S.  W,  1035,  17  L.  R.  A. 
(N.  S.)  836,  railroad  agent  may  have  right  to  receive  messages,  proof  of. 

191  West.  U.  Tel.  Co.  v.  Pruett  (Tex,  Civ.  App.)  35  S.  W.  78. 

192  See  §  278. 

193  Ayres  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634;  Stamey 
v.  West.  U.  Tel.  Co.,  92  Ga.  613,  44  Am.  St.  Rep.  95,  18  S.  E.  1008.     See  §  278. 

194  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  44  Am.  St.  Rep.  98,  18  S.  E.  lOOS. 

195  Will  V.  Postal  Tel.  Cable  Co.,  3  App.  Div.  22,  37  N.  Y.  Supp.  933;  Alexan- 
der V.  West.  U.  Tel.  Co.,  158  N.  C.  473,  74  S.  E.  440,  42  L.  R.  A.  (N.  S.)  407. 
See  §  278. 


540  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  410 

delivery  to  the  messenger  a  delivery  to  the  company,  it  cannot 
obtain  protection  under  this  stipulation.^®" 

§  410.  Waiver  of  stipulation  limiting  company's  liability. — Stip- 
ulations limiting  the  liability  of  telegraph  companies,  or  fixing 
the  time  and  manner  of  presenting  claims  or  notices,  may  be  waiv- 
ed by  the  company  impliedly  by  conduct  as  well  as  expressly. ^'^'^ 
Thus,  where  the  company  received  a  claim  and  acted  upon  it  after 
the  expiration  of  the  time,  without  any  objection  on  that  account, 
it  will  be  presumed  that  the  stipulation  has  been  waived.^®®  So 
also  it  is  required  that  the  claim  shall  be  presented  in  writing,  but 
if  they  are  received  and  acted  upon,  or  there  is  a  promise  to  act 
upon  them  without  objection  by  the  company  on  this  account,  it 
will  be  deemed  that  it  has  made  a  waiver  of  this  requirement.^®^ 
And  a  stipulation  limiting  the  company  to  a  certain  sum  is  waived 
when  the  company,  in  adjusting  the  damages,  agrees  to  pay  the 
injured  party  a  larger  sum  than  that  stated  in  the  contract  limiting 
its  liability. ^"^  But  it  has  been  held  that  an  injured  party  has  no 
right  to  rely  upon  the  promise  of  one  of  the  company's  agents  to 
waive  a  provision  as  to  the  time  within  which  suit  must  be  brought, 
when  he  knows  that  such  agent  has  no  right  to  adjust  such  claim 
without  authority  from  the  company."®^ 

§  411.  Burden  of  proof. — It  may  often  become  of  great  impor- 
tance when  telegraph  companies  attempt  to  exonerate  themselves 
from  losses  by  these  stipulations  or  special  contracts,  to  deter- 
mine upon  whom  the  burden  of  proof  rests.  There  is  some  con- 
flict of  authority  upon  some  phases  of  this  subject.  But  the  propo- 
sition seems  to  be  pretty  well  settled  that  proof  of  loss  caused  in 
the  transmission  or  delivery  of  messages  generally  raises  a  pre- 
sumption of  negligence  or  fault  on  the  part  of  the  company;  and 
the  burden  rests  upon  the  latter  to  explain  or  account  for  the  loss 

196  Will  V.  Postal  Tel.  Cable  Co.,  3  App.  Div.  22,  37  N.  Y.  Supp.  933;  Alex- 
ander V.  Tel.  Co.,  158  N.  C.  473,  74  S.  E.  449,  42  L.  R.  A.  (N.  S.)  407.  See 
§27S. 

ii>7  Galveston,  etc.,  R.  Co.  v.  Ball,  SO  Tex.  602,  16  S.  W.  441;  Hess  v.  Mis- 
souri Pac.  R.  Co.,  40  Mo.  App.  202 ;  iNIerrill  v.  American  Ex.  Co.,  62  N.  H.  514 ; 
Glenn  v.  South.  Ex.  Co.,  86  Temi.  594,  8  S.  W.  152 ;  Hudson  v.  Northern  Pac. 
R.  Co.,  92  Iowa,  231,  60  N.  W.  608,  54  Am.  St.  Rep.  .550.  See  §§  346,  355.  See, 
also.  West.  U.  Tel.  Co.  v.  Hearn,  110  Ark.  176,  161  S.  W.  1025,  Ann.  Cas.  1915D, 
378. 

19  8  International,  etc.,  R.  Co.  v.  Underwood,  62  Tex.  21;  Hudson  v.  North- 
ern Pac.  R.  Co.,  92  Iowa,  231,  60  N.  W.  60S,  54  Am.  St.  Rep.  550. 

199  Bennett  v.  Northern  Pac.  Ex.  Co.,  12  Or.  49,  6  Pac.  160;  Rice  v.  Kansas 
Pac.  R.  Co.,  63  Mo.  314;  Atchison,  etc.,  R.  Co.  v.  Temple,  47  Kan.  7,  27  Pac.  98, 
13  L.  R.  A.  362,  note. 

200  Chicago,  etc.,  R.  Co.  v.  Katzenbach,  118  Ind.  174,  20  N.  E.  709. 

201  Gulf,  etc.,  R.  Co.  v.  Brown  (Tex.  Civ.  App.)  24  S.  W.  918. 


I 


§    412)  COMMON-LAW  LIABILITIES  541 

in  some  way  in  order  that  it  may  be  exonerated. ^"^  If  the  com- 
pany claims  that  the  loss  or  damage  occurred  from  some  cause 
excepted  by  the  stipulation  or  special  contract,  the  burden  is  upon 
the  company  to  show  that  fact."*'^  As  we  have  seen,  however,  the 
company  is  generally  liable  for  its  own  negligence,  even  though 
the  loss  was  from  some  excepted  cause,  occasioned  by  its  fail- 
ure to  exercise  due  care.  In  many  states  the  burden  is  upon  the 
company  not  only  to  show  that  the  loss  was  within  the  terms  of 
the  exception,  but  also  that  the  loss  was  not  caused  by  any  neg- 
ligence on  its  part,  at  least,  none  which  was  a  proximate  cause 
"  of  the  loss.  There  is  some  authority  which  supports  the  rule  that, 
after  the  loss  is  shown  to  be  within  the  exception,  the  burden  of 
proof  then  rests  upon  the  plaintiff  to  show  negligence  upon  the 
part  of  the  company.^"*  Eminent  judges  and  text-writers  approve 
the  former  rule,  and  we  are  inclined  to  think  that  the  better  rea- 
soning is  in  favor  of  it. 

§  412.  Proof  of  assent  to  stipulation. — The  message  blank  fur- 
nished by  telegraph  companies  to  their  customers  contains  con- 
tracts and  stipulations  which  are  so  arranged  therein  that  the 
sender,  when  he  affixes  his  name  thereto,  is  presumed,  in  the  ab- 
sence of  fraud  or  imposition,  to  have  assented  to  the  terms  of  the 
contract,  and  is  bound  by  all  those  which  are  reasonable,^°^  even 

202  Compare  Canfield  v.  Baltimore,  etc.,  R.  Co.,  93  N.  Y.  532,  45  Am.  Rep. 
268 ;  Grogan  v.  Adams  Ex.  Co.,  114  Pa.  523,  7  Atl.  134,  60  Am.  Rep.  360 ;  Adams 
Ex.  Co.  V,  Haynes,  42  111.  89 ;  Mann  v.  Birchard,  40  Vt.  326,  94  Am.  Dec.  398 ; 
Chapman  v.  New  Orleans,  etc.,  R.  Co.,  21  La.  Ann.  224,  99  Am.  St.  Rep.  722. 
See  chapter  XIII. 

203  Compare  Maghee  v.  Camden,  etc.,  R.  Co.,  45  N.  Y.  514,  6  Am.  Rep.  124; 
Keeney  v.  Grand  Trunk  R.  Co.,  47  N.  Y.  525.  See  McGehee  v.  West.  U.  Tel. 
Co..  169  Ala.  109,  53  South.  205,  Ann.  Cas.  1912B,  512. 

204  See  Kilby  v.  West.  U.  Tel.  Co.,  109  N.  Y.  231,  16  N.  E.  75 ;  Ayres  v.  West. 
U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634.  Compare  Little  Rock,  etc., 
Co.  V.  Talbot,  39  Ark.  523 ;  Same  v.  Harper,  44  Ark.  208 ;  Witting  v.  St.  Louis, 
etc.,  R.  Co.,  101  Mo.  631,  14  S.  W.  743,  10  L.  R.  A.  002,  20  Am.  St.  Rep.  636 ; 
Smith  V.  North  Carolina  R.  Co.,  64  N.  C.  235 ;  Railway  Co.  v.  Manchester  Mills, 
88  Tenn.  653,  14  S.  W.  314 ;  Buck  v.  Pennsylvania  R.  Co.,  150  Pa.  170,  24  Atl. 
678,  30  Am.  St.  Rep.  800. 

205  Alahama.—Wefit.  U.  Tel.  Co.  v.  Prevatt,  149  Ala.  617,  43  South.  106. 
Georffia.—Um  v.  West.  U.  Tel.  Co.,  85  Ga.  425,  11  S.  E.  874,  21  Am.  St.  Rep. 

166 ;  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  IS  S.  E.  lOOS,  44  Am.  St.  Rep.  95. 

/owa.— ^Sweatland  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285. 

Kentucky.— Camp  v.  West.  U.  Tel.  Co.,  1  Mete.  (Ky.)  164,  71  Am.  Dec.  401. 

Maryland.— Birney  v.  N.  Y.  etc..  Printing  Tel.  Co.,  18  Md.  341,  81  Am.  Dec. 
607. 

Ifas.sac/iwsc^^s.— Grinnell  v.  West.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep. 
485 ;  Redpath  v.  West.  V.  Tel.  Co.,  112  Mass.  71,  17  Am.  Rep.  69. 

Michigan.— 3 acob  v.  West.  U.  Tel.  Co.,  135  Mich.  600,  98  N.  W.  402 ;  West.  U. 
Tel.  Co.  V.  Carew,  15  Mich.  525. 

Minnesota.— Cole  v.  West.  U.  Tel.  Co.,  33  Minn.  227,  22  N.  W.  385. 


542  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  412 

though  he  did  not  read  or  notice  them,  or  was  not  able  to  read 
them.^"^  He  is  presumed  to  have  had  notice  of  these  from  the  fact 
that  they  are  contained  on  the  blanks.  A  very  common  sense  rule — 
and  one  for  the  reason  of  which  there  is  no  necessity  for  argu- 
ment— is  that  no  statement,  agreement  or  any  other  kind  of  writing 
should  be  signed  until  it  shall  have  been  read  and  understood.  The 
rule  applies  to  contracts  and  regulations  of  telegraph  companies  as 
it  does  to  writings  given  out  by  any  other  corporation  or  individual. 

Missouri.— Gra-nt  v.  West.  U.  Tel.  Co.,  154  Mo.  App.  279,  133  S.  W.  673. 

Nebraska. — Becker  v.  West.  U.  Tel.  Co.,  11  Neb.  87,  7  N.  W.  868,  3  Am.  Rep, 
356. 

Neiv  Yorl-.—Kiley  v.  West.  U.  Tel.  Co.,  109  N.  Y.  231,  16  N.  E.  75 ;  Young  v. 
West.  U.  Tel.  Co.,  65  N.  Y.  163 ;  Breese  v.  U.  S.  Tel.  Co.,  48  N.  Y.  132,  8  Am. 
Rep.  526 ;  Pearsall  v.  West.  U.  Tel.  Co.,  44  Him  (N.  Y.)  532 ;  Schwartz  v.  At- 
lantic, etc.,  Tel.  Co.,  IS  Hun  (N.  Y.)  159.  . 

Pennsylvania.— Wo\t  v.  West.  V.  Tel.  Co.,  62  Pa.  S3,  1  Am.  Rep.  387;  Pass- 
more  V.  West.  U.  Tel.  Co.,  78  Pa.  238. 

South  Carolina.— Young  v.  West.  U.  Tel.  Co.,  65  S.  C.  93,  43  S.  E.  448; 
Pinckney  v.  West.  U.  Tel.  Co.,  19  S.  C.  73.  45  Am.  Rep.  765. 

Tennessee.— West.  U.  Tel.  Co.  v.  Courtney,  113  Tenn.  482,  82  S.  W.  484; 
:Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  530,  3  S.  W.  496. 

Te^as.— Womack  v.  West.  U.  Tel.  Co.,  58  Tex.  176,  44  Am.  Rep.  614 ;  West. 
U.  Tel.  Co.  V.  Edsall,  63  Tex.  668 ;  Anderson  v.  West.  U.  Tel.  Co.,  84  Tex.  17, 
19  S.  W.  285. 

United  States.— Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  38  L.  Ed.  883,  14 
Sup.  Ct.  1098 ;  Postal  Tel.  Cable  Co.  v.  Nicolls,  159  Fed.  643,  89  C.  C.  A.  585, 
16  L.  R.  A.  (N.  S.)  870,  14  Ann.  Cas.  369;  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39 
Fed.  181. 

Infants. — Stipulations  are  binding  on  sender  who  is  an  infant.  West.  U.  Tel. 
Co.  V.  Greer,  115  Tenn.  368,  89  S.  W.  327,  1  L.  R.  A.  (N.  S.)  525. 

20G  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148 ;  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  668 ;  West.  U.  Tel.  Co.  v.  Pre- 
vatt,  1 19  Ala.  617,  43  South.  106 ;  Cole  v.  West.  U.  Tel.  Co.,  33  Minn.  227,  22  N. 
W.  385 ;  Grimiell  v.  West.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep.  485 ;  Kiley 
V.  West.  U.  Tel.  Co.,  109  N.  Y.  231,  16  N.  E.  75 ;  Breese  v.  U.  S.  Tel.  Co.,  48  N. 
Y.  132,  8  Am.  Rep.  526 ;  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  66S ;  Beasley  v. 
West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181 ;  I'ostal  Tel.  Cable  Co.  v.  Nicolls,  159  Fed. 
643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870,  14  Ann.  Cas.  369.  In  Illinois  it  is 
held  that  the  condition  must  have  been  known  or  assented  to.  West.  U.  Tel. 
Co.  V.  Lycan,  60  111.  App.  124 ;  Webbe  v.  West.  U.  Tel.  Co.,  169  111.  610,  48  N. 
E.  670,  61  Am.  St.  Rep.  207,  reversing  64  111.  App,  331 ;  Beggs  v.  Postal  Tel.  Ca- 
ble Co.,  159  111.  App.  247. 

Signed  by  employe  of  company. — Where  the  operator  or  messenger  writes  the 
telegram  at  the  request  and  dictation  of  the  sender,  the  former  acts  as  agent 
for  the  latter  in  that  particular  act,  and  the  sender  is  bound  by  the  stipulations 
contained  in  the  blank  on  which  the  telegram  is  written,  the  same  as  if  he 
had  made  it  out  himself.  West.  U.  Tel.  Co.  v.  Prevatt,  149  Ala.  617,  43  South. 
106 ;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712 ;  West.  U.  Tel.  Co. 
v.  Foster,  64  Tex.  220,  53  Am.  Rep.  754 ;  Gulf,  etc.,  R.  Co.  v.  Geer,  5  Tex.  Civ. 
App.  349,  24  S.  W.  86 ;  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  668 ;  West.  U.  Tel. 
€o.  V.  Jackson,  163  Ala.  9,  50  South.  316 ;  Lavelle  v.  West.  U.  Tel.  Co.,  102  Ark. 
607,  145  S.  W.  205.  See,  also.  West.  U.  Tel.  Co.  v.  Simms,  30  Tex.  Civ,  App.  32, 
•69  S,  W.  464, 


I 


§   413)  COMMON-LAW  LIABILITIES  543 

So  it  has  been  held  that  it  will  be  presumed  the  sender  understood 
the  contents  of  the  blank  and  accepted  the  terms ;  and  he  is  there- 
fore estopped  from  denying  or  disputing  the  agreement.-"^  Neither 
can  he,  in  absence  of  misrepresentation  or  fraud,  with  full  oppor- 
tunity to  be  informed  of  its  contents,  avoid  the  contract  upon  the 
ground  of  his  negligence  or  omission  to  read  it,  or  to  avail  himself 
of  such  information. ^'^^  Fraud  will  make  all  contracts  voidable, 
and  if  there  has  been  any  misrepresentation  or  fraud  perpetrated 
by  the  company  on  the  sender,  of  course  the  contract  will  not  be 
enforceable.  It  may  seem  to  be  a  hard  rule  to  impose  such  laws 
upon  people  who  may  be  too  ignorant  to  read  the  contents  of  these 
blanks,  or  who  may  not  have  had  the  time  to  read  them.  But,  as  it 
has  often  been  said,  these  companies,  like  all  other  public  institu- 
tions, have  the  right  to  pass  and  enforce  all  reasonable  rules  and 
regulations  for  the  betterment  of  their  business;  -°^  and  they  may 
also  limit  to  a  certain  extent  some  of  their  common-law  liabilities  by 
stipulations  and  contracts  assented  to  by  their  customers.  These 
rules  are  certain,  fixed  and  universal,  and  become  part  of  the  laws 
of  their  institution,  and  are,  in  a  sense,  promulgated  to  the  public 
by  notices  on  placards  conspicuously  tacked  in  their  offices  and  else- 
where, and  by  notices  given  in  their  message  blanks.  This  is  the 
only  means  by  which  their  regulations  and  contracts  would  likely 
come  into  the  hands  of  those  who  should  desire  to  employ  them, 
and  it  is  the  duty  of  the  latter — even  though  it  may  be  some  im- 
position on  them — to  accept  the  notice  of  these  in  this  way ;  and  it 
is  presumed  that  they  have  been  so  accepted  and  agreed  to  when 
the  sender  has  attached  his  signature  to  the  blank. 

§  413.  Contrary  holding. — It  is  held  in  some  jurisdictions  that 
the  mere  fact  that  the  sender  affixes  his  signature  does  not  of  itself 
make  the  contract  binding  upon  him,  unless  it  is  actually  brought 
to  his  notice,  and  he  signs  with  full  knowledge  of  its  terms.- ^°  In 
those  states  in  which  this  is  the  holding,  the  question  of  knowledge 
and  assent  is  a  question  of  fact  to  be  left  to  a  jury  upon  evidence 

207  Breese  v.  United  States  Tel.  Co.,  48  N.  Y.  132,  S  Am.  Rep.  526;  Bel-er  v. 
Dinsmore,  51  N.  Y.  166,  10  Am.  Rep.  575;  Womack  v.  West.  U.  Tel.  Co.,  58 
Tex.  176,  44  Am.  Rep.  614. 

208  Breese  v.  United  States  Tel.  Co.,  48  N.  Y.  132,  8  Am.  Rep.  526 ;  Soumet  v. 
National,  etc.,  66  Barb.  (N.  Y.)  284 ;  Womack  v.  West.  U.  Tel.  Co.,  58  Tex.  176, 
44  Am.  Rep.  614  ;  Lavelle  v.  West.  U.  Tel.  Co.,  102  Ark,  607,  145  S.  W.  205. 

209  See  chapter  XIV, 

210  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38 ;  Brown  v.  Eastern 
R.  Co.,  11  Cush.  (Mass.)  97 ;  Illinois  Central  R.  Co.  v.  Frankenberg,  54  111.  88,  5 
Am.  Rep.  92 ;  West.  U.  Tel.  Co.  v.  Stevenson,  128  Pa.  442,  15  Am.  St.  Rep.  687^ 
Id.,  128  Pa.  442,  18  Atl.  441,  5  L.  R.  A.  515,  15  Am.  St.  Rep.  687. 


544  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  414 

alinnde.^^'^  As  was  said  on  the  subject:  "Whether  he  (the  sender) 
had  knowledge  of  its  terms  and  assented  to  its  restrictions  is  for  a 
jury  to  determine,  as  a  question  of  evidence  aliunde,  and  all  the  cir- 
cumstances attending  the  giving  of  the  blank  are  admissible  in  evi- 
dence to  enable  the  jury  to  determine  that  fact,"  ^^^  and  "slight 
evidence  of  acceptance  of,  or  assent  to,  such  regulations,  would  no 
doubt  suffice,  but  it  is  for  the  jury  to  determine."  ^^^  While  this  is 
the  rule  in  some  courts,  yet  the  weight  of  authority,  both  court 
decisions  and  text-writers,  is  to  the  efifect  as  stated  heretofore. ^^* 
It  will  be  seen,  further,  that  some  of  these  decisions  were  rendered 
in  cases  where  the  messages  were  written  out  by  the  sender  on 
paper  other  than  on  the  blank  forms  furnished  by  the  company,  but 
were  later  attached  to  these  forms  by  the  operator.^^^ 

§  414.  Special  contracts — not  applicable. — The  rule  first  stated, 
we  think,  should  not  be  applicable  where  the  contract  is  special,  or 
one  which  has  been  but  recently  adopted  by  the  company,  when  its 
purpose  is  to  exempt  it  from  some  of  its  common-law  liabilities.^^" 
In  these  instances  the  sender  should  be  specially  referred  to  these 
contracts,  in  order  that  he  may  give  special  consideration  to  their 
terms  before  agreeing  to  them.  It  is  a  rule  in  the  law  of  contracts 
that  the  contracting  parties  must  be  equally  situated,  in  order  to 
consider  fairly  the  terms  of  the  contract.  In  other  words,  neither 
should  have  any  advantage  over  the  other  by  the  position  held ; 
and  nothing  should  be  given  out  or  retained  by  either  party,  which 
would  have  the  tendency  to  mislead  the  other.  It  would  be  unfair 
and  illegal  to  attempt  to  force  the  terms  of  such  a  contract  upon 
senders  who  had  no  knowledge  of  them,  or  who  may  not  have  had 
an  opportunity  to  consider  them  fairly  and  uninfluenced.  As  was 
said  in  the  preceding  section,  those  rules  therein  were  binding  on 

211  West.  U.  Tel.  Co.  v.  Stevenson,  above  cited.  See.  also,  West.  U.  Tel.  Co. 
V.  Hearn,  110  Ark.  176,  161  S.  W.  1025,  Ann.  Cas.  1915D,  378. 

212  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38,  approved  by  Webbe 
V.  West.  U.  Tel.  Co.,  169  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep.  209. 

213  Id. 

214  See  §  412, 

215  West.  U.  Tel.  Co.  v.  Stevenson,  above  cited. 

216  In  Webbe  v.  West.  U.  Tel.  Co.,  169  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep. 
210,  the  court  said:  "Some  of  the  cases  seem  to  hold  that  the  printed  condi- 
tions upon  blank  forms  of  telegraphic  dispatches,  including  the  one  in  refer- 
ence to  the  limit  of  sixty  days,  are  mere  regulations,  and  not  contracts  between 
the  sender  of  the  message  and  the  telegraph  company.  The  force  of  the  dis- 
tinction thus  sought  to  be  made  lies  in  the  fact  that,  if  the  conditions  or  stipu- 
lations are  considered  as  mere  regulations,  the  assent  of  the  sender  to  them  is 
not  necessary,  but  that  he  will  be  bound  if  they  are  brought  home  to  his  knowl- 
edge ;  whereas,  if  they  are  held  to  be  parts  of  a  contract,  the  assent  of  the 
sender  must  be  shown  in  order  to  bind  him." 


8    416)  COMMON-LAW  LIABILITIES  545 

the  sender,  although  he  fails  or  is  unable  to  read  them ;  but  if  he  is 
unable  to  read  special  contracts  on  the  account  of  his  illiteracy,  it 
is  the  duty  of  the  company  to  inform  him  of  their  terms,  or  to  give 
him  special  notice  of  them,  in  order  that  he  may  get  others  to  read 
them  for  him.  These  contracts  and  stipulations  contained  in  the 
message  blanks  are  more  especially  beneficial  to  the  company,  and 
for  this  reason  no  advantage  should  be  taken  on  account  of  its  posi- 
tion, and  no  fraud,  therefore,  should  be  perpetrated  on  the  public. 

§  415.  Small  type — not  fraud. — It  very  often  becomes  necessary 
for  these  stipulations  to  be  written  in  small  type,  otherwise,  on  ac- 
count of  the  number  and  length  of  them,  the  message  blanks  would 
be  too  large,  cumbersome  and  inconvenient.  Should,  however,  this 
matter  be  written  so  as  to  mislead  the  sender,  but,  on  the  other 
hand,  the  same  is  referred  to  by  larger  type,  this  will  not  be  such 
an  imposition  or  fraud  as  will  affect  the  validity  of  the  stipula- 
tion.2^^  The  general  method  by  which  the  sender  is  referred  to 
these  stipulations  is  by  a  notice  written  out  on  the  front  part  and 
at  the  bottom  of  the  message  blank,  and  in  the  following  words : 
"Read  the  notice  and  agreement  on  back."  So,  whenever  the  sender 
fills  out  one  of  these  message  blanks,  he  is  presumed  to  have  ob- 
served this  notice  and  complied  with  its  request.  At  the  top  and 
on  the  front  of  these  blanks  may  also  be  seen  notices  referring  the 
sender  to  certain  agreements  which  are  to  be  accepted  by  him. 
Then,  turning  to  the  back  of  these  blanks,  there  may  be  seen  writ- 
ten at  the  top  in  large  letters  a  notice  that  all  the  stipulations  there- 
under enter  into  and  become  a  part  of  the  contract  for  sending. 
There  is  nothing  about  these  blank  forms  which  would  have  a  ten- 
dency to  mislead  any  one,  but  nearly  all  of  them  contain  notices 
which  point  almost  directly  to  each  and  every  stipulation,  whether 
it  be  written  in  bold  type  or  in  other  type  not  so  large. 

§  416.  Assent  of  addressee. — One  of  the  most  difficult  subjects 
with  which  we  have  been  so  far  confronted  in  this  work  is  whether 
the  assent  of  the  addressee  is  necessary  to  make  these  stipulations 
binding  on  him.  This  subject  has  been  very  ably  discussed  both 
ways  by  the  most  eminent  judges  and  text-writers,  who  have  ad- 
vanced reasons  which  appear  unanswerable.  We  shall  attempt  to 
set  forth  the  reasons  given  each  way,  and  then  endeavor  to  harmo- 
nize these  as  far  as  it  is  possible.  The  answer  to  this  question  de- 
pends upon  which  ground  the  court  bases  the  right  of  recovery. 
Some  of  the  courts  consider  that  the  receiver's  right  to  recover 

217  Wolf  V.  West.  U.  Tel.  Co.,  62  Pa.  S3,  1  Am.  Rep.  387. 
Jones  Tel.(2d  Ed.) — 35 


546  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  416 

rests  entirely  upon  the  contract  made  by  the  sender,  upon  the  prin- 
ciple that,  where  two  parties  contract  for  the  benefit  of  a  third,  such 
third  party  may  maintain  an  action  for  the  breach  of  the  agreement 
in  his  own  right. -^^  Whenever  it  is  considered  in  this  light,  it 
necessarily  follows  that  the  receiver  can  assert  no  rights  except 
such  as  are  embodied  in  the  contract  made  by  the  sender,  and  he  is 
therefore  bound  by  the  conditions  and  stipulations  appearing  upon 
the  blank  upon  which  the  message  is  sent,  and  to  which  the  sender 
has  assented.^^^ 

218  Manier  v.  West.  U.  Tel.  Co.,  94  Tenn.  448,  29  S.  W.  732. 

Binding  on  third  parti/- — Where  the  third  party,  being  neither  the  sender 
or  receiver,  for  whosa  bene'it  the  message  is  made  by  others,  he  would  be 
bound  by  the  stipulations.  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S. 
E.  94;    Whitehill  v.  West.  U.  Tel.  Co.  (C.  C.)  136  Fed.  499. 

219  West.  U.  Tel.  Co.  v.  Waxelbaum,  113  Ga.  1017,  39  S.  E.  443,  56  L.  R. 
A.  741;  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  IS  S.  E.  1008,  44  Am.  St. 
Rep.  95 ;  West.  U.  Tel.  Co.  v.  James,  90  Ga.  254,  16  S.  E.  83 ;  Sweatland  v. 
Illinois,  etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285;  Russell  v.  West.  U. 
Tel.  Co.,  57  Kan.  230,  45  Pac.  598;  Ellis  v.  American  Tel.  Co.,  13  Allen 
(Mass.)  226;  Massengale  v.  West.  U.  Tel.  Co.,  17  Mo.  App.  257;  Curtin  v. 
West.  U.  Tel.  Co.,  16  Misc.  Rep.  347,  38  N.  Y.  Supp.  58;  Aiken  v.  West.  U. 
Tel.  Co.,  5  S.  C.  358;  Manier  v.  West.  U.  Tel.  Co.,  94  Tenn.  442,  29  S. 
W.  732 ;  West.  U.  Tel.  Co.  v.  Neill,  57  Tex.  283,  44  Am.  Rep.  589 ;  West.  U. 
Tel.  Co.  v.  Culberson,  79  Tex.  65,  15  S.  W.  219.  See  note  to  Camp  v.  West. 
U.  Tel.  Co.,  71  Am.  Dec.  466;  Birkett  v.  West.  U.  Tel.  Co.,  103  Mich.  361, 
61  N.  W.  64.5,  33  L.  R.  A.  404,  50  Am.  St.  Rep.  374;  West.  U.  Tel.  Co.  v. 
Neel,  86  Tex.  368,  25  S.  W.  15,  40  Am.  St.  Rep.  847;  Coit  v.  West.  U.  Tel. 
Co.,  130  Cal.  657,  63  Pac.  83,  SO  Am.  St.  Rep.  153,  53  L.  R.  A.  678 ;  Hill  v. 
West.  U.  Tel.  Co.,  85  Ga.  425,  11  S.  E.  874,  21  Am.  St.  Rep.  166;  West.  U. 
Tel.  Co.  v.  Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  22  Ky.  Law  Rep.  53,  92 
Am.  St.  Rep.  366;  Clement  v.  West.  U.  Tel.  Co.,  77  Miss.  747,  27  South. 
603;  Halsted  v.  Postal  Tel.  Cable  Co.,  193  N.  T.  293.  85  N.  E.  1078,  127 
Am.  St.  Rep.  952,  19  L.  R.  A.  (N.  S.)  1021,  affirming  120  App.  Div.  433,  104 
N.  Y.  Supp.  1016 ;  Lewis  v.  West.  U.  Tel.  Co.,  117  N.  C.  436,  23  S.  E.  319 ; 
Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94;  Frazier  v.  West. 
U.  Tel.  Co.,  45  Or.  414,  78  Pac.  330.  67  L.  R.  A.  319,  2  Ann.  Cas.  396 ;  Broom 
V.  West.  U.  Tel.  Co.,  71  S.  C.  506.  51  S.  E.  259,  4  Ann.  Cas.  611 ;  Lester  v. 
West.  U.  Tel.  Co.,  84  Tex.  313.  19  S.  W.  256;  West.  U.  Tel.  Co.  v  Hayes 
(Tex.  Civ.  App.)  63  S.  W.  171 ;  Baldwin  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.) 
33  S.  W.  890;  West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App.  60,  30  S.  W. 
70:  West.  U.  Tel.  Co.  v.  Sanders  (Tex.  Civ.  App.)  26  S.  W.  734;  West.  U. 
Tel.  Co.  V.  Phillips,  2  Tex.  Civ.  App.  60S,  21  S.  W.  63S ;  Whitehill  v.  West. 
U.  Tel.  Co.  (C.  C.)  136  Fed.  499;  Findlay  v.  West.  U.  Tel.  Co.  (C.  C.)  64 
Fed.  4.59;  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181;  Stone  v.  Postal 
Tel.  Co.,  31  R.  I.  174,  76  Atl.  762,  29  L.  R.  A.  (N.  S.)  795 ;  West.  U.  Tel.  Co. 
V.  White  (Tex.  Civ.  App.)  149  S.  W.  790.  Some  hold  that  the  sendee  would 
be  bound  whether  he  sued  any  contract  or  in  tort.  Broom  v.  West.  U.  Tel. 
Co.,  71  S.  C.  506.  51  S.  E.  259,  4  Ann.  Cas.  611;  West.  U.  Tel.  Co.  v.  Van 
Cleave,  107  Ky.  464,  54  S.  W.  827,  22  Ky.  Law  Rep.  53,  92  Am.  St.  Rep.  36G. 
See,  al.so,  Halsted  v.  Postal  Tel.  Cable  Co.,  120  App.  Div.  433,  104  N.  Y. 
Supp.  1016.  affirmed  in  103  N.  Y.  293,  85  N.  E.  1078.  127  Am.  St.  Rep.  952,  19 
L.  R.  A.    (N.  S.)  1021;    Stone  v.  Postal  Tel.  Cable  Co.,  supra.     A  distinction 


§    417)  COMMOX-LAW   LIABILITIES  547 

§  417.  Same  continued — illustrations. — In  an  action  brought  by 
the  receiver  of  a  telegram  to  recover  damages  for  a  failure  to 
promptly  deliver  the  message,  according  to  these  decisions,  the 
plaintiff  would  be  governed  by  the  contract  as  made  by  the  sender 
in  his  behalf.220  jj^  ^^^  ^^^^  j^  ^as  held  that  both  the  addressee 
and  the  sender  were  bound  by  the  stipulations  in  the  message 
blanks."-^  So  it  has  been  held  that,  in  order  for  the  receiver  to 
recover,  he  must  have  presented  his  claim  in  writing  within  the 
limitation. -^2  As  was  said:  "The  plaintiff  had  no  cause  of  action 
independent  of  the  contract  made  by  the  sender  of  the  message. 
Having  failed  to  present  his  claim  within  the  time  required  by  the 
contract,  he  has  lost  whatever  right  of  action  the  contract  gave 
him."  ^-^  It  has  been  held,  however,  that  if  the  blank  form  on  which 
the  message  was  written,  when  delivered  to  the  company,  contained 
no  stipulations  in  regard  to  a  certain  time  within  which  the  claim 
should  be  presented,  the  addressee  would  not  be  bound  by  such 
stipulation,  although  this  condition  may  have  been  in  the  message 
blank  delivered  to  him.-'*  It  has  also  been  held  that,  when  one  of 
these  blanks  contained  a  stipulation  that  the  company  would  not 
be  liable  in  damages  beyond  a  certain  amount  for  errors  made  in 
its  transmission,  unless  the  same  was  ordered  to  be  repeated,  the 
addressee  was  bound  by  this  condition.  In  this  case  the  message 
was  delivered  to  the  addressee  on  a  blank  containing  the  same  con- 


has  been  suggested  between  actions  based  npon  a  wrongful  act,  independent 
of  any  duty  assumed  under  the  contract,  and  actions  based  upon  nonper- 
formance of  a  duty  assumed  by  the  contract,  it  being  held,  however,  that  in 
cases  of  the  latter  character,  as  in  case  of  a  delay  in  delivery,  the  stipula- 
tions of  the  contract  are  binding  upon  the  addressee.  Russell  v.  West.  U. 
Tel.  Co.,  57  Kan.  230,  4.5  Pac.  598.  See,  also,  Forney  v.  Postal  Tel.  Cable  Co., 
152  N.  C.  494,  67  S.  E.  1011 ;  Barnes  v.  Postal  Tel.  Cable  Co.,  156  N.  C.  150,  72 
S.  E.  78;  Penn  v.  West.  U.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16.  41  L.  R.  A. 
(N.  S.)  223;  Taber  v.  West.  U.  Tel.  Co.,  104  Tex.  272,  137  S.  W.  106,  34  L. 
R.  A.  (N.  S.)  135;  West.  U.  Tel.  Co.  v,  Dant,  42  App.  D.  C.  398,  Ann.  Cas. 
1916A,  1132,  L.  R.  A.  1915B,  685. 

220  Id. 

221  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  44  Am.  St.  Rep.  95,  IS  S.  E. 
1008;  McGehee  v.  West.  U.  Tel.  Co.,  169  Ala.  109,  53  South.  205,  Ann.  Cas. 
1912B,  512.     See  §  425. 

222Manier  v.  West.  U.  Tel.  Co.,  &4  Tenn.  442,  29  S.  W.  732;  Russell  v. 
West.  U.  Tel.  Co.,  57  Kan.  230,  45  Pac.  598. 

223  Russell  V.  West.  U.  Tel.  Co.,  57  Kan.  2.30,  45  Pac.  598.  See  Penn  v. 
West.  U.  Tel.  Co.,  159  N.  C.  .306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.)  223 ;  Tabor 
V.  West.  U.  Tel.  Co.,  104  Tex.  272,  137  S.  W.  106,  .34  L.  R  A.  (N.  S.)  185; 
Lytle  V.  West.  U.  Tel.  Co.,  165  N.  C.  504,  81  S.  E.  759.  See  cases  in  note  220, 
supra.  But  see  West.  U.  Tel.  Co.  v.  Hearn,  110  Ark.  176,  161  S.  W.  1025,  Ann. 
Cas.  1915D,  378. 

224  West.  U.  Tel.  Co.  v.  Hinkle,  3  Tex.  Civ.  App.  518,  22  S.  W.  1004. 


548  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  418 

dition,  and  it  was  shown  that  there  was  no  further  proof  of  negli- 
gence in  the  sending  of  the  message  other  than  that  resulting  sim- 
ply from  the  error.^^^  The  opinions  in  the  above  cases  have  been 
held  differently  in  other  jurisdictions,  in  which  the  courts  say  that 
the  stipulation  applies  to  the  sender,  and  not  to  the  addressee.^^® 
"The  proposition,"  as  was  said,  "that  the  defendants  are  liable,  if 
at  all,  only  in  case  the  message  is  repeated,  as  contained  in  the 
printed  conditions,  can  be  invoked  only  as  against  the  sender,  if 
against  any,  for  it  is  his  message,  his  language,  that  is  to  be  trans- 
mitted, and  it  is  only  known  to  the  receiver  when  delivered.  He  is 
to  be  guided  or  informed  by  what  is  delivered  to  him,  and  he  has 
no  opportunity  to  agree  upon  any  such  condition  before  deliv- 
ery." 227 

§  418.  Same  continued — actions  in  tort. — Some  of  the  authori- 
ties maintain  that  the  right  of  action  which  rests  in  the  addressee 
of  a  telegram  to  recover  for  the  negligence  of  the  company  does 
not  arise  out  of  the  contract  made  between  the  sender  and  the  com- 
pany, but  out  of  tort."^  In  England,  the  doctrine  is,  that  the  re- 
ceiver of  a  telegraphic  message  cannot  sue  the  telegraph  company 
on  the  ground  that  the  obligation  of  the  company  springs  entirely 
from  the  contract,  and  that  the  contract  for  the  transmission  of  the 
message  is  with  the  sender  of  it.  This  doctrine,  however,  has  never 
prevailed  in  the  United  States,  but  here  it  is  held  by  all  courts  that 
the  receiver  of  a  message  may  maintain  an  action  against  the  com- 

225  Ellis  V.  American  Tel.  Co.,  13  Allen  (Mass.)  226;  West.  U.  Tel.  Co.  v. 
Neill,  57  Tex.  283,  44  Amu  Rep.  589;  Sweatland  v.  Illinois,  etc.,  Tel.  Co.,  27 
Iowa,  433,  1  Am.  Rep.  285;  West.  U.  Tel.  Co.  v.  Dant,  42  App.  D.  C.  398, 
Ann.  Cas.  1916A.  1132,  L.  R.  A.  1915B,  685. 

22  6  Tobin  V.  West.  U.  Tel.  Co.,  146  Pa.  375,  23  Atl.  324,  28  Am.  St.  Rep. 
802;  New  York,  etc.,  Tel.  Co.  v.  Dryburg,  35  Pa.  298,  78  Am.  Dec.  338; 
Webbe  v.  West.  U.  Tel.  Co.,  169  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep.  207, 
reversing  64  111.  App.  331.  See,  also.  La  Grange  v.  Southwestern  Tel.  Co., 
25  La.  Ann.  383 ;  West.  U.  Tel.  Co.  v.  Balder  (Ala.  App.)  69  Soutli.  246 ;  West. 
U.  Tel.  Co.  V.  Hearn,  110  Ark.  176,  161  S.  W.  1025,  Ann.  Cas.  1915D,  378; 
Rhyne  v.  West.  U.  Tel.  Co.,  164  N.  C.  394,  SO  S.  E.  152 ;  Leedy  v.  West.  U. 
Tel.  Co.,  130  Tenn.  547,  172  S.  W.  278. 

227  La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383.  See,  also,  Tj'ler 
V.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38. 

228  West.  IT.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep. 
109 ;  West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1 ;  West.  U.  Tel.  Co.  v.  McKibben, 
114  Ind.  511,  14  N.  E.  894 ;  Webbe  v.  West.  U.  Tel.  Co.,  169  111.  610,  48  N. 
E.  670,  61  Am.  St.  Rep.  207,  reversing  64  111.  App.  331;  West.  U.  Tel.  Co. 
V.  Todd  (Ind.  App.)  53  N.  E.  194;  Tobin  v.  West.  U.  Tel.  Co.,  146  Pa.  375, 
23  Atl.  324,  28  Am.  St.  Rep.  802;  New  York,  etc..  Printing  Tel.  Co.  v.  Dry- 
burg. 35  Pa.  298,  78  Am.  Dec.  338;  Markley  v.  West.  U.  Tel.  Co.,  144  Iowa, 
105,  122  N.  W.  136,  138  Am.  St.  Rep.  263;  Bailey  v.  West.  U.  Tel.  Co.,  227 
Pa.  522,  76  Atl.  736,  43  L.  R.  A.   (N.  S.)  502,  19  Ann.  Cas.  895. 


§   419)  COMMON-LAW  LIABILITIES  549 

pany  for  a  breach  of  the  latter's  public  duty,  or  an  action  on  tort.^^^ 
In  those  jurisdictions  where  the  rule  is  that  the  receiver  can  only 
maintain  his  action  in  tort,  it  is  universally  held  that  the  stipula- 
tions contained  in  the  original  blank  or  contract  are  not  binding 
upon  the  addressee  and  do  not  affect  his  right  of  action. ^^^  Under 
this  doctrine,  the  addressee  is  not  bound  by  the  stipulation  in  these 
blanks,  where  it  is  required  that  the  claim  must  be  presented  in 
writing  within  a  specified  time.^^^  Neither  will  the  addressee's 
right  of  action  be  affected  by  a  noncompliance  with  the  stipulation, 
wherein  it  is  required  that,  in  order  to  avoid  mistakes  in  the  trans- 
mission, all  messages  should  be  ordered  to  be  repeated ;  otherwise 
the  company  will  not  be  liable  in  damages  beyond  a  certain 
amount. -^^  It  has  been  said  by  these  courts  that,  although  tele- 
graph companies  endeavor  to  incorporate  the  stipulations  upon 
their  blanks  into  the  message  as  delivered,  they  are  of  no  effect 
upon  the  receiver  of  the  message,  under  this  rule — considering  him 
as  not  a  party  to  the  contract  and  whose  only  right  is  to  sue  in  tort 
— for  the  reason  that  he  does  not  sign  the  message ;  and  unless  it 
can  be  shown  that  such  stipulations  were  brought  to  his  notice  and 
assented  to  by  him,  he  is  not  bound  thereby.-^^ 

§  419.  The  correct  view  as  considered. — Whenever  the  fruits 
and  benefits  of  a  contract  made  between  the  sender  and  the  tele- 
graph company  flow  directly  and  exclusively  to  the  use  of  the  re- 
ceiver of  the  message,  and  the  terms  of  the  stipulations  contained 

229  West.  U,  Tel.  Co.  v.  Dubois,  128  111.  248,  15  Am.  St.  Rep.  110,  21  N.  E.  4. 
230McGehee  v.  West.  U.  Tel.  Co.,  169  Ala.  109,  53  South.  205,  Ann.  Cas. 
1912B,  512.     See  cases  in  note  228,  supra. 

231  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E.  894.  Crosswell,  in 
his  work  on  the  Law  Relating  to  Electricity,  §  557,  says:  "In  actions  of 
tort  by  the  addressee  of  a  message,  it  is  difficult  to  see  how  any  limit  of 
time  in  which  claims  must  be  made  against  a  telegraph  company  for  dam- 
ages occasioned  by  error  or  negligence  in  sending  the  message  can  affect 
the  plaintiff.  In  such  cases  the  plaintiff  has  no  privity  with  the  sender  of 
the  message,  but  sues  solely  for  the  breach  of  duty  by  the  telegraph  company,, 
i.  e.,  the  failure  of  the  telegraph  company  to  perform  its  public  duty  of  trans- 
mitting dispatches  promptly  and  with  due  care,  and  has  nothing  to  do  with 
the  special  contract  between  the  sender  and  the  telegraph  company,  and 
therefore  whatever  stipulations  the  sender  may  make  with  the  telegraph 
company  should  not  bind  the  addressee."  Markley  v.  West.  U.  Tel.  Co.,  144 
Iowa,  105,  122  N.  W.  136,  138  Am.  St.  Rep.  26.3.  But  see  Penn  v.  West.  U. 
Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.)  223. 

232  West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1;  McGehee  v.  West.  U.  Tel. 
Co.,  169  Ala.  109,  53  South.  205,  Ann.  Cas.  1912B,  512. 

233  West.  U.  Tel.  Co.  v.  Lycan,  60  111.  App.  124;  Webbe  v.  West.  U.  Tel. 
Co.,  169  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep.  207 ;  McGehee  v.  West.  U. 
Tel.  Co.,  169  Ala.  109,  53  South.  205,  Ann.  Cas.  1912B,  512.  See  note  226, 
supra,  for  other  cases. 


550  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  419 

therein  are  not  unreasonable  with  respect  to  the  position  in  which 
he  stands  as  receiver,  he  is  bound  by  all  the  conditions  of  such  con- 
tract just  as  the  sender  would  be  if  the  latter  were  receiving  the 
benefits  of  such  a  contract.     We  do  not  mean  to  say,  however,  by 
this,  that  the  receiver  may  not  some  time  sue  the  company  in  tort ; 
for  there  may  be  instances  where  the  addressee  should  sue  the  com- 
pany for  a  breach  of  its  public  duties.-^*    But  as  a  general  rule,  he 
should  sue  for  the  breach  of  contract  made  by  the  sender  and  the 
company  for  his  benefit.     It  follows,  therefore,  that  the  receiver  is 
bound  by  the  terms  of  the  stipulations  contained  in  the  contract  of 
sending,  and  it  is  presumed  that  the  receiver,  at  the  time  the  sender 
attaches  his  signature  to  the  message,  gives  his  assent  to  the  stipu- 
lations therein  and  is  bound  from  that  time.-'^     It  has  been  express- 
ly held,  in  one  case,  that  the  sender,  under  such  circumstances,  acts 
as  agent  for  the  receiver,  and  that  the  latter  as  principal,  is  bound 
by  all  the  acts  of  his  agent  which  fall  within  the  scope  of  his  ex- 
press or  apparent  authority. ^^^     In  order,  however,  to  bind  the  re- 
ceiver by  all  the  conditions  of  the  contract  made  by  the  sender  in 
his  behalf,  they  must  be  reasonable  to  him  as  receiver.    As  will  be 
clearly  seen,  the  terms  of  the  stipulations  contained  in  these  blanks 
may  be  reasonable  and  therefore  binding,  if  considered  to  have  been 
made  by  the  sender  in  his  own  behalf;    but  they  would  not  be,  if 
viewed  in  the  light  that  they  were  entered  into  by  him  for  the  ex- 
clusive benefit  of  the  addressee.     If,  however,  the  addressee  knows 
of  the  contract  about  to  be  made,  or  has  notice  that  the  message 
has  been  sent,  the  reasonableness  of  the  stipulations  would  be  the 
same,  both  to  the  addressee  and  the  sender;  ^^^    but  this   is  not 
alwaj^s  the  case,  and,  of  course,  this  fact  must  be  considered  in  de- 
termining the  reasonableness  and  binding  effect  of  them  upon  the 
addressee.    For  instance,  if  a  message  which  contains  business  mat- 
ter for  the  exclusive  benefit  of  the  addressee  was  delivered  to  the 
company  without   the   former's   knowledge,   but   was   never   sent, 
whereby  he  suffers  great  injury,  he  will  not  be  precluded  from  re- 
covering such  loss,  although  the  claim,  as  required  in  the  contract 

2  34  See  Penn  v.  West.  U.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A. 
(N.  S.)  223 ;  McGehee  v.  West.  U.  Tel.  Co.,  169  Ala.  109,  53  South.  205,  Ann. 
Cas.   1912B,   512. 

235  Penn  v.  West.  U.  Tel.  Co.,  159  N.  C.  .306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.) 
223. 

2  36  Colt  V.  West.  U.  Tel.  Co.,  130  Cal.  657,  63  Pae.  83,  80  Am.  St.  Rep.  153, 
53  L.  R.  A.  678. 

237  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L.  R.  A.  (N.  S.) 
502,  19  Ann.  Cas.  895;  Halsted  v.  Postal  Tel.  Cable  Co.,  193  N.  Y.  293,  85 
N.  E.   1078,  127  Am.   St.  Rep.  954. 


§    420)  COMMON-LAW   LIABILITIES  551 

for  sending",  was  not  presented  to  the  company  within  the  limita- 
tions. If  he  should  have  had  notice  of  such  message  having  been 
sent  before  the  expiration  of  the  limitation,  a  claim  should  have 
been  presented  if  there  remained  a  reasonable  time  to  have  done  so 
by  reasonable  diligence  on  his  part.-^^  The  same  reasons  would  be 
applicable  if  the  message  had  been  sent  but  never  delivered.-^" 
Therefore  it  will  be  seen  that  these  rules  may  be  reasonable  with 
respect  to  the  sender,  but  at  the  same  time  may  not  with  respect 
to  the  addressee.  It  may  be  said,  however,  that  if  the  addressee 
has  received  notice  by  letter  or  otherwise  from  the  sender  that  the 
contract  for  sending  the  message  had  been  made,  and  that  this 
knowledge  had  been  ascertained  within  a  sufficient  time  to  have 
given  him  a  reasonable  opportunity  to  have  complied  with  the 
terms  of  the  stipulations,  he  will  be  bound  by  them. 

§  420.  Assent — proof  of — what  amounts  to. — It  has  been  held 
that  the  opportunity  of  the  addressee  to  know  and  be  familiar  with 
the  regulations  of  the  company  are  primary  facts  and  do  not  create 
any  conclusive  presumption  of  knowledge,  no  matter  what  the 
opportunity  was.^*°  In  a  case  on  this  question  the  company  show- 
ed that  for  a  long  time  it  had  required  messages  to  be  written  on 
a  blank  containing  these  stipulations.  The  plaintiff  admitted  that 
he  was  familiar  with  the  appearance  of  the  blanks,  had  frequently 
used  them  for  writing  messages,  and  that  a  parcel  of  them  was 
always  on  his  office  desk,  but  averred  that  he  had  never  read  the 
stipulation  and  had  no  knowledge  of  its  terms.  It  was  held  that, 
in  the  absence  of  evidence  that  the  terms  of  the  stipulation  were 
brought  home  to  him,  it  was  proper  to  exclude  the  blanks  from  the 
consideration  of  the  jury.^*^  It  will  be  seen,  in  reading  this  case, 
that  the  message  was  written  out  on  a  blank  piece  of  paper,  and 
in  this  manner  delivered  to  the  company.  Of  course,  if  the  message 
had  been  written  on  one  of  the  message  blanks  containing  these 
stipulations,  the  plaintiff,  as  said  at  another  place,  would  be  bound 
by  all  the  conditions  therein,  although  he  failed  to  read  them  or 
even  had  an  opportunity  to  do  so.-*^     We  think  that  a  correct  and 

238  West.  U.  Tel.  Co.  v.  Phillips,  2  Tex.  Civ.  App.  60S,  21  S.  W.  638.  See 
§  3S6  et  seq. 

239  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94 ;  Ilerron  v. 
West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696. 

240  Webbe  v.  West.  U.  Tel.  Co.,  169  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep. 
207;  Merchants'  Dispatch,  etc.,  Co.  v.  Moore,  88  111.  1.36.  30  Am.  Rep.  541; 
Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St.  Rep.  662. 

241  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St. 
Rep.  662. 

2  42  See  §  412. 


552  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  421 

proper  conclusion  was  arrived  at  in  the  above  case,  and  that  it  is 
not  repugnant  to  the  decision  in  the  case  where  the  message  was 
written  on  a  mutilated  blank  of  the  company.^*^  In  this  latter  case 
the  opportunity  of  the  plaintiff  to  know  the  conditions  contained 
in  the  message  blanks  were  about  the  same  as  that  of  the  plaintiff 
in  the  above  case.^**  But,  in  the  first  place,  there  was  some  doubt 
as  to  whether  the  message  blank  was  mutilated  at  the  time  the 
message  was  written  thereon,  but,  even  though  it  may  have  been 
mutilated  at  this  time,  we  think  the  court  had  a  correct  view  of  the 
case  in  holding  that  the  plaintiff's  opportunity  was  sufficient  to 
give  him  knowledge  of  the  terms  of  the  stipulation.  Part,  if  not  all, 
of  the  stipulations  were  on  this  message  blank,  and,  if  part  of  these 
were  torn  off  or  mutilated,  this  fact  would  not  of  itself  destroy  the 
effect  of  the  stipulation ;  for  that  part  which  remained  on  the  blank 
would  be,  if  necessary,  sufficient  to  put  him  on  inquiry.  We  do  not 
think  that  either  of  these  cases  would  be  affected  by  the  fact  that 
the  plaintiff  was  a  stockholder  of  the  company,  for  it  is  not  pre- 
sumed that  stockholders  have  any  better  knowledge  of  the  regula- 
tions adopted  by  the  directors  of  the  company  than  any  other 
person. ^^^ 

§  421.  Stipulation  posted  in  company's  office — ^not  binding. — 
Occasionally  telegraph  companies  may  see  fit  to  post  some  of  their 
regulations  in  conspicuous  places  in  their  offices.  It  has  been  held 
that,  when  this  has  been  done,  these  regulations  enter  into  and  be- 
come a  part  of  the  contract  for  sending.-**'  But  the  better  rule  is 
that  they  do  not  any  more  become  binding  on  the  sender  than  other 
stipulations  about  which  he  is  absolutely  ignorant.^*^  It  would  be 
very  unwise  to  give  these  companies  the  power  to  bind  any  one  in 
their  business  with  such  regulations,  because  it  would  have  the 
tendency  to  give  them  room  to  perpetrate  fraud  or  imposition  upon 
their  patrons. 

§  422.  Messages  written  on  blanks  of  another  company — bind- 
ing.— It  has  been  held  that  if  the  message  has  been  written,  through 
mistake,  on  the  blanks  of  another  company,  whose  terms  therein 
are  substantially  the  same  as  those  of  the  first  company,  the  plain- 

2  43  Kiiey  V.  West.  U.  Tel.  Co.,  109  N.  Y.  231,  16  N.  E.  75. 

244  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St. 
Rep.   662. 

245  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St. 
Rep.  662. 

246  Birney  v.  New  York,  etc.,  Printing  Tel.  Co.,  18  Md.  341,  81  Am.  Dee.  607. 

247  Garland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762,  74  Am.  St 
Rep.  394,  43  L.  R.  A,  280. 


§    422)  COMMON-LAW  LIABILITIES  553 

tiff  will  be  bound  by  such  stipulations.^*^  It  may  be  said  that  the 
contract  for  sending  was  not  made  with  the  first  company,  since 
its  name  was  not  on  the  message  blank,  but  this  cannot  be  asserted 
with  any  effective  defense.  A  sound  principle  of  the  law  of  con- 
tracts is  that,  if  the  agent,  through  mistake  of  any  kind,  writes  his 
principal's  name  incorrectly,  or  even  uses  that  of  another,  but  it  is 
intended  by  him  to  write  his  principal's  name,  or  if  the  contract  is 
made  for  him  and  the  same  is  known  by  the  other  party,  but  anoth- 
er's name  is  inserted  instead  of  his,  the  contract  will  be  binding, 
although  it  shows  on  its  face  that  it  was  made  between  the  other 
parties.  In  such  cases,  where  the  contracting  parties  are  in  dispute 
as  to  the  real  parties,  parol  evidence  may  be  admitted  to  show  this 
fact.  The  same  rule  is  applicable  here.  So,  when  the  message 
blank  of  another  company  should,  by  mistake,  be  mingled  with 
those  of  the  contracting  company,  or  if  this  blank  is  used  for  the 
message  sent,  but  the  contract  is  with  the  company  in  whose  pos- 
session they  have  become  carelessly  thrown,  the  stipulations  and 
conditions  contained  therein,  which  are  substantially  the  same  as 
those  on  its  own  blanks,  will  be  binding  on  the  patron.  It  has  not 
been  decided,  to  our  knowledge,  as  to  whether  any  stipulation,, 
other  than  such  as  are  substantially  the  same  as  those  contained  in 
the  company's  own  forms,  would  be  binding  on  the  sender,  but  we 
think  that  only  such  as  are  substantially  the  same  would  be  bind- 
ing; nor  do  we  think  that  stipulations  contained  in  these  forms, 
used  by  mistake  and  not  in  those  of  the  contracting  company,  would 
be  binding.'*''  All  the  regulations  of  these  companies  must  be 
adopted  by  its  proper  officers,  at  legally  called  meetings  for  that 
purpose.  Stipulations  in  other  companies'  forms,  differing  substan- 
tially from  those  of  the  contracting  company,  or  which  are  not 
contained  therein  at  all,  have  not  been  adopted  in  any  manner  by 
this  company,  and  cannot,  under  the  circumstances,  be  enforced  by 
or  against  it. 

24  8  West.  U.  Tel.  Co.  v.  Waxelbanm,  113  Ga.  1017,  56  L.  R.  A.  741,  39  S".. 
E.  443;  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519; 
Clement  v.  West.  U.  Tel.  Co.,  137  Mass.  463;  Young  v.  West.  U.  Tel.  Co.', 
65  S.  C.  93,  43  S.  E.  448;  Jacob  v.  West.  U.  Tel.  Co.,  135  Mich.  600,  98  n! 
W.  402.  It  is  not  material  what  name  appears  upon  the  blank,  since  the 
intention  of  the  sender  is  the  contract  with  the  company  to  which  the 
message  is  delivered  for  transmission,  and  the  stipulations  on  the  lilank  used, 
constituting  the  contract,  and  being  assented  to,  are  binding  upon  the  sender- 
West  U.  Tel.  Co.  V.  Waxelbaum,  supra;    Young  v.  West.  U.  Tel.  Co.,  supra. 

2  49  Where  the  operator,  with  the  knowledge  of  the  sender,  writes  the 
message  upon  a  blank  of  his  own  company,  the  sender  will  be  bound  by  the 
stipulations  which  he  never  saw,  signed,  or  agreed  to.  See  West.  U.  Tel. 
Co.  V.  Uvalde  National  Bank  (Tex.  Civ.  App.)  72  S.  W.  232. 


554  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  423 

§  423.     Same  continued — knowledge  of  company's  stipulations. 

It  must  be  remembered,  however,  that  where  other  companies' 
forms  are  used,  the  sender  must  have  had  knowledge  of  the  terms 
of  the  conditions  contained  in  those  of  the  transmitting  company, 
before  they  become  binding  on  him;^^"  for  almost  the  same  rule 
in  regard  to  messages  being  on  blank  paper  is  applicable  in  these 
cases. -^^  If  the  conditions  on  these  blanks  were  identically  the 
same  in  every  respect,  we  think  this  would  not  be  the  case ;  but  if 
they  are  similar  in  nature,  the  compliance  of  each  only  being  dif- 
ferent, the  knowledge  which  the  sender  may  have  of  those  contained 
in  one  could  not  be  asserted  against  him  in  the  use  of  the  other. 
For  instance,  the  stipulation  in  regard  to  the  time  within  which 
claims  must  be  presented  to  the  company  may,  and  generally  does, 
vary  in  the  different  forms,  as  to  the  length  of  the  limitation.  Some 
of  these  stipulations  require  the  claims  to  be  presented  within 
ninety  days  after  the  message  shall  have  been  filed  for  transmis- 
sion, and  others  limit  the  time  to  sixty  and  some  to  thirty  and 
others  to  twenty  days.  So  it  will  be  seen  that  the  nature  of  these 
conditions  is  similar,  yet  the  compliance  of  each  is  different;  and 
a  knowledge  of  the  condition  of  the  terms  of  a  stipulation,  in  this 
respect,  could  not  be  ascertained  from  the  stipulation  contained  in 
a  blank  form  not  used  by  the  company.  The  sender  would  not, 
however,  be  placed  in  the  same  position  if  he  should  write  the  mes- 
sage on  a  blank  piece  of  paper.^^^  In  using  the  forms  of  another 
company  he  would  be  referred  (and  it  is  presumed  that  he  followed 
out  this  reference)  to  sufficient  evidence  on  the  face  of  the  message 
blank  which  would  put  him  on  inquiry  to  ascertain  the  true  facts 
of  the  condition  of  terms  in  the  company's  blank ;  but  of  this  evi- 
dence he  is  deprived  when  merely  using  the  blank  paper.  We  think 
that  this  rule  should  be  more  particularly  applied  to  cases  where  it 
is  known  by  the  sender  that  the  blanks  are  those  of  another  com- 
pany;  and  yet  this  is  not  absolutely  necessary  to  make  it  appli- 
cable. It  is  generally  the  rule  of  these  companies  that  its  own 
blanks  shall  be  used  by  parties  employing  their  services,  and  that 
the  operators  shall  not  accept  any  message  written  on  other  than 
their  own  blanks;  this  will  be  the  case  although  the  sender  was 
ignorant  of  such  a  rule.^^^ 

§  424.  Messages  delivered  to  company  by  telephone  or  verbally. 
As  has  been  said,  the  sender  must  have  had  actual  notice  of  the 
terms  of  the  stipulations  of  the  company,  in  order  for  them  to  be 

250  See  §  277.  ^ si  See  §§  277,  425.  252  See  §  42.5. 

253  Garland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  74  Am.  St.  Rep.  3i>4,  43 
L.  R.  A.  280,  76  N.  W.  762.     See  §  277. 


§    425)  COMMON-LAW  LIABILITIES  555 

binding'  on  him,  and  it  is  presumed  that  he  had  this  notice  when  he 
attached  his  signature  to  the  rriessage  blanks. ^^*  It  is  only  when 
these  forms  are  not  used  that  the  question  is  generally  litigated. 
For  instance,  this  question  has  come  up  where  the  message  was 
accepted  by  the  company  by  telephone,  or  when  orally  given  to  the 
operator,  and  he  without  the  knowledge  or  direction  of  the  sender 
writes  the  message  upon  one  of  the  company's  blanks,  the  sender 
will  not  ordinarily  be  bound  by  the  stipulations  contained  there- 
on,-°^  particularly  where  he  did  not  know  of  such  stipulation  or 
intend  or  expect  the  message  to  be  written  upon  such  blank. ^^" 
However,  such  intention  may  be  shown,  thereby  changing  the  rule. 
§  425.  Principal  bound  by  the  knowledge  of  the  agent. — It  is  a 
general  law  of  agency  that  the  principal  is  bound  by  all  the  acts  of 
his  agent  which  fall  either  within  the  scope  of  his  express  author- 
ity or  that  of  his  apparent  authority ;  and  any  knowledge  of  facts 
pertaining  to  such  acts  coming  to  the  agent  while  exercising  this 
authority  is  presumed  to  have  been  known  by  the  principal,  and  he 
is  therefore  bound  by  such  knowledge.  It  therefore  follows  that,  if 
the  sender  of  a  message  is  acting  for  the  receiver,  as  his  agent,  and 
he  has  knowledge  of  the  terms  or  conditions  contained  in  the  mes- 
sage blanks,  the  receiver  is  bound  by  all  these  stipulations,  although 
he  himself  was  ignorant  of  them.-^'^  There  is  an  exception  to  this 
rule,  however,  as  said  elsewhere,  brought  about  by  the  position  in 
which  the  receiver  may  stand. ^^^  For  instance,  the  sender  may  be 
acting  as  the  receiver's  agent  in  this  particular  matter,  without  the 
latter  having  any  knowledge  of  this  fact,  and  the  message  may  be 
delivered  to  the  company  but  never  transmitted ;  or  the  company 
may  fail  to  deliver  it  after  it  has  been  transmitted.  Unless  the  re- 
ceiver knew  these  facts  he  would  not  be  bound  by  these  stipula- 
tions. If  the  agent  acts  on  any  occasion,  in  the  capacity  of  such, 
although  it  is  for  that  particular  matter,  and  he  knows  of  the  terms 

254  See  §  412. 

255  Bowie  V.  West.  U.  Tel.  Co.,  78  S.  C.  424,  59  S.  E.  C5 ;  Carlaud  v.  West 
U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762,  74  Am.  St.  Rep.  .394,  43  L.  R.  A. 
280;  West.  U.  Tel.  Co.  v.  Powell,  94  Va.  2G8,  26  S.  E.  828;  West.  U.  Tel. 
Co.  V.  Douglass,  104  Tex.  66,  133  S.  W.  877;  West.  U.  Tel.  Co.  v.  Parham 
(Tex.  Civ.  App.)  152  S.  W.  819. 

256  Bowie  V.  West.  U.  Tel.  Co.,  78  S.  C.  424,  59  S.  E.  65;  West.  U.  Tel.  Co. 
V.  Douglass,  104  Tex.  66,  133  S.  W.  877 ;  West.  U.  Tel.  Co.  v.  Timmons  (Tex. 
Civ.  App.)  136  S.  W.  1169. 

2  57  Clement  v.  West.  U.  Tel.  Co.,  137  Mass.  463;  Coit  v.  West.  U.  Tel.  Co., 
130  Cal.  657,  63  Pac.  83,  80  Am.  St.  Rep.  153,  53  L.  R.  A.  678.  See  §  416.  See 
Strong  V.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  30  L.  R.  A.  (N.  S.) 
409,  Ann.  Cas.  1912A,  55. 

258  See  §  419, 


556  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  425 

of  these  stipulations,  the  principal  will  be  bound  by  them.^^^  So, 
where  the  operator  fills  out  one  of  these  blanks  at  the  request  of 
the  sender,  the  latter,  upon  attaching  his  signature  thereto,  is  bound 
by  the  stipulations,  notwithstanding  his  failure  to  notice  them ;  ^*'° 
or,  if  the  message  is  written  out  by  the  sender  on  a  blank  piece  of 
paper,  and  given  in  this  manner  to  the  operator,  who  transcribes  it 
on  these  forms  and  reads  the  stipulation  therein  to  the  sender  with- 
out his  objecting  to  them,  he  will  be  bound  by  them.^'^^  The  opera- 
tor acts  in  these  cases  in  the  capacity  of  agent  for  the  sender.  It  is 
otherwise,  however,  if  the  sender  does  not  see  and  does  not  sign  or 
otherwise  agree  to  these  conditions.^®-  So,  if  the  message  is  writ- 
ten on  blank  paper  by  the  sender  and  delivered  in  this  style  to  the 
operator,  who  attaches  it  to  one  of  these  message  blanks  without 
the  authority  of  the  sender,  the  latter  will  not  ordinarily  be  bound 
by  these  stipulations.^*'^  It  is  his  duty,  when  the  company  at- 
tempts to  bind  him  by  their  terms,  to  plead  and  prove  non  est 
factum.^^^  It  should  be  borne  in  mind  that  if  the  plaintiff  ascertains 
a  knowledge  of  the  terms  of  the  stipulations  or  regulations  of  the 
company,  as  they  appear  on  the  message  blanks  furnished  by  them 
through  his  agent  or  otherwise,  and  he  assents  to  them,  he  will  be 
bound ;  but  this  knowledge  must  be  brought  to  the  mind  of  the 
plaintiff  or  his  agent,  while  acting  as  such  to  the  knowledge  of  the 
former.^*'^ 

2  59  See  §  416. 

260  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  668;  Gulf,  etc.,  R.  Co.  v.  Geer,  5 
Tex.  Civ.  App.  349,  24  S.  W.  86;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala. 
510,  7  South.  419,  18  Am.  St.  Rep.  148.     See,  also,  §§  327,  416. 

261  See  West.  U.  Tel.  Co.  v.  Buchanan.  35  Ind.  429,  9  Am.  Rep.  744; 
Clement  v.  West.  U.  Tel.  Co.,  137  Mass.  463. 

2  62  West.  U.  Tel.  Co.  v.  Uvalde  National  Bank  (Tex.  Civ.  App.)  72  S.  W. 
232;  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181,  West.  U.  Tel.  Co. 
V.  Powell,  94  Va.  2GS,  26  S.  E.  828. 

26  3  Harris  v.  West.  U.  Tel.  Co.,  121  Ala.  519,  25  South.  910,  77  Am.  St. 
Rep.  70 ;  West.  U.  Tel.  Co.  v.  Shumate,  2  Tex.  Civ.  App.  429,  21  S.  W.  109 ; 
West.  U.  Tel.  Co.  v.  Pruett  (Tex.  Civ.  App.)  35  S.  W.  78 ;  Anderson  v.  West. 
U.  Tel.  Co.,  84  Tex.  17,  19  S.  W.  285;  Pearsall  v.  West.  U.  Tel.  Co.,  124 
N.  Y.  256,  26  N.  E.  534,  21  Am.  St.  Rep.  662 ;  West.  U.  Tel.  Co.  v.  Arwine,  3 
Tex.  Civ.  App.  156,  22  S.  W.  105;  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39 
Fed.  181. 

264  West.  U.  Tel.  Co.  v.  Hayes  (Tex.  Civ.  App.)  63  S.  W.  171. 

2  65  See  West.  U.  Tel.  Co.  v.  Buchanan,  35  Ind.  429,  9  Am.  Rep.  744;  Clement 
v.  West.  U.  Tel.  Co.,  137  Mass.  463.  But  see  Pearsall  v  West.  U  Tel.  Co., 
124  N.  T.  256,  26  N.  E.  534,  21  Am.  St.  Rep.  662. 


426)  LIABILITY  IN  PARTICULAR  CASES  557 


CHAPTER  XVII 

LIABILITY   OF  COMPANIES  IN   PARTICULAR   CLASSES    OF   CASES- 
CONTRACT  TO  FURNISH  MARKET  REPORTS  AND  OTHER  NEWS 

§  426.  No  duty  to  collect  news — in  general. 

427.  Market  reports,  etc. 

428.  Same  continued — organized  for  collecting  news. 

429.  Gambling  transactions — messages  in  regard  to. 

430.  Indecent  language  not  bound  to  accept. 

431.  Liable  civilly  or  criminally — indecent  language. 

432.  Libel— liable  for. 

433.  Interstate  messages. 

434.  Same — recovery  of  statutory  penalty — not  applicable. 

435.  Sunday  messages — no  duty  to  send. 

436.  Sunday  contracts — void. 

437.  Same  continued — matters  of  necessity  or  charity. 

438.  Same  continued — illustrations. 

439.  Statutory  penalty — applicable. 

440.  Messages  which  may  not  be  genuine. 

441.  Forged  and  fraudulent  messages. 

442.  Same  continued — negligence  must  be  proximate  cause. 

443.  Same  continued — operator  author  of  forged  message. 

444.  Same  continued — subagent,  forgery  of. 

445.  Same  continued — no  bar  to  action  ex  delicto — injured  party. 

446.  Amount  of  damages. 

447.  Connecting  lines — passage  over — initial   line — general  rule. 

448.  Same  continued — English  rule. 

449.  Accept  all  the  charges — rule  not  changed. 

450.  Initial  company — diligence  to  deliver  to  other  line. 

451.  Same  continued — telephone — same  rule  applied. 

452.  Special  contract — may  become  liable  by. 

453.  Same  continued — who  may  contract. 

454.  Connecting  lines. 

455.  Same  continued — duty  to  accept  messages  tendered. 

456.  Same  continued — duty  of. 

457.  Liability  of  connecting  lines. 

458.  Burden  of  proof. 

459.  Partnership  arrangements  between  the  several  lines. 

460.  Effect  of  contract  of  sending  on  connecting  lines. 

461.  Liability  for  defaults  of  common  agent. 

462.  Sender's  right  to  select  route. 

463.  Same  continued — result  of  bad  selection — initial  company — not  liable. 

464.  Same  continued — exact  extra  fee  or  charges. 

465.  Liability  of  companies  between  themselves — actions. 

§  426.  No  duty  to  collect  news — in  general. — The  duty  of  tele- 
graph companies,  with  respect  to  the  nature  of  intelligence  to  be 
sent,  is  to  transmit  promptly  and  correctly  only  such  intelligence  as 


558 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  427 


is  general,  and  that  which  they  are  employed  to  transmit;  it  is 
not  their  duty  to  collect  and  transmit  news,  unless  a  special  con- 
tract is  made  to  that  effect.^  These  companies  may,  however,  en- 
ter into  a  special  contract,  for  a  consideration  greater  in  amount 
than  that  charged  for  their  general  services,  to  insure  the  correct- 
ness of  the  message.-  These  contracts  may  be  of  two  kinds,  and  in 
determining  the  liability  of  the  company  this  fact  should  be  con- 
sidered, since  they  may  be  liable  under  one  and  not  under  the 
other.  For  instance,  the  company  may  contract  to  insure  a  safe 
transmission  of  messages  as  delivered  to  it,  or  it  may  insure  the 
correctness  of  the  intelligence  sent.^  In  other  words,  these  com- 
panies may  contract  to  insure  the  correctness  in  the  transmission  of 
a  message,  and  assume  all  hazards  with  which  it  may  come  in 
contact,  which  gives  them  the  qualities  of  a  common  carrier;  or 
they  may  assume,  under  a  special  contract,  even  a  greater  responsi- 
bility than  that  of  merely  insuring  a  correct  transmission,  by  con- 
tracting to  transmit  the  correctness  of  the  intelligence.  Under 
the  latter  contract,  they  must  not  only  transmit  accurately  and 
correctly,  but  the  other  contracting  party  is  guaranteed  or  insured 
that  the  intelligence  was  correctly  collected  or  received  by  the  com- 
pany before  its  transmission ;  and  it  is  the  latter  kind  we  next  dis- 
cuss. 

§  427.  Market  reports,  etc. — Contracts  whereby  telegraph  com- 
panies agree  to  insure  the  correctness  of  the  intelligence  sent  are 
generally  such  as  are  made  to  furnish  market  reports,  stock  quota- 
tions and  other  like  news.*    In  such  contracts,  it  becomes  the  duty 


1  See  chapter  XII. 

2  Goodsell  V.  West.  U.  Tel.  Co.,  130  N.  T.  430,  29  N.  E.  969 ;  West.  U.  Tel. 
Co.  V.  Stevenson,  128  Pa.  442,  18  Atl.  441,  15  Am.  St.  Rep.  687,  5  L.  R.  A.  515. 
In  tlie  first  case  it  appeared  tliat  a  telegraph  company  contracted  to  deliver 
certain  news  reports  of  an  average  number  of  words  per  day,  one-third  to  be 
transmitted  in  the  daytime  and  two-thirds  at  night,  to  all  the  places  named 
in  a  certain  schedule,  for  a  gross  sum  per  mouth,  the  other  party  to  have 
the  right  to  substitute  other  places  for  those  named ;  and,  if  the  reports  were 
transmitted  to  "any  greater  numl)er  of  places"  than  were  enumerated  in 
such  schedule,  then  an  additional  payment  should  be  made.  The  schedule 
contained  38  different  places.  It  was  held  that  the  company  was  bound, 
without  additional  payment,  to  transmit  the  day  reports  to  38  places,  and  the 
night  reports  to  38  places,  although  the  latter  places  were  different  from  the 
former. 

3  Matter  of  Renville,  46  App.  Div.  37,  61  N.  Y.  Supp.  549 ;  Cain  v.  West. 
U.  Tel.  Co.,  10  Ohio  Dec.  (Reprint)  72.  See,  also,  Davis  v.  Electric  Reporting 
Co.,  19  Wkly.  Notes  Cas.  (Pa.)  567.     See  §  358  et  seq. 

4  See  West.  U.  Tel.  Co.  v.  State,  165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.) 
153,  6  Ann.  Cas.  880;  Friedman  v.  Gold,  etc.,  Tel.  Co.,  32  Hun  (N.  Y.)  4; 
Smith  V.  Gold,  etc.,  Tel.  Co.,  42  Hun  (N.  Y.)  454 ;  Davis  v.  Electric  Reporting 
Co.,  19  Wkly.  Notes  Cas.  (Pa.)  567.    See  §  767  et  seq. 


§    428)  LIABILITY   IN   PARTICULAR   CASES  559 

of  these  companies  to  collect  the  news  and  then  to  transmit  it  to  the 
other  party ;  and  an  error  made  in  eitlier  part  of  this  transaction, 
whereby  the  other  party  suffers,  will  render  the  company  liable 
for  damages.^  These  contracts  are  extraordinary  in  their  nature, 
and  become  much  greater  in  their  performance  than  those  ordi- 
narily made  in  the  general  course  of  these  companies'  public  du- 
ties. It  follows,  of  course,  that  the  consideration  given  in  return  for 
the  extra  hazard  assumed  should  be  much  greater  and  it  seems 
that  the  contracts  should  be  more  strictly  construed  than  those 
made  in  the  ordinary  manner.  The  position  has  been  taken  in  some 
of  the  cases  arising  out  of  these  contracts  that  these  companies 
should  not  be  liable  where  the  message  was  incorrectly  given  to 
them,  and  which  was  no  fault  on  their  part ;  but  it  is  generally 
held  that  they  become  as  liable  for  an  error  made  in  one  part  of 
the  transaction  as  that  made  in  the  other;  in  fact,  the  receiving 
or  collection  of  the  news  is  the  more  responsible  part  of  their  un- 
dertaking. So  they  should  be  held  for  errors  made  in  the  collection 
of  the  news  independent  of  the  question  as  to  how  the  error  was 
made." 

§  428.  Same  continued — organized  for  collecting  news. — In 
some  instances  telegraph  companies  are  organized  for  the  express 
purpose  of  collecting  news,  but  when  this  is  the  case  they  are 
possessed  of  the  same  general  powers,  and  subject  to  the  same  ob- 
ligations, as  ordinary  telegraph  companies.'^  Thus  they  may  adopt 
and  enforce  reasonable  rules  and  regulations  with  respect  to  the 
use  of  their  instruments,*  and  provide  that  the  messages  shall  not 

5  Bank  of  New  Orleans  v.  West.  U.  Tel.  Co.,  27  La.  Ann.  49 ;  Turner  v. 
Hawkeye  Tel.  Co.,  41  Iowa,  45S,  20  Am.  Rep.  605. 

G  Gray  on  Tel.  31 ;  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep. 
COS;  Bank  of  New  Orleans  v.  West.  U.  Tel.  Co.,  27  La.  Ann.  49.  In  this 
last  case  the  company's  defense  was  that  the  error  in  the  reports  was  caused 
by  the  working  of  the  gold  stock  indicator  in  their  office  in  New  York  from 
which  they  received  their  information.  It  was  held  that  this  did  not  re- 
lease them  from  liahility,  since  they  had  contracted  to  deliver  to  plaintiffs 
correct  information,  which  they  should  have  obtained,  without  relying  wholly 
on  the  indicator. 

Contract  to  iurninh  correct  reports. — If  a  company  contracts  to  furnish  cor- 
rect market  reports,  its  failure  to  do  so  is  a  breach  of  its  contract,  irrespec- 
tive of  whether  it  did  or  did  not  exercise  ordinaiy  care.  West.  U.  Tel. 
Co.  V.  Bradford,  52  Tex.  Civ.  App.  392,  114  S.  W.  G86. 

7  Inter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  4.38,  56  N.  E.  822.  75 
Am.  St.  Rep.  184,  48  L.  R.  A.  568,  must  not  discriminate,  but  serve  all  im- 
partially.    See,  also,  chapter  X. 

8  West.  U.  Tel.  Co.  v.  State,  165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.) 
153,  6  Ann.  Cas.  880.  They  may  refuse  to  furnish  service  to  those  who  refuse 
to  comply  with  their  reasonable  rules  and  regulations.  Shepard  v.  Gold, 
etc.,  Tel.  Co.,  38  Hun  (N.  Y.)  338. 


560  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  428 

be  given  out  to  nonsubscribers.  It  is  generally  provided  in  these 
contracts  made  with  subscribers  that  "these  reports  are  furnished 
to  subscribers  for  their  own  private  use  in  their  own  business  ex- 
clusively. It  is  stipulated  that  subscribers  will  not  sell  or  give  up 
copies  of  the  reports  in  whole  or  in  part,  nor  permit  any  outside 
party  to  copy  them  for  use  or  publication.  Under  this  rule,  sub- 
scriptions by  one  party  for  the  benefit  of  himself  and  others  at  their 
joint  expense  will  not  be  received."  ^  It  has  been  held  that  these 
stipulations  were  reasonable  and  did  not  conflict  with  any  duty 
the  company  owed  to  the  public.^"  And  it  has  been  further  held 
that,  if  the  subscriber  should  furnish  such  report  to  another  firm 
of  which  he  was  a  member,  the  company  would  be  justified  in  re- 
moving its  machine  from  his  office. ^^  These  comxpanies  are  ex- 
ercising a  public  function  and  must  therefore  perform  such  duties 
as  are  imposed  upon  other  corporations  of  a  public  character.^^ 
They  cannot,  therefore,  discriminate  between  their  subscribers,  but 
are  under  obligation  to  discharge  their  duties  to  one  the  same  as  to 
another,  and  may  be  enjoined  from  refusing  to  continue  serving 
a  subscriber  who  has  complied  with  all  their  reasonable  regula- 
tions.^^    They  are  not,  however,  under  any  obligation  to  furnish 

9  Shepard  v.  Gold,  etc.,  Tel.  Co.,  38  Hun  (N.  Y.)  338. 

10  Shepard  v.  Gold,  etc.,  Tel.  Co.,  38  Hun  (N.  Y.)  338.  But  a  regulation 
that  the  company  shall  be  authorized  to  remove  its  Instrument  whenever,  in 
its  judgment,  there  has  been  any  violation  of  the  conditions  of  the  contract 
by  the  subscriber  is  unreasonable.  Smith  v.  Gold,  etc.,  Tel.  Co.,  42  Hun 
(N.  Y.)  454,  2  Am.  Elec  Cas.  373. 

11  Shepard  v.  Gold,  etc.,  Tel.  Co.,  38  Hun  (N.  Y.)  338. 

12  Inter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  438,  56  N.  E.  822,  75 
Am.  St.  Rep.  184,  48  L.  R.  A.  568 ;  West.  U.  Tel.  Co.  v.  State,  165  Ind.  492, 
76  N.  E.  100,  3  L.  R.  A.  (N.  S.)  153. 

13  Smith  V.  Gold,  etc.,  Tel.  Co.,  42  Hun  (N.  Y.)  454;  West.  U.  Tel.  Co.  v. 
State,  165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.)  153,  6  Ann.  Cas.  880; 
Friedman  v.  Gold,  etc.,  Tel.  Co.,  32  Hun  (N.  Y.)  4,  1  Am.  Elec.  Cas.  621; 
Davis  V.  Electric  Reporting  Co.,  19  Wkly.  Notes  Cas.  (Pa.)  567.  See,  also. 
Metropolitan,  etc.,  Co.  v.  Chicago  Board  of  Trade  (C.  C.)  15  Fed.  847,  11 
Biss.  531. 

Mandamus — injunction. — On  a  question  whether  or  not  a  telegraph  com- 
pany can  be  compelled  to  furnish  market  reports  to  a  person  with  whom  it 
has  no  contract,  there  is  some  confusion  in  these  decisions,  but  when  an 
attempt  is  made  to  complete  the  furnishing  of  such  quotations  for  a  bucket 
shop,  the  decisions  are  substantially  agreed  that  the  courts  will  not  aid 
such  a  business,  either  by  mandamus  or  by  injunction.  Sterrett  v.  Phila- 
delphia, etc.,  Tel.  Co.,  18  Wkly.  Notes  Cas.  (Pa.)  77,  18  Phila.  317.  Other 
cases  also  have  denied  injunction  to  prevent  a  telegraph  company  from  cut- 
ting off  its  market  quotations  from  a  bucket  shop  on  the  ground  that  its  busi- 
ness is  in  the  nature  of  gambling,  which  is  contrary  to  public  policj^  Smith 
V.  West.  U.  Tel.  Co.,  84  Ky.  664.  2  S.  W.  483 ;  Bryant  v.  West.  U.  Tel.  Co. 
(C.  C.)  17  Fed.  825 ;  Sullivan  v.  Postal  Tel.  Co.,  123  Fed.  411,  61  C.  C.  A.  1 ; 
Central  Stock  &  Grain  Exchange  v.  Board  of  Trade,  196  111.  396,  63  N.  E. 


§   429)  LIABILITY  IN  PARTICULAR  CASES  561 

these  reports  to  a  gambling  place,  although  they  may  have  con- 
tracted to  do  so,  as  they  can  be  under  no  obligation  to  further  an 
illegal  undertaking.^* 

§  429.  Gambling  transactions — messages  in  regard  to. — While  a 
telegraph  company  may  not  refuse  to  transmit  or  deliver  messages 
relating  to  "futures"  ^^  or  similar  gambling  transactions,^®  or  es- 
cape a  statutory  penalty  for  failing  to  transmit  such  messages,  yet 
the  amount  of  damages  to  be  recovered  for  an  error  made  in  the 
transmission  of  such  are  only  nominal  and  cannot  exceed  the 
amount  paid  for  their  transmission.^''  There  is  a  distinction  be- 
tween real  gambling  and  dealing  in  what  is  commonly  called  "fu- 
tures"; ^^    and  this  distinction  gives  those  dealing  in  the  latter  a 

740,  affirming  98  111.  App.  212 ;  Griffin  v.  West.  U.  Tel.  Co.,  8  Ohio  Dec.  572 : 
Bradley  v.  West.  U.  Tel.  Co.,  8  Ohio  Dec.  707;  West.  U.  Tel.  Co.  v.  State, 
165  Ind.  492,  76  N.  E.  100,  3  L.  E.  A.  (N.  S.)  153,  6  Ann.  Cas.  880. 

14  In  Smith  v.  West.  U.  Tel.  Co.,  84  Ky.  664,  2  S.  W.  483,  the  court  said: 
"These  reports  were  the  essence,  the  very  sinew,  of  appellant's  gambling 
business,  and  without  the  prompt  supply  of  which  his  business  was  a  failure. 
Can  the  appellee  be  compelled  to  continue  the  supply?  We  think  not.  Not 
upon  the  ground  that  the  appellee  is  the  innocent  victim  of  an  illegal  enter- 
prise ;  not  that  it  has  been  entrapped  into  aiding  a  gambling  business,  for  it 
says  that  it  was  willing  to  furnish  the  reports  as  long  as  the  terms  of  the 
contract  suited  it ;  but  upon  the  ground  that  appellant  was  engaged  in  a 
gambling  enterprise,  which  is  contrary  to  law,  good  morals,  and  public  policy. 
It  is  for  the  sake  of  the  law  and  the  best  interests  of  society  that  we  relieve 
the  appellee  from  continuing  to  furnish  to  appellant  the  reports."  The  ap- 
pellant is  engaged  in  running  a  "bucket  shop."  West.  U.  Tel.  Co.  v.  State, 
165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.)  153,  6  Ann.  Cas.  880 ;  Bradley  v. 
West.  U.  Tel.  Co.,  8  Ohio  Dec.  (Reprint)  707;  Bryant  v.  West.  U.  Tel.  Co. 
(C.  C.)  17  Fed.  825. 

15  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259, 
14  L.  R.  A.  95,  dealing  in  futures  not  being  illegal. 

16  A  telegraph  company  cannot  ordinarily  refuse  messages  containing  re- 
ports of  horse  races  which  the  addressee  may  illegally  use  when  received  in 
conducting  a  pool  room.  Com.  v.  West.  U.  Tel.  Co.,  112  Ky.  355,  67  S.  W.  59, 
23  Ky.  Law  Rep.  1633,  99  Am.  St.  Rep.  299,  57  L.  R.  A.  614.  But  see  Louis- 
ville V.  Wehmhoff,  116  Ky.  812,  76  S.  W.  876,  79  S.  W.  201,  25  Ky.  Law  Rep. 
995,  1924. 

17  Cothran  v.  West.  U.  Tel.  Co.,  83  Ga.  25,  9  S.  E.  836,  overruling  West.  U. 
Tel.  Co.  V.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480.  in  this  respect.  See,  also, 
Melchert  v.  American  U.  Tel.  Co.  (C.  C.)  11  Fed.  194. 

18  In  Kirkpatrick  v.  Bonsall,  72  Pa.  155,  the  court  said:  "We  must  not 
confound  gambling,  whether  it  be  in  corporate  stocks,  or  merchandise,  with 
what  is  commonly  termed  speculation.  Merchants  speculate  on  the  future 
prices  of  that  in  which  they  deal,  and  buy  and  sell  accordingly.  In  other 
words,  they  think  of  and  weigh — that  is,  speculate  upon — the  probabilities  of 
the  coming  market,  and  act  upon  this  lookout  into  the  future  in  their  business 
transactions ;  in  this  they  often  exhibit  high  mental  grasp  and  great  knowl- 
edge of  business,  and  of  the  affairs  of  the  world.  Their  speculations  display 
talent  and  forecast,  but  they  act  upon  their  conclusions  and  buy  and  sell  in  a 
6ona  fide  way.     Such  speculation  cannot  be  denounced.     But  when  ventures 

Jones  Tel.(2d  Ed.)— 36 


562,  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  429 

right  similar  to  that  enjoyed  in  the  transmission  of  ordinary  mes- 
sages. It  is  presumed  in  the  "future"  contracts  that  there  is  to  be 
a  delivery  of  the  goods;  ^®  but  in  gambling  there  is  a  wager  out- 
right for  a  loss  or  a  gain.^*'  These  companies  are  under  no  obli- 
gations to  accept  messages  for  transmission  which  are  purely  gam- 
bling messages,  for  to  do  so  would  be  contrary  to  law,  good  morals, 

are  made  upon  the  terms  of  prices  alone,  if  no  tona  fide  intent  to  deal 
iu  the  article,  but  merely  to  risk  the  difference  between  the  rise  and  fall  of 
its  price,  no  money  or  capital  is  invested  in  the  purchase,  but  so  much  only 
is  required  as  will  cover  the  difference — a  margin,  as  it  is  figuratively  term- 
ed— then  the  bargain  represents,  not  a  transfer  of  property,  but  a  mere  stake  or 
wager  upon  its  future  price.  The  difference  requires  the  ownership  of  only 
a  few  thousands  of  dollars,  while  the  capital  to  complete  an  actual  purchase 
or  sale  may  be  hundreds  of  thousands  or  millions.  Hence  ventures  upon 
prices  invite  men  of  small  means  to  enter  into  transactions  far  beyond  their 
capital,  which  they  do  not  intend  to  fulfill,  and  thus  the  apparent  business  in 
the  particular  trade  is  inflated  and  unreal,  and,  like  a  bubble,  needs  only 
to  be  pricked  to  disappear,  often  carrying  down  the  hona  fide  dealing  iu 
its  collapse.  Worse  even  than  this,  it  tempts  men  of  large  capital  to  make 
bargains  of  stupendous  proportions  and  then  to  manipulate  the  market  to 
produce  the  desired  price.  This,  in  the  language  of  gambling  speculation,  is 
making  a  corner;  that  is  to  say,  the  article  is  so  engrossed  or  manipulated 
as  to  make  it  scarce  or  plenty  in  the  market  at  the  will  of  the  gamblers, 
and  then  to  place  its  price  within  their  power.  Such  transactions  are  de- 
structive of  good  morals  and  fair  dealings,  and  of  the  best  interest  of  the 
eonnuunity.  If  the  articles  be  stock,  corporations  are  crushed  and  innocent 
stockholders  ruined  to  enable  the  gambler  in  its  price  to  accomplish  his  end. 
If  it  be  merchandise,  e.  g.,  grain,  the  poor  are  robbed  and  misery  engender- 
ed." Ives  V.  Boyce,  So  Neb.  324,  123  N.  W.  318,  25  L.  R.  A.  (N.  S.)  157; 
Wade  V.  United  States,  33  App.  D.  C.  29,  20  L.  R.  A.  (N.  S.)  347,  17  Ann.  Cas. 
707;  Anderson  v.  State,  2  Ga.  App.  1,  58  S.  E.  401;  Kneffier  v.  Com.,  94 
Ky.  359,  22  S.  W.  446 ;  Arenz  v.  Com.,  31  Ky.  Law  Rep.  321,  102  S.  W.  238. 
But  see  People  v.  Todd,  51  Hun,  446,  4  N.  Y.  Supp.  25 ;  People  v.  Wade,  13 
N.  Y.  Cr.  R.  425,  59  N.  Y.  Supp.  846,  the  keeping  of  bucket  shops  is  in  some 
states  specially  prohibited  by  law.  The  cases  arising  under  such  statutes 
were  Soby  v.  People,  134  111.  66,  25  N.  E.  109;  Weare  Comn.  Co.  v.  People, 
209  111.  528,  70  N.  E.  1076;  People  v.  Wirsching,  239  111.  522,  88  N.  E.  169; 
Caldwell  v.  People,  67  111.  App.  367 ;  State  v.  Kentner,  178  Mo.  487,  77  S.  W. 
522 ;  State  v.  Logan,  84  Mo.  App.  584 ;  State  v.  McMillan,  69  Vt.  105,  37  Atl. 
278 ;  State  v.  Corcoran,  73  Vt.  404,  50  Atl.  1110.  In  other  states  the  dealing 
in  futures  on  margins  is  declared  to  be  unlawful.  Fortenbury  v.  State,  47 
Ark.  188,  1  S.  W.  58 ;  State  v.  Gritzner,  134  Mo.  512,  36  S.  W.  39 ;  State  v. 
McGinnis,  138  N.  C,  724,  51  S.  E.  50;  State  v.  Duncan,  16  Lea  (Tenn.)  79; 
Cothran  v.  State,  36  Tex.  Cr.  R.  196,  36  S.  W.  273 ;  Scales  v.  State,  46  Tex. 
Cr.  R.  296,  81  S.  W.  947,  108  Am.  St.  Rep.  1014,  66  L.  R.  A.  730. 

19  Fortenbury  v.  State,  47  Ark.  188,  1  S.  W.  58;  Pixley  v.  Boynton,  79  111. 
351;  Tomblin  v.  Callen,  69  Iowa,  229,  28  N.  W.  573;  Conner  v.  Robertson, 
37  La.  Ann.  814,  55  Am.  Rep.  521 ;  Clay  v.  Allen,  63  Miss.  426 ;  Kingsbui-y  v. 
Kirwan,  77  N.  Y.  612 ;  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  160,  28  L. 
Ed.  225 ;    Smith  v.  Bouvier,  70  Pa.  325 ;    Appleman  v.  Fisher,  34  Md.  540. 

2  0  Fortenbury  v.  State,  47  Ark.  188,  1  S.  W.  58;  Whitesides  v.  Hunt,  97 
Ind.  191,  49  Am.  Rep.  441 ;    Clay  v.  Allen,  63  Miss.  426. 


§    429)  LIABILITY   IN   PARTICULAR   CASES  563 

and  public  policy.^^  But  it  seems  that  there  is  no  laudable  reason 
why  they  should  refuse  to  transmit  messages  relating  to  "futures," 
where  that  class  of  business  has  not  been  prohibited  by  statute, 
although  it  may  be  a  species  of  gambling.--  While  they  are  not 
gambling  contracts,  yet  they  are  very  speculative  and  uncertain 
and  for  this  reason  the  failure  to  correctly  and  promptly  transmit 
them  only  lays  the  company  liable  for  nominal  damages. ^^  We 
shall  discuss  later  the  rights  of  a  party  to  recover,  as  a  part  of  his 
damages,  future  profits;  ^*  but  suffice  it  to  say  here  that  only  such 
damages  can  be  recovered  for  the  breach  of  a  contract  as  was  con- 
templated by  the  parties  at  the  time  of  making  the  contract,  or 
such  as  would  flow  directly  and  proximately  from  such  breach.  It 
is  universally  held  that  the  profits  to  be  made  in  "future"  contracts 
do  not  fall  within  this  rule,  and  are  not,  therefore,  recoverable  for 
losses  occurring  in  the  failure  to  transmit  or  deliver  correctly  such 
messages.-®  Furthermore,  the  "future"  contract  may  be  illegal  and 
void  with  respect  to  the  parties  making  it,  and  thereby  unenforce- 
able by  either  of  them.  So  neither  could,  therefore,  invoke  it  as  a 
basis  for  the  recovery  of  substantial  damages.-®     It  seems,  how- 

21  Smith  V.  West.  U.  Tel.  Co.,  84  Ky.  664,  2  S.  W.  483,  8  Ky.  Law  Rep.  672, 

2  Am.  Elec.  Cas.  389 ;    West.  U.  Tel.  Co.  v.  State,  165  Ind.  492,  76  N.  E.  100, 

3  L.  R.  A.  (N.  S.)  153,  6  Ann.  Cas.  880 ;  Bradley  v.  West.  U.  Tel.  Co.,  8  Ohio 
Dec.  (Reprint)  707;  Bryant  v.  West.  U.  Tel.  Co.  (C.  C.)  17  Fed.  825.  But 
see  Sterrett  v.  Philadelphia  Local  Tel.  Co.,  18  Wkly.  Notes  Cas.  (Pa.)  77. 

22  A  statute  or  ordinance  pi'ohibiting  company  from  transmitting  informa- 
tion or  money  in  furtherance  of  gambling  contracts,  State  v.  Harbourne,  70 
Conn.  484,  40  Atl.  179,  66  Am.  St.  Rep.  126,  40  L.  R.  A.  607;  Louisville  v. 
Wehmhoff,  116  Ky.  812,  76  S.  W.  876,  79  S.  W.  201,  25  Ky.  Law  Rep.  995, 
1924 ;   Reg  v.  Osborne,  27  Ont.  185.     See  preceding  note  for  other  cases. 

2  3  Bryant  v.  West.  U.  Tel.  Co.  (C.  C.)  17  Fed.  825;  Cahn  v.  West.  U.  Tel. 
Co.  (C.  C.)  46  Fed.  40,  affirming  48  Fed.  810,  1  C.  C.  A.  107 ;  Smith  v.  West. 
U.  Tel.  Co.,  84  Ky.  664,  2  S.  W.  483 ;  Morris  v.  West  U.  Tel.  Co.,  94  Me.  423, 
47  Atl.  926 ;  West.  U.  Tel.  Co.  v.  Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599 ; 
West.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  West. 
U.  Tel.  Co.  V.  Littlejohn,  72  Miss.  1025,  18  South.  418. 

2  4  See  chapter  XXI. 

2  5  Cothran  v.  West.  U.  Tel.  Co.,  S3  Ga.  25,  9  S.  E.  836.  overruling  West.  U. 
Tel.  Co.  V.  Blanchard,  68  Ga.  299,  45  Am,  Rep.  480,  in  this  respect.  See,  also, 
Melchert  v.  American  U.  Tel.  Co.  (C.  C.)  11  Fed.  194. 

^oMelchert  v.  Am.  U.  Tel.  Co.  (C.  C.)  11  Fed.  194;  Cothran  v.  West.  U. 
Tel.  Co.,  83  Ga.  25,  9  S.  E.  836.  The  burden  of  proof  is  on  the  company  to 
show  that  the  message  related  to  a  "future"  contract.  West.  U.  Tel.  Co.  v. 
Hill  (Tex.  Civ.  App.)  65  S.  W.  1123;  Hocker  v.  West.  U.  Tel.  Co.,  45  Fla.  363, 
34  South.  901. 

It  would  be  liable  for  nominal  damages  only  not  exceeding  the  price  of 
transmission  for  its  negligence.  Clay  v.  West.  U.  Tel.  Co.,  81  Ga.  285,  6 
S.  E.  813,  12  Am.  St.  Rep.  316;  Smith  v.  West.  U.  Tel.  Co.,  84  Ky.  664,  2 
S.  W.  483;  Morris  v.  West.  U.  Tel.  Co.,  94  Me.  423,  47  Atl.  926;  West.  U. 
Tel.  Co.  v.  Littlejohn,   72  Miss.   1025,  18   South.  418;    West.   U.  Tel.   Co.   v. 


564  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  430 

ever,  that  where  the  action  against  the  company  is  to  recover  the 
statutory  penalty,  the  company  cannot  defend  on  the  ground  that 
the  message  which  it  was  negligent  in  transmitting  related  to  a 
gambling  transaction.^^ 

§  430.  Indecent  language  not  bound  to  accept. — Telegraph  com- 
panies are  not  under  obligation  to  accept  any  message  for  trans- 
mission which  would  subject  them  to  an  indictment  or  to  a  civil 
action,  and  any  message  which  is  indecent,  obscene  or  filthy  on  its 
face  may  be  rejected  by  them.^^  But  in  order  for  the  company  to 
take  advantage  of  this  right,  the  contents  of  the  message  should 
be  couched  in  such  indecent  language  as  to  show  on  its  face  this 
fact;  ^®  because,  if  it  is  ambiguous,  or  if  there  is  doubt  of  its  inde- 
cency, the  sender  should  have  the  benefit  of  the  doubt.^**  The  rea- 
son of  this  is  that,  where  a  dispatch  is  ambiguous,  the  law  gives  the 
benefit  of  the  ambiguity  to  the  company  dealing  with  it,  when  sued 
either  civilly  or  criminally  for  transmitting  the  message;  and  it 
would  therefore  be  the  duty  of  the  company,  in  deciding  whether 
to  transmit,  to  give  the  benefit  of  the  doubt  to  the  sender.^^  Thus 
in  the  message,  "Send  me  four  girls  on  first  train  to  Francesville, 
to  attend  fair,"  it  was  attempted  to  be  shown  that  the  company 
was  not  liable  for  a  failure  to  transmit  this  message,  on  the  ground 
that  its  object  was  indecent,  in  that  its  purpose  was  to  have  prosti- 
tutes attend  the  fair;  ^^  but  the  court  held  that  the  language  of  the 
message  was  ambiguous  and  that  the  plaintiff  should  have  had  the 

Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599 ;  Calm  v.  West.  U.  Tel.  Co.  (C.  C.) 
46  Fed.  40;  Id.,  48  Fed.  810,  1  C.  C.  A.  107;  West.  U.  Tel.  Co.  v.  Hall,  124 
U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479. 

2  7  Under  the  Georgia  statute  which  requires  that  telegraph  companies  should 
receive  all  dispatches  either  from  other  lines  or  from  individuals,  and  "shall 
transmit  the  same  with  impartiality  and  good  faith,  and  with  due  diligence 
under  penalty  of,"  etc.,  the  court  holds  that  a  telegraph  company  is  denied 
any  power  of  selection  or  discrimination.  "A  dispatch  cannot  be  rejected  on 
account  of  its  subject-matter,  unless  by  sending  it,  the  company  would  or 
might  subject  itself  or  its  servants  either  to  indictment  or  civil  action.  This  is 
a  rational  test  and  one  that  may  fairly  be  presumed  to  coincide  with  legisla- 
tive intention.  Now,  in  this  state  it  is  neither  a  crime  nor  a  tort  to  speculate 
in  futures.  It  is  a  gross  immorality,  and  conflicts  with  the  public  policy ;  but 
it  is  not  indictable  nor  actionable."  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13 
S.  E,  562,  27  Am.  St.  Rep.  259, 14  L.  R.  A.  95 ;  West.  U.  Tel.  Co.  v.  Ferguson,  57 
Ind.  495. 

2  8  See  §§  273,  274,  and  431. 

2  0  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  B.  562,  27  Am.  St.  Rep.  259, 
14  L.  R.  A.  95 ;  Louisville  v.  Wehmhoff,  116  Ky.  812,  76  S.  W.  876,  79  S.  W.  201, 
25  Ky.  Law  Rep.  995,  1924.    See  §  273. 

3  0  See  §  273. 

31  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259,  14 
L.  R.  A.  95. 

3  2  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495. 


§   431)  LIABILITY  IN   PARTICULAR  CASES  565 

benefit  of  the  ambiguity. ^^  The  amount  of  damages  to  be  recov- 
ered for  an  error  made  in  the  transmission  of  such  messages  is 
the  same  as  that  to  be  recovered  in  a  similar  error  made  in  a  mes- 
sage relating  to  "futures,"  ^*  and  is  founded  on  the  ground  that  the 
message  is  for  an  unlawful  purpose,  or  an  attempt  to  accomplish 
something  in  an  illegal  manner. 

§  431.  Liable  civilly  or  criminally — indecent  language. — It  is 
not  the  object  of  the  law  to  impose  upon  these  companies  the 
duty  to  transmit  any  message  which  would  subject  them  to  a  pen- 
alty,^^  or  to  a  civil  ^^  or  criminal  ^^  action,  and  any  message  whose 
object  is  to  accomplish  such  may  be  rejected  by  the  company.^® 
But  it  is  not  every  message  whose  object  is  illegal  which  will  sub- 
ject the  company  to  a  liability  ;^^  and,  if  there  is  any  doubt  of 
its  illegal  purpose,  the  doubt  must  be  construed  in  favor  of  the 
company.*"  Thus  it  has  been  held  that  these  companies  will  not 
be  held  indictable,  as  being  guilty  of  maintaining  a  common  nui- 
sance, for  transmitting  information  concerning  horse  races  to  a 
pool  room,  although  it  appears  that  the  place  is  resorted  to  by  idle 
and  evil-disposed  persons,  for  selling  pools  and  betting  on  races,  to 
the  common  annoyance  of  all  good  citizens  of  the  neighborhood.*^ 

33  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259, 
14  L.  R.  A.  95 ;  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495. 

34  See  §  429. 

3  5  West.  U.  Tel.  Co.  v.  Young,  138  Ala.  240,  36  South.  374. 
.  3*6  Peterson  v.  West.  U.  Tel.  Co.,  65  Minn.  18,  67  N.  W.  646,  33  L.  R.  A.  302. 
See,  also.  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep. 
259,  14  L.  R.  A.  95. 

3  7  Louisville  v.  Wehmhoff,  116  Ky.  812,  76  S.  W.  876,  79  S.  W.  201,  25  Ky. 
Law  Rep.  995,  1924 ;  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am. 
St.  Rep.  259,  14  L.  R.  A.  95. 

38  See  §§  273,  274.  As  applied  to  telephone  companies,  see  §§  258,  259.  They 
may  refuse  messages  not  couched  in  decent  language,  see  West.  U.  Tel.  Co.  v. 
Lillard,  86  Ark.  208,  110  S.  W.  1035,  17  L.  R.  A.  (N.  S.)  836 ;  Gray  v.  West.  U. 
Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259,  14  L.  R.  A.  95 ;  West. 
U.  Tel.  Co.  V.  Ferguson,  57  Ind.  495,  1  Am.  Elec.  Cas.  266 ;  although  liability 
cannot  be  incurred  by  transmitting  them  unless  they  are  libelous,  Stookham  v. 
West.  U.  Tel.  Co.,  10  Kan.  App.  580,  63  Pac.  658. 

3  8  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  2.59,  14 
L.  R.  A.  95,  such  as  messages  pertaining  to  gambling  in  futures ;  Com.  v.  West. 
U.  Tel.  Co.,  112  Ky.  358,  07  S.  W.  59,  23  Ky.  Law  Rep.  1633,  99  Am.  St.  Rep. 
299,  57  L.  R.  A.  615.  But  see  Louisville  v.  Wehmhoff,  116  Ky.  812,  76  S.  W. 
876,  79  S.  W.  201,  25  Ky.  Law  Rep.  995,  1924,  reports  of  horse  racing ;  West. 
U.  Tel.  Co.  V.  Ferguson,  57  Ind.  495,  1  Am.  Elec.  Cas.  266,  procuring  woman 
of  bad  character. 

4  0  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259,  14 
L.  R.  A.  95. 

41  Com.  V.  West.  U.  Tel.  Co.,  112  Ky.  355,  67  S.  W.  59,  23  Ky.  Law  Rep.  1633, 
99  Am.  St.  Rep.  299,  57  L.  R.  A.  614.  But  see  Louisville  v.  Wehmhoff,  116  Ky. 
812,  76  S.  W.  876,  79  S.  W.  201,  25  Ky.  Law  Rep.  995,  1924.    The  transmission 


566  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  432 

§  432.  Libel — liable  for. — Any  means  whereby  a  writing  which 
is  libelous  per  se  is  communicated  to  the  party  injured  is  a  publi- 
cation of  the  libel. *^  So,  if  a  message  which  is  libelous  per  se,  or 
if  it  clearly  shows  on  its  face  statements  which  would  be  under- 
stood by  a  man  of  ordinary  intelligence  as  being  a  sufficient  ground 
to  lay  the  writer  or  sender  liable  for  an  action  of  libel,  and  the  com- 
pany transmits  such  a  message,  it  will  be  guilty  of  a  publication  of 
the  libel  and  will  be  just  as  liable  for  damages  arising  out  of  it  as 
the  writer  of  the  message  would  be.*^  Thus,  where  a  company 
accepted  and  transmitted  a  message  directed  to  the  plaintiff,  read- 
ing: "Slippery  Sam,  your  name  is  pants,"  and  signed,  "Many 
Republicans,"  it  was  held  that  the  message  sufficiently  indicated 
to  the  company  its  libelous  character,  and  that  plaintiff  was  en- 
titled to  recover  damages  for  the  libel.'**  And  it  was  held  that  the 
company  was  guilty  of  publishing  a  libel  by  transmitting  a  mes- 
sage stating  that  "the  citizens  of  Wisconsin  demonstrated  you  are 
an  unscrupulous  liar,"  and  was  liable  for  all  damages  arising  out  of 

and  delivery  of  messages  containing  reports  of  horse  races  and  ottier  sporting 
events  is  in  ttie  absence  of  a  statute  or  ordinance,  a  legitimate  business,  and 
cannot  be  rendered  illegitimate  by  the  fact  that  the  recipient  of  such  reports, 
without  further  connivance  of  the  telegraph  or  telephone  company,  puts  them 
to  an  illegal  iise.    People  v.  Breen,  44  Misc.  Rep.  375,  S9  N.  Y.  Supp.  998. 

4  2  Alabama,  etc.,  E.  Co.  v.  Brooks,  69  Miss.  168,  13  South.  847,  30  Am.  St. 
Kep.  528 ;  Adams  v.  Lawson,  17  Grat.  (Va.)  250,  94  Am.  Dec.  455 ;  Miller  v. 
Butler,  6  Cush.  (iNIass.)  71,  52  Am.  Dec.  768 ;  Fogg  v.  Boston,  etc.,  R.  Co.,  148 
Mass.  513,  20  N.  E.  109,  12  Am.  St.  Rep.  583 ;  Evening  Journal  Ass'n  v.  McDer- 
mott.  44  N.  J.  Law,  430,  43  Am.  Rep.  392 ;  Johnson  v.  St.  Louis  Dispatch  Co., 
65  Mo.  539,  27  Am.  Rep.  293 ;  Maynard  v.  Fireman's  Fund  Ins.  Co.,  34  Cal.  48, 
91  Am.  Dec.  672.  The  publication  of  a  libelous  letter  is  complete  when  it  is 
received  and  read.  McCarlie  v.  Atkinson,  77  Miss.  594,  27  South.  641,  78  Am. 
St.  Rep.  540.  The  dictation  of  a  libelous  letter  to  a  confidential  shorthand 
writer  and  the  copying  of  it  by  him  on  a  typewriting  machine,  after  which  it 
is  signed  by  the  person  dictating  it,  is  a  publication  of  its  contents,  so  as  to 
entitle  the  person  to  whom  it  is  addressed  to  maintain  either  libel  or  slander 
upon  it,  although  there  is  no  communication  of  its  contents  to  any  other  per- 
son. Gambrill  v.  Schooley,  94  Md.  48,  48  Atl,  730,  86  Am.  St.  Rep.  414,  52  L. 
R.  A.  87 ;  Monsou  v.  Lathrop,  96  Wis.  386,  71  N.  W.  596,  65  Am.  St.  Rep.  54. 

4  3  Monson  v.  Lathrop,  96  Wis.  386,  71  N.  W.  596,  65  Am.  St.  Rep.  54;  Peter- 
son v.  West.  U.  Tel.  Co.,  75i  Minn.  368,  77  N.  W.  985,  74  Am.  St.  Rep.  502,  43 
L.  R.  A.  581 ;  Peterson  v.  West.  U.  Tel.  Co.,  72  Minn.  41,  74  N.  W.  1022,  71  Am. 
St.  Rep.  461,  40  L.  R.  A.  661 ;  Peterson  v.  West.  U.  Tel.  Co.,  65  Minn.  18,  67 
N.  W.  646,  33  L.  R.  A.  302 ;  Dominion  Tel.  Co.  v.  Silver,  10  Can.  Sup.  Ct.  238 ; 
Nye  v.  West.  U.  Tel.  Co.  (C.  C.)  104  Fed.  628 ;  Grisham  v.  West.  U.  Tel.  Co., 
238  Mo.  480,  142  S.  W.  271,  Ann.  Cas.  1913A,  535,  37  L.  R.  A.  (N.  S.)  801,  pre- 
sumption of  knowledge.  See  §§  273,  274.  See,  also.  West.  U.  Tel.  Co.  v.  Ca.sh- 
man,  149  Fed.  367,  81  C.  C.  A.  5,  9  L.  R.  A,  (N.  S.)  140,  9  Ann.  Cas.  693,  as  to 
measure  of  damages. 

44  Peterson  v.  West.  U.  Tel.  Co.,  65  Minn.  18,  67  N.  W.  646,  33  L.  R.  A.  302; 
Id.,  72  Minn.  41,  74  N.  W.  1022,  40  L.  R.  A.  661,  71  Am.  St.  Rep.  461 ;  Id.,  75 
Minn.  368,  77  N.  W.  985,  74  Am.  St.  Rep.  502,  43  L.  R.  A.  581. 


§    433)  LIABILITY   IN   PARTICULAR   CASES  567 

such  publication.*^  It  is  generally  held  that  the  libelous  matter  di- 
rected to  the  party  defamed,  without  having  been  seen  or  heard 
by  any  other  person,  will  not  support  a  civil  action,**'  but  this  rule 
cannot  apply  here,  for,  if  a  message  is  sent  to  the  party  defamed 
by  telegraph,  the  contents  of  the  telegram  are  necessarily  com- 
municated to  all  the  clerks  through  whose  hands  it  passes.*^  If, 
however,  the  message  is  couched  in  such  language  as  an  ordinary 
person,  ignorant  of  the  circumstances  and  knowing  nothing  of  the 
parties,  would  not  suppose  it  to  be  defamatory,  the  company  would 
not  be  liable,*^  unless  it  had  been  informed  of  the  character  of  the 
message.  Under  such  circumstances  the  message  may  be  libelous, 
and  one  for  which  the  sender  would  be  liable,  yet  if  the  company  has 
no  information  of  its  character,  or  has  no  means  by  which  it  may 
ascertain  this  fact,  it  will  not  be  liable.*" 

§  433.  Interstate  messages. — A  great  many  cases  have  grown 
out  of  suits  brought  to  recover  damages  for  errors  made  in  the 
transmission  of  messages  which  are  sent  from  one  state  into  anoth- 
er.^** A  question  which  has  presented  itself  in  such  cases  is  wheth- 
er an  action  can  be  maintained  for  a  breach  of  the  company's  com- 
mon-law duty  to  use  proper  care  to  secure  a  correct  and  prompt 
transmission  and  delivery,  where  the  message  falls  within  the 
cases  of  interstate  messages?  This  question  has  been  answered 
by  an  almost  unanimity  of  decisions  in  the  affirmative.^^  So  it 
has  been  held  that  the  sender  may  recover  damages  for  such 
breach,   although   it   happened  in   the   state  other  than  that  from 

4  5  Monson  v.  Lathrop,  96  Wis.  386,  71  N.  W.  96,  65  Am.  St.  Rep.  54. 

46  Spaits  V.  Poundstone,  87  Ind.  522,  44  Am.  Rep.  773;  Wilcox  v.  Moon,  64 
Vt.  450,  24  Atl.  244,  33  Am.  St.  Rep.  936,  15  L.  R.  A.  760. 

47  Peterson  v.  West.  U.  Tel.  Co.,  65  Minn.  18,  67  N.  W.  646,  S3  L.  R.  A.  302, 
Id.,  72  Minn.  41,  74  N.  W.  1022,  40  L.  R.  A.  661,  71  Am.  St.  Rep.  461 ;  Id.,  75 
Minn.  368,  77  N.  W.  985,  74  Am.  St.  Rep.  502,  43  L.  R.  A.  581.  But  there  is  no 
publication  where  the  person  transmitting  the  message  is  not  the  company's 
agent  and  the  message  is  merely  received  by  the  agent  of  the  company  at  the 
point  of  destination  and  delivered  in  an  envelope  to  the  addressee.  West.  U. 
Tel.  Co.  V.  Cashman,  149  Fed.  367,  81  C.  C.  A.  5,  9  L.  R.  A.  (N.  S.)  140,  9  Ann. 
Cas.  693. 

4  8  Nye  V.  West.  U.  Tel.  Co.  (C.  C.)  104  Fed.  628;  Stockham  v.  West.  U.  Tel. 
Co.,  10  Kan.  App.  580,  63  Pac.  658. 

49  Weir  V.  Hoss,  6  Ala.  881;  Mayne  v.  Fletcher,  9  Barn.  &  Co.  382;  Park  v. 
Detroit  Free  Press  Co.,  72  Mich.  560,  40  N.  W.  731,  1  L.  R.  A.  599,  16  Am.  St. 
Rep.  544 ;  1  Strange,  592 ;  Price  v.  Easton,  4  Barn.  &  Adol.  433. 

5  0  See  §  375.  West.  U.  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S.  406,  31 
Sup.  Ct.  59,  54  L.  Ed.  1088,  30  L.  R.  A.  (N.  S.)  220.  21  Ann.  Cas.  815. 

51  West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715;  Daugherty  v. 
Am.  U.  Tel.  Co.,  75  Ala.  168,  51  Am.  Rep.  435 ;  West.  U.  Tel.  Co,  v.  Richman 
(Pa.)  8  Atl.  171 ;  Smith  v.  West.  U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126. 
See,  also,  Kemp  v.  West.  U.  Tel.  Co.,  28  Neb.  061,  44  N.  W.  1064,  2G  Am.  St 
Rep.  363. 


5G8  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  433 

which  the  message  was  sent.^^  The  receiver  of  the  message  may, 
as  held,  maintain  the  suit  also,  with  respect  to  a  civil  action,  and 
it  does  not  matter  where  the  breach  occurred. ^^  The  contract  for 
sending  the  message  was  made  in  the  state  from  which  it  was 
sent,  and  there  the  action  should  be  maintained  irrespective  of 
the  place  or  places  where  the  breach  occurred.  "It  is  wholly  im- 
material where  the  act  or  omission  occurred,  whether  at  the  of- 
fice where  it  was  received,  at  some  intermediate  point,  or  at  the 
office  to  which  it  was  sent.  The  contract  cannot  in  such  case  be 
said  to  have  been  violated  at  one  place  any  more  than  at  anoth- 
er. It  is  violated  everywhere  because  it  is  performed  nowhere."  ^* 
This  rule  only  applies  where  the  action  is  to  recover  damages  for 
a  breach  of  its  public  duties  or  an  action  for  tort,  or  where  it  is 
brought  on  a  statute  which  is  declaratory  of  the  common-law 
duty,  and  which  further  provides  that  the  company  shall  not 
contract  to  limit  its  liability  for  the  consequences  of  its  negli- 
gence.^^ The  theory  upon  which  the  courts  proceed  in  uphold- 
ing statutes  relating  to  the  transmission  and  delivery  of  interstate 
messages  as  against  the  objection  that  they  are  unconstitutional 
regulations  of  interstate  commerce  is  that  such  laws  do  not  impede, 
harass,  or  cast  any  new  burden  upon  interstate  commerce,  but 
are  passed  in  aid  thereof.^® 

52  Id, 

5  3  Young  V.  West.  U.  Tel.  Co.,  107  N.  C.  370,  11  S.  E.  1044,  22  Am.  St.  Rep. 
883,  9  L.  R.  A.  6G9,  note ;  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  695,  S  S.  W. 
574,  6  Am.  St.  Rep.  864.  Compare  Carnaban  v.  West.  U,  Tel.  Co.,  89  Ind.  526, 
46  Am.  Rep.  175. 

5  4  West.  U.  Tel.  Co.  v.  Hamilton,  50  Ind.  181.  On  other  grounds  this  case 
was  overruled  by  West.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126, 
30  L.  Ed.  1187. 

5  5  Kemp  V.  West.  U.  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064,  26  Am.  St.  Rep. 
363 ;  West.  U.  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S.  406,  31  Sup.  Ct. 
59,  54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas.  815. 

5  6  Western  U.  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S.  406,  31  Sup.  Ct. 
59,  54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas.  815 ;  Vermilye  v.  West. 
U.  Tel.  Co.,  207  Mass.  401,  93  N.  E.  635.  In  Burgess  v.  West.  U.  Tel.  Co.,  92 
Tex.  125,  46  S.  W.  794,  71  Am.  St.  Rep.  833,  reversing  in  part  West.  U.  Tel. 
Co.  V.  Burgess  (Tex.  Civ.  App.)  43  S.  W.  1033,  it  is  held  that  a  statute  declar- 
ing void  a  stipulation  in  a  contract  which  fixes  at  a  period  less  than  ninety 
days  the  time  in  which  notice  of  claim  of  damages  shall  be  given  as  a  condi- 
tion precedent  to  the  right  to  sue  is  not,  as  applied  to  jnterstate  messages,  a 
violation  of  the  Interstate  Commerce  clause  of  the  United  States  Constitution. 
The  court  says :  "We  see  no  reason  why  the  legislature  of  a  state  may  not 
prohibit  its  courts  from  giving  effect  to  unreasonable  stipulations  in  couti'acts 
nor  why  it  may  not  go  one  step  further,  and,  within  just  and  reasonable 
bounds,  declare  certain  stipulations  unreasonable.  It  is  to  be  presumed  that 
the  legislature  in  enacting  this  statute  investigated  and  in  good  faith  deter- 
mined that  by  requiring  the  notice  to  be  given  within  less  than  ninety  days 


§    434)  LIABILITY   IN   PARTICULAR   CASES  569 

§  434.     Same — recovery  of  statutory  penalty — not  applicable. — 

The  foregoing  rule  is  different  when  the  statute  imposes  affirma- 
tive duties,  and  regulates  the  performance  of  the  business  of  a 
telegraph  company  regarding  its  interstate  messages, ^^  or  when 
the  action  is  to  recover  a  statutory  penalty  imposed  on  these  com- 
panies for  a  violation  of  their  duties.  It  is  a  general  rule  of  law 
that  penal  statutes  cannot  be  enforced  beyond  the  state  creating 
them,  and  this  rule  is  applicable  in  the  present  instance. ^^  One 
of  the  reasons  for  holding  to  such  a  rule  is  that  to  enforce  such 
statutes  would  necessarily  involve  these  companies  in  endless  diffi- 
culty, in  that  they  would  be  punished  in  different  ways  for  the 
same  wrong.  As  was  said :  "Unless  we  adopt  the  view  that  the 
statute  only  applies  to  contracts  made  in  this  state,  we  shall  be 
involved  in  endless  difficulty.  Any  other  rule  would  make  the  tel- 
egraph company  amenable  to  different  punishments  for  the  same 
wrong,  for  it  is  quite  clear  that,  if  the  wrong  is  punishable  by  the 
laws  of  the  place  where  the  contract  is  made,  it  would  be  no  an- 
swer to  a  prosecution  there  to  plead  a  judgment  rendered  in  an- 
other forum  under  a  different  law."  ^®  However,  a  statute  which 
requires  telegraph  companies  having  wires  wholly  or  partly  with- 
in the  state  to  receive  dispatches,  transmit  and  deliver  them  with 
due  diligence,  under  penalty,  may  be  sustained  as  a  valid  exercise 
of  the  power  of  the  state  in  relation  to  messages  by  telegraph  from 
points  outside  of  and   directed  to  some   point  within  the  state.'''' 

many  just  claims  would  be  defeated  and  that  no  legitimate  rights  of  the  party 
liable  for  the  damages  would  be  imperiled  if  he  were  required  to  so  frame  his 
contract  as  to  allow  at  least  ninety  days  for  giving  the  notice.  We  cannot  say 
that  in  so  doing  they  have  exceeded  their  power."  West.  U.  Tel.  Co.  v.  Dant, 
42  App.  D.  C.  398,  Ann.  Cas.  1916A,  1132,  L.  R.  A.  1915B,  6S5. 

5  7  West.  U.  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U.  S.  406,  31  Sup.  Ct.  59, 
54  L.  Ed.  10S8,  36  L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas.  815 ;  West.  U.  Tel.  Co.  v. 
Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed.  1187. 

s8  West.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed. 
1187 ;  Alexander  v.  West.  U.  Tel.  Co.,  66  Miss.  161,  5  South.  397,  14  Am.  St. 
Rep.  556,  3  L.  R.  A.  71.    See,  also,  §  634. 

5  9  Carnahan  v.  West.  U.  Tel.  Co.,  89  Ind.  526,  46  Am.  Rep.  175. 

6  0  West.  U.  Tel.  Co.  v.  James,  162  U.  S.  650,  16  Sup.  Ct.  9.34,  40  L.  Ed.  1105 ; 
West.  U.  Tel.  Co.  v.  Crovo,  220  U.  S.  364,  31  Sup.  Ct.  399,  55  L.  Ed.  498,  inter- 
state commerce  is  not  unconstitutionally  regulated  by  a  statute  which  imposes 
upon  a  telegraph  company  a  penalty  for  negligent  failure  to  transmit  within 
the  state  as  promptly  as  practicable  a  message  received  at  an  office  in  the 
state  for  transmission  to  another  state.  In  Butner  v.  West.  U.  Tel.  Co.,  2 
Okl.  284,  37  Pac.  1087,  an  act  of  the  territorial  legislature  which  regulates  the 
order  of  receipt  and  transmission  of  messages  and  prescribes  a  penalty  for  its 
violation,  but  which  does  not  attempt  to  regulate  the  delivery  of  messages  out- 
side of  its  territory  or  of  messages  sent  from  without  the  territory,  is  not  con- 
flict with  the  constitution.  West.  U.  Tel.  Co.-  v.  Lark,  95  Ga.  806,  23  S.  E. 
118 ;  West.  U,  Tel.  Co.  v.  Ferris,  103  Ind.  91,  2  N.  E.  240 ;  West.  U.  Tel.  Co.  v. 


570  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  435 

So  also,  as  is  often  the  case,  where  the  initial  and  terminal  points 
of  the  line  are  within  the  same  state,  but  the  message  is  circuitous- 
ly  sent  through  another  in  order  to  reach  its  destination,  the 
message  will  not  be  classed  as  an  interstate  message  and  so  gov- 
erned by  the  laws  applicable  to  such.^^ 

§  435.  Sunday  messages — no  duty  to  send. — As  has  been  said 
at  another  place,  telegraph  and  telephone  companies  may  adopt 
and  enforce  reasonable  regulations  with  respect  to  their  office 
hours,^^  and  this  embraces  the  right  to  regulate  their  offices  hours 
on  Sundays  and  other  holidays. ''^  With  the  exception  of  works  of 
necessity,  it  is  not  the  duty  of  any  institution  possessed  with  the 
principles  of  a  public  character  to  discharge  any  of  its  public  duties 
on  these  days.  So  it  follows  that  telegraph  and  telephone  compa- 
nies are  not  under  any  obligation  to  perform  any  of  their  common- 
law  duties  on  Sundays,  unless  the  performance  of  same  is  a  matter 
of  necessity."*  Of  course,  some  of  their  offices  are  kept  open  on 
Sundays,  especially  where  they  are  at  places  of  some  size,  in  order 
that  they  may  transmit  messages  concerning  matters  of  necessity, 
and  about  other  business  matters  which  they  desire  to  look  after.^' 
For  the  reason  that  some  of  their  offices  may  be  closed  on  Sundays, 
by  a  right  acquired  under  such  a  regulation,  does  not  prevent  the 
agent  at  those  places  from  accepting  messages  for  transmission, 
yet  the  acceptance  is  usually  conditional ;  and  when  this  has  not 
been  removed  and  there  has  been  a  failure  to  promptly  transmit  the 
message,  the  company  will  not  be  liable.®*^  If  there  were  no  condi- 
tions to  the  acceptance  of  a  message,  hardships  and  impositions 
might  be  imposed  on  these  companies;    for  a  willingness  of  the 

Mellon,  100  Teiin.  429,  45  S.  W.  443 ;  West.  U.  Tel.  Co.  v.  Powell,  94  Va.  26S, 
2G  S.  E.  828.     See,  also,  §  634. 

61  Campbell  v.  Chicago,  etc.,  R.  Co.,  86  Iowa,  587,  53  N.  W.  351,  17  L.  R.  A. 
443 ;  West.  U.  Tel.  Co.  v.  Furlow  (Ark.)  180  S.  W.  502. 

e  2  See  §  347,  et  seq. 

6  3  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W.  528 ;  West.  U.  Tel.  Co.  v. 
Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  22  Ky.  Law  Rep.  53,  92  Am.  St.  Rep. 
3(56 ;  Ayres  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634 ;  West. 
U.  Tel.  Co.  V.  McConnico,  27  Tex.  Civ.  App.  610,  66  S.  W.  592. 

oiWillingbam  v.  West.  U.  Tel.  Co.,  91  Ga.  449,  18  S.  E.  298;  West.  U.  Tel. 
Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  Thompson  v.  West.  U. 
Tel.  Co.,  32  Mo.  App.  191 ;  Twin  Valley  Tel.  Co.  v.  Mitchell,  27  Okl.  388,  113 
Pac.  914,  Ann.  Cas.  1912C,  582,  38  L.  R.  A.  (N.  S.)  235 ;  West.  U.  Tel.  Co.  v. 
Hearn,  110  Ark.  176,  161  S.  W.  1025,  Ann.  Cas.  1915D,  378. 

65  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219,  21  Pac.  988;  Twin  Valley  Tel. 
Co.  V.  Mitchell,  27  Okl.  388,  113  Pac.  914,  Ann.  Cas.  1912C,  582,  38  L.  R.  A. 
(N.  S.)  235 ;  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A. 
224. 

66  See  §  349  et  seq. 


,g   436)  LIABILITY  IN  PARTICULAR  CASES  571 

operator  at  that  particular  place  to  accept  the  message  might  not 
be  sanctioned,  or,  more  than  likely,  not  known  by  the  operator  at 
the  place  to  which  it  is  to  be  sent.  In  other  words,  it  is  not  the 
duty  of  the  telegraph  operators  to  know  the  office  hours  of  other 
stations,"  and  for  this  reason  the  agent  may  be  willing  to  receive 
a  message  to  transmit  (he  may  further  attempt  to  transmit  the 
message),  yet  he  may  be  prevented  from  doing  so  because  of  the 
fact  that  the  other  office,  at  the  place  to  which  the  message  is  to 
be  sent,  is  closed;  ^'  so  to  hold  the  company  liable  under  such  cir- 
cumstances would  be  unjust. 

§  436.  Sunday  contracts — void. — Ordinarily,  contracts  entered 
into  and  to  be  performed  on  Sunday  are  void."''  It  was  not,  how- 
ever, considered  under  the  common  law  that  such  contracts  were 
invalid,^'*  and  the  statutes  now  do  not  generally  prohibit  the  making 
of  such  contracts;  but  it  is  considered  that  to  enforce  these  would 
be  against  public  morals,  and  the  contracting  parties  thereto  should 
not  be  assisted  by  the  courts  in  enforcing  such.  They  both  are 
in  pari  delicto  and  are  not  in  a  position  to  invoke  the  aid  of  the 
law.^^  As  has  been  elsewhere  stated,  the  employment  of  a  tele- 
graph company  to  transmit  intelligence  by  means  of  its  instruments 
and  facilities  is  a  contract  ;^2  therefore  a  contract  of  this  nature 
made  with  a  telegraph  company  on  Sunday  is  void  and  no  action 
can  be  based  upon  it.'^^  In  order  to  enforce  any  contract,  the 
grounds  upon  or  the  subject-matter  about  which  it  is  made  must  be 
clear  of  any  immorality  or  illegality.  As  said,  contracts  made  on 
Sunday  are  against  public  morals,  and  the  grounds  upon  which 

67  Given  v.  West.  U.  Tel.  Co.  (C.  C.)  24  Fed.  119.     See,  also.  §  351  et  seq. 

6  8  There  is  an  implied  condition  that  the  terminal  office  is  open.  Thompson 
T.  West.  U.  Tel.  Co.,  32  Mo.  App.  191 ;  West.  U.  Tel.  Co.  v.  Harding,  103  Ind. 
505,  3  N.  E.  172. 

69  Plaisted  v.  Palmer,  63  Me.  576;  Meador  v.  White,  66  Me.  90,  22  Am.  Rep. 
551 ;  Winfleld  v.  Dody,  45  Mich.  355,  7  N.  W.  906,  40  Am.  Rep.  476 ;  Bradley  v. 
Rea,  103  Mass.  188,  4  Am.  Rep.  524 ;  Ryuo  v.  Darby,  20  N.  J.  Eq.  231 ;  Day  v. 
McAllister,  15  Gray  (Mass.)  433 ;  Cranson  v.  Goss,  107  Mass.  439,  9  Am.  ].'ep. 
45 ;  Butler  v.  Lee,  11  Ala.  8S5,  46  Am.  Dec.  230 ;  Woodman  v.  Hubbard,  25  N. 
H,  67,  7  Am.  Dec.  310 ;  Brimhall  v.  Van  Campen,  S  Minn.  13  (Gil.  1)  82  Am. 
Dec.  118. 

7  0  Bloom  V.  Richards,  2  Ohio  St.  389;  Adams  v.  Gay,  19  Yt.  365;  Amis  v. 
Kyle,  2  Yerg.  (Tenn.)  31,  24  Am.  Dec.  463. 

71  Schneider  v.  Sansom,  62  Tex.  203,  5  Am.  Rep.  521;  Ellis  v.  Hammond,  57 
Ga.  179 ;  Cranson  v.  Goss,  107  Mass.  439,  9  Am.  Rep.  45 ;  Levet  v.  Ci-editors, 
22  La.  Ann.  105 ;  Kinney  v.  McDermot,  55  Iowa,  674,  8  N.  W.  656,  39  Am.  Rep. 
191 ;  Moore  v.  Kendall,  2  I'in.  (Wis.)  99,  52  Am.  Dec.  145 ;  Beauchamp  v.  Com- 
fort, 42  Miss.  97. 

72  See  §  270  et  seq.    See  chapter  XVIII. 

73  Rogers  V.  AVest.  U.  Tel.  Co.,  78  Ind.  109,  41  Am.  Rep.  558;  West.  U.  Tel. 
Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224.  note. 


572  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  437 

such  contracts  are  made  are  therefore  not  such  as  will  justify  the 
maintenance  of  a  suit  thereon  and  are  unenforceable. 

§  437.  Same  continued — matters  of  necessity  or  charity. — It  has 
never  been  questioned,  where  matters  of  charity  or  necessity  are 
considered,  that  the  law  makes  any  distinction  between  Sunday  and 
other  days  of  the  week;  they  are  all  regarded  alike  both  as  regards 
the  validity  of  contracts  and  the  right  to  engage  in  work  or  labor.'* 
So,  where  a  contract  is  made  on  Sunday  for  the  sending  of  a  mes- 
sage which  concerns  matters  of  necessity  or  charity,  the  company 
will  be  liable  for  a  failure  to  transmit  such  message.'^^  This  is  an 
exception  to  the  rule  that  Sunday  contracts  are  invalid.  While  this 
is  the  rule,  the  difficulty  arises  in  determining  what  messages  relate 
to  matters  of  charity  or  necessity,'^^  Contracts  to  transmit  mes- 
sages regarding  ordinary  business,  which  can  be  sent  on  any  week 
day  as  well  as  on  Sundays  are  not  within  the  exception  to  the  general 
rule  that  ordinary  business  shall  not  be  performed  on  Sunday;^'' 
but  there  may  be  facts  which  would  impress  such  a  message  as 
being  one  of  necessity.  The  company  must  be  informed,  in  some 
manner,  of  the  nature  of  the  message — whether  it  does  or  does  not 
concern  matters  of  charity  or  necessity.^®  This  may  be  done  either 
by  the  sender  giving  this  information  verbally,  or  the  message  may 
contain  such  facts  on  its  face;  ''^  and  the  burden,  in  any  case,  is  on 
the  sender  to  prove  this  fact.^°     If  the  message  shows  on  its  face 

74  Troewert  v.  Decker,  51  Wis.  46,  8  N.  W.  26,  37  Am.  Rep.  SOS ;  Edgerton  v. 
State,  67  Ind.  588,  33  Am.  Rep.  110 ;  Pate  v.  Wright,  30  Ind.  476,  95  Am.  Dec. 
705. 

7  5  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23; 
Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599 ;  Gulf,  etc.,  Ry.  Co.  v.  Levy,  59 
Tex.  542,  46  Am.  Rep.  269 ;  Twin  Valley  Tel.  Co.  v.  Mitchell,  27  Okl.  388,  113 
Pac.  914,  Ann.  Cas.  1912C,  582,  38  L.  R.  A.  (N.  S.)  235 ;  West.  U.  Tel.  Co.  v. 
Hearn,  110  Ark.  176,  161  S.  W.  1025,  Ann.  Cas.  1915D,  378. 

7  6  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224. 
But  the  telegraph  business  generally  is  not  a  work  of  necessity.  Rogers  v. 
West.  U.  Tel.  Co.,  78  Ind.  169,  41  Am.  Rep.  558. 

7  7  West.  U.  Tel.  Co.  v.  Hutcheson,  91  Ga.  252,  18  S.  E.  297;  West  U.  Tel. 
Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  West.  U.  Tel.  Co.  v. 
Yopst  (Ind.)  11  N.  E.  16 ;  Rogers  v.  West.  U.  Tel.  Co.,  78  Ind.  169,  41  Am.  Rep. 
558;  West.  U.  Tel.  Co.  v.  Henley,  23  Ind.  App.  14,  54  N.  E.  775.  Compare 
Taylor  v.  West.  U.  Tel.  Co.,  95  Iowa,  740,  64  N.  W.  660;  West.  U.  Tel.  Co.  v. 
McLaurin,  70  Miss.  26,  13  South.  36.  But  see  Burnett  v.  West.  U.  Tel.  Co.,  39 
Mo.  App.  599. 

7  8  West.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16;  Id.,  118  Ind.  248,  20  N.  E. 
222,  3  L.  R.  A.  224,  note ;  West.  U.  Tel.  Co.  v.  Heam,  110  Ark.  176,  161  S.  W. 
1025,  Ann.  Cas.  1915D,  378. 

7  9  See  §  353. 

80  Troewert  v.  Decker,  51  Wis.  46,  8  N.  W.  26,  37  Am.  Rep.  SOS;  West.  U. 
Tel.  Co.  V.  Yopst,  118  Ind.  249,  20  N.  B.  222,  8  L.  R.  A.  224,  note. 


§   438)  LIABILITY   IN   PARTICULAR  CASES  573 

that  its  object  is  to  relieve  the  sick  or  suffering,  to  prevent  great 
or  irreparable  injury  to  life  or  property,  or  if  it  is  intended  to  secure 
the  presence  of  a  relative  at  the  funeral  of  a  kinsman,^^  or  if  it  is 
intended  for  any  similar  purpose,®^  it  may  be  regarded  as  one  con- 
cerning matters  of  necessity  or  charity,  and  the  company  would 
generally  be  informed  of  such  fact  by  the  face  of  the  message. 

§  438.  Same  continued — illustrations. — A  message  addressed  to 
a  physician,  notifying  him  of  the  illness  of  the  sendee's  daughter 
and  requesting  him  to  come  at  once,  sufficiently  shows  the  neces- 
sity of  its  being  sent  at  once.®^  A  message  to  a  person  notifying 
him  of  the  death  of  his  father  and  requesting  his  attendance  at  the 
funeral  involves  such  a  moral  necessity  that  a  contract  for  its  trans- 
mission may  be  valid,  although  made  on  Sunday.^*  A  husband, 
absent  from  home,  sent  to  his  wife  a  message  by  telegraph  explain- 
ing his  protracted  absence,  and  announcing  the  time  of  his  return. 
It  was  held  that  the  sending  of  such  a  message  involved  a  moral 
necessity,  and  the  contract  was  therefore  valid ;  nor  was  such  a 
contract  rendered  illegal  by  the  fact  that  the  sender  might  as  well 
have  sent  it  on  the  preceding  Saturday,  but  failed  to  do  so  through 
inadvertence.®^  So  also  a  message  reading,  "Bettie  and  baby  dead, 
come  to  C.  tonight  to  my  help,"  sent  by  a  person  whose  wife  and 
child  had  just  died,  asking  his  father  to  come  to  his  assistance,  is 
one  of  necessity,  and  shows  such  necessity  on  its  face.®®  In  another 
case  it  appeared  that  the  sender,  the  plaintiff  in  the  case,  was  a 
stenographer,  who  had  been  engaged  to  make  a  report  of  a  certain 
trial  and  to  furnish  notes  of  the  evidence  for  a  bill  of  exceptions. 
The  time  for  filing  such  a  bill  was  limited,  and  plaintiff,  after  work- 
ing assiduously,  furnished  the  report  two  days  before  the  expiration 
of  the  time.  It  was  necessary  that  the  attorney  managing  the  case 
should  at  once  be  informed,  so  that  he  might  secure  the  signature  , 
of  the  judge  before  the  term  expired.  He  therefore  sent  the  attor- 
ney this  message,  "Bring  forty  dollars  if  you  want  record,"  oft'ering 
it  for  transmission  on  Sunday.  The  court  allowed  plaintiff  to  re- 
cover, holding  that  the  message  related  to  a  matter  of  necessity, 

81  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23 ; 
West.  U.  Tel.  Co.  v.  GrifBn,  1  Ind.  App.  46,  27  N.  E.  113 ;  Gulf,  etc.,  R.  Co.  v. 
Levy,  59  Tex.  542,  46  Am.  Rep.  269. 

82  See  illustrations  in  following  section  of  the  text. 

83  West.  U.  Tel.  Co.  v.  Griffin,  1  Ind.  App.  46,  27  N.  E.  113 ;  Brown  v.  West. 
U.  Tel.  Co.,  6  Utah,  219.  21  Pac.  9SS. 

84  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23. 

85  Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  559. 

86  Gulf,  etc.,  R.  Co.  V.  Levy,  59  Tex.  543,  46  Am.  Rep.  269. 


574  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  439 

and,  there  being  a  complete  failure  to  send,  the  company  could  not 
urge  that  the  message  did  not  exhibit  on  its  face  the  necessity.®^ 

§  439.  Statutory  penalty — applicable. — This  rule  is  applicable 
whether  the  suit  is  brought  for  the  purpose  of  recovering  damages, 
or  the  statutory  penalty  imposed  on  these  companies  for  a  failure 
to  promptly  transmit  a  message.  Thus,  if  the  message  is  accepted 
by  the  operator  on  Sunday,  but  it  does  not  show  on  its  face  that 
its  contents  concern  matters  of  charity  or  necessity,  and  this  fact 
has  not  been  given  to  the  operator  in  other  ways,  the  company  will 
not  be  liable  for  damages  or  for  a  statutory  penalty  imposed  on  it 
for  a  failure  to  promptly  transmit  the  message ;  ^^  but  should  the 
operator  be  informed  of  the  necessity  of  its  immediate  transmis- 
sion, the  company  would  be  liable.^"  If,  however,  the  action  is 
brought  to  recover,  either  the  statutory  penalty  or  the  damages 
arising  out  of  the  breach  of  contract  wherein  the  company  has 
failed  to  promptly  transmit  and  deliver  a  message  concerning  mat- 
ters of  necessity,  and  it  is  shown  that  the  terminal  office  was  closed, 
the  company  will  not  be  liable,  provided  it  is  not  located  at  a  place 
whose  size  necessitates  it  to  be  opened.  It  seems,  however,  that 
if  the  receiving  operator  ascertain  this  fact,  he  should  use  reason- 
able diligence  to  inform  the  sender,  in  order  that  the  latter  may 
make  other  arrangements."'* 

§  440.  Messages  which  may  not  be  genuine. — In  the  absence  of 
notice  of  facts  or  circumstances  which  would  suggest  or  arouse 
suspicion  in  the  mind  of  a  person  of  ordinary  caution  of  false  imper- 
sonation or  of  want  of  authority,  the  exercise  of  reasonable  care  by 
a  telegraph  operator  to  receive  messages  from  those  only  who  have 
authority  to   send  them  does  not  require  him  to  investigate  the 

8  7  See  note  52. 

S8  Willingham  v.  West.  U.  Tel.  Co.,  01  Ga.  449,  18  S.  E.  298;  West.  U.  Tel. 
Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  West.  U.  Tel.  Co.  v. 
Way,  83  Ala.  542,  4  South.  844 ;  Rogers  v.  West.  U.  Tel.  Co.,  78  lutl.  1G9,  41 
Am.  Rep.  558;  Thoinpsou  v.  West.  U.  Tel.  Co.,  32  Mo.  App.  191;  West.  U. 
Tel.  Co.  V.  Henley,  23  Ind.  App.  14,  54  N.  E.  775.  See  Bassett  v.  West.  U.  Tel. 
Co.,  48  Mo.  App.  556,  under  statute  will  be  liable  regardless  whether  messages 
relate  to  matters  of  charity  and  necessity. 

89  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  322,  3  L.  R.  A.  224; 
West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23; 
Arkansas,  etc.,  R.  Co.  v.  Lee,  79  Ark.  448,  96  S.  W.  148 ;  West.  U.  Tel.  Co.  v. 
Eskridge,  7  Ind.  App.  208,  33  N.  E.  238 ;  West.  U.  Tel.  Co.  t.  Griffin,  1  Ind. 
App.  46,  27  N.  E.  113;  West.  U.  Tel.  Co.  v.  McLaurin,  70  Miss.  26,  13  South. 
36 ;  Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599 ;  Gulf,  etc.,  R.  Co.  v.  Levy, 
59  Tex.  542,  46  Am.  Rep.  269;  Jones  v.  Roach,  21  Tex.  Civ.  App.  301,  51 
S.  W.  549 ;  Brown  v.  West.  U.  Tel.  Co  ,  6  Utah.  219,  21  Pac.  988.  See  Taylor 
V.  West.  U.  Tel.  Co.,  95  Iowa,  740,  64  N.  W.  660. 

90  See  §  356. 


§    440)  LIABILITY   IN   PARTICULAR   CASES  575 

identity  or  authority  of  those  who  present  them,"^  whether  the 
messages  are  in  writing,  or  are  spoken  directly  or  over  the  tele- 
phone by  unfamiliar  voices.''^  He  may  take  it  for  granted  that 
those  who  present  them  have  the  right  to  send  them.  A  care  which 
would  delay  messages  presented  to  the  operator  by  a  person,  or  by 
a  voice  unknown  to  him,  until  he  could  inquire  and  ascertain  the 
identity  and  authority  of  the  persons  who  present  them  would  not 
be  ordinary,  but  extraordinary,  care,  for  it  would  be  a  care  which 
persons  of  ordinary  caution  and  intelligence  do  not  exercise  in 
similar  situations.  It  would  not  be  reasonable,  but  unreasonable, 
care,  because  it  would  prevent  the  speedy  transmission  of  messages 
and  thwart  the  main  purpose  of  telegraphy.  But  a  telegraph  com- 
pany must  avoid  being  made  an  instrument  of  fraud  or  deception, 
and  must  therefore  exercise  reasonable  care  to  transmit  only 
genuine  and  authorized  messages. ^'^  And  so  notice  of  facts  and 
circumstances  which  would  put  a  person  of  ordinary  caution  upon 

91  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ; 
West.  U.  Tel.  Co.  v.  Meyer,  61  Ala.  158,  32  Am.  Rep.  1;  Havelock  Bank  v. 
West.  U.  Tel.  Co.,  141  Fed.  522,  72  C.  C.  A.  580,  4  L.  R.  A.  (N.  S.)  181,  5 
Ann.  Cas.  515 ;  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211, 
142    Pac.  156,  L.  R.  A.  1915 A,  120. 

92Elwood  V.  West.  U.  Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep.  140:  West.  U. 
Tel.  Co.  V.  Totten,  141  Fed.  533,  72  C.  C.  A.  591;  Citizens'  Nat.  Bank  v. 
West.  U.  Tel.  Co.,  159  Iowa,  720,  139  N.  W.  552,  Ann.  Cas.  1915D,  243.  In 
Havelock  y.  West.  U.  Tel.  Co.,  141  Fed.  522,  72  C.  C.  A.  580,  4  L.  R.  A. 
(N,  S.)  181,  5  Ann.  Cas.  515,  the  operator  of  defendant  received  the  message 
by  telephone  and  testified  that  he  did  not  know  the  voice  of  the  person  who 
gave  him  the  telegram,  but  took  it  for  granted  that  it  was  the  voice  of  some 
one  who  had  the  right  to  send  it.  He  also  testified  that  he  knew  the  cashier 
of  the  bank  whose  name  was  given  as  that  of  the  sender  and  that  the  voice 
was  not  his.  It  was  held  that  these  facts  were  suflacient  to  warrant  a  direct 
verdict  for  the  defendant  on  the  ground  that  there  was  no  negligence.  Among 
other  things,  the  court  said:  "The  great  purpose  of  telegraphy  is  the  quick 
transmission  of  messages  from  senders  to  addressees:  *  *  *  The  tele- 
phone furnishes  the  most  speedy  and  convenient  means  of  communicating 
these  messages  from  the  senders  to  the  ofilces  of  the  telegraph  companies  and 
from  these  offices  to  the  addressees  of  the  messages ;  for  this  reason  its  use 
for  this  purpose  has  become  general  throughout  the  land.  The  persons  who 
operate  the  telephone  are  not  generally  the  business  men  or  officers  of  cor- 
porations in  whom  the  authority  to  send  the  telegrams  is  vested  in  the  first 
instance,  but  young  men  and  women  to  whom  this  authority  is  delegated  by 
parol  frequently  through  several  intermediaries.  An  inquii-j'  and  decision 
by  telegraph  operators  of  the  identity  and  authority  of  those  who  speak  the 
messages  over  the  telephone  are  utterly  incompatible  with  their  rapid  receipt 
and  transmission.  *  *  *  tj-^^  truth  is  that  the  great  majority  of  private 
citizens  and  public  officials  alike  are  honest  and  truthful  and  that  the  entire 
civic  fabric  rests  upon  the  fundamental  principle  that  they  are  so."' 

93  Elwood  V.  West.  U.  Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep.  140;  West.  U. 
Tel.  Co.  V.  Totten,  141  Fed.  533,  72  C.  C.  A.  591 ;  Wells  v.  West.  U.  Tel.  Co., 
144  Iowa,  605,  123  N.  W.  371,  138  Am.  St.  Rep.  317,  24  L.  R.  A.  (N.  S.)  1045. 


576  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  441 

inquiry  is  notice  of  all  the  facts  to  which  a  reasonably  diligent  in- 
quiry would  lead.  And  whenever  facts  or  circumstances  come  to 
the  notice  of  a  telegraph  company,  or  of  its  operator,  which  would 
arouse  the  suspicion  of  a  person  of  ordinary  prudence  and  intelli- 
gence in  a  like  situation,  and  would  suggest  to  his  mind  that  the 
party  who  presents  the  message  is  not  authorized  to  send  it,  the 
exercise  of  reasonable  care  requires  them  either  to  investigate  and 
ascertain  his  authority  before  transmitting  it,^*  or  to  communicate 
the  facts  and  circumstances  and  the  suspicion  to  the  addressee  at 
or  before  the  delivery  of  the  message.®^ 

§  441.  Forged  and  fraudulent  messages. — Crimes  may  be  com- 
mitted by  means  of  the  telegraph,  as  through  other  similar  agencies; 
and  when  it  is  shown  that  the  company  aids  in  the  commission  of  a 
crime  by  carelessly  or  negligently  discharging  its  duties,  it  will  be  lia- 
ble for  all  damages  arising  out  of  such  criminal  act.®^  This  fact  is 
more  clearly  shown  by  losses  occurring  in  the  transmission  of  forged 
and  fraudulent  messages. ^^  So,  where  a  message  of  this  nature  is  ac- 
cepted and  transmitted  over  a  company's  line,  and  the  same  is  deliv- 
ered to  the  addressee,  who  accepts  it  in  good  faith — believing  it  to 
be  uncontaminated  with  such  fraudulent  purposes — and  thereby  com- 
plies with  its  objects  to  his  injury,  the  company  will  be  liable  for  all 
losses  flowing  directly  therefrom,  if  it  can  be  made  to  appear  that  the 
latter's  agent,  by  the  exercise  of  ordinary  care,  might  have  detected 
and  prevented  such  fraud.^^     It  is  as  much  the  duty  of  telegraph  op- 

»4  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  R.  A.  1915A,  120;  West.  U.  Tel.  Co.  v.  Totten,  141  Fed.  533,  72  C.  C.  A. 
591;  Elwood  v.  West.  U.  Tel.  Co.,  45  N.  T.  549,  6  Am.  Rep.  141;  Bank  v. 
West.  U.  Tel.  Co.,  159  Iowa,  720,  139  N.  W.  552,  Ann.  Cas.  1915D,  243. 

95  West.  U.  Tel.  Co.  v.  Totten,  141  Fed.  533,  72  C.  C.  A.  591 ;  Bank  of  Have- 
lock  V.  West.  U.  Tel.  Co.,  141  Fed.  522,  72  C.  C.  A.  5S0,  4  L.  R.  A.  (N.  S.)  181, 
5  Ann.  Cas.  515;  Elwood  v.  West.  U.  Tel.  Co,  45  N.  Y.  549,  6  Am.  Rep.  140; 
McGord  V.  West.  U.  Tel.  Co.,  39  Minn.  ISl,  39  N.  W.  315,  12  Am.  St.  Rep. 
636,  1  L.  R.  A.  143;  Pacific  Postal  Tel.-Cable  Co.  v.  Bank  of  Palo  Alto,  109 
Fed.  369,  4S  C.  C.  A.  413,  54  L.  R.  A.  711 ;  May  v.  West.  U.  Tel.  Co.,  112  Mass. 
90 ;  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac,  156, 
L.  R.  A.  1915A,  120. 

9  6  See  §  273  et  seq. 

9  7  See  Elwood  v.  West.  U.  Tel.  Co.,  45  N.  T.  549,  6  Am.  Rep.  140;  West. 
U.  Tel.  Co.  V.  National  Bank  (Tex.  Civ,  App.)  72  S.  W.  232,  affirmed  in  97 
Tex.  219,  77  S.  W.  603,  65  L.  R.  A.  805,  1  Ann.  Cas.  573 ;  Pacific  Postal  Tel. 
Cable  Co.  v.  Palo  Alto  Bank,  109  Fed.  369,  48  C.  C.  A.  413.  54  L.  R.  A.  711. 

9  8  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  R.  A.  1915A,  120;  Citizens'  National  Bank  v.  West.  U.  Tel.  Co.,  159  Iowa, 
720,  139  N.  W.  552,  Ann.  Cas.  1915D,  243,  question  for  jury ;  Havelock  Bank 
v.  West.  U.  Tel.  Co.,  141  Fed.  522,  72  C.  C.  A.  580,  5  Ann.  Cas.  515,  4  L.  R.  A. 
(N.  S.)  181 ;  West.  U.  Tel.  Co.  v.  Totten,  141  Fed.  533,  72  C.  C.  A.  591 ;  West. 
U.  Tel.  Co.  V.  Schriver,  141  Fed.  538,  72  C.  C.  A.  596,  4  L.  R.  A.  (N.  S.)  678 ; 


§    441)  '  LIABILITY   IN   PARTICULAR   CASES  577 

erators,  while  acting  in  the  capacity  of  agent  for  these  companies,  to 
prevent  crimes  from  being  committed  through  the  instrumentahty  of 
their  hnes  as  it  is  for  persons  acting  in  similar  positions,  or  when 
they  stand  in  a  fiduciary  relation  toward  the  person  on  whom  the 
crime  or  fraud  is  attempted  to  be  perpetrated;  and  any  suspicious 
acts,  made  at  the  time  of  the  attempted  crime,  which  would  lead  a 
man  of  ordinary  understanding  to  believe  a  crime  or  fraud  was  be- 
ing perpetrated,^^  and  with  which  he  then  fails  to  interfere,  his  neg- 
ligence in  failing  to  prevent  such  will  be  presumed,  and  he  or  his  prin- 
cipal will,  therefore,  be  liable  for  the  damages  arising  from  such  acts. 
So,  if  at  the  time  the  message  is  delivered  to  the  operator  there  are 
circumstances  attending  the  request  to  transmit  which  would  give  the 
operator  reasonable  ground  to  suspect  that  a  fraud  was  about  to  be 
committed,  his  negligence  in  not  attempting  to  prevent  same  will  be 
presumed.^"" 

Wells  V.  West.  U.  Tel.  Co.,  144  Iowa,  605,  123  N.  W.  371,  138  Am.  St.  Rep. 
317,  24  L.  R.  A.  (N.  S.)  1045,  question  for  the  jury  ;  Postal  Tel.  Cable  Co.  v. 
Traders  State  Bank  (Tex.  Civ.  App.)  150  S.  W.  745;  Bank  of  California  v. 
West.  U.  Tel.  Co.,  52  Cal.  280;  McCord  v.  West.  U.  Tel.  Co.,  39  Minn.  181, 
39  N.  W.  315,  12  Am.  St.  Rep.  636,  1  L.  R.  A.  143 ;  Magouirk  v.  West.  U. 
Tel.  Co.,  79  Miss.  632,  31  South.  206,  89  Am.  St.  Rep.  663 ;  Elwood  v.  West. 
U.  Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep.  141 ;  Pacific  Postal  Tel.  Co.  v.  Palo  Alto 
Bank,  109  Fed.  369,  48  C.  C.  A.  413,  54  L.  R.  A.  711 ;  Kagy  v.  West.  U.  Tel. 
Co.,  37  Ind.  App.  73,  76  N.  W.  792,  117  Am.  St.  Rep.  278 ;  West.  U.  Tel.  Co. 
V.  National  Bank  (Tex.  Civ.  App.)  72  S.  W.  232,  affirmed  in  97  Tex.  219,  77 
S.  W.  603,  65  L.  R.  A.  805,  1  Ann.  Cas.  573. 

Nature  of  action  is  a  tort  for  a  false  representation  in  the  nature  of  a 
false  warranty,  and  not  an  action  on  a  contract.  W'est.  U.  Tel.  Co.  v. 
Schriver,  supra.  As  to  election  of  remedies,  see  Wells  v.  West.  U,  Tel.  Co., 
supra.    As  to  estoppel,  see  Wells  v.  West.  U.  Tel.  Co.,  supra. 

f  9  West.  U.  Tel.  Co.  v.  Meyer,  61  Ala.  158,  32  Am.  Rep.  1. 

100  In  the  case  of  Elwood  v.  West.  U.  Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep. 
140,  it  appeared  that  the  plaintiffs,  B.  &  Co.,  were  brokers,  doing  business  at 
P.,  in  Peimsylvania.  On  August  12th  they  received  this  telegram :  "From 
Erie,  Pa.,  dated  August  12th.  Forwarded  from  Fitersville,  12  M.  received 
Aug.  12th.  To  P.  &  Co.,  P.,  Pa. :  Keystone  Bank  will  pay  the  check  of  T.  F. 
McC.  to  the  amount  of  twenty  thousand  dollars  ($20,000.00)  Keystone  Bank." 
The  plaintiff  observed  that  the  name  of  the  officer  of  the  bank  had  been 
omitted,  and  a  second  message  was  then  received  with  the  addition  of  words 
"J.  .7.  Town,  cashier  of  Keystone  Bank."  Near  the  close  of  the  day.McC. 
presented  himself  at  the  plaintiff's  banking  house  and  drew  ten  thousand 
dollars  on  the  faith  of  the  telegram,  leaving  an  equal  sum  to  his  credit.  It 
appeared  that  the  telegram  was  fraudulent ;  that  McC.  himself  had  presented 
the  telegram  at  Titusville  for  transmission ;  that  the  operator  knew  McC. 
hy  that  name;  and  that  he  showed  no  authority  from  the  cashier  when  he 
offered  the  message  for  transmission.  It  was  held  that  the  company  was 
liable  to  the  plaintiffs  for  the  loss  sustained  by  them,  since  the  operator  had 
been  guilty  of  negligence  in  not  detecting  so  palpable  a  fraud.  State  Bank  of 
Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156,  L.  R.  A.  1915 A,  120. 
Jones  Tel.(2d  Ed.) — 37 


578  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  442 

§  442.     Same  continued — negligence  must  be  proximate  cause. — 

In  order  to  hold  the  company  liable  for  losses  caused  by  its  opera- 
tor's negligently  permitting  a  forged  or  fraudulent  message  to  be  trans- 
mitted, it  must  be  shown  that  such  negligence  was  the  proximate  cause 
of  the  injury/"^  although  it  may  be  clear  that,  except  for  the  negli- 
gence of  the  operator,  the  loss  would  not  have  happened.^°^  In  other 
words,  there  must  be  a  connection  between  the  wrong  alleged  and  the 
resulting  injury;  in  the  contemplation  of  law,  they  stand  related  to 
each  other  as  cause  and  effect  so  as  to  give  a  right  of  action  against 
the  wrongdoer  and  make  him  chargeable  with  the  loss.^°^  It  is  not 
every  breach  of  duty  which  will  be  a  sufficient  ground  on  which  to 
base  an  action ;  for,  while  it  may  be  a  causing  cause  which  brings  about 
a  loss  for  injury,  yet  it  may  not  be  the  direct,  natural  or  proximate 
cause  of  such  injury.  The  proximate  cause  of  the  injury  may  be  one 
of  the  results  of  the  breach  of  the  operator's  duties ;  but  this  may 
be  acted  upon  by  other  intermediate  causes  which  would  effect  the 
breach,  as  being  a  remote  or  indirect  cause  of  the  injury,  and  which 
fact  would  relieve  the  company  from  liability.^"*  In  a  case  in  which 
this  point  was  at  issue  it  appeared  that  the  sender  transmitted  a  mes- 
sage to  the  plaintiff,  asking  for  a  loan  of  $500.  By  mistake  the  mes- 
sage was  transmitted  as  asking  for  $5,000.  The  money  was  sent  and 
the  original  sendee,  overcome  by  cupidity,  absconded  with  it.  It  was 
held  that  the  company  was  not  liable,  since  the  injury  did  not  result 
as  a  proximate  cause  of  its  negligence.  The  court  said  in  this  case: 
''The  plaintiff  parted  with  his  money  by  reason  of  the  message,  believ- 
ing it  to  have  been  sent  by  Brown.  He  was  willing  to  trust  him  with 
$5,000,  and  the  mistake  of  the  company  did  not  induce  the  confidence 
which  the  plaintiff  had  in  his  integrity.  *  *  *  f  j^g  embezzlement 
could  not  reasonably  have  been  expected,  and  did  not  naturally  flow 
from  the  wrong  of  the  defendant."  ^°^ 

§  443.     Same  continued — operator  author  of  forged  message. — 
Not  only  is  a  telegraph  company  liable  in  damages  for  injuries  caused 

See  Postal  Tel.  Cable  Co.  v.  Traders'  State  Bank  (Tex.  Civ.  App.)  150  S.  W. 
745 ; .  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L.  R.  A.  (N.  S.) 
502,  19  Ann.  Cas.  895;  Strong  v.  West.  U.  Tel.  Co.,  IS  Idaho,  389,  109  Pac. 
910,  30  L.  R.  A.  (N.  S.)  409,  Ann.  Cas.  1912A,  55.  But  see  Wells  v.  West. 
U.  Tel.  Co.,  144  Iowa,  605,  123  N.  W.  371,  138  Am.  St.  Rep.  317,  24  L.  R.  A. 
(N.  S.)  1045.  See,  also.  Citizens'  National  Bank  v.  West.  U.  Tel.  Co.,  159 
Iowa,  720,  139  N.  W.  552,  Ann.  Cas.  1915D,  243. 

101  Lowery  v.  West.  U.  Tel.  Co.,  60  N.  Y.  198,  19  Am.  Rep.  154. 

102  Id. 
,    103  Id. 

104  See  chapter  XIII. 

10  5  Lowery  v.  West.  U.  Tel.  Co.,  60  N.  Y.  198.  19  Am.  Rep.  154. 


§    443)  LIABILITY   IN   PARTICULAR   CASES  579 

by  the  transmission  of  a  forged  or  fraudulent  message  whose  author 
is  some  one  not  connected  with  the  company,  but  it  is  also  liable  when 
the  message  was  fraudulently  made  and  sent  by  its  own  operators.^"^ 
The  ground  on  which  these  companies  have  attempted  to  exonerate 
themselves  from  liability  in  such  cases  is  that  the  maxim  respondeat 
superior  does  not  apply,  because  the  operator  in  sending  the  message 
was  not  acting  for  the  company,  but  for  himself  and  about  his  own 
business,  and  should  be  treated  as  having  transcended  his  authority 
and  not  acting  in  furtherance  of  the  company's  business.  The  general 
rule,  with  few  exceptions,  that  the  liability  of  masters  for  wrongs 
of  their  servants,  is  not  confined  solely  to  those  classes  of  cases  where 
the  acts  complained  of  are  done  in  the  course  of  the  employment  and 
in  the  furtherance  of  the  master's  business  or  interest.^'^^     There  are 

100  Pacific  Postal  Tel.  Cable  Co.  v.  Palo  Alto  Bank,  109  Fed.  3G9,  48  C.  C. 
A.  413,  54  L.  R.  A.  711 ;  McCord  v.  West.  U.  Tel.  Co.,  39  Minn.  ISl,  39  N.  W. 
:;15,  1  L.  R.  A.  143,  uote,  12  Am.  St.  Rep.  636.  In  the  last  case  the  local 
agent  of  the  telegraph  company,  who  was  also  the  local  agent  for  the  express 
company,  sent  a  dispatch  to  merchants  in  a  neighboring  city  requesting  them 
to  forward  money  to  their  correspondent  at  the  former  place  to  be  used  in 
buying  grain ;  he  forged  the  name  of  the  agent  employed  by  the  addressee 
to  purchase  wheat  for  them.  The  dispatch  was  duly  received,  and  the  money 
in  good  faith  forwarded  by  express ;  but  the  local  agent  intercepted  the  pack- 
age and  converted  the  money.  It  was  held  that  the  telegraph  company  muse 
answer  to  the  addressee  for  the  loss,  the  proximate  cause  thereof  having 
been  the  willful  w^rong  of  the  company's  agent.  The  court  said:  "If  the 
corporation  fails  in  the  performance  of  its  duty  (as  to  sending  messages) 
through  the  negligence  or  fraud  of  the  agent  whom  it  has  delegated  to  per- 
form it,  the  master  is  responsible.  It  was  the  business  of  the  agent  to  send 
dispatches  of  a  similar  character.  Such  acts  were  within  the  scope  of  his 
employment,  and  the  plaintiff  could  not  know  the  circumstances  that  made  the 
particular  act  wrongful  and  unauthorized.  As  for  him,  therefore,  it  must  be 
deemed  the  act  of  the  corporation."  In  Magouirk  v.  West.  U.  Tel.  Co.,  79 
Miss.  632,  31  South.  206,  89  Am.  St.  Rep.  663,  an  agent  of  the  defendant  sent 
this  message:  "Mr.  G.  Ellisville.  Be  sure  to  go  to  Heidelberg.  Am  on  ex- 
cursion"— and  forged  plaintiffs  name  to  it.  Plaintiff  was  an  unmarried 
woman  and  the  addressee  an  unmarried  man  with  whom  she  had  but  a  slight 
acMiuaintance.  After  sending  the  message,  the  agent  boasted  of  having  sent 
it  and  paraded  its  contents  before  the  public.  It  was  held  that  his  acts  were 
within  the  scope  of  his  employment  and  that  the  company  was  liable  to 
plaintiff  for  the  mortification  and  injury  occasioned  to  her.  It  was  also  held 
that  the  plaintiff  might  show  the  agent's  habits  as  to  the  use  of  intoxicants 
as  indicating  his  unfitness  for  the  position  he  held.  See,  also.  New  York,  etc.. 
Printing  Tel.  Co.  v.  Dryburg,  3-5  Pa.  298,  78  Am.  Dec.  338;  Pacific  Postal 
Tel.  Cable  Co.  v.  Palo  Alto  Co.,  109  Fed.  369,  48  C.  C.  A.  413,  54  L.  R.  A.  711 ; 
Bank  of  California  v.  West.  U.  Tel.  Co.,  52  Cal.  280;  Postal  Tel.  Cable  Co. 
V.  State  Bank  (Tex.  Civ.  App.)  150  S.  W.  745 ;  Wells  v.  West.  U.  Tel.  Co.,  144 
Iowa,  605,  123  N.  W.  371,  138  Am.  St.  Rep.  317,  24  L.  R.  A.  (N.  S.)  1045. 

107  McCord  V.  West.  U.  Tel.  Co.,  39  Minn.  181,  .39  N.  W.  315,  1  L,.  R.  A.  143n, 
12  Am.  St.  Rep.  638.  Compare  Mott  v.  Consumers'  Ice  Co.,  73  N.  Y.  543; 
Fishkill  Savings  Institution  v.  Nat.  Bank,  80  N.  Y.  162,  36  Am.  Rep.  599; 
Potulni  V.  Saunders,  37  Minn.  517,  35  N.  W.  379. 


580  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  444 

certain  duties  which  the  master,  when  exercising  a  public  function, 
owes  to  the  pubHc.  One  of  these  is,  he  must  abstain  from  committing 
such  acts  as  will  become  an  injury  to  the  public;  so,  if  the  master's 
servant,  while  in  the  discharge  of  his  general  duties  as  such,  should, 
by  his  own  act,  occasion  a  violation  of  such  duty,  the  master  will  be 
liable,  whether  the  duty  be  founded  in  contract  or  be  a  common-law 
duty  growing  out  of  the  relation  in  which  the  master  stands. ^°^  The 
wrongful  act  of  the  agent  is  the  proximate  cause  of  the  injury,  and 
the  fact  that  the  addressee  may  have  relied  upon  the  confidence  and 
reliability  of  the  sender,  whose  name  was  forged  and  fraudulently  at- 
tached to  the  telegram,  will  not  be  such  contributory  negligence  as  to 
prevent  him  from  recovering,  although,  if  he  had  not  been  misled  by 
such  wrongful  act,  the  rule  would  be  otherwise.  But  in  these  cases, 
where  the  message  has  been  forged  by  the  company's  operator,  he  is 
misled.  If  it  were  the  business  of  the  operator  to  send  messages  of 
similar  character,  and  the  injured  party  had  been  in  the  habit  of  ac- 
cepting them  in  good  faith,  he  could  not  know  the  circumstances  in 
any  particular  case  that  would  make  the  particular  act  wrongful  and 
unauthorized.  As  to  him,  tlierefore,  the  acts  would  be  misleading  and 
should  be  considered  as  flowing  directly  from  the  company.^*'^ 

§  444.  Same  continued — subagent,  forgery  of. — The  above  rule 
is  applicable  where  the  message  is  forged  by  a  subagent  of  the  com- 
pany who  was  appointed  by  one  of  the  company's  operators  having 
no  authority  to  make  such  appointment.  In  a  case  on  this  point,  the 
subagent  sent  a  false  message  purporting  to  come  from  the  cashier  of 
a  bank,  directing  another  bank  to  pay  a  fictitious  person  a  sum  of 
money;  he  then  impersonated  the  fictitious  person,  and  obtained  the 
money.  No  negligence  on  the  part  of  the  bank  was  shown.  It  was 
held  that  the  company  was  responsible  to  the  bank  for  the  amount  thus 
obtained.  The  court  reasoned  that,  although  a  principal  is  not  bound 
by  a  contract  made  in  his  name  by  a  subagent  appointed  by  his  agent 
without  authority,  yet  he  is  responsible  for  the  negligence  of  such  sub- 
agent,  if  the  agent  who  appointed  him  was  at  the  time  acting  in  the 
business  of  his  principal  and  the  subagent  was  transacting  such  busi- 
ness.^^^ 

§  445.  Same  continued — no  bar  to  action  ex  delicto — injured 
party. — It  has  been  attempted  to  be  shown  that  where  an  injury  has 

108  Shearman  &  Redfield  on  Neg.  (4th  Ed.)  §§  149,  150,  154;  Taylor  on  Corp. 
(2d  Ed.)  §  145 ;  Pacific  Postal  Tel.  Cable  Co.  v.  Bank  of  Palo  Alto,  109  Fed. 
369,  48  C.  C.  A.  413,  54  L.  R.  A.  714. 

109  Shearman  &  Redfield  on  Neg.  (4th  Ed.)  §§  149,  150,  154;  Taylor  on  Corp. 
(2d  Ed.)  §  145. 

1X0  Bank  of  California  v.  We.?t.  U.  Tel.  Co.,  52  Cal.  2S0. 


§    446)  LIABILITY   IN  PARTICULAR   CASES  581 

occurred  by  the  negligent  transmission  of  a  forged  or  fraudulent 
draft  sent  by  means  of  a  telegraph  company,  the  injured  party  ^^^ 
should  first  seek  his  remedy  against  the  indorser  of  the  draft  by  an 
action  ex  contractu;  but  it  is  generally  held  that  he  may  seek  his 
remedy  against  the  company  for  the  breach  of  its  duty  toward  him, 
or  by  an  action  ex  delicto,  although  one  of  the  indorsers  of  the  note 
is  solvent  and  amply  able  to  indemnify  him  for  his  loss.^^^  As  was 
said  by  Gresham,  J.,  by  way  of  illustration  of  this  rule :  "If  a  rail- 
road train  is  wrecked  by  the  carelessness  of  a  drunken  engineer, 
the  injured  passengers  have  two  remedies;  one  against  the  engi- 
neer for  the  tort,  and  the  other  against  the  company  on  the  con- 
tract. In  an  action  by  the  passenger  in  such  a  case  against  the  en- 
gineer, the  latter  would  not  be  allowed  to  plead  against  all  but 
nominal  damages  that  the  passenger  had  a  remedy  against  the  sol- 
vent carrier."  ^^^ 

§  446.  Amount  of  damages. — Having  considered  the  liability  of 
the  telegraph  companies  for  damages  occurring  in  the  transmission 
of  forged  or  fraudulent  messages,  the  question  which  necessarily 
follows  is.  What  damages  can  be  recovered  in  such  cases?  The 
general  rule  is  that  the  addressee  can  recover  only  such  actual  dam- 
ages as  he  may  have  sustained  in  the  particular  case."*  In  other 
words,  he  can  recover  in  damages  the  amount  of  money  of  which 
he  was  defrauded,  less  that  which  he  may  have  recovered  from  the 

iiiLiaftiHty  to  addressee. — A  telegraph  company  which  negligently  trans- 
mits or  delivers  a  forged  message  is  liable  to  the  addressee.  See  cases  cited 
in  note  OS,  supra. 

Liability  to  stranger. — It  has  been  held  that  an  undisclosed  principal  might 
sue  a  telegraph  company  for  a  forged  telegram.  Wells  v.  West.  U.  Tel.  Co., 
14-1  Iowa,  605,  123  N.  W.  371,  13S  Am.  St.  Rep.  317,  24  L.  R.  A.  (N.  S.)  1045, 
disapproving  West.  U.  Tel.  Co.  v.  Schriver,  141  Fed.  538,  72  C.  C.  A.  596. 
4  L.  R.  A.  (N.  S.)  678,  which  is  the  subsequent  appeal  of  the  case  reported  in 
129  Fed.  344,  66  C.  C.  A.  96. 

112  strause  v.  West.  U.  Tel.  Co.,  8  Biss.  104,  Fed.  Cas.  No.  13,531;  Has- 
brouck  V.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  1034,  70  Am.  St.  Rep. 
181 ;  Bank  of  Cal.  v.  West.  U.  Tel.  Co.,  52  Cal.  280 ;  Wells  v.  West.  U.  Tel. 
Co.,  144  Iowa,  605,  123  N.  W.  371,  138  Am.  St.  Rep.  317,  24  L.  R.  A.  (N.  S.) 
1045.    See  note  98,  supra. 

113  Strause  v.  West.  U.  Tel.  Co.,  8  Biss.  104,  Fed.  Cas.  No.  13,531;  Wells 
V.  West.  U.  Tel.  Co.,  144  Iowa,  605,  123  N.  W.  371,  138  Am.  St.  Rep.  317,  24 
L.  R.  A.  (N.  S.)  1045. 

114  Wells  V.  West.  U.  Tel.  Co.,  144  Iowa,  605,  123  N.  W.  371,  138  Am.  St. 
Rep.  317.  24  L.  R.  A.  (N.  S.)  1045 ;  Pacific  Postal  Tel.  Cable  Co.  v.  Palo  Alto 
Bank,  109  Fed.  369,  48  C.  C.  A.  413,  54  L.  R.  A.  714.  See  State  Bank  of  Com- 
merce V.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  1.56,  L.  R.  A.  1915A,  120 ; 
Kagy  V.  We.st.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117  Am.  St.  Rep. 
278;  Elwood  v.  West.  U.  Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep.  140;  Lowery  v. 
West  U.  Tel.  Co.,  60  N.  Y.  198,  19  Am.  Rep.  154 ;  Strause  v.  West.  U.  Tel. 
Co.,  8  Biss.  104,  Fed.  Cas.  No.  13,531. 


582  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  447 

defrauder.  Therefore  he  cannot  recover  from  the  company  the  fees 
which  he  has  paid  an  attorney  for  collecting  that  from  the  defrauder, 
nor  the  costs  which  may  have  accrued  in  its  collection. ^^^  As  be- 
fore said,  the  addressee  may  refuse  to  prosecute  the  defrauder  or 
his  confederate  but  enforce  his  remedy  against  the  telegraph  com- 
pany.^ ^*'  If  this  should  be  the  course  pursued,  the  amount  of  which 
he  was  defrauded  could  be  recovered.  The  fact  that  he  has  pursued 
this  course  will  not  prevent  the  company  from  recovering  from  the 
defrauder  the  amount  which  it  has  paid  to  the  addressee.^^^ 

§  447.  Connecting  lines — passage  over — initial  line — general 
rule. — By  the  analogy  to  the  principle  governing  the  liability  of 
common  carriers  of  goods,  the  general  rule  is  that  a  telegraph  com- 
pany is  not  bound  by  law  to  accept  and  transmit  messages  beyond 
the  terminus  of  its  own  line."^  In  the  absence  of  any  agreement, ^^° 
either  express  or  clearly  implied,  for  transmission  beyond  its  own 
line,  the  common-law  duty  of  an  independent  company  is  performed 
when  it  safely  transmits  the  message  over  its  own  line  and  delivers 
it  promptly  and  correctly  to  the  connecting  line,  and  it  is  not  there- 
fore liable  for  any  errors  or  delays  occurring  on  the  other  line.^^° 
If,  in  such  case,  the  message  is  to  be  delivered  by  the  initial  line  to 
a  connecting  line  for  further  transmission,  the  former  is  considered 
as  a  forwarding  agent  and  is  not  liable  for  the  defaults  of  the  sub- 
sequent line  or  lines. ^-^  It  may  be  said  here,  however,  that  the 
whole  duty  of  the  initial  company  is  not  always  performed  by 
merety  tendering  the  message  promptly  and  correctly  to  the  con- 
necting line.  If  the  latter  should  refuse  to  accept  the  message,  it 
is  the  duty  of  the  initial  company  to  make  a  reasonable  effort  to 
inform  the  sender  of  this  fact.^-^  It  is  the  general  rule,  with  some 
exceptions,   that   the   connecting  line   should   accept   the   message 

115  Pacific  Postal  Tel.  Cable  Co,  v.  Palo  Alto  Bank,  109  Fed.  3G9,  48  C.  C,  A. 
413,  54  L.  R.  A.  714. 

116  See  §  445. 

117  Pacific  Postal  Tel.  Cable  Co.  v.  Palo  Alto  Bank,  109  Fed.  369,  48  O.  C,  A. 
413,  54  L.  R.  A.  711. 

118  Leonard  v.  New  York,  etc.,  Elec.  Mag.  Tel,  Co.,  41  N,  Y.  544,  1  Am. 
Rep.  446;  De  Rutte  v.  New  York,  etc.,  Elec.  Mag.  Tel,  Co.,  1  Daly  (N.  Y.) 
547,  30  How.  Prac.  403 ;  Smith  v.  West.  U,  Tel.  Co.,  84  Tex.  359,  19  S.  W.  441, 
31  Am.  St.  Rep.  59 ;    Stevenson  v.  Montreal  Tel.  Co.,  16  U.  C.  Q.  B.  530. 

119  See  §§  365  and  405. 

120  West.  U,  Tel,  Co,  v,  Carew,  15  Mich.  525;  Baldwin  v,  U.  S.  Tel.  Co,, 
45  N.  Y.  744,  6  Am.  Rep.  165;  Gulf,  etc.,  R.  Co.  v.  Baird,  75  Tex.  256,  12 
S.  W.  530;  Smith  v.  West.  U.  Tel.  Co.,  84  Tex.  359,  19  S.  W.  441,  31  Am. 
St.  Rep.  59.  Compare  Blodgett  v.  Abbott,  72  Wis.  516,  40  N,  W,  491,  7  Am. 
St.  Rep.  873;  McLaren  v,  Detroit,  etc.,  R,  Co.,  23  Wis.  138;  St.  Louis^  etc., 
R.  Co.  V.  Marrs,  60  Ark.  637,  31  S.  W.  42. 

121  See  §  405.  122  See  §  283. 


§    448)  LIABILITY  IN  PARTICULAR   CASES  583 

under  agreement  of  the  original  contract  of  sending,^-^  but  should 
the  message  be  accepted  conditionally,  with  respect  to  such  agree- 
ment/^* it  is  the  duty  of  the  initial  company  to  inform  the  sender 
of  this  fact.^^^  It  is  within  the  discretion  of  the  sender  to  choose 
the  connecting  company  over  whose  lines  he  may  desire  the  mes- 
sage to  be  transmitted,  and  when  such  selection  has  been  made  it  is 
the  duty  of  the  initial  company  to  deliver  the  message  to  this  line.^-^ 
§  448.  Same  continued — English  rule. — The  rule  in  England, 
with  respect  to  the  liability  of  the  initial  company  for  losses  occur- 
ring on  connecting  lines,  is  different  from  that  generally  held  in  the 
United  States. ^^^  It  is  held  in  England  that,  where  a  common  car- 
rier accepts  good  which,  in  order  to  reach  their  destination,  must 
necessarily  be  transported  over  other  lines,  the  initial  carrier,  in 
the  absence  of  an  agreement  to  that  effect,  is  liable  for  all  losses  not 
caused  by  the  act  of  God  or  the  public  enemy  which  may  be  in- 
curred either  over  its  own  or  the  connecting  carrier's  lines. ^-®  The 
ground  on  which  they  so  hold  is  that  the  connecting  lines  are  oper- 
ating in  the  capacity  of  agent  toward  the  initial  line,  and  that  the 
latter  is  bound  for  all  acts  of  its  agent.  There  are  some  of  our 
states  which  have  theoretically  adopted  this  rule,^^**  and  in  these  it 
may  be  held  that  telegraph  companies,  where  these  are  classed  as 
common  carriers,  accepting  messages  to  be  transmitted  over  con- 
necting lines,  are  liable  for  all  errors  or  delays  made  over  the  latter. 
It  is  held,  however,  under  this  rule,  that  the  carrier  may  by  an 
agreement  limit  its  liability  to  its  own  line.^^"  On  the  blank  forms 
used  by  these  companies  there  is  usually  a  stipulation  that  the  ini- 
tial company  is  to  act  as  agent  of  the  sender,  without  liability,  to 
forward  any  message  over  the  lines  of  any  other  company  when 
necessary  to  reach  its  destination.  This  stipulation  has  been  held 
to  be  reasonable  and  is  binding  on  the  sender  when  he  attaches  his 

123  See  §  365.  124  See  §  365.  i2n  See  §§  283,  291.  126  See  §  462. 

127  Stevenson  v.  Montreal  Tel.  Co.,  16  U.  C.  Q.  B.  530. 

i28Muschamp  v.  Lancaster,  etc.,  R.  Co.,  5  Jur.  656;  Watson  v.  Ambergurt, 
etc.,  R.  Co.,  15  Jur.  450. 

129  Mobile,  etc.,  R.  Co.  v.  Copeland,  63  Ala.  219,  35  Am.  Rep.  13;  Illinois 
Central  R.  Co.  v.  Frankenberg,  54  111.  88,  5  Am.  Rep.  92;  East  Tenn.,  etc., 
R.  Co.  V.  Rogers,  6  Heisk.  (Tenn.)  143,  19  Am.  Rep.  589.  Congress  bas  passed 
an  act  making  the  initial  common  carrier  of  goods  liable.  See  Act  to  Reg- 
ulate Commerce  (Feb.  4,  1887,  c.  104,  §  20,  24  Stat.  386,  as  amended  by  Act 
June  29,  1906,  c.  3591,  §  7,  34  Stat.  593  [Comp.  St.  1913,  §  8592]). 

130  West.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525;  McCarn  v.  Int.,  etc.,  R.  Co., 
84  Tex.  352,  19  S.  W.  547,  31  Am.  St.  Rep.  51,  16  L.  R.  A.  39 ;  West.  U.  Tel. 
Co.  V.  Simms,  30  Tex.  Civ.  App.  32,  69  S.  W.  464 ;  Gulf,  etc.,  R.  Co.  v.  Geer, 
5  Tex.  Civ.  349.  24  S.  W.  86. 


584  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  449 

signature  to  the  message.^^^  This  being  the  case,  it  is  seldom  that 
the  English  rule  can  be  enforced  against  the  telegraph  compa- 
nies.^^- 

§  449.  Accept  all  the  charges — rule  not  changed. — It  is  gener- 
ally the  case,  when  messages  are  sent  over  connecting  lines  in 
order  to  reach  their  destination,  that  the  initial  company  receives 
from  the  sender  all  the  charges  for  transmitting  the  message  over 
the  entire  route.  In  fact,  another  arrangement  could  not  be  so  con- 
veniently used.  This  does  not,  however,  make  the  initial  company 
liable  for  any  errors  made  over  the  connecting  line.^"^  There  are 
others,  however,  holding  a  contrary  view.^^*  With  respect  to  the 
collection  of  the  charges  by  the  initial  company  for  the  connecting 
lines,  the  former  acts  in  the  capacity  of  agent  for  the  latter.  These 
charges  are  collected  by  the  initial  company  and  held  until  a  settle- 
ment is  made  with  the  connecting  lines,  when  they  are  divided 
among  them  in  the  proportion  each  of  these  lines  bear  to  the  entire 
line  over  which  the  message  is  transmitted.  This  is  the  general 
rule  by  which  the  charges  are  divided;  and  it  may  be  safely  said 
that  the  initial  company  acts  only  as  agent  for  the  others  in  the 
collection  of  the  charges,  and  is  not  therefore  liable  for  the  errors 
of  the  others. 

§  450.  Initial  company — diligence  to  deliver  to  other  line. — As 
said  in  a  previous  section,  the  initial  company  has  not  performed 
all  of  its  duties  by  delivering  the  message  to  the  connecting  line, 
but  it  must  further  exercise  due  diligence  in  making  a  prompt  de- 
livery to  this  company;  and  any  loss  arising  out  of  such  delay  will 
subject  the  former  to  the  loss.^^^  Thus,  where  the  company  under- 
takes to  transmit  the  message  to  the  terminus  of  its  line,  and  there 
forward  it  by  mail,  a  delay  of  three  days  in  mailing  it  is  negligence 
for  which  it  will  be  liable.^^®    The  initial  company  will  be  liable  if 

131  See  §§  365  and  405;  Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744, 
6  Am.  Rep.  165,  reversing  54  Barb.  505;  Leonard  v.  New  York,  etc.,  Elec. 
Mag.  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446 ;  West.  U.  Tel.  Co.  v.  Munford,  S7 
Teun.  190,  10  S.  W.  318,  10  Am.  St.  Rep.  630,  2  L.  R.  A.  601;  Stevenson  v. 
Montreal  Tel.  Co.,  16  U.  T.  Q.  B.  530.  See,  also.  West.  U.  Tel.  Co.  v.  Strate- 
meier,  6  Ind.  App.  125,  32  N.  E.  871. 

132  West.  U.  Tel.  Co.  v.  Carew,  15  Mich.  525;  McCarn  v.  Int.,  etc.,  R.  Co., 
84  Tex.  352,  19  S.  W.  547,  31  Am.  St.  Rep.  51,  16  L.  R.  A.  39 ;  West.  U.  Tel. 
Co.  V.  Simms,  30  Tex.  Civ.  App.  32,  69  S.  W.  464 ;  Gulf,  etc.,  R.  Co.  v.  Geer, 
5  Tex.  Civ.  App.  349,  24  S.  W.  86. 

13  3  Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep.  165. 

134  De  Rutte  v.  New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  1  Daly  (N.  Y.)  547,  30 
How.  Prac.  403 ;  West.  U.  Tel.  Co.  v.  Shumate,  2  Tex.  Civ.  App.  420,  21  S.  W. 
109. 

13  5  West.  U.  Tel.  Co.  v.  Seals  (Tex.  Civ.  App.)  45  S.  W.  964. 

130  West.  U.  Tel.  Co.  v.  Mcllvoy,  107  Ky.  633,  55  S.  W.  428. 


§    452)  LIABILITY   IN   PARTICULAR  CASES  585 

a  delay  on  its  part  causes  a  greater  delay  on  the  connecting  line.^^^ 
It  is  further  the  duty  of  the  initial  company  to  exercise  a  reasonable 
effort  to  inform  the  sender  that  the  connecting  company  refuses  to 
accept  the  message,  or  that  its  lines  are  out  of  working  order.^^^ 

§  451.  Same  continued — telephone — same  rule  applied. — The 
above  rule  applies  to  telephone  companies  where  they  carry  on 
long-distance  services. ^^''  Thus,  if  a  telephone  company  accepts  a 
message  for  transmission  and  it  becomes  necessary  for  the  message 
to  be  communicated  over  other  lines  in  order  to  reach  its  destina- 
tion, the  initial  company  must  promptly  and  correctly  deliver  the 
message  to  the  connecting  line,^*"  and,  after  this  has  been  done,  it 
will  not  be  liable  for  any  errors  occurring  over  the  connecting  lines. 
But  it  was  held  in  one  case,  where  the  operator  at  the  terminus  of 
the  initial  line  was  also  the  operator  of  the  connecting  line — or,  in 
other  words,  when  the  same  party  was  the  common  operator  of  the 
initial  and  the  connecting  line  at  the  place  of  their  connection — that 
for  an  error  caused  on  the  latter  line  by  his  negligence  the  former 
company  will  be  liable.^*^  When  the  telephone  is  not  doing  long- 
distance service,  it  is  not  its  duty,  in  the  first  place,  to  accept  a  mes- 
sage whose  destination  is  beyond  its  terminus;  ^*-  but  should  such 
a  message  be  accepted,  and  the  connecting  line  refuse  to  accept  the 
message,  the  former  will  not  be  liable  for  such  nonacceptance. 

§  452.  Special  contract — naay  become  liable  by. — While  the  gen- 
eral law  rule  is  that  a  telegraph  company  is  only  liable  for  such 
errors  as  may  occur  on  its  own  line,  yet  it  may  contract  so  as  to 

137  Weatherford,  etc.,  R.  Co.  v.  Seals  (Tex.  Civ.  App.)  41  S.  W.  841. 

138  West.  U.  Tel.  Co.  v.  Sorsby,  29  Tex.  Civ.  App.  345,  G9  S.  W.  122.  See  § 
283. 

139  See  Cumberland  Tel.,  etc.,  Co.  v.  Atherton,  122  Ky.  154,  91  S.  W.  257, 
28  Ky.  Law  Rep.  1100.     See  §  318. 

i-to  Where  a  request  is  made  for  a  certain  number  or  telephone,  the  com- 
pany's duty  is  discharged  by  making  the  proper  connection,  see  §  256;  and 
it  is  not  responsible  for  the  identity  of  the  party  answering,  see  Melx!0d  v. 
Pacific  Tel.  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac.  1009,  15  L.  R.  A.  (N.  S.)  810, 
IS  L.  R.  A.  (N.  S.)  954,  16  Ann.  Cas.  1239 ;  although  it  might  be  liable  for 
negligently  giving  the  wrong  connection,  see  McLeod  v.  Pacific  Tel.  Co.,  supra. 
See,  also,  §§  256,  318. 

141  Southwestern  Tel.,  etc.,  Co.  v.  Taylor,  26  Tex.  Civ.  App.  79,  63  S.  W.  1076. 

142  See  §  318 ;  Southwestern  Tel.,  etc.,  Co.  v.  Gotcher,  93  Tex.  114,  53  S.  W. 
686.  It  is  the  duty  to  furnish  a  means  of  communication  and  to  find  and 
notify  persons  for  whom  calls  are  made,  Southwestern  Tel.  Co.  v.  Gotcher, 
supra ;  Southwestern  Tel.  Co.  v.  Flood,  51  Tex.  Civ.  App.  340,  111  S.  W.  1064 ; 
and  it  will  be  liable  not  to  do  so,  McLeod  v.  Pacific  Tel.  Co.,  52  Or.  22,  94 
Pac.  568,  95  Pac.  1005.  15  L.  R.  A.  (N.  S.)  810,  IS  L.  R.  A.  (N.  S.)  954,  16 
Ann.  Cas.  1239 ;  or  where  it  brings  a  different  person  than  one  desired, 
McLeod  V.  Pacific  Tel.  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac.  1009,  15  L.  R.  A. 
(N.  S.)  810,  IS  L.  R.  A.  (N.  S.)  954,  16  Ann.  Cas.  1239. 


586  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  453 

bind  itself  for  the  negligence  of  connecting  lines  as  well  as  for  its 
own/*^  even  though  the  extra  terminal  connecting  line  extends  into 
another  state  or  country.^**  This  proposition,  although  well  set- 
tled, was  at  first  closely  questioned  on  the  ground  that  contracts 
for  liability  beyond  its  terminus,  specified  in  the  charter,  were  ultra 
vires. ^*^  If,  therefore,  a  telegraph  company  should  contract  to 
transmit  a  message  beyond  its  terminus,  it  will  be  liable  for  all 
damages  caused  by  any  delay,  or  by  any  errors  made  on  the  con- 
necting line,  just  the  same  as  if  the  error  was  made  on  its  own 
line.i^« 

§  453.  Same  continued — who  may  contract. — The  courts  hold 
that  the  agent's  authority  to  receive  goods  for  carriage  implies 
authority  to  contract  for  extraterminal  liability.^*^  The  rule  of 
telegraph  companies  is  in  this  respect  similar  to  these  holdings. ^*^ 
In  other  words,  where  a  telegraph  company  carries  on  a  general 
telegraphic  business,  it  may  make  a  contract  to  send  the  message 
to  its  destination,  and  in  the  absence  of  the  proof  to  the  contrary, 
the  manager  or  agent  of  the  office  of  a  telegraph  company  will  be 
presumed  to  have  authority  to  make  such  a  contract.  Any  other 
holding  would  be  contrary  to  good  reason.  As  said  before,  these 
contracts  are  matters  of  convenience  to  the  general  public,  in  that 
the  sender  is  not  compelled  to  make  contracts  with  the  connecting 
lines,  but  may  accomplish  his  purpose  by  making  one  contract  for 
the  entire  route.  Then,  if  the  company  has  this  right  and  it  is  a 
matter  of  convenience  to  the  public,  surely  the  company  should 
delegate  the  authority  to  some  of  its  agents,  conveniently  situated 

143  Turner  t.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep.  605.  See,  also, 
Crouch  V.  Great  Western  Railway,  2  Hurl.  &  N.  491;  Great  Western  Rail- 
way Co.  V.  Crouch,  3  Hurl.  &  N.  1S3 ;  Grand  Trunk  R.  Co.  v.  McINIillan,  16 
Can.  Sup.  Ct.  R.  543,  42  Am.  &  Eng.  R.  Cas.  468 ;  West.  U.  Tel.  Co.  v.  Strate- 
meier,  6  Ind.  App.  125,  32  N.  E.  871.  See,  also,  West.  U.  Tel.  Co.  v.  Carter, 
24  Tex.  Civ.  App.  80,  58  S.  W.  198;  American  Ex.  Co.  v.  Postal  Tel.  Cable 
Co.,  97  Neb.  701,  151  N.  W.  240. 

144  West.  U.  Tel.  Co.  v.  Carter,  24  Tex.  Civ.  App.  80,  58  S.  W.  198.  See, 
also,  Burtis  v.  Buffalo,  etc.,  R.  Co.,  24  N.  Y.  209 ;  Phillips  v.  N.  C.  Co.,  78 
N.  C.  294 ;  Lindley  v.  Richmond,  etc.,  R.  Co.,  88  N.  C.  547 ;  McCarn  v.  Inter., 
etc.,  R.  Co.,  84  Tex.  352,  19  S.  W.  547,  16  L.  R.  A.  39,  31  Am.  St.  Rep.  51. 

145  Perkins  v.  Portland,  etc.,  R.,  47  Me.  573,  74  Am.  Dec.  507;  Root  v. 
Great  Western  R.,  45  N.  Y.  524 ;  Hill  Mfg.  Co.  v.  Boston,  etc.,  R.,  104  Mass. 
122,  6  Am.  Rep.  202. 

146  See  cases  in  note  143,  supra. 

147  Muschamp  v.  Lancaster  &  P.  J.  R.  R.  Co.,  8  M.  &  W.  421;  Scothorn  v. 
South,  etc.,  R.,  8  Exch.  341;  Rickerson  R.  M.  Co.  v.  Grand  Rapids,  etc.,  R. 
Co.,  67  Mich.  110,  34  N.  W.  269 ;  Taylor  v.  Maine  Cent.  R.  Co.,  87  Me.  299, 
32  Atl.  905. 

14  8  joues  v.  Roach,  21  Tex.  Civ.  App.  301,  51  S.  W.  549. 


§    455)  LIABILITY   IN  PARTICULAR  CASES  587 

to  the  public,  and  it  will  be  presumed  that  the  operators  have  this 
authority. 

§  454.  Connecting  lines. — Having  considered  to  some  extent 
the  duties  and  liabilities  of  the  initial  companies,  we  shall  now  say- 
something  about  the  duties  and  liabilities  of  connecting  companies; 
and  first  we  shall  see  what  is  understood  by  the  term  "connecting 
telegraph  companies."  A  "connecting  telegraph  company"  is  one 
whose  lines  are  situated  and  extend  somewhere,  in  whole  or  in 
part,  between  the  initial  line  and  the  place  to  which  a  message  may 
be  desired  to  be  sent.^^^  The  line  may  be  entirely  between  these 
two,  or  the  point  of  destination  may  be  on  the  line  of  the  connect- 
ing company.  In  order  for  it  to  be  a  connecting  line,  there  must 
be  another  line  intervening  between  this  one  and  the  place  at 
which  the  message  is  first  tendered  for  transmission.  In  other 
words,  there  must  be  a  connection  between  the  two  lines,  and 
the  connecting  company  must  not  be  on  the  initial  line,  or  the 
company  first  accepting  the  message  for  transmission. 

§  455.  Same  continued — duty  to  accept  messages  tendered. — 
It  is  the  duty  of  the  connecting  company  to  accept  all  messages 
tendered  it  by  the  initial  line.^^*'  It  is  as  much  the  duty  of  this 
company  to  accept  these  messages  as  it  is  for  the  initial  company 
to  accept  them.  There  have  been  statutes  adopted  in  some  of  the 
states  which  attempt  to  enforce  this  duty,  but  it  is  held  that  these 
statutes  are  only  declaratory  of  the  common-law  duty,  and  that  it 
is  as  much  the  duty  of  these  companies  as  if  no  statute  had  been 
enacted. ^^^  It  is  generally  held,  however,  that  this  duty  only 
applies  where  the  message  is  destined  to  some  point  on  its  line, 
and  that  it  is  not  the  duty  of  these  connecting  lines  to  accept  a 
message  whose  destination  is  at  some  point  beyond  the  terminus 
of  its  line.^^^  If  the  company,  however,  undertakes,  as  part  of  its 
regular  business,  to  transmit  messages  beyond  its  terminus,  it 
would  be  part  of  its  duty  to  accept  all  messages  of  like  nature,  but 

149  Hutchinson  on  Carriers  (2(1  Ed.)  §  157a. 

150  See  §  365. 

151  U.  S.  Tel.  Co.  V.  West.  U.  Tel.  Co.,  56  Barb.  (N.  Y.)  46;  Baldwin  v. 
U.  S.  Tel.  Co.,  6  Abb.  Prac.  N.  S.  (N.  Y.)  405.  In  the  last  case  it  was  held 
that  under  a  statute  requiring  connecting  telegraph  companies  to  receive  and 
forward  messages  transmitted  for  the  purpose  upon  each  other's  line,  a 
company  receiving  a  message  to  be  forwarded,  in  part,  over  such  connecting 
line,  is  to  be  regarded  as  authorized  to  malve  the  contract  respecting  its  trans- 
mission for  such  line ;  and  the  receipt  by  the  former  company  of  an  entire 
price  for  the  message  is  a  sufficient  consideration  for  the  express  or  implied 
obligation  resulting  against  such  connecting  company. 

102  See  §  275. 


588  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  456 

in  doing  so  it  may  affix  reasonable  conditions  and  limitations  to  its 
liabilities. ^^^ 

§  456.  Same  continued — duty  of. — The  duties  of  a  connecting 
line  are  similar  to  those  of  the  initial  company.  Thus,  where  there 
is  more  than  one  message  delivered  by  the  latter  to  a  connecting 
line,  it  must  accept  and  transmit  each  in  the  regular  order  of  time 
in  which  they  are  received  without  any  discrimination. ^"^  In  some 
instances,  on  account  of  the  nature  of  the  message,  there  may 
be  an  exception  to  this  rule,  the  same  as  enjoyed  by  the  initial 
line.^^^  It  must  exercise  due  diligence  in  making  a  prompt  and 
correct  transmission  of  the  message,  and  should  use  the  same  dili- 
gence to  make  a  prompt  delivery  of  it  as  the  initial  line,  if  the 
latter's  line  extends  to  the  point  to  which  it  is  sent.^^®  When  it  is 
necessary  to  transmit  the  messages  over  another  connecting  line, 
in  order  to  reach  its  destination,  the  intermediate  or  first  connect- 
ing line  should  make  a  prompt  delivery  of  the  message  to  this 
connecting  line.^^^  As  said,^^^  the  sender  may  select  the  con- 
necting line  over  which  his  message  should  be  sent,  but  if  for 
any  reason  this  line  selected  refuses  to  accept,  or  cannot  transmit 
the  message,  the  connecting  company  should  use  reasonable  ef- 
forts to  notify  the  sender  of  this  fact;^^®  and  if  the  information 
cannot  be  imparted  to  him,  then  it  is  the  duty  of  the  company  to 
select  some  other  suitable  route  for  the  transmission  of  the  mes- 
sage. 

§  457.  Liability  of  connecting  lines, — The  liabilities  of  the  con- 
necting company  are  also  somewhat  similar  to  those  of  the  initial 
lines. ^'^'^  The  connecting  company's  liability  does  not,  however,  be- 

153  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844;  Pitlock  v.  Wells, 
109  ]\Iass.  452 ;  U.  S.  Tel.  Co.  v.  West.  U.  Tel.  Co.,  56  Barb.  (N.  Y.)  46 ;  West. 
U.  Tel.  Co.  V.  Taylor,  3  Tex.  Civ.  App.  310,  22  S.  W.  532.  In  the  case  of 
the  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E.  871,  plaintiff 
asked  the  agent  whether  it  had  a  line  and  receiving  station  at  a  certain 
point,  and  upon  being  informed  that  it  had,  he  delivered  to  the  agent  a 
message  directed  to  such  point,  relying  entirely  on  the  operator's  representa- 
tions. In  an  action  for  failure  to  deliver  such  message,  it  was  held  that  the 
company  was  estopped  to  deny  that  it  had  no  line  or  receiving  station  at 
the  point  named. 

134  See  §  250. 

155  Id. 

15  6  West.  U.  Tel.  Co.  v.  Lyman,  3  Tex.  Civ.  App.  460,  22  S.  W.  656;  Martin 
V.  West.  U.  Tel.  Co.,  1  Tex.  Civ.  App.  143,  20  S.  W.  860.     See  §  284  et  seq. 

157  Smith  V.  West.  U.  Tel.  Co.,  84  Tex.  359,  19  S.  W.  441,  31  Am.  St.  Rep.  59. 

158  See  §  462. 

159  See  §§  283,  291. 

16  0  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  1.57;  Baldwin 
V.  United  States  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep.  165,  reversing  54  Barb. 
505;    Leonard  v.  New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  41  N.  Y.  544,  1  Am. 


I   458)  LIABILITY  IN   PARTICULAR   CASES  5S9 

gin  to  run  until  the  message  has  been  actually  delivered  to  it.^^^ 
The  connecting  company  cannot,  as  a  rule,  be  held  for  the  neg- 
ligence of  the  initial  or  of  the  other  connecting  lines  in  the  absence 
of  a  partnership,  express  or  implied. ^"^^^  Thus,  if  a  delay  on  the 
first  line  causes  a  greater  delay  on  the  connecting  line,  the  latter 
will  not  be  liable.^®^  If  there  is  a  delay  in  delivering  the  message 
after  it  has  been  transmitted,  the  last  line  v^ill  be  liable.^*'*  But 
sometimes,  because  of  the  relation  of  principal  and  agent,  and  more 
frequently  because  of  some  partnership  arrangement  existing  be- 
tween the  lines,  one  connecting  line  has  been  held  liable  for  the 
negligence  of  some  of  the  other  lines. ^^^  If  several  of  these  com- 
panies have  been  guilt}^  of  negligence  in  the  transmission,  that 
one  will  be  held  responsible  whose  negligence  was  the  proximate 
cause  of  the  loss  complained  of.^®*'  Thus,  where  the  addressee's 
name  is  negligently  changed  by  one  of  the  lines,  but  the  error  is 
corrected  by  another  line,  the  negligence  of  the  first  will  not  be 
the  proximate  cause  of  the  loss,  if  it  were  not  otherwise  negli- 
gent.^^^ 

§  458.  Burden  of  proof. — It  has  been  held  that,  where  a  loss 
has  occurred  in  the  transportation  of  goods,  it  is  presumed  that 

Rep.  446;  West.  U.  Tel.  Co.  v.  Lyman,  3  Tex.  Civ.  App.  460,  22  S.  W.  656, 
holding  that  a  connecting  telegraph  company  is  liable  to  the  addressee  for 
Its  own  negligence  and  that  the  original  contract  of  transmission  was  be- 
tween the  transmitting  company  and  the  sender  of  the  message ;  West.  U. 
Tel.  Co.  V.  Taylor,  3  Tex.  Civ.  App.  310,  22  S.  W.  532 ;  but  not  for  special 
damages  in  the  absence  of  notice  of  facts  which  wovild  warrant  such  in 
case  of  failure  to  discharge  duty,  Baldwin  v.  United  States  Tv,l.  Co.,  supra. 
See,  also,  Sabine  Valley  Tel.  Co.  v.  Oliver,  46  Tex.  Civ.  App.  428,  102  S.  W. 
925. 

161  Missouri  Pac.  R.  Co.  v.  Wichita,  etc.,  Co.,  55  Kan.  525,  40  Pac.  899; 
Condon  v.  Marquette,  etc.,  R.  Co.,  55  Mich.  218,  21  N.  W.  321,  54  Am.  Rep.  367 ; 
Petersen  v.  Case  (C.  C.)  21  Fed.  885;  West.  U.  Tel.  Co.  v.  Seals  (Tex.  Civ. 
App.)  45  S.  W.  964;  Weatherford,  etc.,  R.  Co.  v.  Seals  (Tex.  Civ.  App.) 
41  S.  W.  841;  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157; 
Smith  V.  West.  U.  Tel.  Co.,  84  Tex.  359,  19  S.  W.  441,  31  Am.  St.  Rep.  59. 

102  Montgomery,  etc.,  R.  Co.  v.  Moore,  51  Ala.  394;  Knott  v.  Raleigh, 
etc.,  R.  Co.,  98  N.  C.  73,  8  S.  E.  735,  2  Am.  St.  Rep.  321;  Lowenburg  v. 
Jones,  56  Miss.  688,  31  Am.  Rep.  379;  Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y. 
744,  6  Am.  Rep.  165.     See  §  459. 

163  Weatherford,  etc.,  R.  Co.  v.  Seals  (Tex.  Civ.  App.)  41  S.  W.  841.  See 
§  405. 

164  West.  U.  Tel.  Co.  v.  Phillips,  2  Tex.  Civ.  App.  60S,  21  S.  W.  638. 

165  De  Rutte  v.  New  York,  etc.,  Elec.  INIag.  Tel.  Co.,  1  Daly  (N.  Y.)  547. 
30  How.  Prac.  403 ;  West.  U.  Tel.  Co.  v.  Shumate,  2  Tex.  Civ.  App.  429,  21  S. 
W.  109. 

166  West.  U.  Tel.  Co.  v.  Munford,  87  Tenn.  100,  10  S.  W.  318,  2  L.  R. 
A.  601,  note,  10  Am.  St.  Rep.  630;    Baldwin  v.  United  States  Tel.  Co.,  45  N. 

167  West.  U.  Tel.  Co.  v.  Munford,  87  Tenn.  190,  10  S.  W.  818,  2  L.  R.  A. 
eOln,  10  Am.  St.  Rep.  630. 


590  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  459 

the  loss  occurred  on  the  last  connecting-  line.^^^  But  this  rule  has 
been  held  by  many  able  courts  and  text-writers  to  be  unsound. ^^^ 
The  general  rule  of  telegraph  companies  in  this  respect  is  that, 
where  any  connecting  line  is  sued,  the  presumptions  are  that  it 
was  guilty  of  negligence,  and  the  burden  is  upon  it  to  show  that 
the  delay  or  error  did  not  occur  on  its  line.^^*'  The  reason  for 
holding  to  such  a  rule  is  that  the  facts  of  its  guilt  or  innocence  lies 
more  within  the  knowledge  of  the  company  than  it  does  in  the 
sender  or  the  injured  party.  As  said  in  a  former  part  of  this  work, 
it  would  be  an  unreasonable  rule  to  require  the  injured  party  to 
show  the  negligence  of  the  company  which  lies  more  peculiarly 
within  the  knowledge  of  the  latter.^^^  To  enforce  such  a  rule 
would  be  nothing  more  nor  less  than  the  defeat  of  every  case 
brought  against  these  companies  for  losses  or  injuries.  The  more 
reasonable  rule,  therefore,  would  be  to  cast  the  burden  of  proof 
upon  the  connecting  line  sued.^''^ 

§  459.  Partnership  arrangements  between  the  several  lines. — 
Telegraph  companies  may  have  some  kind  of  partnership  arrange- 
ment, with  respect  to  messages  transmitted  over  their  respective 
lines,  and  when  such  is  the  case  each  will  be  liable  for  the  neg- 
ligence of  the  other.^'''  The  difficulty  in  these  cases  is  proving 
the  partnership.  This  relation  of  liability  of  connecting  companies 
may  exist  as  to  third  persons  without  its  existence  toward  each 
other.^^*     But  it  has  been  held  that  the  mere  fact  of  one  company 

Y.  744,  6  Am.  Rep.  165,  reversing  54  Barb.  505 ;  Leonard  v.  New  York,  etc., 
Elec.  Mag.  Tel.  Co.,  41  X.  Y.  544,  1  Am.  Rep.  446:  Stevenson  v.  Montreal 
Tel.  Co.,  16  U.  C.  Q.  B.  530.  See,  also,  West.  U.  Tel.  Co.  v.  Stratemeler,  6 
Ind.  App.  125,  32  N.  E.  871. 

1C8  Tex.,  etc.,  R.  Co.  v.  Adams,  78  Tex.  372,  14  S.  W.  666,  22  Am.  St.  Rep. 
56;  Lindley  v.  Richmond,  etc.,  R.  Co.,  88  N.  C.  547;  Savannah,  etc..  R. 
Co.  V.  Harris,  26  Fla.  148.  7  South.  544,  28  Am.  St.  Rep.  551 ;  Beard  &  Sons 
V.  111.  Cent.  R.  Co.,  79  Iowa,  518.  44  N.  W.  800,  18  Am.  St.  Rep.  381,  7  L. 
R.  A.  280.  See  Act  to  Regulate  Commerce  Feb.  4,  1887,  c.  104,  §  20,  34  Stat, 
386,  as  amended  by  Act  June  29,  1906,  c.  3591,  §  7,  34  Stat.  593  (Comp.  St. 
1913,  §  8592). 

16  0  Missouri  Pac.  R.  Co.  v.  Breeding,  4  Willson,  Civ,  Cas.  Ct,  (Tex.)  §  154, 
16  S,  W,  184 ;  Gulf,  etc.,  R.  Co.  v.  Holder,  10  Tex.  Civ.  App.  223,  30  S.  W. 
383;  Evans  v.  Atlanta,  etc.,  R.  Co.,  56  Ga.  498;  Goodman  v,  Oregon,  etc., 
R.  Co.,  22  Or.  14,  28  Pac.  894. 

170  West,  U.  Tel.  Co.  v.  Munford,  87  Tenn.  190,  10  S.  W.  318,  10  Am.  St. 
Rep.   630,  2  L.   R.   A.   601. 
iTi  See  chapter  XIII. 

17  2  See  chapter  XIII.     See,  also,  §  509. 

173  Baldwin  v.  U.  S,  Tel,  Co,,  45  N,  Y.  744.  6  Am,  Rep.  165;  West.  U.  Tel. 
Co.  V.  Lovely   (Tex.  Civ,  App,)  52  S.  W.  563, 

174  Block  V,  Fitchburg  R,  Co.,  139  Mass.  308,  1  X.  E.  348;  Wyman  v.  Chi- 
cago, etc.,  R.  Co..  4  Mo.  App.  35;  Hood  v.  N.  Y.,  etc.,  R.  Co.,  22  Conn.  1; 
Brooks  V.  Grand  Trunk  R.  Co.,  15  Mich.  332. 


§   460)  LIABILITY  IN   PARTICULAR   CASES  591 

regularly  receiving  messages  to  be  sent  over  its  own  and  that 
of  another  line  was  not  of  itself  sufficient  evidence  of  a  partnership, 
whereby  one  would  become  responsible  for  the  negligence  of  the 
other.^'^^  Yet,  where  these  companies  have  associated  themselves 
under  a  contract  for  a  division  of  the  profits,  made  in  the  contract 
for  sending,  in  a  certain  proportion  of  the  receipts  after  deducting 
the  expenses  incurred  in  the  transmission  of  the  message,  they  be- 
come jointly  liable  as  partners  to  third  persons. ^^®  But  "where 
the  agreement  is  that  each  shall  bear  the  expenses  of  his  own 
route,  *  *  *  and  the  gross  receipts  shall  be  divided  in  propor- 
tion to  distance,  they  are  partners  neither  inter  se  nor  as  to  third 
persons,  and  incur  no  joint  liability."  ^■^" 

§  460.  Effect  of  contract  of  sending  on  connecting  lines. — If  a 
connecting  company  is  designated  as  such  in  the  original  contract 
for  sending,  or  if  the  blank  form  of  the  company  provides  that 
all  stipulations  therein  shall  inure  to  the  benefit  of  all  the  connect- 
ing lines,  then,  having  accepted  the  message  thereunder  without 
requiring  any  separate  contract,  it  becomes  virtually  a  party  to 
the  contract  and  is  bound  by  all  the  undertakings  therein  and  ben- 
efited by   all  the  limitations.^^®     If,  however,   no  connecting  line 

175  Baldwin  v.  United  States  Tel.  Co.,  4.5  N.  Y.  744,  6  Am.  Rep.  1G.5,  re- 
versing 54  Barb.  505;  West.  U.  Tel.  Co.  v.  Lovely  (Tex.  Civ.  App.)  52  S. 
W.  063.  The  rule  vpould  not  be  changed  if  the  initial,  for  convenience,  col- 
lected the  toll  and  later  gave  to  the  connecting  line  its  share  thereof.  West. 
U.  Tel.  Co.  V.  Lovely,  supra.  But  see  De  Rutte  v.  New  York,  etc.,  Elec.  Mag. 
Tel.  Co.,  1  Daly  (N.  Y.)  547,  30  How.  Prac.  403;  West.  U.  Tel.  Co.  v.  Shu- 
mate, 2  Tex.  Civ.  App.  429,  21  S.  W.  109. 

176  Hutchinson  on  Carriers  (2d  Ed.)  §  169;  Hart  v.  Rensselaer,  etc.,  R. 
Co.,  8  N.  Y.  37,  59  Am.  Dec.  447 ;  Peterson  v.  Chicago,  etc.,  R.  Co.,  SO  Iowa, 
92,  45  N.  W.  573.  An  action  to  recover  a  statutory  penalty,  based  on  the 
failure  of  the  last  line  to  deliver  a  message,  cannot  be  maintained  against 
such  line  and  the  initial  line  jointly,  there  being  no  joint  default  and  no 
claim  of  a  joint  conduct  of  business.  Chandler  v.  West.  U.  Tel.  Co.,  94  Ga. 
442,  21  S.  E.  832 ;  West.  U.  Tel.  Co.  v.  Craven  (Tex.  Civ.  App.)  95  S.  W.  633 ; 
Sabine  Valley  Tel.  Co.  v.  Oliver,  46  Tex.  Civ.  App.  428,  102  S.  W.  925: 
Telephone,  etc.,  Co.  v.  Jarrell   (Tex.  Civ.  App.)  138  S.  W.  1165. 

177  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W.  216;  Adams  Ex. 
Co.  V.  Harris,  120  Ind.  73,  21  N.  E.  340,  7  L.  R.  A.  214,  note,  16  Am.  St.  Rep. 
315;  U.  S.  Ex.  Co.  v.  Harris,  51  Ind.  127;  St.  Louis,  etc.,  R.  Co.  v.  Weakley,  50 
Ark.  .397,  8  S.  W.  134,  7  Am.  St.  Rep.  104;  Halliday  v.  St.  Louis,  etc..  R. 
Co.,  74  Mo.  159,  41  Am.  Rep.  .309;  Maghee  v.  Camden,  etc.,  R.  Co.,  45  N. 
Y.  514,  6  Am.  Rep.  125 ;    West.  R.  Co.  v.  Harwell,  97  Ala.  341,  11  South.  781. 

178  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W.  216;  Adams  Ex. 
Co.  V.  Harris,  120  Ind.  73,  21  N.  E.  .340,  7  L.  R.  A.  214,  note,  16  Am.  St.  Rep. 
315;  U.  S.  Ex.  Co.  v.  Harris,  51  Ind.  127;  St.  Louis,  etc.,  R.  Co.  v.  Weakley, 
50  Ark.  397,  8  S.  W.  134,  7  Am.  St.  Rep.  104;  Halliday  v.  St.  Louis,  etc., 
R.  Co.,  74  Mo.  159,  41  Am.  Rep.  309;  Maghee  v.  Camden,  etc..  R.  Co.,  45 
N.  Y.  514,  6  Am.  Rep.  125;  West.  R.  Co.  v.  Harwell,  97  Ala.  341,  11  South. 
78L     See  §  405. 


592  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  461 

is  designated  in  the  message,  but  the  selection  is  left  to  the  initial 
company,  and  the  stipulations  contained  in  the  blanks  used  by  the 
first  company  do  not  provide  that  they  will  inure  to  the  benefit 
of  any  other  line,  the  connecting  line  cannot  claim  any  benefit 
growing  out  of  the  original  contract.^^^  And  it  has  been  held  that, 
where  a  statute  requires  connecting  companies  to  accept  messages 
from  other  lines,  the  fact  that  it  has  complied  with  the  statutes 
cannot  be  considered  as  a  ratification  of  the  original  contract.^**" 
It  is  seldom  that  the  sender  exercises  the  right  to  select  the  con- 
necting line,  but,  when  he  does,  these  companies  seldom  acquire 
any  of  the  benefits  of  the  original  contract,  because  there  are  gen- 
erally to  be  found  stipulations  in  these  contracts  which  provide 
that  the  company  will  not  be  liable  for  delays  and  errors  beyond 
the  terminus  of  its  own  line.^^^ 

§  461.  Liability  for  defaults  of  common  agent. — It  occasionally 
happens  that  connecting  telegraph  companies  have  a  common 
agent  or  operator,  and  the  question  is  whether  or  not  they  will  be 
jointly  liable  for  his  defaults.  The  question  has  been  answered — 
and  correctly  we  think — in  the  affirmative,  but  they  are  not  liable 
for  each  other's  faults/**-  We  think  the  fact  that  he  is  acting 
for  both  companies  may  be  considered,  with  other  circumstances, 
as  tending  to  show  a  joint  liability  or  a  partnership  arrangement, 
and  if  they  hold  him  out  as  having  authority  to  make  them  jointly 
liable,  he  may  do  so  in  favor  of  one  who  rightfully  relies  on  the 
apparent  authority,  although  in  fact  he  has  no  such  authority.^ *^ 

§  462,  Sender's  right  to  select  route. — As  said  elsewhere,  there 
is  generally  a  stipulation  in  the  message  blanks  to  the  effect  that 
the  company  will  not  be  liable  for  delays  and  errors  made  beyond 
the  terminus  of  its  own  line,  and  will  only  act  as  the  sender's  agent 
to  engage  the  services  of  another  connecting  line.^^*  When  this 
is  the  case,  it  is  the  right  of  the  sender  to  name  the  route  the 

179  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157.  See,  also, 
Adams  Ex.  Co.  v.  Harris,  120  Ind.  73,  21  N.  E.  340,  7  L.  R.  A.  214n,  16 
Am.  St.  Rep.  315;  Bancroft  v.  Merchants',  etc.,  Co.,  47  Iowa,  262,  29  Am. 
Rep.  4S2 ;   Cent.  R.,  etc.,  Co.  v.  Bridger,  94  Ga.  471,  20  S.  E.  349.     See  §  405. 

180  Gulf,  etc.,  R.  Co.  v.  Dwyer,  75  Tex.  572,  12  S.  W.  1001,  7  L.  R.  A.  478, 
16  Am.  St.  Rep.  926 ;    Same  v.  Baird,  75  Tex.  256,  12  S.  W.  530. 

181  See  §  405. 

182  Hutchinson  on  Carriers  (2d  Ed.)  §  169;  Smith  &  Elliott  v.  Mo.,  etc., 
R.  Co.,  58  Mo.  App.  80.  See  Weatherford,  etc.,  R.  Co.  v.  Seals  (Tex.  Civ. 
App.)  41  S.  W.  841. 

1  S3  Midland  Railway  v.  Bromley,  17  Com.  B.  372;  Chicago,  etc.,  R.  Co. 
V.  Northern,  etc.,  Co.,  70  111.  217;  Southwestern,  etc.,  Tel.  Co.  v.  Taylor,  26 
Tex.  Civ.  App.  79,  63  S,  W.  1076. 

184  See  §  405. 


§    463)  LIABILITY   IN   PARTICULAR  CASES  59^ 

message  shall  go  after  it  reaches  the  terminus  of  the  initial  line.^^^ 
It  was  decided  in  a  case  on  this  subject,  where  the  destination 
could  be  reached  from  the  company's  terminus  by  two  telephone 
lines/^*'  that  the  sender  had  the  right  to  indicate  which  line  should 
be  used,  although  it  was  the  rule  of  the  company  that  the  mes- 
sage should  be  sent  over  the  nearest  line  that  was  open,  and  that 
it  was  negligent  in  the  company  to  use  the  other,  in  consequence 
of  which  a  delay  occurred.^"  Should  the  sender  neglect  to  ex- 
ercise the  right  of  selecting  the  route,  or  if  the  route  selected  can- 
not for  any  cause  transmit  the  message,  and  the  company  has  un- 
successfully attempted  to  inform  the  sender  of  this  fact,  it  should 
exercise  ordinary  judgment  in  selecting  a  route  for  the  sender  and 
promptly  deliver  the  message  to  this  line  with  the  instruction  to 
forward  it  on  to  its  destination. ^^^ 

§  463.  Same  continued — result  of  bad  selection — initial  com- 
pany— not  liable. — The  initial  company,  in  the  absence  of  any  part- 
nership arrangement,  only  represents  the  sender  in  the  capacity  of 
agent  so  far  as  to  the  selection  of  the  connecting  route  over  which 
the  message  must  necessarily  be  sent  in  order  to  reach  its  destina- 
tion.^®^ It  must  comply  with  the  instructions  of  the  sender,^"" 
and  it  is  not  liable  for  errors  made  by  the  latter  in  the  way  of  a 
bad  selection. ^^^  So,  if  the  sender  has  selected  a  certain  route,  the 
initial  company  will  not  be  liable  for  any  delays  in  consequence 
of  such  selection.  The  initial  company  may  know  it  to  be  a  mis- 
take of  the  sender  in  making  the  selection,  but  it  is  under  no  duty 

185  West.  U.  Tel.  Co.  v.  Turner,  94  Tex.  304,  60  S.  W.  432;  West.  U.  Tel. 
Co.  V.  Simins,  30  Tex.  Civ.  App.  32,  69  S.  W.  464 ;  West.  U.  Tel.  Co.  v.  Mc- 
Donald, 42  Tex.  Civ.  App.  229,  95  S.  W.  691.  See  West.  U.  Tel.  Co.  v.  Alford, 
110  Ark.  379,  161  S.  W.  1027,  50  L.  R.  A.    (N.  S.)  94. 

1S6  Diverting  message  to  telephone. — Where  a  message  has  been  filed  for 
a  point  to  which  there  is  a  continuous  telegraph  line,  it  should  be  sent  the 
whole  distance  by  telegraph,  although  the  receiving  company  does  not  con- 
trol the  line  to  destination.  And  it  cannot  divert  the  message  to  a  tele- 
phone line  at  the  point  of  its  line  nearest  the  point  of  destination.  West. 
U.  Tel.  Co.  V.  Alford,  110  Ark.  379,  161  S.  W.  1027,  50  L.  R.  A.  (N.  S.)  94; 
West.  U.  Tel.  Co.  v.  McLeod  (Tex.  Civ.  App.)  24  S.  W.  815;  West.  U.  Tel. 
Co.  V.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep.  579. 

187  West.  U.  Tel.  Co.  v.  Turner,  94  Tex.  304,  60  S.  W.  432. 

188  Mitchell  V.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016; 
Beasley  v.  West.  U.  Tel.  Co.   (C.  C.)  39  Fed.  181. 

189  See  §  405. 

190  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E.  871;  West. 
U.  Tel.  Co.  V.  Alford,  110  Ark.  379,  161  S.  W.  1027,  50  L.  R.  A.  (N.  S.)  94. 

191  West.  U.  Tel.  Co.  v.  Simras,  30  Tex.  Civ.  App.  32,  69  S.  W.  464.  The 
rule  would  be  otherwise  if  the  company  does  not  deliver  the  message  to  the 
line  designated.    West.  U.  Tel.  Co.  v.  Turner,  94  Tex.  304,  60  S.  W.  432. 

Jones  Tel.(2d  Ed.) — 38 


594  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  464 

to  adopt  another  route  when  it  knows,  at  the  time  of  sending-,  that 
the  selected  route  is  not  opened. ^^^ 

§  464.  Same  continued — exact  extra  fee  or  charges. — When  the 
sender  has  selected  the  route,  this  necessarily  puts  the  company 
to  some  additional  expense,  and  increases  their  duties  to  the  ex- 
tent that  the  wishes  of  the  sender  must  be  carried  out;  and,  while 
the  expense  and  additional  liability  of  the  company  have  been 
slightly  increased,  yet  it  seems  but  right  that  they  may  require 
of  the  sender  a  small  additional  charge  to  cover  this.^®'  One  of 
the  additional  expenses  incurred  in  the  transmission  of  such  mes- 
sages is  that  the  name  or  names  of  the  connecting  lines  must  be 
transmitted  along  with  the  message,  and  this  of  course  creates  an 
extra  trouble  and  expense. 

§  465.  Liability  of  companies  between  themselves — actions. — 
As  said  before,  connecting  companies  may  be  liable  to  third  per- 
sons as  partners,  when,  as  between  themselves,  they  are  not  part- 
ners, and  any  private  arrangement  made  between  themselves  may 
bind  them  without  affecting  their  liability  toward  third  persons. ^^* 
The  sender  may  institute  suit,  either  against  the  initial  company 
whose  liability  extends  beyond  its  own  terminus, ^^^  or  he  may  sue 
the  connecting  company  guilty  of  the  default;  ^^^    but,  as  between 

192  West.  U.  Tel.  Co.  v.  Simms,  30  Tex.  Civ.  App.  32,  69  S.  W.  464.  In 
West.  U.  Tel.  Co.  v.  Sorsby,  29  Tex.  Civ.  App.  349,  69  S.  W.  122,  where  the 
contract  made  the  initial  company  the  agent  of  the  sender  without  liability 
to  transmit  and  deliver  the  message  to  any  connecting  line  necessary  to 
reach  its  destination  and  the  connecting  line  notified  the  initial  company 
at  once  that  it  could  not  transmit  the  message  immediately  because  its  lines 
were  being  repaired,  it  was  held  that  the  initial  company  was  not  liable  for 
its  failure  to  transmit  the  telegram  to  its  destination  by  mail  or  by  telephone, 
although  it  conld  have  done  so  in  time  to  serve  the  purpose  of  the  sender, 
but  it  was  held  liable  for  its  failure  to  notify  the  sender  of  the  difficulty  at 
once  so  that  he  could  use  the  mails  or  the  telephone,  it  being  shown  that 
he  could  have  done  so  in  time  to  avoid  the  injury.  This  case  illustrates  in 
an  emphatic  manner  the  point  that  in  every  contract  to  send  a  telegram  there 
is  an  implied  contract  to  use  the  telegraph  lines,  and  there  is  no  duty  im- 
posed to  use  any  other  means  of  transmitting  the  message. 

193  u.  S.  V.  Northern  Pac.  R.  Co.  (C.  C.)  120  Fed.  546. 
i»4  See  §  459. 

195  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E.  871.  See, 
also,  West.  U.  Tel.  Co.  v.  Carter,  24  Tex.  Civ.  App.  SO,  58  S.  W.  198. 

Estopped. — Where  the  sender  of  a  message  inquires  if  the  company  has 
an  office  at  the  place  of  destination  and  is  informed  that  it  has,  and  there- 
upon delivers  the  message  and  pays  for  its  transmission  to  such  point,  the 
company  is  estopped  in  an  action  for  nondelivery  to  assert  that  it  had  no 
office  at  such  place  and  that  its  nondelivery  was  due  to  the  negligence  of  a 
connecting  line.     West.  U.  Tel.  Co.  v.   Stratemeier,  supra. 

180  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157 ;  Baldwin 
V.  United  States  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep.  165,  reversing  54  Barb. 
505;    Leonard  v.  New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  41  N.   Y.   544,  1  Am. 


I   465)  LIABILITY   IN   PARTICULAR   CASES  595 

the  companies,  the  general  rule  is  that  each  is  liable  for  its  own 
negligence  or  breach  of  duty.^®^  And  while  the  initial  company 
may  have  assumed  the  responsibility  for  the  transmission  of  the 
message  beyond  its  own  line,  and  damages  may  be  recovered 
against  it  for  the  default  of  the  connecting  line,  yet  the  company 
which  actually  caused  the  injury  will  be  liable  to  the  first  for  such 
damages.^^^  If  the  company  guilty  of  the  default  is  duly  notified 
to  come  into  court  and  defend  an  action  against  the  initial  line  for 
such  injury,  or,  it  seems,  if  it  is  not  expressly  notified  to  defend, 
but  knows  that  it  alone  caused  the  injury  and  is  liable,  and  is 
aware  of  the  pendency  of  such  a  suit  and  its  right  to  defend  against 
the  initial  company  for  such  injury,  the  judgment  against  the  lat- 
ter therein  will  be  conclusive  against  the  connecting  line  to-  the 
amount  of  damages  recovered  from  the  initial  company.^ ^^  While 
a  contract  made  by  the  sender  and  the  initial  company  to  transmit 
a  message  over  a  certain  connecting  line  may  be  of  benefit  to  the 
latter,  yet  it  is  not  a  contract  for  its  benefit  in  such  a  sense  as 
will  give  the  connecting  company  a  right  of  action  against  the 
initial  company  for  violating  the  contract,  by  delivering  the  mes- 
sage to  another  connecting  line.^*'° 

Rep.  446;  Smith  v.  West.  U.  Tel.  Co.,  84  Tex.  3.59,  19  S.  W.  441,  .SI  Am. 
St.  Rep.  59 ;    AVest.  U.  Tel.  Co.  v.  Lyman,  3  Tex.  Civ.  Ajip.  460,  22  S.  W.  6o6. 

Liability  to  addressee.— Vs' est.  U.  Tel.  Co.  v.  Taylor,  3  Tex.  Civ.  App.  310, 
22  S.  W.  .532. 

In  Smith  v.  West.  U.  Tel.  Co.,  supra,  it  was  held  that  the  connecting  com- 
pany was  liable  for  its  own  negligence  notwithstanding  a  stipulation  in 
the  original  contract  of  transmission  relieving  the  transmitting  company 
from  liability  for  defaults  of  connecting  lines. 

197  Baldwin  v.  United  States  Tel.  Co.,  4.5  N.  Y.  744,  6  Am.  Rep.  16.5,  re- 
versing 54  Barb.  505;  Leonard  v.  New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  41  N. 
Y.  544,  1  Am.  Rep.  446;  West.  U.  Tel.  Co.  v,  Munford,  87  Tenn.  190,  10  S. 
W.  318,  10  Am.  St.  Rep.  630,  2  L.  R.  A.  001 ;  Stevenson  v.  Montreal  Tel.  & 
Tel.  Co.,  16  U.  C.  Q.  B.  .530.  See,  also,  West.  U.  Tel.  Co.  v.  Stratemeier,  6 
Ind.  App.  125,  32  N.  E.  871. 

198  Missouri  Pac.  R.  Co.  v.  Twiss,  35  Neb.  267,  53  N.  W.  76,  37  Am.  St.  Rep. 
437;  Chicago,  etc.,  R.  Co.  v.  Northern,  etc.,  Co.,  70  111.  217;  Vermont,  etc., 
R.  Co.  V.  Fitchburg  R.  Co.,  14  Allen  (Mass.)  462.  92  Am.  Dec.  785. 

190  Missouri  Pac.  R.  Co.  v.  Twiss,  35  Neb.  267,  53  N.  W.  76,  37  Am.  St. 
Rep.  437.     See,  also,  Elliott  on  Roads  and  Streets,  656,  657. 

2  00  St.  Louis,  etc.,  R.  Co.  v.  Missouri  Pac.  R.  Co.,  35  Mo.  App.  272. 


)96  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  466 


CHAPTER  XVIII 

ACTIONS  FOR  DAMAGES  RESULTING  FROM  NEGLIGENT  DELAYS  OF 

TRANSMISSIONS 

§  466.  Parties — sender — ^in  general. 

467.  Same  continued — sender — action  in  tort  or  contract. 

468.  Same  continued — message — sent  by  agent. 

469.  Addressee — right  of  action — in  general. 

470.  Same  continued — grounds  on  which  rules  are  based. 

471.  English  rule — in  general. 

472.  Rule  applicable  to  telegraph  companies. 

473.  American  rule — in  general. 

474.  Same  continued — with  respect  to  telegraph  companies. 

475.  Addressee  beneficial  party. 

476.  Same  continued — sender  agent  of  addressee. 

477.  Action  for  breach  of  public  duty. 

478.  Same  continued — action  in  contract  or  tort 

479.  Same  continued — damages  under  either. 
4S0.  Agent  for  addressee. 

481.  Right  under  statute. 

482.  Right  of  action — altered  message. 

483.  Sender  paying  charges — effect  upon  the  addressee's  right. 

484.  Third  party — right  of  action. 

485.  Under  special  statutes — penalty. 

486.  Addressee's  right  not  affected — by  failure  to  have  message  repeated. 

487.  Actions  between  sender  and  addressee. 

488.  What  law  governs. 

489.  Contract  made  where  last  act  of  assent  was  done. 

490.  Same  continued — actions  between   sender  and  addressee — contract — 

where  made. 

491.  Same  continued — action  where  brought. 

§  466.  Parties — sender — in  general. — After  having  discussed,  at 
some  length,  the  liabilities  of- telegraph  companies  for  losses  oc- 
curring in  negligently  transmitting  or  delivering  messages,  we 
shall  now  discuss  actions  growing  out  of  such  negligence.  In  dis- 
cussing this  subject  we  shall  first  take  up  the  rights  of  certain 
persons  to  sue,  and  then  the  nature  of  the  action.  In  comment- 
ing on  the  last  subdivision  of  this  subject,  we  shall  consider  the 
rights  of  the  sender  to  sue.  The  sender  of  a  message  may  always 
maintain  an  action  against  a  telegraph  company  to  recover  dam- 
ages resulting  from  a  negligent  transmission  or  delay  of  the  mes- 
sage,^  but  the  questions  with  which  the  courts  have  been  con- 

1  Playford  v.  United  Kingdom,  etc.,  Tel.  Co.,  L.  R.  4  A.  B.  706,  10  B.  &  S. 
759 ;  Penn  v.  Telephone  Co.,  159  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.)  223 ; 
Mills  V.  Telephone  Co.,  8S  S.  C.  498,  70  S.  E.  1040,  Ann.  Cas.  1912C,  1273; 


8   467)  ACTIONS  FOR  DAMAGES  597 

fronted  are,  What  is  the  nature  of  the  action  to  be  maintained,  and 
who  is  the  rightful  person  to  be  considered  as  the  sender?^  In 
many  instances  the  rightful  sender  is  represented  in  making  the  con- 
tract by  an  agent.  Should  the  undisclosed  principal  in  the  con- 
tract bring  the  action,  or  is  it  the  duty  of  the  agent  who  sends  the 
message? 

§  467.  Same  continued — sender — action  in  tort  or  contract. — It 
has  been  held  that  a  telegraph  company  was  the  agent  of  the  send- 
er,^ and  by  others  that  it  was  the  agent  of  both  the  sender  and 
sendee,*  and  that  either  could  maintain  an  action  against  it  for  its 
negligence.  Some  of  the  courts  have,  however,  taken  the  position 
that  the  doctrines  of  agency  do  not  apply,  and  that  in  transmitting  a 
message  the  company  is  not  an  agent  for  either  of  these  parties, 
but  is  an  independent  principal,  and  one  of  a  public  nature.''  They 
are  institutions  incorporated  to  perform  public  functions,  and  in  dis- 
charging these  they  must  exercise  reasonable  and  ordinary  care 
and  diligence;   for  a  failure  to  do  so  they  will  be  liable  in  damages 

W.  U.  Tel.  Co.  V.  Bank,  7  Ala.  App.  637,  62  South.  250 ;  Bertuch  v.  Telephone, 
etc.,  Co.,  79  Misc.  Rep.  10,  139  N.  Y.  Supp.  289.  See  McCormick  v.  W.  U.  Tel. 
Co.,  79  Fed.  449,  25  C.  C.  A.  35,  38  L.  R.  A.  684 ;  Gulf,  etc.,  Tel.  Co.  v.  Richard- 
son, 79  Tex.  649,  15  S.  W.  689. 

2  West.  U.  Tel.  Co.  v.  Bro\yn,  108  Ind.  538,  8  N.  E.  171 ;  West.  U.  Tel.  Co.  v. 
Kinney,  106  Ind.  468,  7  N.  E.  191 ;  Gulf,  etc.,  Tel.  Co.  v.  Richardson,  79  Tex. 
649,  15  S.  W.  689,  holding  a  person  at  whose  instance,  for  whose  benefit,  and 
in  whose  name  the  message  was  sent,  and  who  pays  for  its  transmission,  is 
the  sender  and  entitled  to  sue,  although  the  message  was  not  prepared,  or  de- 
livered or  paid  for  by  him  in  person. 

Mental  anguish — husband — father. — Under  the  community  laws  a  husband 
can  recover  for  mental  anguish  suffered  by  the  wife.  Loper  v.  West.  U.  Tel. 
Co.,  70  Tex.  689,  80  S.  W.  600 ;  Southwestern  Tel.,  etc.,  Co.  v.  Dale  (Tex.  Civ. 
App.)  27  S.  W,  1059.  But  a  father  to  whom  a  message  is  sent  announcing  the 
death  of  a  son  cannot  be  joined  as  plaintiff  with  another  son  who  sent  the 
message  in  an  action  against  the  telegraph  company  for  negligent  failure  to 
deliver  it.    Anderson  v.  West.  U.  Tel.  Co.,  84  Tex.  17,  19  S.  W.  285. 

3  West.  U.  Tel.  Co.  v.  Shotter,  71  Ga.  760 ;  West.  U.  Tel.  Co.  v.  Flint  River 
Lbr.  Co.,  114  Ga.  576.  40  S.  E.  815,  88  Am.  St.  Rep.  36 ;  Sherrerd  v.  West.  U. 
Tel.  Co.,  146  Wis.  197,  131  N.  W.  341.  But  see  German  Fruit  Co.  v.  West.  U. 
Tel.  Co.,  137  Cal.  598,  70  Pac.  658,  59  L.  R.  A.  575 ;  Pegram  v.  West.  U.  Tel. 
Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557. 

4  N.  Y.  &  W.  Printing  Tel.  Co.  v.  Dryburg,  35  Pa.  298,  78  Am.  Dec.  338. 

5  Alexander  v.  West.  U.  Tel.  Co.,  66  Miss.  161,  5  South.  397,  14  Am.  St.  Rep. 
556,  3  L.  R.  A.  71 ;  McKee  v.  AVest.  U.  Tel.  Co.,  158  Ky.  143,  164  S.  W.  348,  51 
L.  R.  A.  (N.  S.)  439 ;  Strong  v.  West.  U.  Tel.  Co.,  18  Idalio,  3S9,  109  Pac.  910, 
Ann.  Cas.  1912A,  55,  30  L.  R.  A.  (N.  S.)  409 ;  Shingleur  v.  West.  U.  Tel.  Co.,  72 
Miss.  1030,  18  South.  425,  48  Am.  St.  Rep.  604,  30  L,  R.  A.  444 ;  Pepper  v. 
West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep.  699,  4  L.  R.  A. 
660.  See  Eureka  Cotton  Mills  v.  West.  U.  Tel.  Co.,  88  S.  C.  498,  70  S.  E.  1040, 
Ann.  Cas.  1912C,  1273 ;  I'ostal  Tel.  Cable  Co.  v.  Schaefer,  110  Ky.  907,  62  S.  W. 
1119.  But  see  Fisher  v.  West.  U.  Tel.  Co.,  119  Ky.  885,  84  S.  W.  1179.  See, 
also,  §§  487,  762. 


598  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  468. 

to  the  party  thereby  injured."  So,  if  a  party  contracts  with  one  of 
these  companies  to  transmit  a  message  to  a  certain  place,  and  it 
fails  to  exercise  care  in  the  transmission,  whereby  the  sender 
sufifers  loss,  he  may  recover  damages  for  such  loss.''  It  has  been 
held  by  some  courts  that,  when  a  contract  was  made  with  one  of 
these  companies  to  send  a  message  and  it  negligently  transmitted 
or  delayed  in  delivering  the  message,  the  company  was  guilty  of 
a  breach  of  contract  and  the  sender's  action  should  be  in  contract.^ 
But  the  weight  of  authority  is  that  the  sender  may  maintain  an 
action  for  the  breach  of  the  contract,  or  he  may  proceed  against 
the  company  for  the  breach  of  its  public  duty  or  sue  in  tort.'' 

§  468.  Same  continued — message — sent  by  agent. — The  most 
difficult  question  which  has  come  up  in  reviewing  this  subject  is, 
Who  should  maintain  the  suit  when  the  message  is  sent  for  an  un- 
disclosed principal?  It  has  been  generally  held  by  most  of  the 
courts  that  the  agent  cannot  maintain  the  suit  unless  he  is  inter- 
ested in  the  contract,^*'  but  that  it  is  the  duty  of  the  principal  to 
bring  the  action.  The  person  who  sends  the  message,  or  the  per- 
son with  whom  the  contract  was  made,  is  the  proper  party  to  re- 
cover damages  for  its  breach ;  and  he  may  recover  in  his  own 
name,  although  the  message  was  signed  by  another  person  as  his 
agent.^^  The  principal  is  entitled  to  all  the  advantages  and  ben- 
efits of  the  contract  made  by  his  agent ;  and  the  fact  that  the  com- 
pany only  contracted  with  the  agent,  and  had  no  knowledge  that 

6  Alexander  v.  West.  U.  Tel.  Co.,  06  Miss.  161,  5  South.  397,  14  Am.  St.  Rep. 
556,  3  L.  R.  A.  71 ;  Strong  v.  West.  U.  Tel.  Co.,  18  Iclabo,  389,  109  Pac.  910, 
Ann.  Cas.  1912A,  55,  30  L.  R.  A.  (N.  S.)  409. 

7  Gray  v.  Tel.  Co.,  108  Term.  39,  64  S.  W.  1063,  91  Am.  St.  Rep.  706,  56  L. 
R.  A.  301n.    See  other  cases  in  note  1,  supra. 

8  See  rule  in  Alabama,  note  40,  ante. 

0  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W.  789,  19  L.  R.  A.  (N.  S.) 
479,  127  Am.  St.  Rep.  991 ;  Reese  v.  West.  U.  Tel.  Co.,  123  Ind.  294,  24  N.  E. 
1C3,  7  L.  R.  A.  583 ;  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am. 
St.  Rep.  259,  14  L.  R.  A.  95 ;  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S. 
E.  71,  22  L.  R.  A.  (N.  S.)  540 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  489,  49  S. 
E.  165,  103  Am.  St.  Rep.  955,  67  L.  R.  A.  985,  1  Ann.  Cas.  349 ;  Woods  v.  West. 
U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128  Am.  St.  Rep.  581 ;  Cogdell  v.  West.  U. 
Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490 ;  West.  U.  Tel.  Co.  v.  Hill,  103  Ala.  18,  50 
South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058 ;  Shingleur  v.  West.  U. 
Tel.  Co.,  72  Miss.  1030,  IS  South.  425,  48  Am.  St.  Rep.  004,  30  L.  R.  A.  444,  hold- 
ing that  the  sender  may  sue  either  in  contract  or  in  tort,  but  ordinarily  the 
addressee's  right  of  action  is  in  tort. 

10  Rose  V.  United  States  Tel.  Co.,  34  How.  Prac.  (N.  Y.)  308. 

11  Young  V.  West.  U.  Tel.  Co.,  107  N.  C.  370,  11  S.  E.  1044,  22  Am.  St.  Rep. 
883,  9  L.  R.  A.  669n. ;  Thompson  v.  West.  U.  Tel.  Co.,  107  N.  C.  449,  12  S.  E. 
427;  Daughtery  v.  American  U.  Tel.  Co.,  75  Ala.  168,  51  Am.  Rep.  435.  See, 
also,  §  476,  and  cases  cited  thereunder. 


468)  ACTIONS  FOR  DAMAGES 


599 


the  plaintiff  was  in  fact  the  principal,  is  immaterial,^^  except  that 
it  might  set  up  as  a  defense  any  matter  occurring  prior  to  the  dis- 
-closure  of  the  principal  and  which  would  constitute  a  defense  in 
a  suit  by  the  agent.^^'  The  principal  may  sue  upon  a  contract 
made  by  his  agent  without  giving  notice  of  his  interest,  although 
the  other  party  supposed  the  agent  was  acting  solely  for  himself.^* 
So  a  telegraph  company  need  not  be  informed  that  the  sender  of  a 
telegram  is  acting  as  the  agent  for  another,  where  it  is  not  shown 
that  the  company  would  have  acted  differently  had  it  known  of  the 
agency  of  the  sender.^^  But  where  one  party  writes  a  dispatch 
and  gives  it  to  another  to  send,  who,  instead  of  sending  it,  writes 

12  Propeller  Tow  Boat  Co.  v.  West.  U.  Tel.  Co.,  124  Ga.  478,  52  S.  E.  766; 
Dodd  Gro.  Co.  v.  Postal  Tel.  Cable  Co.,  112  Ga.  685,  37  S.  E.  981 ;  West.  U. 
Tel.  Co.  V.  Manker,  145  Ala.  418,  41  South.  850 ;  Manker  v.  West.  U.  Tel.  Co., 
137  Ala.  292,  34  South.  839,  overruling  West.  U.  Tel.  Co.  v.  Allgood,  125  Ala. 
712,  27  South.  1024,  and  disapproving  on  this  point  West.  U.  Tel.  Co.  v.  Wil- 
son, 93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23  ;  Harkness  v.  West.  U.  Tel.  Co., 
73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  West.  U.  Tel.  Co.  v.  Broesche, 
72  Tex.  654,  10  S.  W.  734,  13  Am.  St.  Rep.  843 ;  Milliken  v.  West.  U.  Tel.  Co., 
110  N.  Y.  403,  IS  N.  E.  251,  1  L.  R.  A.  281 ;  Gulf  Coast,  etc.,  R.  Co.  v.  Todd 
(Tex.  App.)  19  S.  W.  761 ;  Leonard  v.  New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  41 
N.  Y.  544,  1  Am.  Rep.  446 ;  Purdom  Naval  Stoa-es  Co.  v.  West.  U.  Tel.  Co.  (C. 
C.)  153  Fed.  327 ;  Telephone  Co.  v.  Olivarri  (Tex.  Civ.  App.)  136  S.  W.  816.  See 
West.  U.  Tel.  Co.  v.  Potts.  120  Tenn.  37,  113  S.  W.  789,  127  Am.  St.  Rep.  991. 
19  L.  R.  A.  (N.  S.)  479 ;  West.  U.  Tel.  Co.  v.  Schriver,  141  Fed.  538,  72  C.  C.  A. 
596,  4  L.  R.  A.  (N.  S.)  678.     See,  also,  §  476. 

'Not  agent — unauthorized  act  of. — Where  one,  at  the  request  of  another,  wired 
for  certain  goods  desired  by  the  latter,  but  in  doing  so  does  not  act  as  his 
agent,  but  is  merely  seeking  to  supply  himself  with  the  goods  in  order  subse- 
quently to  sell  the  same  to  the  former  at  a  profit,  there  is  no  privity  between 
the  telegraph  company  and  the  latter  which  will  authorize  an  action  by  the 
latter  for  the  negligence  in  regard  to  the  delivery  of  the  message.  Deslottes 
V.  Baltimore,  etc.,  Tel.  Co.,  40  La.  Ann.  183,  3  South.  560.  And,  where  an 
agent  was  instructed  to  send  a  certain  message  prepared  by  the  plaintiff,  but 
instead  of  so  doing  the  former  wrote  out  and  sent  a  different  message,  and 
plaintiff's  interest  therein  was  not  disclosed  to  the  defendant,  plaintiff"  can- 
not recover  for  negligence  in  regard  to  its  transmission  or  delivery.  Elliott  v. 
West.  IT.  Tel.  Co.,  75  Tex.  18,  12  S.  W.  954,  16  Am.  St.  Rep.  872. 

13  See  Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St. 
Rep.  672 ;  West.  U.  Tel.  Co.  v.  Kerr,  4  Tex.  Civ.  App.  280,  23  S.  W.  564.  See, 
also,  §  476. 

14  Fo-ster  v.  Smith,  2  Colwell  (Tenn.)  474,  88  Am.  Dec.  604;  Sharp  v.  Jones, 
18  Ind.  314,  81  Am.  Dec.  359. 

15  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St.  Rep. 
-843. 

Rule  in  Alabama. — The  courts  in  Alabama  have  not  been  in  harmony  in  their 
decisions  upon  this  question.  According  to  the  early  rule,  there  could  be  no 
recovery  by  an  undisclosed  principle.  West.  U.  Tel.  Co.  v.  Allgood,  125  Ala. 
712,  27  South.  1024.  But  the  rule  was  held  otherwise  in  Manker  v.  West.  U. 
Tel.  Co.,  137  Ala.  292,  34  South.  839 ;  West.  U.  Tel.  Co.  v.  Millsap,  135  Ala. 
415,  33  South.  160,  message  referring  to  business  matter.  But  in  action  to 
recover  mental  anguish  the  latter  holding  was  not  sustained  in  West.  U.  Tel. 


600  TELEGRAPH  AND  TELEPHONE  COMPAXIES         (§  469 

another  and  signs  and  sends  it  without  notifying  the  company  that 
it  is  sent  on  behalf  of  the  first  party,  the  latter  cannot  hold  the 
company  liable  in  damages  for  losses  sustained  through  failure 
of  delivery.^®  There  are  some  instances  where  the  agent  may  sue 
in  his  own  name  for  the  breach  of  a  contract  made  by  him  for  the 
principal ;  ^^  as  where  he  is  interested  in  the  contract  to  the  ex- 
tent of  his  commission,  or  by  reason  of  a  special  property  in  the 
subject-matter.^^  So,  a  broker  may  sue  a  telegraph  company  in 
his  own  name  for  a  breach  of  contract  to  transmit  an  order  in 
his  name,  in  behalf  of  his  principal,  for  the  purchase  of  gold.  In 
such  a  case,  however,  he  sues  and  recovers  as  trustee  for  his  prin- 
cipal.^^ 

§  469.  Addressee — right  of  action — in  general. — One  of  the 
most  difficult  questions  with  which  the  courts  and  text-writers 
have  been  confronted,  and  one  which  has  not  been  settled  with 
any  degree  of  harmony,  is  the  rights  of  addressees  to  maintain 
suits  against  telegraph  companies  for  negligently  transmitting  or 
delivering  a  message,  or  for  delivering  a  forged  or  fraudulent 
message,  and  also  the  nature  of  the  action  to  be  brought.  There 
are  two  general  rules  upon  which  the  rights  of  the  addressee  have 
been  based.  They  are  known  as  the  English  rule  and  the  Ameri- 
can rule.  Some  of  our  courts,  seemingly  becoming  confused,  have 
to  a  certain  extent  followed  both  of  these  rules;  and  for  this  rea- 
son their  decisions  are  not  at  all  in  harmony,  nor  very  clear  in 
their  reasons.  We  shall  attempt  to  describe  these  rules  and  the 
grounds  on  which  each  is  based,  where  each  has  been  followed, 
and,   if   possible,   harmonize   the   various   holdings   of   the   courts. 

§  470.  Same  continued — grounds  on  which  rules  are  based. — 
Before  entering  into  the  discussion  of  either  of  these  rules,  it  is 
necessary  to  discuss  the  grounds  upon  which  each  is  based.  The 
general  rule  recognized  ever3^where,  subject  to  certain  exceptions 
in  some  jurisdictions,  is  that  a  contract  cannot  confer  rights  on 

Co.  V.  Xorthcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St.  Rep.  38.  In  West.  U. 
Tel.  Co.  V.  Brown,  6  Ala.  App.  339,  .59  South.  329,  it  was  said  that  a  mere  bene- 
ticiary  could  not  sue  either  in  contract  or  in  tort  unless  the  company  had  in- 
formation that  it  was  sent  for  his  benefit. 

16  Elliott  V.  ^Yest.  U.  Tel.  Co.,  75  Tex.  IS,  12  S.  W.  954,  16  Am.  St.  Rep.  872. 
See,  also,  Deslottes  v.  Baltimore,  etc.,  Tel.  Co.,  40  r>a.  Ann.  183,  3  South.  566, 
sender  not  acting  as  agent. 

IT  The  agent  may  sue  where  a  message  is  addressed  to  him  personally  and 
the  interest  of  his  principal  is  not  disclosed.  Lee  v.  West.  U.  Tel.  Co.,  51  Mo. 
App.  375,  where  the  action  was  in  tort. 

18  Goodman  v.  Walker,  .30  Ala.  482,  68  Am.  Dee.  134;  Eastern  R.  Co.  v. 
Benedict,  5  Gray  (Mass.)  561,  66  Am.  Dec.  384. 

19  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519. 


§    471)  ACTIONS  FOR  DAMAGES  601 

a  person  who  is  not  a  party  to  it,  and  accordingly  no  one  can  sue 
for  a  breach  of  a  contract  who  is  not  such  party,  or  who  does  not 
derive  rights  from  an  original  party  thereto.  This  rule  is  recog- 
nized in  England  almost  to  its  full  extent,  subject  to  the  exception 
that  if  the  promisor  of  the  contract  stands  in  the  relation  of  trus- 
tee to  a  third  person,  the  latter  may  sue  in  equity.  On  the  other 
hand,  exceptions  are  made  in  the  United  States  to  contracts  which 
confer  a  benefit  on  third  persons.  In  these  courts  it  is  generally 
held  that  a  third  person  benefited  by  such  contract  may  sue  in  lav/ 
on  such  contract.  These,  then,  are  the  grounds  upon  which  these 
rules  have  been  founded.  It  is  worthy  of  notice,  however,  that  the 
early  English  cases,  upon  which  the  American  doctrine  was  found- 
ed, have  in  England  been  overruled  by  later  decisions,  so  that  they 
are  not  at  present  authority  upon  the  question  in  that  country. 

§  471.  English  rule — in  general. — In  England  the  rule  is  that 
a  third  person  cannot  sue  upon  a  promise  for  his  benefit  where  he 
is  a  stranger  both  to  the  promise  and  the  consideration.^*'  In  some 
of  the  early  cases  decided  in  that  country,  it  was  held  that  if  the 
third  person  had  an  interest  in  such  contract,  and  stood  in  a  close 
relation  to  the  party  from  whom  the  consideration  proceeded,  he 
might  be  considered  a  party  to  the  contract  and  could,  therefore, 
maintain  an  action  thereon. ^^  This  latter  view  is  no  longer  the 
law  in  that  country.  The  court  overruling  this  said :  "The  mod- 
ern cases  show  that  the  consideration  must  move  from  the  party 
entitled  to  sue  upon  the  contract.  It  would  be  a  monstrous  propo- 
sition to  say  that  a  person  was  a  party  to  the  contract  for  the  pur- 
pose of  suing  upon  it  for  his  own  advantage,  and  not  a  party  to 
it  for  the  purpose  of  being  sued,"  ^^  As  said,  the  English  rule 
recognizes  one  exception  to  this  general  rule.  If  the  contract,  al- 
though in  form  with  the  promisor,  is  intended  to  secure  some  ben- 
efit to  the  third  person,  so  that  the  latter  is  entitled  to  say  that  he 
has  a  beneficial  right  as  a  cestui  que  trust  under  the  contract,  then 
the  third   person  may   in   equity   enforce   the   contract.'^      It   is   a 

20  1  strange,  592;    Price  v.  Easton,  4  Barn,  &  Adol,  433, 

21  Button  V,  Poole,  2  Lev,  210.  In  this  case  a  son  promised  his  father  to 
pay  one  thousand  pounds  to  his  sister,  in  consideration  of  the  father's  for- 
bearing to  sell  a  certain  wood,  which  the  father  intended  doing  to  raise  a  por- 
tion for  his  daughter.  It  was  held  that  the  daughter  might  sue  upon  his 
promise  for  her  benefit,  since  "there  were  such  apparent  consideration  of  af- 
fection from  the  father  to  his  children,  for  whom  nature  obliges  him  to  provide, 
that  the  consideration  and  the  promise  to  the  father  may  well  extend  to  the 
children," 

2  2  Tweddle  v.  Atkinson,  1  Dest.  &  S,  393. 
23  Gaudy  v.  Gaudy,  30  Ch.  Div.  57. 


602  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  472 

question  of  interpretation  as  to  whether  an  enforceable  trust  has 
been  created.-*  It  was  held,  in  deciding  the  enforceability  of 
such  trusts,  that  where  a  mere  agreement  was  made  between  two 
parties,  whereby  one  was  to  pay  a  third  person,  this  gave  the  lat- 
ter no  right  of  action  against  the  party  promising  to  pay.^" 

§  472.  Rule  applicable  to  telegraph  companies. — Following  the 
trend  of  this  rule,  the  general  rule  in  England  with  respect  to  con- 
tracts made  with  telegraph  companies  is  that  the  right  of  action 
for  negligently  transmitting  or  delaying  a  message  is  founded 
upon  the  contract  of  sending  made  between  the  sender  as  one  party 
to  the  contract,  and  the  telegraph  company  as  the  other;  and  the 
addressee,  not  being  a  party  to  the  contract,  cannot  sue.^®  '  In 
one  of  the  cases  tried  in  that  country  on  this  subject,  it  seems  that 
the  plaintiffs  carried  on  a  business  as  merchants  at  Valparaiso, 
and  were  a  branch  house  of  a  firm  at  Liverpool.  A  telegraph 
company,  through  the  negligence  of  its  agent,  misdelivered  a  tele- 
graphic message  to  the  plaintiffs.  The  message  purported  to  be 
from  the  plaintiffs'  Liverpool  house,  and  to  be  a  large  order  for 
barley,  but  in  fact  it  w^as  not  from  the  Liverpool  house  nor  intend- 
ed for  the  plaintiffs.  The  plaintiff's  executed  the  supposed  order, 
and,  having  suff"ered  a  heavy  loss  in  consequence,  claimed  dam- 
ages against  the  company.  The  court  held  in  this  case  that  they 
were  not  entitled  to  maintain  this  action,  as  there  was  no  con- 
tract between  them  and  the  company.  It  was  also  intimated  in 
this  case  that  if  there  was  any  fraud  perpetrated  on  the  part  of 
the  company,  the  receiver  might  sue.^"  If  the  sender,  however, 
is  acting  as  agent  for  the  addressee,  the  latter  may  sue,  since  the 
contract  of  sending  was  made  for  his  benefit,  or,  rather,  it  was 
made  for  him  by  his  agent.^^ 

§  473.  American  rule — in  general. — As  was  said  before,  the  de- 
cisions in  the  United  States  followed  those  early  English  cases 
which  have  long  since,  in  that  country,  been  overruled  and  are 
no  longer  authority  in  their  courts.  The  English  rule,  with  respect 
to  contracts  of  private  individuals,  is  recognized  in  but  fev*^  of  the 
United  States,  and  in  some  of  these  exceptions  have  been  grafted 

2  4  Murray  v.  Flavell,  2  Ch.  Div.  89. 

2  5  Gaudy  v.  Gaudy,  30  Ch.  Div.  57. 

2  0  Playford  v.  United  Kingdom  Elec.  Tel.  Co.,  L.  R.  4  Q.  B.  706,  10  B.  &  S. 
756,  38  L.  J.  Q.  B.  249,  21  L.  T.  R.  (N.  S.)  21,  17  Wkly.  9G8,  Allen,  Tel.  Cas.  437 ; 
Dickson  v.  Reuter's  Tel.  Co.,  3  C.  P.  D.  1,  47  L.  J.  C.  P.  1,  26  Wkly.  23,  af- 
firming 2  C.  P.  D.  62,  46  L.  J.  C.  P.  197,  35  L.  T.  R.  (N.  S.)  197,  25  Wkly.  272. 
See,  also,  Feaver  v.  Montreal  Tel.  Co.,  23  U.  C.  C.  P.  150. 

2  7  Dickson  v.  Reuter's  Tel.  Co.,  supra. 

28  Playford  v.  United  Kingdom  Elec.  Tel.  Co.,  supra. 


§    474)  ACTIONS   FOR  DAMAGES  G03 

Upon  it.-^  The  American  rule  is  that  a  third  party  has  a  right  of 
action  upon  a  promise  made  for  his  benefit,  although  he  is  a  stran- 
ger both  to  the  promise  and  to  the  consideration.  It  has  been 
held  that,  in  order  to  make  this  rule  binding,  there  must  be  two 
conditional  elements  in  the  contract:  First,  there  must  be  an  in- 
tent to  benefit  the  third  party;  and,  second,  the  promisee  must 
owe  some  obligation  to  the  third  party.^"  If  both  of  these  ele- 
ments do  not  exist,  the  third  party  has  no  right  of  action  upon  the 
contract.  The  cases  are  numerous  in  holding  that  an  incidental 
or  indirect  benefit  to  a  third  party  is  not  sufficient  to  give  a  right 
of  action  to  him.  There  must  be  an  intent  on  the  part  of  the 
contracting  parties  that  the  third  party  shall  be  benefited.^ ^  Un- 
der these  holdings,  it  is  not  necessary  that  the  third  party  to  be 
benefited  should  be  named;  it  must  clearly  appear,  however,  that 
he  was  intended  to  be  benefited. ^^  And  it  is  held,  in  some  juris- 
dictions, that  there  must  be  such  an  acceptance  by  the  third  party 
to  the  contract  as  will  release  the  promisee  from  any  obligations 
he  may  be  under  to  the  third  party. ^^  Where  the  third  party  sues 
upon  these  contracts,  he  will  be  subject  to  the  equities  that  may 
exist  between  the  original  parties  to  the  agreement.^* 

§  474.  Same  continued — with  respect  to  telegraph  companies. — 
The  English  rule  with  respect  to  private  contracts,  as  stated,  is  fol- 
lowed to  a  certain  extent  in  some  of  our  courts,  but  with  respect  to 
contracts  made  with  telegraph  companies  for  transmission  of  mes- 

2  9  The  states  recognizing  the  English  rule  in  some  form  are  Georgia,  Massa- 
chusetts, Michigan,  New  Hampshire,  North  Carolina,  Vermont,  Virginia  and 
Wyoming. 

sovrooman  v.  Turner,  69  N.  Y.  280,  25  Am.  Rep.  195;  Townsend  v.  Rack- 
ham,  143  N.  Y.  516,  38  N.  E.  731 ;  Coleman  v.  Hiler,  85  Hun,  547,  33  N.  Y.  Supp. 
357 ;  Embler  v.  Hartford  Steam,  etc.,  Ins.  Co.,  158  N.  Y.  431,  53  N.  E.  212,  44 
L.  R.  A.  512. 

31  Thomas  Mfg.  Co.  v.  Prather,  65  Ark.  27,  44  S.  W.  218;  Chung  Kee  v. 
Davidson.  73  Cal.  522,  15  Pac.  100;  Savings  Bank  v.  Thornton,  112  Cal.  255, 
44  Pac.  466;  Burton  v.  Larkin,  36  Kan.  246,  13  Pac.  398,  59  Am.  Rep.  541; 
Paducah  Lumber  Co.  v.  Paducah,  etc.,  Co.,  89  Ky.  340,  12  S.  W.  554,  7  L.  R.  A. 
77,  25  Am.  St.  Rep.  536 ;  Howsmon  v.  Trenton,  etc.,  Co.,  119  Mo.  304,  24  S.  W. 

•784,  23  L.  R.  A.  146,  note,  41  Am.  St.  Rep.  654;  Jefferson  v.  Asch,  53  Minn. 
446,  55  N.  W.  604,  25  L.  R.  A.  257,  note,  39  Am.  St.  Rep.  618 ;  Cincinnati,  etc., 
R.  Co.  V.  Bank,  54  Ohio  St.  60,  42  N.  E.  700,  31  L.  R.  A.  653,  56  Am.  St.  Rep. 
700 ;  Brown  v.  Markland,  16  Utah,  360,  52  Pac.  597,  67  Am.  St.  Rep.  629. 

32  Chung  Kee  v.  Davidson,  73  Cal.  522,  15  Pac.  100;  Bristow  v.  Lane,  21 
111.  194 ;  Burton  v.  Larkin,  36  Kan.  246,  13  Pac.  398,  59  Am.  Rep.  541 ;  West. 
U.  Tel.  Co.  V.  Potts,  120  Tenn.  37,  113  S.  W.  789,  19  L.  R.  A.  (N.  S.)  479, 
127  Am.  St.  Rep.  991. 

33Ramsdale  v.  Horton,  3  Pa.  330;  Stone  v.  Justice,  9  Phila.  (Pa.)  22.  It 
is  not  the  general  rule,  however.  Bay  v.  Williams,  112  111.  91,  1  N.  E,  340, 
54  Am.  Rep.  209.    The  assent  will  be  presumed.    Rogers  v.  Gosnell,  58  Mo.  589. 

34  Dunning  v.  Leavitt,  85  N.  Y,  30,  39  Am.  Rep.  017.    See  §  468. 


G04  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  474 

sag"es,  it  has  never  been  adopted  or  followed  by  any  of  the  Unit- 
ed States  or  Canadian  courts.  It  has  always  been  held  that,  where 
a  telegraph  company  has  negligently  transmitted  or  delayed  de- 
livering a  message,  the  receiver  or  addressee  could  maintain  his 
action  against  the  company  when  he  could  prove  actual  damages.^ ^ 

S5  Alahama.— West.  U.  Tel.  Co.  v.  Krlchbaum,  132  Ala.  535,  31  Soutb.  GOT; 
West.  U.  Tel.  Co.  v.  Manker,  145  Ala.  418,  41  South.  850;  Annlston  Cordage 
Co.  V.  West.  U.  Tel.  Co.,  161  Ala.  216,  49  South.  770,  135  Am.  St.  Rep.  124, 
30  L.  R.  A.  (N.  S.)  1116 ;  West.  U.  Tel.  Co.  v.  Jackson,  163  Ala.  9,  50  South. 
316 ;  West.  U.  Tel.  Co.  v.  Anniston  Cordage  Co.,  6  Ala.  App.  351,  59  South.  757. 

Arh-ansas.— West.  U.  Tel.  Co.  v.  Short,  53  Ark.  4.34,  14  S.  W.  649,  9  L.  R.  A. 
744 ;  West.  U.  Tel.  Co.  v.  AVoodard,  84  Ark.  323,  105  S.  W.  579,  13  Ann.  Cas. 
354. 

California.— Coit  v.  West.  U.  Tel.  Co.,  130  Cal.  657,  63  Pac.  83,  80  Am.  St. 
Rep.  153.  53  L.  R.  A.  678 ;  Germain  Fruit  Co.  v.  West.  U.  Tel.  Co.,  137  Cal. 
598,  70  Pac.  658,  59  L.  R.  A.  575 ;  California  Bank  v.  West.  U.  Tel.  Co.,  52 
Cal.  280. 

Colorado.— West.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  491,  31  Pac.  393. 

District  of  Coluvibia. — Fererro  v.  West.  U.  Tel.  Co.,  9  App.  D.  C.  455,  35 
L.  R.  A.  548. 

Florida.— West.  U.  Tel.  Co.  v.  Hyer,  22  Fla.  637,  1  South.  120,  1  Am.  St. 
Rep.  222;  International  Ocean  Tel.  Co.  v.  Saunders,  32  Fla.  434,  14  South. 
148,  21  Lr.  R.  A.  810. 

Georgia.— West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480; 
Stamey  v.  West.  U.  Tel.  Co.,  92  Ga.  613,  IS  S.  E.  1008,  44  Am.  St.  Rep.  95 ; 
Stewart  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045,  18  L.  R.  A.  (N.  S.) 
692,  127  Am.  St.  Rep.  205.  See,  also.  West.  U.  Tel.  Co.  v.  Waxelbaum,  113 
Ga.  1017,  39  S.  E.  443,  56  L.  R.  A.  741.  But  see  Brooke  v.  West.  U.  Tel.  Co., 
119  Ga.  694,  46  S.  E.  826 ;  Richmond  Plosiery  Mills  v.  West.  U.  Tel.  Co.,  123 
Ga.  216,  51  S.  E.  290. 

7f7fl/i.o.— Strong  v.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  Ann.  Cas. 
1912A,  55,  30  L.  R.  A.  (N.  S.)  409. 

Illinois.— West.  U.  Tel.  Co.  v,  Hope,  11  111.  App.  289;  West.  U.  Tel.  Co.  v. 
Tyler,  74  111.  166,  24  Am.  Rep.  279 ;  Webbe  v.  AYest.  U.  Tel.  Co.,  169  111.  610, 
48  N.  E.  670,  61  Am.  St.  Rep.  207 ;  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248, 
21  N.  E.  4,  15  Am.  St.  Rep.  109. 

Indiana.— West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1;  West.  U.  Tel.  Co.  v.  Mc- 
Kibben,  114  Ind.  511,  14  N.  E.  894 ;  West.  U.  Tel.  Co.  v.  Moore,  12  Ind.  App. 
136,  30'N.  E.  874,  54  Am.  St.  Rep.  515;  Telephone  Co.  v.  Biggerstaff,  177  Ind. 
168,  97  N.  E.  531. 

loica. — Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep.  605 ;  Her- 
ron  v.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696 ;  McPeek  v.  West.  U.  Tel. 
Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St.  Rep.  205,  43  L.  R.  A.  214 ;  Mentzer 
V.  West.  U.  Tel.  Co.,  93  Iowa,  752,  62  N.  W.  1,  57  Am.  St.  Rep.  294,  28  L.  R.  A. 
72;  Wells  v.  West.  U.  Tel.  Co.,  144  Iowa.  605,  123  N.  W.  371,  138  Am.  St. 
Rep.  317,  24  L.  R.  A.  (N.  S.)  1045 ;  Younker  v.  Tel.  Co.,  146  Iowa,  499,  125 
N.  W.  577;  McNeil  v.  Postal  Tel.  Cable  Co.,  154  Iowa,  241,  134  N.  W.  611, 
38  L.  R.  A.  (N.  S.)  127,  Ann.  Cas.  1914A,  1294. 

Kansas.— West.  U.  Tel.  Co.  v.  Howell,  38  Kan.  685,  17  Pac.  313;  West  v. 
West.  U.  Tel.  Co.,  39  Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep.  530 ;  West.  U.  Tel. 
Co.  V.  Lawson.  66  Kan.  660,  72  Pac.  283;  Russell  v.  West.  U.  Tel.  Co.,  57 
Kan.  2.30.  45  Pac.  598. 

Kentucky. — West.  U.  Tel.  Co.  t.  Jump,  8  Ky.  Law  Rep.  531;    Chapman  v. 


§   474)  ACTIONS  FOR  DAMAGES  605 

It  is  not  even  intimated,  either  in  England  or  in  the  United  States, 
but  that  the  sender  may  maintain  an  action  against  a  telegraph 

West.  U.  Tel.  Co.,  90  Ky.  265.  13  S.  W.  880,  12  Ky.  Law  Rep.  265;  Jones  v. 
Tel.,  etc.,  Co.,  140  Ky.  165,  130  S.  W.  994. 

Louisiana. — La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383;  Graham 
V.  West.  U.  Tel.  Co.,  109  La.  1069,  34  South.  91 ;  New  Orleans  Bank  v.  West. 
U.  Tel.  Co.,  27  La.  Ann.  49. 

Massachusetts. — Ellis  v.  American  Tel.  Co.,  13  Allen,  226. 

Minnesota.— McCord  v.  West.  U.  Tel.  Co.,  39  Minn.  181,  39  N.  W.  315,  12 
Am.  St.  Rep.  636,  1  L.  R.  A.  143. 

Mississippi.— Shingleur  v.  West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425, 
48  Am.  St.  Rep.  604,  30  L.  R.  A.  444;  West.  U.  Tel.  Co.  v.  Allen,  66  Miss. 
549,  6  South.  461 ;  Magouirk  v.  West.  U.  Tel.  Co.,  79  Miss.  632,  31  South.  206, 
89  Am.  St.  Rep.  663;  Qement  v.  West.  U.  Tel.  Co.,  77  Miss.  747,  27  South. 
603 ;  Postal  Tel.  Cable  Co.  v.  Wells,  82  Miss.  733,  35  South.  190 ;  West.  U. 
Tel.  Co.  V.  Lyon,  93  Miss.  590,  47  South.  344. 

Missouri. — Lee  v.  West.  U.  Tel.  Co.,  51  Mo.  App.  375;  Harper  v.  West.  U. 
Tel.  Co.,  92  ]\ro.  App.  304 ;  Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W. 
904,  58  Am.  St.  Rep.  609.  34  L.  R.  A.  492. 

Neiraslca.— West  U.  Tel.  Co.  v.  Kemp,  44  Neb.  194,  62  N.  W.  451,  48  Am. 
St.  Rep.  723 ;  Kemp  v.  Western  Union  Tel.  Co.,  28  Neb.  661,  44  N.  W.  1064, 
26  Am.  St.  Rep.  363. 

Neiv  Mexico.— West.  U.  Tel.  Co.  y.  Longwill,  5  N.  M.  308,  21  Pac.  339. 

New  York. — Leonard  v.  New  York,  etc.,  Elee.  Mag.  Tel.  Co.,  41  N.  Y.  544, 
1  Am.  Rep.  446 ;  Milliken  v.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  451, 
1  L.  R.  A.  281;  Wolfskehl  v.  West.  U.  Tel.  Co.,  46  Huu,  542;  De  Rutte  v. 
New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  1  Daly,  547,  30  How.  Prac.  403. 

North  CaroUna.—E&vd  v.  West.  U.  Tel.  Co.,  132  N.  C.  267.  43  S.  E.  825 ; 
Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E,  94;  Lewis  v.  West. 
U.  Tel.  Co.,  117  N.  C.  430,  23  S.  E.  319 ;  Young  v.  West.  U.  Tel.  Co.,  107  N.  C. 
370,  11  S.  E.  1044,  22  Am.  St.  Rep.  883,  9  L.  R.  A.  669 ;  Pegram  v.  West.  U. 
Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557 ;  Hughes  v.  West.  U. 
Tel.  Co.,  114  N.  C.  70,  19  S.  E.  100,  41  Am.  St.  Rep.  782 ;  Penn  v.  Telephone 
Co.,  159  N.  C.  306,  75  S.  E.  16. 

07i!0.— West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500. 

Oklahoma.— fiee  Butuer  v.  West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087. 

Oref/o)i.— McLeod  v.  Pacific  Tel.  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac.  1009, 
15  L.  R.  A.  (N.  S.)  810,  IS  L.  R.  A.  (N.  S.)  954,  16  Ann.  Cas.  1239. 

Pennsylvania.— Havris  v.  West.  U.  Tel.  Co.,  9  Phila.  88;  Wolf  Co.  v.  West. 
U.  Tel.  Co.,  24  Pa.  Super.  Ct.  129 ;  Tobin  v.  West.  U.  Tel.  Co.,  146  Pa.  375, 
23  Atl.  324,  28  Am.  St.  Rep.  S02 ;  New  York,  etc.,  Ptg.  Tel.  Co.  v.  Dryburg, 
35  Pa.  298,  78  Am.  Dec.  338 ;  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl. 
736,  43  L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas.  895. 

South  Carolina. — Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C,  358;  Broom  v.  West. 
U.  Tel.  Co.,  71  S.  C.  509,  51  S.  E.  259,  4  Ann.  Cas.  611;  Pinckney  Bros.  v. 
West.  U.  Tel.  Co.,  19  S.  C.  71,  45  Am.  Rep.  765 ;  Hill  v.  West.  U.  Tel.  Co.,  42 
S.  C.  267,  20  S.  E.  135,  46  Am.  St.  Rep.  734 ;  IMills  v.  Telephone  Co.,  88  S.  C. 
498,  70  S.  E.  1040. 

TeMHcssec— Wadsworth  v.  West.  U.  Tel.  Co.,  SO  Tenn.  695,  8  S.  W.  574, 
6  Am.  St.  Rep.  864 ;  West.  U.  Tel.  Co.  v.  INIellon,  96  Tenn,  66,  33  S.  W.  725 ; 
Manier  v.  West.  U.  Tel.  Co.,  94  Tenn.  442,  29  S.  W.  732. 

Tea^os.— West.  U.  Tel.  Co.  v.  Lyman,  3  Tex.  Civ.  App.  460,  22  S.  W.  650; 
West.  U.  Tel.  Co.  v.  Uvalde  Natl.  Bank,  97  Tex.  219,  77  S.  W.  603,  65  L.  R.  A. 
805,  1  Ann.  Cas.  573,  afiirmiug  (Civ.  App.)  72  S.  W.  232 ;  West.  U.  Tel.  Co.  v. 
Beringer,  84  Tex.  38,   19  S.  W.  336;    West.  U.  Tel.  Co.  v.  Adams,   75  Tex. 


606  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  474 

company  for  a  breach  of  the  contract  of  sending;  ^^  and  it  has 
been  held,  in  our  courts,  that  these  companies  are  as  much  re- 
sponsible for  their  negligence  to  a  person  to  whom  a  message  is 
addressed  as  they  are  to  the  sender.^^  While  there  is  no  dis- 
pute among  the  courts  as  to  the  rights  of  the  addressee  to  sue,  yet 
the  question  which  has  puzzled  the  courts  the  most  is  as  to  the 
nature  of  the  suit  to  be  brought,  whether  he  should  sue  in  contract 

531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R  A.  844 ;  West.  U.  Tel.  Co.  v. 
Broesche,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St.  Rep.  843;  West.  U.  Tel. 
Co.  V.  Neill,  57  Tex.  283,  44  Am.  Rep.  589 ;  Telephone  Co.  v.  Jarrell  (Civ.  App.) 
138  S.  W.  1165. 

rtr(/i)!ia.— West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715; 
Connelly  v.  West.  U.  Tel.  Co.,  100  Va.  51,  40  S.  E.  618,  93  Am.  St.  Rep.  619, 
56  L.  R.  A.  653. 

Wisconsm.— Fisher  v.  West.  U.  Tel.  Co.,  119  Wis.  146,  96  N.  W.  545. 

United  States.— Swan  v.  West.  U.  Tel.  Co.,  129  Fed.  318,  63  C.  C.  A.  550, 
€7  L.  R.  A.  153 ;  Whitebill  v.  West.  U.  Tel.  Co.  (C.  C.)  136  Fed.  499 ;  Pacific 
Postal  Tel.  Cable  Co.  v.  Palo  Alto  Bank,  109  Fed.  369,  48  C.  C.  A.  413,  54 
L.  R.  A.  711 ;  Findlay  v.  West.  U.  Tel.  Co.  (C.  C.)  64  Fed.  459 ;  Beasley  v. 
West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181;  Abraham  v.  West.  U  Tel.  Co.  (C.  C.) 
23  Fed.  315 ;  White  v.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710.  Compare  West. 
U.  Tel.  Co.  V.  Wood,  57  Fed.  471,  6  C.  C.  A.  432,  21  L.  R.  A.  706 ;  Telephone 
Co.  V.  Burris,  179  Fed.  92,  102  C.  C.  A.  386. 

Canada.— Bell  v.  Dominion  Tel.  Co.,  25  L.  C.  Jur.  248,  3  Montreal  Leg.  N. 
406 ;  Watson  v.  Montreal  Tel.  Co.,  5  Montreal  Leg.  N.  87.  Contra,  Feaver  v. 
Montreal  Tel.  Co.,  23  U.  C.  C.  P.  150. 

3  6  See  §§  466,  467. 

3  7  Young  V.  West.  U.  Tel.  Co.,  107  N.  C.  370,  11  S.  E.  1044,  9  L.  R.  A.  669n, 
22  Am.  St.  Rep.  883 ;  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  695,  8  S.  W. 
574,  6  Am.  St.  Rep.  864;  Elwood  v.  West.  U.  Tel.  Co.,  45  N.  Y.  549.  6  Am. 
Rep.  140;  Ellis  v.  Tel.  Co.,  13  Allen  (Mass.)  227;  New  York,  etc.,  Tel.  Co. 
V.  DiTburg,  35  Pa.  298,  78  Am.  Dec.  338;  Markel  v.  West.  U.  Tel.  Co.,  19 
]\[o.  App.  80.  In  the  first  case  cited  the  court,  by  Clark,  J.,  said :  "The  fol- 
lowing may  be  summed  up  as  the  reasons  assigned  therefor :  1.  That  a  tele- 
graph company  is  a  public  agency,  and  responsible,  as  such,  to  any  one  in- 
jured by  its  negligence,  or,  at  least,  it  is  the  common  agent  of  sender  and 
receiver,  and  responsible  to  each  for  any  injury  sustained  by  them  respec- 
tively, by  its  negligence.  2.  That  in  a  case  like  this,  the  receiver  is  the  bene- 
ficiary of  the  contract,  and  the  injuiy,  if  any,  caused  by  the  company's  negli- 
gence must  be  to  him.  3.  The  message  is  the  property  of  the  party  addressed, 
in  an  analogy  to  a  consignee  of  goods ;  that  upon  the  face  .of  the  message, 
such  as  this,  the  sender  is  the  agent  of  the  receiver,  and  the  latter,  as  the 
principal,  can  maintain  an  action  for  breach  of  the  contract,  or  for  a  tort, 
if  the  injury  is  done  him  by  negligence  in  performance  of  the  duty  contracted 
for."  The  following  was  the  message  in  this  case :  "To  J.  T.  Young,  New- 
berm,  N.  C.  Come  in  haste;  your  wife  is  at  the  point  of  death.  J.  W.  Rice;" 
West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W.  789,  19  L.  R.  A.  (N.  S.) 
479,  127  Am.  St.  Rep.  991 ;  Gilbert  v.  Stockman,  76  AVis.  62,  44  N.  W.  85,  20 
Am.  St.  Rep.  23;  Young  v.  West.  U.  Tel.  Co.,  supra;  Gray  v.  Tel.  Co.,  108 
Tenn.  39,  64  S.  W.  1063,  56  L.  R.  A.  301,  91  Am.  St.  Rep.  707 ;  Wadsworth  v. 
West.  U.  Tel.  Co.,  86  Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep.  864 ;  Strong  v. 
West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  Ann.  Cas.  1912A,  55,  30  L.  R.  A, 
<N,  S.)  409.     See  other  cases  in  note  35,  supra. 


§   475)  ACTIONS  FOR  DAMAGES  607 

or  in  tort.     The  courts  have  stated  various  grounds  on  this  doc- 
trine,^® and  we  shall  now  proceed  to  give  some  of  them. 

§  475.  Addressee  beneficial  party. — One  ground  upon  which  the 
courts  hold  that  the  addressee  may  maintain  a  suit  against  a  tel- 
egraph company  for  its  negligence  in  the  transmission  of  a  mes- 
sage is  that,  where  a  contract  is  made  by  two  parties  for  the  ben- 
efit of  a  third  person,  the  latter  may  sue  for  a  breach  of  the  con- 
tract. As  may  be  observed,  this  reason  is  founded  on  the  early 
English  cases. ^®  The  addressee  is  the  beneficiary  of  such  contract 
and  is  entitled  to  sue  in  his  own  right  for  damages,  when  by  the 
negligence  of  the  company  he  is  deprived  of  the  benefit  he  would 
otherwise  have  derived.*"     It  seems  that  it  is  not  necessary  that 

3  8  West.  U.  Tel.  Co.  v.  Woodard,  84  Ark.  32.3,  105  S.  W.  579,  13  Ann.  Cas. 
354 ;  Postal  Tel.  Cable  Co.  v.  Ford,  117  Ala.  672,  23  South.  684 ;  Fererro  v. 
West.  U.  Tel.  Co.,  9  App.  D.  C.  455,  35  L.  R.  A.  548 ;  Young  v.  West.  U.  Tel. 
Co.,  107  N.  C.  370,  11  S.  E.  1044,  22  Am.  St.  Rep.  883,  9  L.  R.  A.  669 ;  Shiug- 
leur  V.  West.  U.  Tel.  Co.,  72  Miss.  1030,  IS  South.  425,  48  Am.  St.  Rep.  004, 
30  L.  R.  A.  444;  McLeod  v.  Pacific  Tel.  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac. 
1009,  15  L.  R.  A.  (N.  S.)  810,  18  L.  R.  A.  (N.  S.)  9-54,  16  Ann.  Cas.  1239 ;  Annis- 
ton  Cordage  Co.  v.  West.  U.  Tel.  Co.,  161  Ala.  216,  49  South.  770,  135  Am.  St. 
Rep.  124,  30  L.  R.  A.  (N.  S.)  1116 ;  Stewart  v.  Postal  Tel.  Cable  Co.,  131  Ga. 
31,  61  S.  E.  1045,  18  L.  R.  A.  (N.  S.)  692,  127  Am.  St.  Rep.  205;  West.  U. 
Tel.  Co.  V.  Potts,  120  Tenn.  37,  113  S.  W.  789,  19  L.  R.  A.  (N.  S.)  479,  127  Am. 
St.  Rep.  991 ;  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  095,  8  S.  W.  574,  6 
Am.  St.  Rep.  864 ;  West  v.  West.  U.  Tel.  Co.,  39  Kan.  93,  17  Pac.  807,  7  Am. 
St.  Rep.  530 ;  West.  U.  Tel.  Co.  y.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am. 
St.  Rep.  23 ;  West.  U.  Tel.  Co.  v.  Lacer,  122  Ky.  839,  93  S.  W.  34,  5  L.  R.  A. 
(N.  S.)  751,  121  Am.  St.  Rep.  502 ;  Strong  v.  West.  U.  Tel.  Co.,  18  Idaho,  389, 
109  Pac.  910,  Ann.  Cas.  1912A,  55,  30  L.  B.  A.  (N.  S.)  409.  See  other  cases  in 
note  35,  supra. 

3  9  See  §  470. 

40  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  371 ;  West.  U.  Tel.  Co.  v.  Hope,  11 
111.  App.  291 ;  West.  U.  Tel.  Co.  v.  Jones,  81  Tex.  271,  16  S.  W.  1006.  "A  per- 
son for  whose  benefit  a  promise  to  another  upon  a  sufficient  consideration  is 
made  may  maintain  an  action  on  the  contract  in  his  own  name  against  the 
promisor."  Burton  v.  Larkin,  36  Kan.  246,  13  Pac.  398,  59  Am.  Rep.  541; 
Hendrick  v.  Lindsay,  93  U.  S.  143,  23  L.  Ed.  855.  This  doctrine  is  denied  by 
the  case  of  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St. 
Rep.  109.  See,  also.  West.  U.  Tel.  Co.  v.  Woodard,  84  Ark.  323,  105  S.  W.  579, 
13  Ann.  Cas.  354 ;  Chapman  v.  West.  U.  Tel.  Co.,  90  Ky.  265,  13  S.  W.  880, 
12  Ky.  Law  Rep.  265 ;  West.  U.  Tel.  Co.  v.  Jump,  8  Ky.  Law  Rep.  531 ;  Mc- 
Leod V.  Pacific  Tel.  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac.  1009,  15  L.  R.  A.  (N.  S.) 
810,  18  L.  R.  A.  (N.  S.)  954,  16  Ann.  Cas.  1239;  La  Grange  v.  Southwestern 
Tel.  Co.,  25  La.  Ann.  383 ;  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94,  30  S.  W. 
896;  West.  U.  Tel.  Co.  v.  Beringer,  84  Tex.  38,  19  S.  W.  336;  West.  U.  Tel. 
Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A.  844 ; 
So  Relle  v.  West.  U.  Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  805 ;  West.  U.  Tel. 
Co.  V.  Randies  (Tex.  Civ.  App.)  34  S.  W.  447 ;  West.  U.  Tel.  Co.  v.  Cook,  45 
Tex.  Civ.  App.  87,  99  S.  W.  1131;  Whitehill  v.  West.  U.  Tel.  Co.  (C.  C.)  136 
Fed.  499 ;  West.  U.  Tel.  Co.  v.  Wood,  57  Fed.  471,  6  C.  C.  A.  432,  21  L.  R.  A. 
706 ;   Connelly  v.  West.  U.  Tel.  Co.,  100  Va.  51,  40  S.  E.  618,  93  Am.  St.  Rep. 


608  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  475 

the  addressee  should  have  known  of  the  contract  at  the  time  it 
was  made.  Thus  it  has  been  held  that  the  husband  of  the  ad- 
dressee may  sue  for  a  breach  of  a  contract  made  with  the  com- 
pany by  a  party  who  has  not  been  previously  appointed  her  agent 
for  that  particular  purpose;*^  although  some  courts  hold  that 
the  company  must  have  had  knowledge  that  the  sender  was  the 
agent  of  the  addressee.*^     So  it  seems  that  the  company   must 

919,  56  L.  R.  A.  663 ;  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W.  789, 
19  L.  R.  A.  (N.  S.)  479,  127  Am.  St.  Rep.  991 ;  Anniston  Cordage  Co.  v.  West. 
U.  Tel.  Co.,  161  Ala.  216,  49  South.  770,  135  Am.  St.  Rep.  124,  30  L.  R.  A. 
(N.  S.)  1116. 

Meiital  anguish. — This  doctrine  is  assumed  in  a  great  majority  of  cases  in 
which  recovery  for  mental  anguish  alone  is  sought;  but  the  party  bringing 
the  action  must  have  a  beneficial  interest  in  the  message  which  must  be 
made  known  to  the  defendant.  West.  U.  Tel.  Co.  v.  Jones,  supra;  Sherrill 
V.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94 ;  Id.,  116  N.  C.  655,  21  S.  E. 
429;  Id.,  117  N.  C.  352,  23  S.  E.  277;  West.  U.  Tel.  Co.  v.  Coffin,  supra; 
West.  U.  Tel.  Co.  v.  Adams,  supra ;  Loper  v.  West.  U.  Tel.  Co.,  70  Tex.  689, 
8  S.  W.  600 ;  West.  U.  Tel.  Co.  v.  Evans,  5  Tex.  Civ.  App.  55,  23  S.  W.  998 ; 
Texas,  etc.,  Tel.  Co.  v.  Seiders,  9  Tex.  Civ.  App.  431,  29  S.  W.  258;  West. 
U.  Tel.  Co.  V.  Sweetman,  19  Tex.  Civ.  App.  435,  47  S.  W.  676 ;  West.  U.  Tel. 
Co.  v.  Olivarri  (Tex.  Civ.  App.)  136  S.  W.  816;  West.  U.  Tel.  Co.  v.  Guinn 
(Tex.  Civ.  App.)  130  S.  W.  616;  Southwestern  Tel.,  etc.,  Co.  v.  Gehring  (Tex. 
Civ.  App.)  137  S.  W.  754;  West.  U.  Tel.  Co.  v.  Clark,  14  Tex.  Civ.  App, 
563,  38  S.  W.  225 ;  Louisiana,  etc.,  R.  Co.  v.  Reeves,  95  Ark.  214,  128  S.  W. 
1051 ;  West.  U.  Tel.  Co.  v.  Gilliland  (Tex.  Civ.  App.)  130  S.  W.  212 ;  West. 
U.  Tel.  Co.  T.  Gahan,  17  Tex.  Civ.  App.  657,  44  S.  W.  933.  See  Curd  v.  Cum- 
berland Tel.,  etc.,  Co.  (Ky.)  119  S.  W.  746.  But  see  Gulf,  etc.,  R.'  Co.  v.  Levy, 
59  Tex.  563,  46  Am.  Rep.  278;  West.  U.  Tel.  Co.  v.  Wood,  57  Fed.  471,  6 
C.  C.  A.  432,  21  L.  R.  A.  706 ;  the  latter  cases  cannot,  however,  be  considered 
as  authority. 

It  is  not  material  tclio  paid  for  the  transmission  of  the  message  if  it  was 
sent  for  the  benefit  of  the  addressee.  West.  U.  Tel.  Co.  v.  Beringer,  supra. 
The  message  need  not  be  for  the  sole  and  exclusive  benefit  of  the  addressee. 
McLeod  v.  Pacific  Tel.  Co.,  supra.  It  is  not  sufficient  merely  that  he  would 
be  incidentally  benefited  by  carrying  out  of  the  contract.  Postal  Tel.  Cable 
Co.  V.  Ford,  117  Ala.  672,  23  South.  684 ;  Markel  v.  West.  U.  Tel.  Co.,  19  Mo. 
App.  SO. 

Rule  in  Alabama. — The  rule  in  Alabama  is  that  the  addressee  has  no  right 
of  action,  unless  it  is  shown  that  the  person  sending  the  message  acted  as 
the  addressee's  agent.  West.  U.  Tel.  Co.  v.  Cuiiningham,  99  Ala.  314,  14 
South.  579;  West.  U.  Tel.  Co.  v.  Adair,  115  Ala.  441,  22  South.  73;  West. 
U.  Tel.  Co.  V.  Brown,  6  Ala.  App.  339,  59  South.  329;  West.  U.  Tel.  Co.  v, 
Heathcoat,  149  Ala.  623,  43  South.  117.  It  would  seem,  however,  that  but 
slight  proof  of  the  relationship  of  agency  between  the  sendee  and  the  seudor 
is  required.  West.  U.  Tel.  Co.  v,  Wilson,  93  Ala;  32,  9  South.  414,  30  Am.  St. 
Rep.  23 ;  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South.  73 ;  West.  U.  Tel. 
Co.  V.  Robbins,  3  Ala.  App.  234,  56  South.  879. 

41  West.  U.  Tel.  Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  6  L.  R.  A.  844,  16 
Am.  St.  Rep.  920. 

42  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23. 
Wife   of   addressee. — The    mere   fact    that   the   plaiutifl:   was    the   wife   of 

Addressee  is  not  sufficient  to  entitle  her  to  recover  in  the  absence  of  notice 


I   476)  ACTIONS   FOR   DAMAGES  609 

have  some  notice  of  the  importance  of  the  message  and  the  ben- 
efit which  the  addressee  is  likely  to  derive  therefrom.*^  It  is 
sufficient,  however,  if  the  benefit  to  be  derived  appear  on  the  face 
of  the  telegram.*"* 

§  476.  Same  continued — sender  agent  of  addressee. — This  rule, 
we  think,  is  particularly  applicable  when  the  sender  acts  as  agent 
for  the  addressee  in  making  the  contract.*^  As  was  said  by  Reyer, 
C.  J.,  in  deciding  this  point :  "The  rule  that  a  principal  is  entitled 
to  maintain  an  action  upon  a  contract  **'  made  by  his  agent  with  a 
third  person,  although  the  agency  is  not  disclosed  *'  at  the  time  of 
making  the  contract,  has  many  illustrations  in  the  reported  cases, 

to  the  company  of  her  interest  therein.  Morrow  v.  West.  U.  Tel.  Co.,  107 
Ky.  517,  54  S.  W.  853;  Cranford  v.  West.  U.  Tel.  Co.,  138  N.  C.  162,  50  S. 
E.  585;  Holler  v.  West.  U.  Tel.  Co.,  149  N.  C.  336,  63  S.  E.  92,  19  L.  R.  A. 
(N.  S.)  475 ;  Rogers  v.  West.  V.  Tel.  Co.,  72  S.  C.  290,  51  S.  E.  773 ;  Poteet 
V.  West.  U.  Tel.  Co.,  74  S.  C.  491,  55  S.  E.  113 ;  West.  U.  Tel.  Co.  v.  Carter. 
85  Tex.  580,  22  S.  W.  961,  34  Am.  St.  Rep.  826 ;  West.  U.  Tel.  Co.  v.  Kirk- 
patrick,  76  Tex.  217,  13  S.  W.  70,  18  Am.  St.  Rep.  37;  West.  U.  Tel.  Co.  v. 
Proctor,  6  Tex.  Civ.  App.  300,  25  S.  W.  811 ;  West.  U.  Tel.  Co.  v.  Womack,  9 
Tex.  Civ.  App.  607,  29  S.  W.  932;  Weatherford,  etc.,  R.  Co.  v.  Seals  (Tex. 
Civ.  App.)  41  S.  W.  841;  West.  U.  Tel.  Co.  v.  Herring  (Tex.  Civ.  App.)  146 
S.  W.  699. 

4  3  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W.  734.  13  Am.  St. 
Rep.  843;  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94,  30  S.  W.  896:  Butner  v. 
West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087 ;  International  Ocean  Tel.  Co.  v. 
Saunders,  32  Fla.  434,  14  South.  148,  21  L.  R.  A.  810;  McLeod  v.  Pacific 
Tel.  Co.,  52  Or.  22,  94  Pac.  568,  95  Pac.  1009,  15  L.  R.  A.  (N.  S.)  810,  18 
L.  R.  A.  (N.  S.)  954,  16  Ann.  Cas.  1239;  Anniston  Cordage  Co.  v.  West.  U. 
Tel.  Co.,  161  Ala.  216,  49  South.  770,  135  Am.  St.  Rep.  124,  30  L.  R.  A.  (N.  S.) 
1116.  See  other  cases  in  note  42,  supra ;  Frazier  v.  West.  U.  Tel.  Co.,  45 
Or.  415,  78  Pac.  330,  67  L.  R.  A.  319,  2  Ann.  Cas.  396;  West.  U.  Tel.  Co.  v. 
Wood,  57  Fed.  471,  6  C.  C.  A.  432,  21  L.  R.  A.  706.  But  see  Postal  Tel. 
Co.  V.  Levy  (Tex.  Civ.  App.)  102  S.  W.  134,  one  member  of  a  firm  recipient 
of  a  message  from  another  member. 

44  Martin  v.  West.  U.  Tel.  Co.,  1  Tex.  Civ.  App.  143,  20  S.  W.  860. 

45  Milliken  v.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  118  N.  E.  251,  1  L.  R.  A. 
281;  De  Rutte  v.  New  York,  etc.,  Elec.  Ung.  Tel.  Co.,  1  Daly  (N.  Y.)  547, 
30  How.  Prac.  403 ;  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South. 
579;  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South.  73;  Heathcoat 
V.  West.  U.  Tel.  Co.,  156  Ala.  339,  47  South.  139. 

40  West.  U.  Tel.  Co.  v.  INlanker,  145  Ala.  418,  41  South.  850;  West.  U. 
Tel.  Co.  V.  Cornwell,  2  Colo.  App.  491,  31  Pac.  393;  West.  U.  Tel.  Co.  v. 
Rowell,  153  Ala.  295,  45  South.  73;  Stamey  v.  West.  U.  Tel.  Co.,  92  Ga. 
013,  IS  S.  E.  1008,  44  Am.  St.  Rep.  95;  Coit  v.  West.  U.  Tel.  Co.,  130  Cal. 
657,  63  Pac.  83,  80  Am.  St.  Rep.  153,  53  L.  R.  A.  678 ;  INIilliken  v.  West.  U. 
Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  2,51,  1  L.  R.  A.  281;  De  Rutte  v.  New 
York,  etc.,  Elec.  Mag.  Tel.  Co.,  1  Daly   (N.  Y.)  .547,  30  How.  Prac.  403. 

4  7  West.  U.  Tel.  Co.  v.  Manker,  145  Ala.  418,  41   South.  850;    Manker  v. 

West.  U.  Tel.  Co.,  137  Ala.  292,  34  South.  839,  overruling  West.  U.  Tel.  Co. 

V.  Allgood,  125  Ala.  712,  27  South.  1024,  and  disapproving  on  this  point  West. 

U.  Tel.  Co.   V.  Wilson,  93   Ala.  32,   9  South.   414,  30  Am,   St.   Rep.   23,   and 

Jones  Tel.(2d  Ed.) — 39 


610  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  477 

and  is  elementary  law."  *®  This  principle  has  been  frequently 
applied  in  actions  against  telegraph  companies,  and  is  now  the 
settled  law  of  this  country  with  respect  to  such  corporations.** 
While  the  addressee  may  sue  the  company,  there  is  no  reason  why 
the  agent  may  not  maintain  the  action  in  behalf  of  the  addressee. ^"^ 
§  477.  Action  for  breach  of  public  duty. — There  are  other  au- 
thorities which  base  the  addressee's  right  of  action  upon  the  breach 
of  the  company's  public  duty.^^    While  we  think  this  is  the  correct 

Kennon  y.  West.  U.  Tel.  Co.,  92  Ala.  399,  9  South.  200;    Harkness  v.  West. 
U.  Tel.  Co.,  73  Iowa,  190,  3i  N.  W.  811.  5  Am.  St.  Eep.  672.      ' 

48  Milllken  v.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  251,  1  L.  R.  A.  281. 

4  9  Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St. 
Rep.  672;  Stewart  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045,  18 
L.  R.  A.  (N.  S.)  692,  127  Am.  St.  Rep.  205;  West.  U.  Tel.  Co.  v.  Adams,  75 
Tex.  531,  12  S.  W.  857,  6  L.  R.  A.  644,  16  Am.  St.  Rep.  920 ;  Seifert  v.  West. 
U.  Tel.  Co.,  129  Ga.  181,  58  S.  E.  699,  11  L.  R.  A.  (N.  S.)  1149.  121  Am.  St. 
Rep.  210;  Wells  v.  West.  U.  Tel.  Co..  144  Iowa,  605,  123  N.  W.  371,  24  L. 
R.  A.  (N.  S.)  1045,  138  Am.  St.  Rep.  317;  West.  U.  Tel.  Co.  v.  Schriver,  141 
Fed.  538,  72  C.  C.  A.  .596,  4  L.  R.  A.  (N.  S.)  678;  West.  U.  Tel.  Co.  v. 
:Motle.v  (Tex.  Civ.  App.)  27  S.  W.  51 ;  Leonard  v.  New  York,  etc.,  Elec. 
Mag.  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446;  Postal  Tel.  Cable  Co.  v.  Levy 
(Tex.  Civ.  App.)  102  S.  W.  134.  See  West.  U.  Tel.  Co.  v.  Weniski,  84  Ark. 
457,  106  S.  W.  486.  See  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W. 
789,  127  Am.  St.  Rep.  991.  19  L.  R.  A.  (N.  S.)  479,  where  a  distinction  is 
made  between  commercial  telegrams  and  social  telegrams,  and  although  it 
is  held  that  an  undisclosed  principal  of  the  sendee  may  not  recover  from 
mental  anguish,  it  is  intimated  that  he  might  recover  for  a  commercial  loss. 
But  see  West.  U.  Tel.  Co.  v.  Kirkpatrick,  76  Tex.  217,  13  S.  W.  70,  18  Am. 
St.  Rep.  37. 

Telephone. — To  render  a  telephone  company  liable  in  tort  to  the  addressee 
whom  it  knows  to  have  an  interest  therein,  the  addressee  need  not  be  the 
primary  beneficiary  in  a  message.  McLeod  v.  Pacific  State  Tel.,  etc.,  Co., 
52  Or.  22,  28,  94  Pac.  568,  95  Pac.  1009,  15  L.  R.  A.  (N.  S.)  810,  18  L.  R.  A. 
(N.  S.)  954,  16  Ann.  Cas.  1239.  See,  also,  §  468,  and  other  cases  cited  iu 
notes  46  and  47,  supra. 

5  0  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519; 
American  U.  Tel.  Co.  v.  Daughtery,  89  Ala.  191,  7  South.  660;  Daughtery  v. 
American  U.  Tel.  Co.,  75  Ala.  168,  57  Am.  Rep.  435. 

51  Webbe  v.  West.  U.  Tel.  Co..  169  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep. 
207;  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep. 
109 ;  Fererro  v.  West.  U.  Tel.  Co.,  9  App.  D.  C.  455,  35  L.  R.  A.  548 ;  West. 
U.  Tel.  Co.  V.  Longwill,  5  N.  M.  308,  21  Pac.  339;  West.  U.  Tel.  Co.  v. 
Kirchbaum,  132  Ala.  535,  31  South.  607 ;  Young  v.  West.  U.  Tel.  Co.,  107  N. 
C.  370,  11  S.  E.  1044,  22  Am.  St.  Rep.  S.S3,  9  L.  R.  A.  779;  De  Rutte  v. 
New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  1  Daly  (N.  Y.)  547,  30  How.  Prac.  403 ; 
Wolfskehl  V.  West.  U.  Tel.  Co..  46  Hun  (N.  Y.)  542;  New  York,  etc.,  Ptg.  Tel. 
Co.  V.  Dryburg,  35  Pa.  298,  78  Am.  Dec.  338;  West.  U.  Tel.  Co.  v.  Uvalde 
Nat.  Bank,  97  Tex.  219,  77  S.  W.  603,  65  L.  R.  A.  805,  1  Ann.  Cas.  573, 
affirming  (Tex.  Civ.  App.)  72  S.  W.  232;  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C. 
358;  Pacific  Postal  Tel.  Cable  Co.  v.  Palo  Alto  Bank,  109  Fed.  369,  48  C. 
C.  A.  413,  54  L.  R.  A.  711.  See  Markley  v.  West.  U.  Tel.  Co.,  144  Iowa, 
105,  122  N.  W.  1.36.  138  Am.  St.  Rep.  263;  Cowan  v.  West.  U.  Tel.  Co.,  122 
Iowa,  379,  98  N.  W.  281,  101  Am.  St.  Rep.  268,  64  L.  R.  A.  545;    Milliken 


§    477)  ACTIONS   FOR  DAMAGES  Gil 

view  to  take  of  the  subject,  yet  we  do  not  mean  to  say  that  they 
may  not  sue  for  the  breach  of  the  contract.^^  These  companies 
have  undertaken  to  perform  public  functions,  and,  among  these, 
it  is  presumed  that  they  have  assumed  the  duty  to  transmit  cor- 
rectly and  accurately  and  deliver  promptly  all  messages  entrusted 
to  them ;  and  on  a  failure  to  discharge  these  duties  with  due  care 
and  diligence,  they  will  become  liable  to  any  one  who  suffers 
damages  thereby.  People  seldom  resort  to  them  for  an  employ- 
ment of  their  services  unless  their  business  is  of  such  importance 
that  it  must  be  attended  to  in  the  shortest  possible  time  and  in 
the  most  accurate  and  correct  manner.^^  They  have  held  them- 
selves out  to  the  public  as  ready  and  willing  to  accomplish  such 
business,  and  when  they  are  compensated  for  their  undertaking, 
but  fail  in  the  attempt,  they,  and  not  their  employer,  should  suf- 
fer for  the  negligence  of  the  former.  In  other  words,  when  they 
have  failed  to  discharge  their  public  duties  in  transmitting  mes- 
sages, whereby  the  addressee  has  been  caused  to  suffer,  the  latter 

V.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  2.51,  1  L.  R.  A.  281 ;  West.  U. 
Tel.  Co.  V.  Feuton,  52  Ind.  1;  Abraham  v.  West.  U.  Tel.  Co.  (C.  C.)  23  Fed. 
315;  West.  U.  Tel.  Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St. 
Rep.  920,  6  L.  R.  A.  344;  West.  U.  Tel.  Co.  v.  Reynolds,  77  Ya.  173,  46  Am. 
Rep.  715 ;    West.  U.  Tel.  Co.  v.  Allen,  66  Miss.  549,  6  South.  461. 

5  2  But  where  there  are  no  contractual  relations  existing  between  the 
company  and  the  addressee,  the  latter  should  sue  in  tort.  West.  U.  Tel. 
Co.  V.  Cooper,  2  Ga.  App.  .376,  58  S.  E.  517 ;  West.  U.  Tel.  Co.  v.  Adams,  154 
Ala.  6.57,  46  South.  228;  Webbe  v.  W^est.  U.  Tel.  Co.,  169  111.  611,  48  N.  E. 
670,  61  Am.  St.  Rep.  207 ;  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E. 
4,  15  Am.  St.  Rep.  109. 

ss  Mr.  Rigelow  suggests  as  a  satisfactory  ground  for  the  American  rule 
the  fact  that  telegraphic  communication  is  usually  resorted  to  only  in  mat- 
ters of  importance,  from  which  the  company  ought  to  infer  the  necessity 
of  correct  and  prompt  transmission,  and  that  "a  mistake  in  its  transmission 
will  be  likely  to  produce  damage  to  the  receiver  by  causing  him  to  do  what 
he  would  otherwise  not  do.  Knowing,  then,  the  probable  consequence  of 
transmitting  an  erroneous  message,  they  owe  a  duty  to  the  receiver  of  re- 
fraining from  such  acts ;  and  if  (by  negligence)  they  violate  this  duty,  they 
nmst,  on  plain  legal  principles,  be  liable  for  the  damages  produced" ;  Bigelow 
on  Torts,  602.  See,  also,  Coit  v.  West.  U.  Tel.  Co.,  130  Cal.  657,  63  Pac. 
83,  53  L.  R.  A.  678,  80  Am.  St.  Rep.  153;  West.  U.  Tel.  Co.  v.  Lycan,  60 
111.  App.  124 ;  Webbe  v.  West.  U.  Tel.  Co.,  169  111.  610,  48  N.  E.  670,  61  Am. 
St.  Rep.  207;  West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1;  Mentzer  v.  West.  U. 
Tel.  Co.,  93  Iowa,  752,  62  N.  W.  1,  57  Am.  St.  Rep.  294,  28  L.  R.  A.  72; 
Alexander  v.  West.  U.  Tel.  Co.,  66  Miss.  161,  5  South.  397,  3  L.  R.  A.  71, 
14  Am.  St.  Rep.  556 ;  Shingleur  v.  West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South. 
425,  30  L.  R.  A.  444,  48  Am.  St.  Rep.  604 ;  Tobin  v.  W^est.  U.  Tel.  Co.,  146 
Pa.  375,  23  Atl.  324,  28  Am.  St.  Rep.  802;  Pepper  v.  West.  U.  Tel.  Co., 
87  Tenn.  554,  11  S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St.  Rep.  699;  Wadswortli 
V.  West.  r.  Tel.  Co.,  86  Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep.  864;  State 
Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156,  L.  R. 
A.  1915A,  120,  quoting  text. 


612  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  478 

should  have  the  right  to  maintain  an  action  against  the  company 
for  the  breach  of  its  public  duty.  The  damages,  however,  which 
result  from  such  breach  should  be  the  proximate  consequence  of 
the  company's  negligence.^* 

§  478.  Same  continued — action  in  contract  or  tort. — It  is  often 
a  question  with  the  addressee  as  to  whether  he  should  bring  an 
action  in  contract  or  in  tort,  and  it  is  sometimes  a  doubtful  ques- 
tion with  the  courts  as  to  what  kind  of  an  action  has  been  brought. 
Because  the  addressee  has  an  action  in  contract  is  no  reason  why 
he  may  not  sue  in  tort.^^  As  was  said :  "In  many  cases  an  action 
as  for  tort,  or  an  action  as  for  breach  of  contract,  may  be  brought 
by  the  same  party  on  the  same  state  of  facts."  ^^  And,  as  further 
stated  by  another  text-writer:  "The  fact  that  a  contract  existed, 
and  was  broken  at  the  same  time,  and  by  the  same  act  or  omis- 
sion, by  which  the  plaintiff's  cause  of  action  arose,  is  only  one 
of  the  incidents  of  the  situation.  The  defendant  owed,  in  respect 
of  the  same  thing*  two  distinct  duties,  one  of  special  character  to 
the  party  with  whom  he  contracted,  and  one  of  a  general  char- 
acter to  others.  *  *  *  The  duty,  therefore,  does  not  grow  out 
of  the  contract,  but  exists  before  and  independent  of  it."  ^^  These 
companies  are  engaged  in  a  public  employment  and  are,  within 
certain  limits,  to  be  considered  as  common  carriers.  As  such, 
they  are  charged  with  a  common-law  duty,  and  "actions  may  be 
brought  in  tort,  although  the  breach  of  duty  is  the  doing  or  not 
doing  of  something  contrary  to  an  agreement  made  in  the  course 
of  such  employment."  ^^  Almost  all  cases  on  this  subject  hold  that 
the  addressee,  who  is  injured  through  the  negligence  or  careless- 

5  4  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac. 
156,  L.  R.  A.  1915A,  120,  quoting  text. 

5  5  Reese  v.  West.  U.  Tel.  Co..  123  Ind.  294,  24  N.  E.  163,  7  L.  R.  A.  583; 
Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402.  63  S.  E.  71,  22  L.  R.  A.  (N.  S.) 
540 ;  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  3.50,  13  S.  E,  562,  27  Am.  St.  Rep. 
259,  14  L.  R.  A.  95 ;  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653, 
128  Am.  St.  Rep.  581 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  489,  49  S.  E. 
165,  103  Am.  St.  Rep.  955,  67  L.  R.  A.  985,  1  Ann.  Cas.  349 ;  Cogdell  v.  West. 
U.  Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490;  West.  U.  Tel.  Co,  v.  Hill,  1G4  Ala. 
18,  50  South.  248,  23  L.  R.  A.  (X.  S.)  648,  19  Ann.  Cas.  1058;  Shiugleur  v. 
West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425,  48  Am.  St.  Rep.  604,  30  L.  R. 
A.  444,  sender  may  sue  either  in  contract  or  in  tort,  but  ordinarily  the 
addressee's  right  of  action  is  in  tort ;  Penn  v.  Telephone  Company,  159  N. 
C.  306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.)  223 ;  Strong  v.  West,  U,  Tel,  Co.,  IS 
Idaho,  389,  109  Pac.  910,  Ann.  Cas.  1912A,  55,  30  L.  R.  A.  (N.  S.)  409. 

5  6  Cooley  on  Torts,  103,  104. 

57  P.igelow  on  Torts,  586-617. 

58  Southern  Exp.  Co,  v.  McVeigh,  20  Grat.  (Va.)  264;  McPeek  v.  West.  U. 
Tel.  Co.,  107  Iowa,  362,  78  N.  W.  63,  70  Am.  St.  Rep.  20.5,  43  L.  R.  A.  214; 
Brown  v.  Chicago,  etc.,  R.  Co.,  54  Wis.  342,  11  N.  W.  356,  41  Am.  Rep.  41. 


§    479)  ACTIONS   FOR   DAMAGES  613 

ness  of  the  company,  may  proceed  either  upon  contract/'"  al- 
leging the  negligent  act  of  the  defendant  as  a  breach  of  the  con- 
tract, or  he  may  proceed  in  tort/"  making  the  negligence  of  the 
company  the  ground  of  his  right  of  recovery. 

§  479.  Same  continued — damages  under  either. — The  reason 
why  this  question  should  be  considered  and  known  is  that  the 
amount  of  damages  to  be  recovered,  and  the  ground  upon  which 
it  is  allowed  under  each,  is  quite  different.  The  general  rule  as 
to  the  amount  of  damages  to  be  recovered  for  a  breach  of  contract 
is  that  none  can  be  recovered  save  that  which  may  reasonably  be 
supposed  to  have  been  contemplated  by  the  parties  at  the  time  the 
contract  w^as  made  as  the  probable  result  of  the  breach  of  the  con- 
tract.®^ Recovery  in  tort  is  not  thus  limited.  The  rule  applicable 
to  such  cases  is  that  a  "party  who  commits  a  trespass,  or  other 
wrongful  act,  is  liable  for  all  the  direct  injury  resulting  from  such 
act,  although  such  resulting  injury  could  not  have  been  con- 
templated as  a  probable  result  of  the  act  done."  ^^  This  subject  is 
most  often  brought  up  wdiere  the  addressee  is  suing  to  recover 
damages  for  mental  suffering.  If  the  action  is  in  contract,  it  is 
pretty  generally  held  that  the  addressee  cannot  recover  damages 
for  mental  suft'ering,  since  it  is  presumed  that  this  was  not  in  the 
contemplation  of  the  parties  as  a  probable  result  of  the  breach  of 
the  contract;  yet,  if  the  action  were  in  tort,  recovery  could  be 
had.^^  So  it  is  of  vital  importance  to  know  what  kind  of  action, 
should  be  brought,  and  also  the  nature  of  the  action  which  has 
been  brought."* 

59Coit  V.  West.  U.  Tel.  Co.,  130  Cal.  657,  63  Pac.  83,  SO  Am.  St.  Rep. 
153,  53  L.  R.  A.  678;  West.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  491.  31 
Pac.  393;  West.  U.  Tel.  Co.  v.  Manker,  145  Ala.  418,  41  South.  850;  West. 
U.  Tel.  Co.  V.  Rowell,  153  Ala.  295,  45  South.  73 ;  Stamey  v.  West.  U.  Tel. 
Co.,  92  Ga.  613,  18  S.  E.  lOOS,  44  Am.  St.  Rep.  95;  De  Rutte  v.  New  York, 
etc.,  Mag.  Tel.  Co.,  1  Daly  (N.  Y.)  547;  Id.,  30  How.  Prac.  (N.  Y.)  403; 
Milllken  v.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  251,  1  L.  R.  A.  281 ; 
Anniston  Cordage  Co.  v.  West.  U.  Tel.  Co.,  161  Ala.  216,  49  South.  770  135 
Am.  St.  Rep.  124,  30  L.  R.  A.    (N.  S.)  1116. 

60  Strong  V.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  Ann.  Cas.  1912A, 
55,  30  L.  R.  A.  (N.  S.)  409;  Anniston  Cordage  Co.  v.  West.  U.  Tel.  Co.,  161 
Ala.  216,  49  South.  770,  135  Am.  St.  Rep.  124,  30  L.  R.  A.  (N.  S.)  1116.  '  See, 
also,  other  cases  cited  in  note  51,  supra. 

ci  Cowan  v.  West.  U.  Tel.  Co.,  122  Iowa,  379,  98  N.  W.  281,  101  Am.  St 
Rep.  274,  64  L.  R.  A.  545. 

62  Brown  v.  Chicago,  etc.,  R.  Co.,  54  Wis.  342,  11  N.  W.  356,  41  Am.  Rep. 
41 ;  Keenan  v.  Cavanaugh,  44  Vt.  268 ;  Metallic,  etc.,  Co.  v.  Fitchburg  R.  Co., 
109  Mass.  277,  12  Am.  Rep.  689 ;  Hill  v.  Winson,  118  Mass.  251 ;  1  Sedgwick 
on  Dam.  130. 

63  See  §  525  et  seq. 

64  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South.  73 ;    West.  U.  Tel. 


614  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  480 

§  480.  Agent  for  addressee. — It  has  been  held,  by  some  courts, 
that  the  company  stands  in  the  relation  of  an  agent  to  the  addressee 
and  is,  therefore,  liable  in  damages  to  its  principal  for  the  conse- 
quence of  its  negligence. ^^  It  was  held,  in  one  case,  viewing  the 
matter  in  this  light,  that  it  was  reasonable  for  all  purposes  of  lia- 
bility, that  the  company  should  be  regarded  as  much  the  agent  of 
him  who  receives  as  of  him  who  sends  the  message,  and  it  was  con- 
sidered that  the  company  ought  to  be  regarded  as  the  common  agent 
of  the  parties  at  either  end  of  the  wire.*'*'  We  think  this  is  clearly  an 
incorrect  view  to  take  of  the  subject.  It  has  also  been  held  by  some 
that  a  telegraph  company  was  the  agent  of  the  sender,**^  when  it 
is  not  suggested  by  the  addressee  to  be  used  as  a  medium  of 
communication ;  ®®  but  it  may  be  sued  by  either  for  the  negligent 
performance  of  its  duty. 

§  481.  Right  under  statute. — ^Other  authorities  claim  that  the 
right  of  the  addressee  to  sue  the  company  for  negligently  trans- 
mitting or  delaying  the  delivery  of  a  message,  arises  from  statutes 
to  that  effect.'''^  In  some  states  there  were  statutes  early  adopted 
which  gave  the  third  party  the  right  to  maintain  an  action  for  a 
breach  of  a  contract  made  for  his  benefit,  although  he  may  have 
been  a  stranger,  both  to  the  promise  and  the  consideration.'^"     In 

Co.  V.  Dubois,  128  111.  248,  21  N.  E.  4,  1-5  Am.  St.  Rep.  109;  West.  U.  Tel. 
Co.  V.  Potts,  120  Teun.  .37,  11.3  S.  W.  789,  127  Am.  St.  Rep.  991,  19  L.  R.  A. 
(N.  S.)  479,  holding  that  an  action  for  the  breach  of  a  statutory  duty  in 
regard  to  the  transmission  or  delivery  of  a  message  is,  in  effect,  an  action 
for  negligence.  However,  in  some  cases  it  is  immaterial  in  which  form  the 
action  is  brought.  West.  U.  Tel.  Co.  v.  Woodard,  84  Ark.  323,  105  S.  W. 
.579,  13  Ann.  Cas.  354 ;  West.  U.  Tel.  Co.  v.  Hogue,  79  Ark.  33,  94  S.  W.  924 ; 
Champion  Chem.  Wks.  v.  Postal  Tel.  Cable  Co.,  123  111.  App.  20. 

0  5  New  York,  etc..  Printing  Tel.  Co.  v.  Dryburg,  35  Pa.  298,  78  Am.  Dec. 
388. 

'6G  Id.  See,  also,  §§  467,  487. 

0  7  See  §  467. 

6s  Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353 ; 
Younker  v.  West.  U.  Tel.  Co.,  146  Iowa,  499,  125  N.  W.  577.  See,  also,  §  487, 
note  98. 

6  9  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E.  894;  West.  U.  Tel. 
Co.  V.  Fenton,  52  Ind.  1 ;  Herron  v.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W. 
696 ;  Markel  v.  West.  U.  Tel.  Co.,  19  Mo.  App.  80 ;  Wadsworth  v.  West.  U.  Tel. 
Co.,  86  Tenn.  695.  8  S.  W.  574,  6  Am.  St.  Rep.  864 ;  West.  U.  Tel.  Co.  v.  Allen, 
66  Miss.  549,  6  South.  461 ;  Younker  v.  West.  U.  Tel.  Co.,  146  Iowa,  499,  125  N. 
W.  577 ;  Francis  v.  West.  U.  Tel.  Co.,  58  Minn.  252,  59  N.  W.  1078,  49  Am.  St 
Rep.  507,  25  L.  R.  A.  406;  Rowan  v.  West.  U.  Tel.  Co.  (C.  C.)  149  Fed.  550; 
Pacific  Pine  Lbr.  Co.  v.  West.  U.  Tel.  Co.,  123  Cal.  428,  56  Pac.  103 ;  Telephone 
Co.  V.  Biggerstaff,  177  Ind.  168,  97  N.  E.  531.  See  West.  U.  Tel.  Co.  v.  Potts, 
120  Tenn.  37,  113  S.  W.  7S9.  19  L.  R.  A.  (N.  S.)  479,  127  Am.  St.  Rep.  991. 

7  0  Ellis  V.  Harrison,  104  Mo.  270,  16  S.  W.  198 ;  Rice  v.  Savery,  22  Iowa, 


§   482)  ACTIONS   FOR  DAMAGES  615 

three  states  in  particular,  there  have  been  statutes  adopted  which 
are  more  specifically  applicable  to  the  negligence  of  telegraph 
companies. '^^  It  is  often  provided  in  these  statutes  that  the  right 
of  the  addressee  is  not  affected  by  reason  of  the  fact  that  the 
employes  of  the  company  may  be  proceeded  against  criminally  for 
their  negligence. '^^  While  these  statutes  have  had  a  tendency  to 
strengthen  the  general  rule  whereby  a  third  person,  in  whose  favor 
a  contract  has  been  made,  may  maintain  an  action  for  a  breach 
therefor,  yet  we  think  that  they  are  merely  declaratory  of  the 
rights  derived  under  the  common  law,  and  that  a  third  person 
could  as  easily  recover  damages  for  the  breach  of  the  contract 
made  in  his  behalf  as  if  the  statutes  were  not  in  existence. 

§  482.  Right  of  action — altered  message. — And  still  it  has  been 
held  in  other  jurisdictions  that,  where  a  telegraph  company  has 
delivered  an  altered  message  or  one  materially  different  from  that 
contracted  to  be  sent,  it  would  be  a  misrepresentation,  or  a  false 
message,  and  the  company  should  be  held  liable  for  the  conse- 
quences.'^^ The  ground  upon  which  the  right  of  action  arises  is 
the  same  as  that  for  injuries  resulting  from  other  misrepresenta- 
tions. Thus  it  has  been  held  that  a  physician,  who  negligently 
administered  a  wrong  medicine,  is  responsible  to  his  patient  for 
the  injury  resulting  therefrom,  if  he  takes  it  in  the  belief  that  he 
was  taking  the  right  medicine."^  And  it  has  been  suggested  by 
analogy  that  a  telegraph  company  must  answer  to  an  addressee 
for  delivering  to  him  a  message  which,  through  its  negligence, 
has  become  false."  But  in  order  for  the  addressee  to  recover, 
he  must  show  that  he  himself  has  suffered  an  injury  by  the  neg- 
ligence of  the  company.  Therefore,  where  a  message  from  a  deal- 
er to  his  broker  is  erroneously  transmitted,  by  reason  of  which  the 
broker  makes  losing  contracts  for  his  principal,  the  broker  cannot 
maintain  an  action  for  damages,  because,  as  he  is  not  responsible 

470 ;  Miliani  v.  Tognini,  19  Nev.  133,  7  Pac.  279 ;  McArthur  v.  Drvden,  6  N.  D. 
43S,  71  N.  W.  125. 

Statutes  allowing  the  real  party  in  interest  to  sue  have  been  passed  in  Ala- 
lia ma,  California,  Indiana,  Iowa,  Kansas,  Kentucky,  Minnesota,  Missouri,  Ne- 
braska, Nevada,  New  York,  North  Carolina,  Ohio,  Oregon,  Texas,  Utah,  and 
Wisconsin.  Statutes  specifically  giving  to  a  third  party  a  right  of  action  upon 
a  contract  made  for  his  benefit  have  been  passed  in  California,  Civ.  Code,  § 
1559 ;  and  Dakota,  Comp.  Laws  1887,  §  3499. 

^1  Tennessee,  Indiana,  and  Iowa. 

7  2  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  G95,  8  S.  W.  574,  6  Am.  St.  Rep. 
864 ;  West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1. 

7  3  May  v.  West.  U.  Tel.  Co.,  112  Mass.  90. 

74  Norton  v.  Sewall,  106  Mass.  143,  8  Am.  Rep.  298 ;  Thomas  v.  Winchester, 
6  N.  Y.  397,  57  Am.  Dec.  455 ;  Ayers  v.  Russell,  50  Hun,  282,  3  N.  Y.  Supp.  338 

7  5  Allen's  Tel.  Gas.  455 ;  Gray  on  Tel.,  §  73. 


C16  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  483 

on  the  contracts,  he  cannot  claim  to  have  suffered  any  damages/* 
The  courts  and  text-writers,  as  may  be  observed,  have  consid- 
ered various  grounds  upon  which  the  addressee's  rights  of  action 
have  been  based,  but  we  are  inclined  to  think,  as  said  before,  that 
his  right  of  action  when  on  contract,  is  founded  on  the  ground 
that  a  third  party,  in  whose  favor  a  contract  is  made,  may  sue  for 
the  breach  thereof,  and  when  the  action  is  in  tort,  for  the  breach 
of  the  company's  common-law  duty. 

§  483.  Sender  paying  charges — effect  upon  the  addressee's 
right. — The  fact  that  the  sender  paid  the  company  the  charges 
for  transmitting  the  message  will  not  affect  the  addressee's  right 
of  action."  If  the  sender  is  acting  in  the  relation  of  agent  to  the 
addressee,  in  the  particular  instance,  or  if  the  latter  is  the  bene- 
ficiary of  the  contract  of  sending,  the  payment  by  the  sender  will 
be  a  sufficient  payment  for  the  addressee.  If  he  should  sue  for  the 
breach  of  its  public  duty,  the  payment  by  the  sender  in  the  con- 
tract of  sending,  and  out  of  which  the  action  of  tort  arose,  would 
be  sufficient  for  him  to  maintain  an  action  thereon.  It  matters  not 
from  whom  it  derives  the  compensation  for  its  services,  because, 
having  received  the  charges,  it  is  presumed  that  the  company  has 
assumed  the  duty  to  correctly  transmit  and  promptly  deliver  the 
message.  In  one  case  it  was  held  that  the  receiver  could  maintain 
his  suit  although  the  charges  had  been  paid  by  the  sender,  to  whom 
they  were  afterwards  returned  by  the  company.'^^  The  same  rule 
will  apply  in  actions  brought  by  the  sender  when  the  message 
fees  have  been  paid  by  the  addressee. 

§  484.  Third  party — right  of  action. — It  is  not  every  one  who 
may  maintain  suit  against  a  telegraph  company  when  interested  in 
a  message  being  correctly  transmitted  and  promptly  delivered, 
and  who  would  suffer  a  loss  by  a  failure  of  the  company  to  properly 
discharge  this  duty.  He  must  show  that  the  company  owed  a  duty 
to  him  in  the  particular  instance.'^  Therefore  a  stranger  cannot 
maintain  an  action  against  a  telegraph  company  for  its  negligence 
in  transmitting  or  delay  in  the  delivery  of  a  message,  when  the 

T6  Rose  V.  United  States  Tel.  Co.,  29  N.  T.  Super.  Ct.  305,  3  Abb.  Prac.  (N. 
S.)  408,  34  How.  Prac.  308. 

"  Wolfskehl  V.  West.  U.  Tel.  Co.,  4(3  Hun  (N.  T.)  542;  West.  U.  Tel.  Co.  v. 
Allen,  66  :\Iiss.  549,  6  South.  461 ;  West.  U.  Tel.  Co.  v.  Feegles,  75  Tex.  537,  12 
S.  W.  860 ;  West.  U.  Tel.  Co.  v.  Beriuger,  84  Tex.  38,  19  S.  W.  336. 

7  8  West.  U.  Tel.  Co.  v.  Beringer,  84  Tex.  38,  19  S.  W.  336. 

7  9  Poteet  V.  West.  U.  Tel.  Co.,  74  S.  C.  491,  55  S.  B.  113 ;  West.  U.  Tel.  Co.  v. 
Weniski,  84  Ark.  457,  106  S.  W.  486 ;  West.  U.  Tel.  Co.  v.  Schriver,  141  Fed. 
538,  72  C.  C.  A.  596,  4  L.  R.  A.  (N.  S.)  678 ;  McCormick  v.  West.  U.  Tel.  Co.,  79 
Fed.  449,  25  C.  C.  A.  35,  38  L.  R.  A.  6S4 ;  West.  U.  Tel.  Co.  v.  Jackson,  163  Ala. 
9,  50  South.  316. 


g   484)  ACTIONS   FOR  DAMAGES  617 

company  is  ignorant  of  his  connection  or  interest  in  the  message, 
or  when  he  is  remotely  connected  in  the  transaction.^"  Thus, 
where  the  plaintiff  delivers  a  message  to  a  third  person  with  the 
instruction  to  deliver  it  to  the  company  for  transmission,  but  in- 
stead of  the  third  party  obeying  the  instruction,  he  writes  anoth- 
er message  and  prepares  and  delivers  it  to  the  company  as  his 
own,  and  of  which  act  the  company  is  ignorant,  the  latter  will  not 
be  liable  to  the  plaintiff  for  its  negligence. ^^  If  the  plaintiff  can 
show  that  the  sender  and  the  addressee  were  acting  merely  as 
his  agents, ^^  or  that  the  company  was  informed  of  his  beneficial 
interest  therein, ^^  the  rule  would  be  different.     So,  also,  where  the 

8  0  Holler  v.  West.  U.  Tel.  Co.,  149  N.  C.  336,  63  S.  E.  92,  19  L.  R.  A.  (N.  S.) 
475 ;  Elliott  V.  West.  U.  Tel.  Co.,  75  Tex.  IS,  12  S.  W.  954,  16  Am.  St.  Rep.  S72 ; 
West.  U.  Tel.  Co.  v.  Weniski,  84  Ark.  457,  106  S.  W.  4S6 ;  West.  U.  Tel.  Co.  v. 
Schriver,  141  Fed.  538,  72  C.  C.  A.  596,  4  L.  R.  A.  (N.  S.)  678 ;  West.  U.  Tel.  Co. 
V.  Schriver,  129  Fed.  344,  64  C.  C.  A.  96 ;  Cranf ord  v.  West.  U.  Tel.  Co.,  138  N. 
C.  162,  50  S.  E.  585,  message  itself  need  not  show  plaintife's  interest  therein; 
West.  U.  Tel.  Co.  v.  Brown,  6  Ala.  App.  339,  59  South.  329. 

Mental  anguish. — As  to  the  right  of  a  person  whose  name  or  interest  does 
not  appear  on  the  face  of  the  telegram  to  recover  for  mental  anguish  due  to 
its  nondelivery,  see  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553, 
132  Am.  St.  Rep.  38;  Holler  v.  West.  U.  Tel.  Co.,  supra;  Harrelson  v.  West. 
U.  Tel.  Co.,  90  S.  C.  132,  72  S.  E.  882 ;  Maxville  v.  West.  U.  Tel.  Co.  (Tex.  Civ. 
App.)  140  S.  W.  464 ;  West.  U.  Tel.  Co.  v.  Herring  (Tex.  Civ.  App.)  146  S.  W. 
699 ;  West.  U.  Tel.  Co.  v.  Weniski,  supra ;  West.  U.  Tel.  Co.  v.  Swearengen,  94 
Ark.  336,  126  S.  W.  1071 ;  Cranford  v.  West.  U.  Tel.  Co.,  138  N.  C.  162,  50  S.  E. 
585 ;  Helms  v.  West.  U.  Tel.  Co.,  143  N.  C.  386,  55  S.  E.  831,  10  Ann.  Cas.  643, 
8  L.  R.  A.  (N.  S.)  249,  118  Am.  St.  Rep.  811 ;  West.  U.  Tel.  Co.  v.  Potts,  120 
Tenn.  37,  113  S.  W.  789,  19  L.  R.  A.  (N.  S.)  479,  127  Am.  St.  Rep.  991 ;  West.  U. 
Tel.  Co.  v.  Kirkpatrick,  76  Tex.  217,  13  S.  W.  70,  18  Am.  St.  Rep.  37 ;  South- 
western Tel.,  etc.,  Co.  v.  Gotcher,  93  Tex.  114,  53  S.  W.  686 ;  West.  U.  Tel.  Co. 
v.  Motley  (Tex.  Civ.  App.)  27  S.  W.  51 ;  Herring  v.  West.  U.  Tel.  Co.,  60  Tex. 
Civ.  App.  5,  127  S.  W.  882.  But  see  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654, 
10  S.  W.  734,  13  Am.  St.  Rep.  845. 

><i  Elliott  V.  West.  U.  Tel.  Co.,  75  Tex.  IS,  12  S.  W.  954.  16  Am.  St.  Rep.  872 ; 
Deslottes  v.  Baltimore,  etc.,  Tel.  Co.,  40  La.  Ann.  183,  3  South.  566. 

82  Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.. Rep. 
672 ;  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W.  789,  127  Am.  St.  Rep. 
991,  19  L.  R.  A.  (N.  S.)  479.  But  it  has  been  held  that  the  action  could  not  be 
maintained  by  one  who  is  the  undisclosed  principal  of  the  addressee  alone. 
West.  U.  Tel.  Co.  v.  Schriver,  141  Fed.  538,  72  C.  C.  A.  596,  4  L.  R.  A.  (N.  S.) 
678.  See,  also,  Lee  v.  West.  U.  Tel.  Co.,  51  Mo.  App.  375.  Compare  West.  U. 
Tel.  Co.  V.  Potts,  supra.  But  see  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539, 
48  South.  553,  132  Am.  St.  Rep.  38 ;  Holler  v.  West.  U.  Tel.  Co.,  149  N.  C.  336, 
63  S.  E.  92,  19  L.  R.  A.  (N.  S.)  475 ;  Harrelson  v.  West.  U.  Tel.  Co.,  90  S.  C. 
132,  72  S.  E.  882 ;  Maxville  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  140  S.  W.  464 ; 
West.  U.  Tel.  Co.  v.  Herring  (Tex.  Civ.  App.)  146  S.  W.  699. 

**3  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94;  West.  U.  Tel.  Co. 
V.  Morrison  (Tex.  Civ.  App.)  33  S.  W.  1025;  West.  U.  Tel.  Co.  v.  Mellon,  96 
Tenn.  66,  33  S.  W.  725 ;  Martin  v.  West.  U.  Tel.  Co.,  1  Tex.  Civ.  App.  143,  20 
S.  W.  860 ;  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W.  789,  19  L.  R.  A. 
(N.  S.)  479,  127  Am.  St.  Rep.  991 ;  Wells  v.  West.  U.  Tel.  Co.,  144  Iowa,  605,  123 


618  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  485 

message  is  sent  on  behalf  of  a  wife,  the  husband  is  the  proper  per- 
son to  sue,  although  he  may  not  have  been  a  party  to  the  contract 
of  sending.^*  And  the  parent  or  next  friend  may  sue  a  company 
for  its  negligence  in  transmitting  or  delivering  a  message  in  which 
the  child  is  interested.  In  such  cases  the  contributory  negligence 
of  the  parent  will  be  no  defense  to  the  company  as  against  the 
child,  while  it  may  be  as  against  the  parent.*^ 

§  485.  Under  special  statutes — penalty. — There  are  special  stat- 
utes adopted  in  some  of  the  states  which  impose  a  penalty  on  tele- 
graph companies  for  every  failure  to  properly  discharge  its  duty  as 
to  transmitting  and  delivering  messages,  and  providing  that  the 
penalty  may  be  recovered  by  the  "party  aggrieved."  It  has  been 
held  in  Mississippi,®^  Tennessee  ^'^  and  Missouri  ^^  that  either  the 
sender  or  receiver  could  recover  the  penalty  under  these  statutes. 
There  is  a  statute  somewhat  similar  to  these  in  Indiana,  but  it  is  held 
there  that  only  the  sender  has  a  right  of  action. "^^  And  in  the  latter 
state  it  is  held  that  one  who  directs  his  clerk  to  forward  to  him,  in 
his  absence,  an  expected  message  from  a  third  person,  is  not  a 

N.  W.  371,  138  Am.  St.  Rep.  317,  24  L.  R.  A.  (N.  S.)  1045 ;  Alexander  v.  West. 
U.  Tel.  Co.,  158  N.  C.  473,  74  S.  E.  449,  42  L.  R.  A.  (N.  S.)  407 ;  Penn  v.  Tele- 
phone Co.,  159  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.)  223 ;  West.  U.  Tel.  Co. 
V.  Robertson  (Tex.  Civ.  App.)  133  S.  W.  454 ;  Telephone  Co.  v.  Carter,  2  Tex. 
Civ.  App.  624,  21  S.  W.  688. 

84  The  fact  that  the  company  had  no  notice  that  she  was  plaintiff's  wife,  or 
that  the  contract  was  made  for  her,  is  immaterial.  West.  U.  Tel.  Co.  v.  Adams, 
75  Tex.  531,  12  S.  W.  857,  6  L.  R.  A.  844,  16  Am.  St.  Rep.  920 ;  West.  U.  Tel. 
Co.  V.  Feegles,  75  Tex.  537,  12  S.  W.  860 ;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex. 
507,  9  S.  W.  598,  10  Am.  St.  Rep.  772,  1  L.  R.  A.  728 ;  Young  v.  West.  U.  Tel. 
Co.,  107  N.  C.  370,  11  S.  E.  1044,  22  Am.  St.  Rep.  883,  9  L.  R.  A.  669n.  See 
note  2,  supra,  for  other  cases.     See,  also,  §  475,  and  cases  cited  thereunder. 

S5  West.  U.  Tel.  Co.  v.  HofCman,  80  Tex.  420,  15  S.  W.  1048,  26  Am.  St.  Rep. 
759.  This  case  was  an  action  by  a  father  and  son  against  the  telegraph  com- 
pany for  failure  to  deliver  a  message  sent  to  a  physician.  The  son,  a  boy  of 
fifteen  years,  had  broken  his  arm,  and  on  the  same  day  his  mother,  in  his 
father's  absence,  telegraphed,  for  a  physician.  Through  the  conceded  negli- 
gence of  the  company  the  message  was  not  delivered  for  nine  days,  but  it  ap- 
peared that  the  parents  made  no  further  efforts  to  secure  a  physician  until  it 
was  too  late  to  save  the  boy's  arm.  It  was  held  that  the  father's  contributory 
negligence  in  not  sending  for  another  physician  would  bar  recovery  on  his  own 
account,  but  that  a  judgment  in  favor  of  the  son  was  proper,  as  the  negligence 
of  the  father  could  not  be  imputed  to  him.  See,  also,  Williams  v.  Tex.,  etc., 
R.  Co.,  60  Tex.  205 ;  Galveston,  etc.,  R.  Co.  v.  Moore,  59  Tex.  64,  46  Am.  Rep. 
265 ;  Plumley  v.  Birge,  124  Mass.  57,  26  Am.  Rep.  645. 

8  6  West.  U.  Tel.  Co.  v.  Allen,  06  Miss.  549,  6  South.  461. 

8  7  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep. 
864. 

8  8  Markel  v.  West.  U.  Tel.  Co.,  19  Mo.  App.  SO. 

8  0  West.  U.  Tel.  Co.  v.  Pendleton,  05  Ind.  12,  48  Am.  Rep.  692;  West.  U.  Tel. 
Co.  V.  Meek,  49  Ind.  53 ;  West.  U.  Tel.  Co.  v.  Hopkins,  49  Ind.  223 ;  Hadley  v. 
W^est.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E,  845. 


§    487)  ACTIONS   FOR   DAMAGES  619 

"sender"  within  the  meaning  of  the  statute ;  °°  nor  is  one  a  sender 
who  merely  shows  that  he  deHvered  to  the  company  a  message  for 
transmission,  signed  by  another  but  paid  for  by  himself.^^  There 
is  another  statute  in  this  state  authorizing  the  recovery  of  special 
damages,  under  which  the  addressee  may  sue.''^  There  is  a  statute 
in  New  York  which  prescribes  the  duties  of  telegraph  companies, 
and  under  this  a  company  may  maintain  an  action  against  a  con- 
necting line  which  refuses  to  accept  a  message  from  the  initial  line 
for  further  transmission;^^  although,  in  such  cases,  the  original 
sender  of  the  message  might  properly  have  maintained  the  action. °* 

§  486.  Addressee's  right  not  affected  by  failure  to  have  mes- 
sage repeated. — In  some  jurisdictions  it  is  held  that  the  stipulations 
in  the  message  blanks  with  respect  to  a  necessity  of  a  message  be- 
ing repeated  in  order  to  bind  the  company  are  binding;  ^'^  and, 
when  this  is  the  case,  the  addressee's  right  of  action,  when  in  tort, 
is  not  afifected  by  these  stipulations,^*'  but  if  the  action  is  in  con- 
tract, we  think  the  rule  would  be  different.^'  When  he  sues  for 
the  breach  of  the  contract,  made  by  the  sender  as  his  agent  or  in 
his  behalf,  he  assumes  all  the  conditions  of  the  contract,  and  as  they 
would  be  binding  on  the  sender,  they  would  also  be  binding  on  the 
addressee. 

§  487.  Actions  between  sender  and  addressee. — The  prevailing 
view  is  that,  as  between  the  sender  of  a  telegraph  message  and  the 
innocent  sendee,  all  losses  caused  by  the  errors  or  mistakes  made 
in  the  transmission  must  be  borne  by  the  sender,'"*  but  the  latter 

90  West.  U.  Tel.  Co.  v.  Kinney,  106  Ind.  468,  7  N.  E.  191. 

91  West.  U.  Tel.  Co.  v.  Brown,  108  Ind.  538,  8  N.  E.  171. 

9  2  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E.  894;  West.  U.  Tel. 
Co.  V.  Fenton,  52  Ind.  1. 

03  United  States  Tel.  Co.  v.  West.  U.  Tel.  Co.,  56  Barb.  (N.  Y.)  46. 

94  Leonard  v.  New  York,  etc.,  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446. 

95  See  §  376  et  seq. 

9  6  New  York,  etc..  Printing  Tel.  Co.  v.  Dryburg,  35  Ba.  298,  78  Am.  Dec. 
338 ;   Tobin  v.  West.  U.  Tel.  Co.,  146  Pa.  375,  23  Atl.  324,  28  Am.  St.  Rep.  802. 

97  See  §  376  et  seq. 

98  West.  U.  Tel.  Co.  v.  Shotter.  71  Ga.  760;  Brooke  v.  West.  U.  Tel.  Co., 
119  Ga.  694,  46  S.  E.  826 ;  Richmond  Hosiery  Mills  v.  West.  U.  Tel.  Co.,  123 
Ga.  216,  51  S.  E.  290 ;  West.  U.  Tel.  Co.  v.  Cooper,  2  Ga.  App.  376,  58  S.  E. 
517;  Younker  v.  West.  U.  Tel.  Co.,  146  Iowa,  499,  125  N.  W.  577;  Saveland 
V.  Green,  40  Wis.  431 ;  Haubelt  v.  Rea,  etc.,  Mill  Co.,  77  Mo.  App.  672.  See, 
also.  Culver  v.  Warren,  36  Kan.  391,  13  Pae.  577 ;  Ilasbrouck  v.  West.  U. 
Tel.  Co.,  107  Iowa,  160,  77  N.  W.  1034,  70  Am.  St.  Rep.  181 ;  Dunning  v.  Rob- 
erts, 35  Barb.  (N.  Y.)  463 ;  Rose  v.  United  States  Tel.  Co.,  3  Abb.  Prac.  N.  S. 
(N.  Y.)  408 ;    Sherrerd  v.  West.  U.  Tel.  Co.,  146  Wis.  197,  131  N.  W.  341. 

View  that  the  sender  is  linhle  only  ivhcn  taking  initiative.— Some  courts 
have  adopted  the  rule  that  the  party  who  selects  the  telegraph  as  a  mode  of 
communication  must  bear  the  consequences.     Joynes  v.  Postal  Tel.  Cable  Co., 


620  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  487 

may  recover  his  loss  from  the  company. ®®  Thus,  where  a  company 
erroneously  transmits  a  message  offering  to  sell  merchandise  at  a 
certain  price,  so  as  to  make  the  price  less,  the  sender  would  be 
l)ound  by  the  message  as  sent,  but  he  could  recover  the  difference 
from  the  compan3^^°°    The  reason  of  this  rule  is  that  the  company 

37  Pa.  Sup.  Ct.  65;  Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am. 
St.  Rep.  353.  See,  also,  Wilson  v.  Minneapolis,  etc.,  R.  Co.,  31  Minn.  4S1,  IS 
N.  W.  291 ;  Magie  v.  Herman,  50  Minn.  424,  52  N.  W.  909,  36  Am.  St.  Rep. 
660 ;  West.  U.  Tel.  Co.  v.  Allen,  30  Okl.  229,  119  Pac.  981,  38  L.  R.  A.  (N.  S.) 
348. 

Contrary  vieio. — In  several  jurisdictions,  however,  the  courts  have  held 
that  the  sender  of  an  altered  message  is  not  bound  thereby.  Shingleur  v. 
West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425,  48  Am.  St.  Rep.  604,  30  L.  R.  A. 
444 ;  Pegram  v.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep. 
557;  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St. 
Rep.  699,  4  L.  R.  A.  660;  Henkel  v.  Pape,  L.  R.  6  Exch.  (Eng.)  7,  40  L.  J. 
Exch.  15,  23  L.  T.  N.  S.  419,  19  Wkly.  Rep.  106;  Flynn  v.  Kelly,  12  Out.  L. 
Rep.  440,  8  Ont.  W.  Rep.  120;  Strong  v.  West.  U.  Tel.  Co.,  18  Idaho,  389, 
109  Pac.  910,  Ann.  Cas.  1912A,  55,  30  L.  R.  A.  (N.  S.)  409.  Some  of  these 
courts  have  taken  the  position  that  the  doctrines  of  the  lavp  of  agency  do  not 
apply  and  that  in  transmitting  a  message  the  telegraph  company  does  not 
act  as  the  agent  of  either  the  sender  or  receiver.  The  company  is  said  to 
occupy  a  position  sui  generis,  which  is  that  of  an  independent  contractor. 
The  receiver  of  a  message  which  has  been  altered  by  the  company  in  trans- 
mitting is  not  entitled,  according  to  this  law,  to  hold  the  sender  responsible 
for  the  error.  Shingleur  v.  West.  U.  Tel.  Co.,  supra ;  Strong  v.  West.  U.  Tel. 
Co.,  supra. 

Liahility  to  receiver  having  notice  of  error. — Assuming  that  the  company 
is  acting  as  the  agent  of  the  sender,  and  that  the  sendee  has  the  right  to  rely 
upon  the  message,  if,  however,  he  knows  or  has  reason  to  suppose  that  an 
error  or  mistake  has  been  made,  the  sender  will  not  be  bound.  Ayer  v.  West. 
U.  Tel.  Co.,  supra ;  Germain  Fruit  Co.  v.  West.  U.  Tel.  Co.,  137  Cal.  598,  70 
Pac.  658,  59  L.  R.  A.  575 ;  Postal  Tel.  Cable  Co.  v.  Akron  Cereal  Co.,  23  Ohio 
Cir.  Ct.  R.  516. 

Parties  to  contract. — Under  some  circumstances  the  contract  is  made  be- 
tween the  principal  direct  and  the  third  party.  Strong  v.  West.  U.  Tel.  Co., 
supra. 

9  9  Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353. 

100  West.  U.  Tel.  Co.  v.  Flint  River,  etc.,  Co.,  114  Ga.  576,  40  S.  E.  815, 
88  Am.  St.  Rep.  39. 

The  company  in  accepting  a  message  is  under  obligation  to  transmit  it  cor- 
rectly. West.  U.  Tel.  Co.  v.  Chamblee,  122  Ala.  428,  25  South.  232,  82  Am. 
St.  Rep.  89.  If  a  land  agent  leaves  a  message  directed  to  his  principal  and 
naming  the  price  at  which  his  property  can  be  sold,  and  the  company  through 
error  in  the  transmission  raises  the  price,  and  the  principal  accepts  the  offer 
as  received  and  executes  a  deed  at  that  price  first  named  by  him,  the  com- 
pany is  liable  to  the  vendor  for  the  difference  between  the  prices.  Reed  v. 
West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R.  A.  492,  58  Am.  St.  Rep. 
609.  See,  also,  Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  1034, 
70  Am.  St.  Rep.  181 ;  Rittenhouse  v.  Independent  Line  of  Tel.,  44  N.  Y.  263, 
4  Am.  Rep.  673;  West.  U,  Tel.  Co.  v.  Reals,  56  Neb.  415,  76  N.  W.  903,  71 
Am.  St.  Rep.  682;  Sherrerd  v.  West.  U.  Tel.  Co.,  146  Wis.  197,  131  N.  W. 
341,  holding  that  if  a  person  sends  a  message  to  his  broker  directing  the  pur- 
chase of  shares  of  stock  or  commodities,  and  the  telegraph  company  changes 


M 


§    488)  ACTIONS   FOR   DAMAGES  621 

has  no  authority  or  agency  either  from  the  sender  or  addressee  to 
make,  modify,  or  alter  any  agreement  or  proposition  contained  in 
the  message  to  buy  or  sell,  or  to  bind  a  person  sending  or  receiving 
it.^°^  Hence  the  mere  fact  of  employing  the  company  to  send  a 
message  does  not  make  it  the  agent  of  the  sender  so  as  to  bind 
him  upon  a  telegram  negligently  altered  in  transmission.  The 
sender  is  bound  by  the  contents  of  the  telegram  as  received  only  so 
far  as  it  is  a  faithful  reproduction  of  what  is  sent.^°^  The  negligence 
of  the  company  in  delivering  a  changed  message  cannot  be  attri- 
buted to  the  addressee,  who  acts  upon  its  direction,  when  there  is 
nothing  in  the  message  as  received  to  suggest  a  doubt  as  to  its 
accuracy. ^°^ 

§  488.  What  law  governs. — Very  frequently  actions  are  brought 
against  telegraph  and  telephone  companies  for  negligently  trans- 
mitting messages  from  one  state  to  ;another  and  the  laws  in  the  two 
states  regarding  same  are  conflicting.^"*  In  such  actions  the  ques- 
tion of  penalties  imposed  by  one  state  and  not  by  the  other  or  dif- 
ferently imposed  is  sometimes  to  be  considered. ^°^  One  state  may 
have  increased  the  common-law  liability  of  such  companies  when 
the  other  has  not.^°''  Again,  one  state  may  uphold  certain  stipula- 
tions limiting  the  contract  of  transmitting  messages  contrary  to  the 
laws  of  the  other  state.^"'^  And  then  one  state  may  allow  a  recov- 
ery for  mental  anguish  when  the  other  refuses  a  recovery.^"^    As 

the  price  or  amount  specified  by  ttie  sender,  the  latter  will  be  bound  never- 
theless. And  if  a  message  offering  goods  for  sale  at  a  certain  price  is  given 
to  a  telegraph  company  for  transmission,  and  by  reason  of  error  the  message 
as  delivered  purports  to  offer  the  goods  at  a  less  price,  the  sender  will  be 
bound  to  deliver  the  articles  at  the  latter  price,  if  the  purchaser  duly  accepts 
the  offer.  West.  U.  Tel.  Co.  v.  Shotter,  71  Ga.  760 ;  Haubelt  v.  Rea,  etc.,  Mill 
Co.,  77  Mo.  App.  672. 

101  Pegram  v.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557. 

102  Pepper  v.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep.  699, 
4  L.  R.  A.  660. 

103  West.  U.  Tel.  Co.  v.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835. 

104  Shaw  V.  Postal  Tel.  Cable  Co.,  79  Miss.  670,  31  South.  222,  89  Am.  St. 
Rep.  066,  56  L.  R.  A.  486 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South. 
248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  10.58;  Gray  v.  West.  U.  Tel.  Co., 
108  Tenn.  39,  64  S.  W.  1063,  91  Am.  St.  Rep.  706,  56  L.  R.  A.  301. 

105  See  chapter  XXV. 

106  Reed  V.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep. 
609,  34  L.  R.  A.  492. 

107  Shaw  V.  Postal  Tel.  Cable  Co.,  79  Miss.  670,  31  South.  222,  89  Am.  St. 
Rep.  666,  56  L.  R.  A.  486.     See,  also,  chapter  16. 

108  Johnson  v.  West.  U.  Tel.  Co.,  144  N.  C.  410,  57  S.  E.  122,  10  L.  R.  A. 
(N.  S.)  256,  119  Am.  St.  Rep.  961 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50 
So^th.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058;  Gray  v.  West.  U. 
Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1003,  91  Am.  St.  Rep.  706,  56  L.  R.  A.  301 , 


622  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  488 

to  the  first  question,  or  that  of  penalties  imposed  by  the  laws  of  one 
state  for  a  default  in  or  negligent  transmission  of  messages,  the 
rule  is  universal  that  such  law  has  no  extraterritorial  effect.^°^  But 
as  to  the  other  questions  there  is  much  conflict  among  the  courts.^^" 
These  questions  are,  however,  quite  analogous  to  those  in  relation 
to  the  law  governing  the  contracts  of  common  carriers.  The  ques- 
tion is  not  very  material  if  the  parties  have  contracted  so  as  to  be 
bound  by  the  laws  of  one  of  the  states,  since  it  is  a  well-recognized 
rule  that  an  express  stipulation  in  a  contract  as  to  the  governing 
law  is  controlling.  The  difficulty  arises  when  there  is  no  such  stip- 
ulation. So,  when  this  is  the  case,  some  of  the  courts  apply  the 
law  of  the  state  in  which  the  contract  for  transmission  was  entered 
into.^^^  On  the  other  hand,  other  courts  apply  the  law  of  the  state 
where  the  contract  is  to  be  performed. ^^^  And  still  other  courts 
draw  a  distinction  between  actions  arising  on  contract  and  in 
tort;  ^^^    and  so,  where  it  is  in  tort — and  not  a  duty  created  by  a 

West.  U.  Tel.  Co.  v.  Sloss,  45  Tex.  Civ.  App.  153,  100  S.  W.  354,  disapproving 
West.  U.  Tel.  Co.  v.  Blake,  29  Tex.  Civ.  App.  224,  68  S.  W.  526. 

109  See  chapter  XXV. 

110  Johnson  v.  West.  U.  Tel.  Co.,  144  N.  C.  410,  57  S.  E.  122,  10  L.  R.  A. 
(N.  S.)  256 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  IS,  50  South.  248,  23  L.  R.  A. 
(N.  S.)  648,  19  Ann.  Cas.  1058.     See,  also,  §  375. 

111  Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep. 
609,  34  L.  R.  A.  492 ;  Shaw  v.  Postal  Tel.,  etc.,  Co.,  79  Miss.  670,  31  South. 
222,  89  Am.  St.  Rep.  666,  56  L.  R.  A.  486 ;  West.  U.  Tel.  Co.  v.  Pratt,  18  Okl. 
274,  89  Pac.  237 ;  Hall  v.  West.  U.  Tel.  Co.,  139  N.  C.  369,  52  S.  E.  50 ;  John- 
son V.  West.  U  Tel.  Co.,  144  N.  C.  410,  57  S.  E.  122,  10  L.  R.  A.  (N.  S.)  256 ; 
West.  U.  Tel.  Co.  v.  Waller,  96  Tex.  589,  74  S.  W.  751,  97  Am.  St.  Rep.  936, 
reversing  (Tex.  Civ.  App.)  72  S.  W.  264;  Ligon  v.  West.  U.  Tel.  Co.,  46  Tex. 
Civ.  App.  408,  102  S.  W.  429;  Brown  v.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67 
S.  E.  146,  137  Am.  St.  Rep.  914 ;  Plant  v.  Tel.  Co.  (Ohio)  54  Cinn.  Law  Bui. 
51 ;  Heath  v.  Postal  Tel.  Cable  Co.,  87  S.  C.  219,  69  S.  E.  283 ;  West.  U.  Tel. 
Co.  v.  Young  (Tex.  Civ.  App.)  133  S.  W.  512;  West.  U.  Tel.  Co.  v.  Moore 
(Tex.  Civ.  App.)  139  S.  W.  1020.  Compare  Williamson  v.  Postal  Tel.  Cable 
Co.,  151  N.  C.  225,  65  S.  E.  974 ;  Fox  v.  Postal  Tel.  Cable  Co.,  138  Wis.  648,  120 
N.  W.  399,  28  L.  R.  A.  (N.  S.)  490,  foreign  law  will  not  be  applied  against  the 
public  policy  of  the  forum.  See,  also,  §  375.  See  Kolliner  v.  West.  U.  Tel. 
Co.,  126  Minn.  122,  147  N.  W.  961,  52  L.  R.  A.  (N.  S.)  1180,  where  statute  of 
state  where  message  is  sent  from  is  not  pleaded  common  law  governs.  Young 
V.  West.  U.  Tel.  Co.,  168  N.  C.  3.6,  84  S.  E.  45. 

112  West.  U.  Tel.  Co.  v.  Lacer,  122  Ky.  839,  93  S.  W.  34,  29  Ky.  Law  Rep. 
379,  121  Am.  St.  Rep.  502,  5  L.  R.  A.  (N.  S.)  751 ;  North  Packing,  etc.,  Co.  v. 
West.  U.  Tel.  Co.,  70  111.  App.  275;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18, 
50  South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058;  Howard  v.  West. 
U.  Tel.  Co.,  119  Ky.  625,  84  S.  W.  764,  86  S.  W.  982,  27  Ky.  Law  Rep.  244, 
858,  7  Ann.  Cas.  1065 ;  West.  U.  Tel.  Co.  v.  Fuel,  165  Ala.  391,  51  South.  571. 
See,  also,  §  375. 

iisBalderston  v.  West.  U.  Tel.  Co.,  79  S.  C.  160,  60  S.  E.  435;  West.  U. 
Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.)  648,  10  Ann. 
Cas.  1058. 


§    489)  ACTIONS   FOR  DAMAGES  623 

penal  statute  ^^^ — the  law  of  the  state  where  the  particular  breach 
of  duty  occurred  controls.'"'  However,  in  accordance  to  the  gen- 
eral rule  on  the  subject,  and  where  there  is  no  evidence  to  the  con- 
trary, it  will  be  presumed  that,  whether  the  action  is  in  contract 
or  tort,  the  law  of  the  state  where  the  contract  was  made  or  to  be 
performed  or  where  the  breach  of  duty  occurred  is  the  same  as  that 
of  the  forum.""*'  These  actions  are  governed  by  the  statutes  of  limi- 
tation applied  in  similar  cases. ""^ 

§  489.  Contract  made  where  last  act  of  assent  was  done. — A 
contract  is  complete  where  nothing  further  remains  to  be  done  ,to 
give  either  party  a  right  to  have  it  carried  into  efTect.""^  Therefore, 
where  the  parties  are  residents  of  different  states,  the  state  where 
the  final  assent  is  given  or  the  last  act  necessary  to  complete  it  is 
done  is  the  place  where  the  contract  is  made,  notwithstanding  all 
preliminary  arrangements  were  made  in  the  other  state. ""^  It  has 
been  stated  that  "the  general  rule  of  law  is  that  a  contract  takes 
effect,  as  such,  at  the  place  where  it  was  intended  to  be  delivered 
and  become  operative,  and  the  liability  of  the  parties  is  determined 
by  the  law  of  that  place."-°  So,  where  a  person  in  one  state  writes 
to  a  person  in  another  a  letter  containing  a-n  offer  or  proposal,  and 
the  latter  writes  in  reply  a  letter  accepting  the  proposal,  the  con- 
tract is  complete  when  the  letter  of  assent  is  deposited  in  the  post 
office,  properly  addressed."-"  The  place  of  the  contract  is  the  place 
where  the  letter  of  acceptance  is  mailed,  and  not  the  place  where  the 
letter  is  received. "^^ 

114  Gray  v.  West.  U.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1063,  91  Am.  St.  Rep. 
706,  56  L.  R.  A.  301 ;   West.  U.  Tel.  Co.  v.  Ford.  77  Ark.  531,  92  S.  W.  528. 

115  Gray  v.  West.  U.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1003,  91  Am.  St.  Rep. 
706,  56  L.  R.  A.  301;  West.  U.  Tel.  Co.  v.  Hill,  103  Ala.  IS,  50  South.  248, 
23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058 ;  Balderston  v.  West.  U.  Tel.  Co., 
79  S.  C.  100,-  60  S.  E.  435. 

110  West.  U.  Tel.  Co.  v.  Parsley,  57  Tex.  Civ.  App.  8,  121  S.  W.  226;  Burgess 
V.  West.  IT.  Tel.  Co.,  92  Tex.  125,  46  S.  W.  794,  71  Am.  St.  Rep.  833,  reversing 
(Tex.  Civ.  App.)  43  S.  W.  1033;  West.  U.  Tel.  Co.  v.  McNairy,  34  Tex.  Civ. 
App.  389,  78  S.  W.  909. 

117  West.  U.  Tel.  Co.  v.  Witt,  110  S.  W.  889,  33  Ky.  Law  Rep.  685;  La 
Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383. 

iisMactier  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262;  Hamilton  v. 
Lycoming  Ins.  Co.,  5  Pa.  339. 

ii»Whiston  V.  Stodder,  8  Mart.  O.  S.  (La.)  95,  13  Am.  Dec.  281;  Milliken 
v.  Pratt,  125  Mass.  375,  28  Am.  Rep.  241 ;   Ames  v.  McCamher,  124  Mass.  85. 

120  Lee  V.  Selleck,  33  N.  Y.  615;  Tilden  v.  Blair,  21  Wall.  246,  22  L.  Ed. 
632.     See  Elliott  on  Contracts,  §  1116. 

121  Mactier  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  262;  Adams  v.  Lind- 
sell,  1  Barn.  &  Aid.  681.     See,  also,  Elliott  on  Contracts,  §  1116. 

122  Vassar  v.  Camp,  14  Barh.  (N.  Y.)  341 ;    Clark  v.  Dales,  20  Barb.  (N.  Y.) 


024  TELEGRAPH  AND  TELErHONE  COMPANIES         (§  490 

§  490.  Same  continued — actions  between  sender  and  addressee 
— contract — where  made. — The  place  of  final  assent  generally  deter- 
mines the  place  where  a  contract  is  made,  when  it  consists  of  letters 
or  telegrams  passing  between  parties  living  in  different  places  or 
countries. ^-^  When  a  telegram  is  sent  accepting  a  proposition,  re- 
ceived by  mail  or  telegram,  the  contract  thus  consummated  is 
deemed  to  have  been  made  at  the  time  when  and  the  place  where 
the  last  act  of  assent  was  thus  done  or  made;  and  the  contract  is, 
therefore,  binding,  though,  as  a  matter  of  fact,  the  telegram  is  not 
received  by  the  person  to  whom  it  was  addressed. ^^*  The  parties 
to  a  contract  made  by  means  of  telegrams  are  bound  by  the  laws 
of  the  state  in  which  the  contract  was  made,  although  the  suit  may 
have  been  brought  in  another  state.  They  may,  however,  agree 
by  contract  or  stipulation  to  be  governed  by  the  laws  of  a  state 
other  than  that  in  which  the  contract  was  niade.^^^ 

§  491.  Same  continued — action  where  brought. — The  place 
where  suit  should  be  brought  depends  upon  the  question  as  to  wheth- 
er the  action  is  local  or  transitory;  and  the  difficulty  is  to  determine 
what  are  local  and  what  are  transitory  actions.^-*^  If  the  contract 
between  the  sender  and  the  addressee  concerns  local  matter,  the  suit 
must  be  brought  in  the  place  where  the  property  is  located ;  but  if 
it  is  about  transitory  matter,  it  should  be  maintained  in  the  place 


42 ;  Bell  v.  Packard,  69  Me.  105,  31  Am.  Rep.  251.  See  Elliott  on  Contracts, 
§  1116. 

12  3  Elliott  on  Contracts,  §  1116. 

isiDord  V.  Bonnaffee,  6  La.  Ann.  563,  54  Am.  Dec.  573;  Bell  v.  Packard, 
69  Me.  105.  31  Am.  Rep.  251 ;  Vassar  v.  Camp,  11  N.  Y.  441 ;  Trevor  v.  Wood, 
36  N.  Y.  307,  93  Am.  Dec.  511 ;  Perry  v.  Mt.  Hope  Ins.  Co.,  15  R.  I.  380,  5 
Atl.  632,  2  Am.  St.  Rep.  902;  Garrettson  v.  North  Atchison  Bank  (C.  C.)  47 
Fed.  867,  affirmed  in  North  Atchison  Bank  v.  Garrettson,  51  Fed.  168,  2  C.  C 
A.  145;  Tillinghast  v.  Boston,  etc..  Lumber  Co.,  39  S.  C.  484,  IS  S.  E.  120, 
22  L.  R.  A.  49.     See,  also,  Elliott  on  Contracts,  §  1116. 

i25Griesemer  v.  Mut,  etc.,  Ass'n,  10  Wash.  202,  38  Pac.  1031;  Penn.,  etc., 
Ins.  Co.  V.  Mechanics',  etc.,  Co.,  72  Fed.  413.  19  C.  C.  A.  286,  38  L.  R.  A.  33, 
70 ;  Id.,  73  Fed.  653,  19  C.  C.  A.  316,  38  L.  R.  A.  33,  70.  See,  also,  Elliott  on 
Contracts,  §  1116. 

126  Perhaps  the  best  distinction  to  be  found  between  local  and  transitory 
actions  is  that,  "if  the  cause  of  action  is  one  that  might  have  arisen  any- 
where, then  it  is  transitory ;  but  if  it  could  only  have  arisen  in  one  place, 
then  it  is  local ;  and,  for  the  most  part,  actions  which  are  local  are  those 
brought  for  the  recovery  of  real  estate  or  for  injuries  tliereto,  or  for  ease- 
ment." Cooley  on  Torts  (2d  Ed.)  451.  See,  also,  Mason  v.  Warner,  31  Mo. 
508 ;  White  v.  Sanborn,  6  N.  H.  222 ;  Morris  v.  Missouri  Pac.  R.  Co.,  78  Tex. 
17,  14  S.  W.  228,  9  L.  R.  A.  349,  22  Am.  St.  Rep.  17 ;  Little  v.  Chicago,  etc., 
R.  Co.,  65  Minn.  48,  67  N.  W.  846,  60  Am.  St.  Rep.  421,  33  L.  R.  A.  423. 


§    491)  ACTIONS   FOR   DAMAGES  625 

where  the  defendant  can  be  found.^^'^  Where  the  company  has 
been  guilty  of  negligence  in  the  transaction  of  its  business,  actions 
brought  to  recover  damages  arising  therefrom  are  personal  and 
transitory  and  may  be  brought  wherever  the  defendant  can  be 
found,  but  if  the  action  is  brought  to  recover  a  statutory  penalty, 
it  must  be  instituted  in  the  state  in  which  the  statute  is  in  force. 

12T  Id. 

Jones  Tel. (2d  Ed.) — 40 


626  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  492 

CHAPTER  XIX 

MATTERS    OF   PLEADING,    PRACTICE    AND   EVIDENCE— GENERALLY 

§  492.     Scope  of  chapter. 

493.  Character  of  action. 

494.  Same  continued — distinction  between  an  altered  message  and  one  not 

sent  or  delivered. 

495.  Action — by  mandamus. 

496.  Action — injunction — specific  performance. 

497.  Service  of  process. 

498.  Pleadings  in  general. 

499.  Same  continued — nature  of. 

500.  Allegations  as  to  damages. 

501.  Same  continued — copy  of  telegram — ^part  of  pleading. 

502.  Same  continued — amendments  liberally  allowed. 

503.  Action — whether  in  contract  or  in  tort. 

504.  Actions  for  statutory  penalty — variance,  etc. 

505.  Plea  to  the  declaration. 

506.  The  issue  and  proof. 

507.  Cause — proximate — remote. 

508.  Contributory — negligence — same  rule. 

509.  Presumption  of  negligence — burden  of  proof. 

510.  Same  continued — effect  of  stipulation. 

511.  Evidence. 

512.  Same  continued — illustrations. 

513.  Evidence  of  negligence — wealth  or  poverty  of  either  party — company. 

514.  Same  continued — party  injured. 

515.  Declaration  of  agents. 

516.  Subsequent  acts  of  company — of  plaintiff. 

517.  Evidence  of  plaintiff's  good  faith — erroneous  messages. 

518.  Same  continued — other  cases. 

519.  Questions  for  the  court. 

520.  Questions  for  the  jury. 

521.  Instructions. 

522.  Weight  and  sufficiency. 

522a.  Expert  evidence — cause  of  death. 

523.  Appeal  and  error. 

§  492.  Scope  of  chapter. — In  this  chapter  we  desire  to  discuss 
pleading,  practice  and  procedure,  generally,  which  has  been  found 
to  be  of  use  and  importance  in  litigations  against  telegraph,  tele- 
phone, and  electric  companies.  This  is  a  treatise  upon  the  sub- 
stantive law  rather  than  upon  procedure,  and  we  shall  not  therefore 
undertake  to  discuss,  at  any  great  length,  the  subject  of  pleading 
and  practice.  The  subject  has  been  most  fully  and  ably  discussed 
by  other  text-writers  while  writing  particularly  upon  that  subject, 
and  we  shall  only  refer  to  these  works.     We  shall  here  consider 


§    494)  PLEADING,  PRACTICE   AND   EVIDENCE  627 

merely  such  additional  matters  on  this  subject  as  most  frequently 
arise,  and  are  of  practical  use  in  telegraphic  and  electric  litigations. 

§  493.  Character  of  action. — We  have  discussed  in  a  previous 
chapter  the  character  or  nature  of  actions  brought  against  tele- 
graph companies,^  so  we  shall  only  supplement  what  has  already 
been  said.  The  character  or  nature  of  an  action  against  these  com- 
panies is  properly  one  ex  contractu,  and  is  based  upon  the  contract 
of  sending,  although  it  differs  in  some  degree  from  ordinary  actions 
for  breach  of  contract,  owing  to  the  public  character  of  the  com- 
pany. There  are  few,  if  any,  cases  directly  adjudicating  this  sub- 
ject, but  it  seems  that  the  actions  are  analogous  to  that  of  actions 
against  carriers  of  passengers.  In  such  cases  the  action  is  in  tort 
for  the  breach  of  public  duty  created  by  the  contract  of  carriage. 
There  is  authority  which  holds  that  the  addressee,  when  he  does 
not  stand  in  privity  to  the  contract  of  sending,  must  sue  in  tort; 
but  underlying  this  is  a  breach  of  a  contract,  out  of  which  grows 
the  breach  of  the  company's  public  duty.^  While  the  addressee's 
action  may  be  in  tort,  yet  if  it  had  not  been  that  the  company  was 
guilty  of  a  breach  of  the  contract  of  sending,  it  would  not  be  liable 
in  an  action  in  tort.^  The  reason  why  the  nature  of  the  action 
should  be  considered,  as  said  elsewhere,*  is  that  the  measure  of 
damages  is  different  in  the  two  actions.  Another  reason  is  that  the 
statute  of  limitation  may  run  against  a  suit  in  one  and  not  in  the 
other.  For  instance,  there  are  statutes  in  most  of  the  states  which 
provide  that  all  actions  in  tort  against  corporations  for  negligence, 
must  be  brought  within  a  certain  time  after  the  commission  of  the 
negligent  act.  These  statutes  are  not  applicable  to  actions  in  con- 
tract brought  against  the  same  company.^ 

§  494.  Same  continued — distinction  between  an  altered  message 
and  one  not  sent  or  delivered. — It  was  held,  in  one  case,  that  there 
was  a  distinction  in  the  nature  of  an  action  to  be  brought  by  the 
addressee  for  a  loss  sustained  by  the  company  negligently  deliver- 
ing a  changed  or  altered  message,  and  an  action  for  a  failure  to 
transmit  or  deliver  the  message.  It  was  held,  in  the  first  of  these 
cases,  that  the  action  sounded  in  tort,  and  is  different  from  that 


1  See  chapter  XVIIT. 

2  See  §  477  et  seq. ;  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W.  789, 
19  L.  R.  A.  (N.  S.)  479,  127  Am.  St.  Rep.  991,  an  actiou  uuder  statute  for  a  de- 
lay in  delivering  a  message  is,  in  effect,  one  for  negligence. 

3  See  §  478. 

4  See  §  479. 

6  Examine  local  statutes. 


628  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  495 

where  the  sender  sustains  a  loss  for  a  nondelivery,^  This  decision 
has  been  followed  by  one  court,  and  we  think  that  the  reasons  upon 
which  this  holding  is  based,  are  unsound.  It  is  the  duty  of  the 
company  to  follow  the  exact  words  of  the  message,  and  it  cannot 
transmit  the  message  in  words  other  than  those  contained  therein, 
although  the  company  may  intend  to  convey  the  same  thought/ 
When  it  fails  to  perform  this  duty,  the  addressee  or  the  sender  may 
maintain  an  action  for  such  breach  to  recover  a  loss  sustained 
thereby.^  It  would  be  ordinarily  the  addressee's  only  remedy,^ 
where  he  was  not  a  beneficiary  to  the  contract  of  sending;  and  the 
sender  may  maintain  his  action  for  the  breach  of  the  contract  or  for 
the  breach  of  its  public  duty.^°  It  is  also  one  of  the  duties  of  these 
companies  to  transmit  and  deliver  promptly  all  messages  tendered, 
and,  on  a  failure  to  do  so,  the  company  may  be  liable  either  in 
contract  or  in  tort.^^  So  we  cannot  see  that  there  is  any  distinction 
in  the  two  kinds  of  action. 

§  495.  Action — by  mandamus. — The  public  nature  of  the  duties 
of  telegraph  and  electric  telephone  companies  is  such  that  perform- 
ance may,  in  some  instances,  be  enforced  by  mandamus. ^^  Some 
of  the  duties  of  these  companies  are  primarily  a  duty  which  they 
owe  to  the  public,  but  there  is  a  particular  or  specific  right  in  every 
member  of  the  public  to  enforce  a  performance  of  these  duties.^^ 
Thus  it  seems  that,  if  the  company  should  refuse,  without  a  legal 
excuse,  to  accept  a  message  for  transmission,  it  may  be  forced  to 
do  so  by  a  writ  of  mandamus.  While  the  injured  party  may  have 
an  action  against  the  company  arising  in  tort  or  contract  for  such 
refusal,  yet  in  certain  cases,  we  think,  the  company  may  be  com- 
pelled to  transmit  the  message  by  mandamus  proceedings.  So  also, 
if  any  of  these  companies  should  discriminate  in  their  business 
against  any  members  of  the  public,  they  may  be  forced  by  manda- 
mus to  discontinue  such  discrimination.^*  Thus,  if  a  telephone 
company  should  refuse  to  furnish  its  facilities  to  any  one  who  offers 
to  comply  with  the  rules  of  the  company,  it  could  be  forced  to  fur- 

6  West.  U.  Tel.  Co.  v.  Richman  (Pa.)  S  Atl.  172.  See,  also,  N.  Y.,  etc.,  Tel. 
Print.  Co.  v.  Dryburg,  35  Pa.  298,  78  Am.  Dec.  338. 

7  See  §  285. 

8  See  chapter  XVIII. 
»  See  chapter  XVIII. 

10  See  chapter  XVIII. 

11  See  chapter  XII. 

12  Gwynn  v.  Citizens'  Tel.  Co.,  69  S.  C.  434,  48  S.  E.  460,  67  L.  R.  A.  Ill, 
104  Am.  St.  Rep.  819,  and  note ;  Potwin  Place  v.  Topeka  R.  Co.,  51  Kan.  609, 
33  Pac.  300,  37  Am.  St.  Rep.  312,  and  note. 

13  See  §  268.  i4  See  chapter  XI. 


S    497)  PLEADING,  PRACTICE   AND   EVIDENCE  629 

nish  such,  by  a  writ  of  mandamus.^ ^  It  is  true  that  mandamus  is 
an  extraordinary  remedy  and  cannot  be  resorted  to  where  ordinary 
remedy  will  afford  complete  relief,  but  in  some  cases  the  latter 
remedy  will  not  afford  ample  and  complete  relief,  and  when  such  is 
the  case  we  think  that  the  extraordinary  remedy  may  be  resorted 
to.  We  do  not  mean  to  be  understood  as  saying  that  the  sender  of 
a  message  could,  in  every  particular  case,  compel  a  company  to 
transmit  a  message  by  mandamus,  but  if  it  continued  to  refuse  to 
transmit  any  and  all  proper  messages  tendered  it,  the  company 
could  be  compelled  to  perform  this  duty  by  mandamus.  There  may 
be  instances,  however,  where  it  could  be  forced  by  mandamus  to 
transmit  even  one  message,  but  as  a  general  rule  the  ordinary  rem- 
edy should  be  resorted  to  in  such  cases. 

§  496.  Action — injunction — specific  performance. — In  some 
cases  the  proper  action  to  be  brought  against  telegraph  telephone 
and  electric  companies  for  failure  to  carry  out  their  duties  is  by  in- 
junction,'*^ or  by  its  complement,  an  action  for  specific  performance. 
It  is  hardly  necessary  to  discuss  these  actions,  since  there  is  noth- 
ing new  in  the  procedure,  in  either  of  them,  which  is  particularly 
apphcable  to  these  companies.  But  suffice  it  to  say  that,  if  they 
refuse  to  carry  out  any  contract  entered  into  between  them  and  an 
individual,  they  may  be  compelled  to  do  so  by  an  action  for  specific 
performance  of  the  contract ;  or,  should  either  attempt  to  discon- 
tinue service  to  any  person,  such  person  would  have  a  right  to  en- 
join them  from  so  doing.'^  In  other  words,  whenever  an  individual 
could  enjoin  another  person  for  doing  or  not  doing  a  particular  act, 
he  may  also  enforce  the  same  remedy  against  these  companies. 

§  497.  Service  of  process. — Before  judgment  can  be  legally  en- 
tered against  one  of  these  companies  for  damages  sustained  for  the 
breach  of  any  of  its  duties,  or  before  judgment  can  be  rendered  for 
any  cause,  the  company  must  first  have  been  summoned  to  come 
into  court  to  plead,  answer  or  demur  to  the  pleadings  of  the  plain- 
tiff.    We  shall  only  briefly  state  the  manner  in  which  this  process 

15  State  V.  Citizens'  Tel.  Co.,  61  S.  C.  S3,  .39  S.  E.  257,  85  Am.  St.  Rep.  S70, 
55  L.  R.  A.  139;  Central  Union  Tel.  Co.  v.  Falley,  118  Ind.  194,  19  N.  E.  GOl,  30 
Am.  St.  Rep.  114 ;  State  v.  Nebraska  Tel.  Co.,  17  Neb.  120,  22  N.  W.  237,  52  Am. 
Rep.  404.     See,  also,  §  268. 

16  Louisville  Transf.  Co.  v.  American  Dist.  Tel.  Co.  (Ky.)  24  Alb.  Law  J.  283. 
See,  also,  Central  Dist.  Tel.  Co.  v.  Com.,  114  Pa.  .592,  7  Atl.  926.  And  where 
the  service  is  wrongfully  discontinued,  the  subscriber  is  entitled  to  recover 
such  damages  as  were  the  direct  result  of  the  wrong.  Cumberland  Tel.,  etc., 
Co.  V.  Hendon,  71  S.  W.  435,  24  Ky.  Law  Rep.  1271 ;  Malochee  v.  Great  South- 
ern Tel.,  etc.,  Co.,  49  La.  Ann.  1690,  22  South.  922.    See,  also,  §  268. 

17  See  §  268. 


630  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  498 

may  be  legally  served,  since  there  is  no  difference  in  the  manner  of 
service  on  these  corporations  to  that  practiced  in  cases  where  other 
similar  corporations  are  concerned,  and  which  may  be  found  dis- 
cussed at  greater  length  in  treatises  on  corporations  in  general. 
At  common  law,  process  against  a  corporation  was  by  writ  of  sum- 
mons against  some  one  of  its  agents,  and  in  case  no  appearance 
was  made,  then  by  a  distringas  against  its  goods ;  so  that,  if  the 
corporation  had  neither  land  nor  other  property,  there  was  no  way 
to  compel  its  appearance  either  at  law  or  in  equity. ^^  The  manner 
of  process  upon  corporations  is  now  generally  regulated  by  statutes 
in  most  all  the  states  of  the  Union.  So  we  refer  the  reader  to  the 
statutes  of  his  own  state  for  a  consideration  of  this  subject.  The 
statutes  of  most  of  the  states  are  somewhat  similar,  and,  as  a  gen- 
eral rule,  they  all  provide  for  the  service  to  be  on  some  agent  or 
employe  of  the  company.  Speaking  more  specifically  of  telegraph 
and  telephone  companies,  a  service  upon  one  of  their  agents,  opera- 
tors or  managers  in  the  county  through  which  their  lines  run  is 
sufficient  for  a  suit  brought  in  that  county.  If  there  is  any  doubt 
of  the  person  being  the  company's  agent,  any  facts  which  go  to 
show  that  he  is  working  for  the  company,  such  as  receiving  money 
for  it  while  in  an  office  over  whose  doors  may  be  found  the  defend- 
ant's name,  is  of  itself  prima  facie  evidence  that  he  is  the  employe 
of  the  company,  and  one  on  whom  service  may  be  made.^^  These 
statutes  generally  provide  that  the  service  shall  be  made  on  certain 
officers  or  agents  of  the  company,  as  the  operator,  agent,  manager 
or  some  other  employe  of  the  company,  and  a  summons  on  any 
other  than  one  of  these  would  not  be  sufficient. 

§  498.  Pleadings  in  general. — The  manner  of  pleading  in  the 
several  states  with  respect  to  the  time  when  the  complaint,  petition, 
or  declaration  shall  be  filed  with  the  clerk  of  the  court  in  which  the 
case  is  to  come  up  is  not  the  same.  In  some  states  the  first  step  ta 
be  taken  in  bringing  a  suit  is  the  filing  of  the  declaration,  petition  or 
complaint  with  the  court,  from  which  summons  must  then  be 
served  upon  the  defendant  to  the  suit  within  a  certain  time  of  the 
return  term ;  while  in  others  the  first  step  is  the  summoning  of  the 
defendant  into  court  to  answer,  plead  or  demur  to  a  certain  charge. 
In  the  latter  method  of  procedure,  the  declaration  or  complaint 
must  be  filed  within  a  certain  time  before  the  return  term.  In 
either  instance,  the  defendant  must  have  time  to  examine  the  plead- 

18  1  Minor's  Inst.  565;  3  Black  Com.  447,  477;  McQueen  v.  Middletown  Mfg 
Co.,  16  Johns.  (N.  Y.)  5 ;  Glaize  v.  South  Carolina  R.  Co.,  1  Strob.*  (S.  C.)  73. 

19  Thompson  v.  West.  V.  Tel.  Co.,  107  X.  C.  449,  12  S.  E.  427. 


§    499)  PLEADING,  PRACTICE  AND  EVIDENCE  631 

ings  in  order  to  meet  the  allegations  contained  therein.  There  is 
also  a  difference  in  the  length  of  time  provided  for  in  the  several 
states  within  which  the  pleadings  must  be  filed  with  the  clerk  of 
the  court.  In  most  of  the  states  the  first  term  of  the  court  after  the 
filing  of  the  case  is  the  return  term,  and  the  next  succeeding  term 
is  the  trial  term ;  yet  in  other  states,  Mississippi  for  instance,  there 
are  statutes  which  provide  that,  if  the  suit  is  brought  thirty  days 
before  the  first  term,  it  shall  be  the  trial  term.  These  statutes  are 
in  states  where  the  courts  are  few  and  the  object  is  not  to  delay  the 
trial  of  the  cause  too  long  before  hearing. 

§  499.  Same  continued — nature  of. — There  is  nothing  peculiar 
about  the  pleadings  in  actions  against  telegraph,  telephone,  and 
electric  companies  for  damages,  since  in  such  cases  the  recognized 
rules  of  pleading  are  applicable.  The  declaration  or  complaint  of 
the  plaintiff  must,  of  course,  allege  the  facts  necessary  to  sustain 
the  action. 2°      Thus,  if  the  action  is  for  a  refusal  to  receive  and 

20  Gist  V.  West.  U.  Tel.  Co.,  45  S.  C.  344,  23  S.  E.  143,  55  Am.  St.  Rep.  763 ; 
S-  Florida  Tel.  Co.  v.  Maloney,  34  Fla.  338,  16  South.  280 ;  Bass  v.  Postal  Tel. 
Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  489 ;  West.  U.  Tel.  Co. 
V.  Fuel,  165  Ala.  391,  51  South.  571 ;  Roberts  v.  Wisconsin  Tel.  Co.,  77  Wis.  589, 
46  N.  W.  800,  20  Am.  St.  Rep.  143,  where  action  is  based  upon  city  ordinance, 
pleadings  must  show  the  ordinance  and  its  breach ;  Cumberland  Tel.,  etc.,  Co. 
V.  Piersou,  170  Ind.  543,  84  N.  E.  1088,  averment  held  insufficient  to  charge 
company  with  notice  of  defective  condition  of  wire.  Declaration  should  set 
out  distinctly  the  circumstances  which  create  the  liability  of  the  company.  S. 
Florida  Tel.  Co.  v.  Maloney,  supra ;  Lee  v.  West.  U.  Tel.  Co.,  51  Mo.  App.  375 ; 
Telephone  Co.  v.  Russell,  4  Ala.  App.  485,  58  South.  938 ;  Telephone  Co.  v.  Rich- 
ards (Tex.  Civ.  App.)  158  S.  W.  1187 ;  Telephone,  etc.,  Co.  v.  Carter,  1  Tenn. 
Civ.  App.  750,  sufficient  statement;  Telephone  Co.  v.  Forest  (Tex.  Civ.  App.) 
157  S.  W.  204,  complaint  insufficient.  Declaration  must  allege  facts,  and  not 
legal  conclusions.  S.  Florida  Tel.  Co.  v.  Maloney,  supra  ;  White  v.  Telephone 
Co.,  153  App.  Div.  684,  138  N.  Y.  Supp.  598.  The  facts  and  not  evidence  of 
such  facts,  must  be  alleged  positively.  Graddy  v.  West.  U.  Tel.  Co.,  43  S.  W. 
468,  19  Ky.  Law  Rep.  1455 ;  Howard  v.  West.  U.  Tel.  Co.,  76  S.  W.  387,  25  Ky. 
Law  Rep.  828 ;  Mitchell  v.  West.  U.  Tel.  Co.,  5  Tex.  Civ.  App.  527,  24  S.  W. 
550 ;  West.  U.  Tel.  Co.  v.  Rowe,  44  Tex.  Civ.  App.  84,  98  S.  W.  228 ;  West.  U. 
Tel.  Co.  V.  Wilhelm.  48  Neb.  910,  67  N.  W.  870 ;  Tel.  Co.  v.  Henderson,  62  Tex. 
Civ.  App.  457,  131  S.  W.  1153 ;  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  133  S.  W. 
1062.  Negative  matters  of  defense  need  not  be  alleged.  West.  U.  Tel.  Co.  v. 
Cook,  45  Tex.  Civ.  App.  87,  99  S.  W.  1131 ;  West.  U,  Tel.  Co.  v.  Henley.  157 
Ind.  90,  60  N.  E.  682,  need  not  allege  message  had  a  revenue  stamp  a'lixed. 
But  see  Kirk  v.  West.  U.  Tel.  Co.  (C.  C.)  90  Fed.  809,  holding  that  such  allega- 
tion should  be  made ;  Tel.  Co.  v.  Henderson,  supra ;  West.  U.  Tel.  Co.  v.  Whit- 
son,  145  Ala.  426,  41  South.  405,  need  not  allege  addres.see  lived  within  free  de- 
livery limit ;  need  not  allege  freedom  from  contrilnitory  negligence.  Mitchell 
V.  West.  U.  Tel.  Co.,  supra.  However,  this  may  not  be  the  rule  in  every  juris- 
diction. 

Sunday  message — future  contracts. — Where  an  action  is  based  upon  a  Sim- 
day  message,  the  declaration  should  allege  that  it  related  to  a  matter  of  char- 
ity or  necessity.    West.  V.  Tel.  Co.  v.  Henley,  supra  ;  West.  U".  Tel.  Co.  v.  Esk- 


U32  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  499 

transmit  a  message,  the  declaration  must  in  some  manner  state 
that  the  company  is  a  corporation  and  has  a  line  of  wires  in  the 
county  in  which  the  suit  is  brought.^^     It  should  also  aver  that  the 

ridge,  7  Ind.  App.  208,  33  N.  E.  238.  This,  however,  cannot  be  objected  to  by 
demurrer,  but  by  answer.  If  the  message  related  to  futures  it  should  be  al- 
leged that  it  related  to  a  legal  transaction.     Gist  v.  West.  U.  Tel.  Co.,  supra. 

Mental  un<juish. — See  the  following  cases  illustrating  various  general  rules 
of  pleading  as  applied  in  mental  anguish  cases:  So  Relle  v.  "West.  U.  Tel.  Co., 
55  Tex.  308,  40  Am.  Rep.  805,  damages  for  mental  anguish  may  be  recovered 
under  a  general  averment  of  damages ;  West.  U.  Tel.  Co.  v.  Russell  (Tex.  Civ. 
App.)  31  S.  W.  698,  may  recover  for  the  mental  anguish  of  wife  alone ;  West. 
U.  Tel.  Co.  V.  Johnson,  164  Ala.  229,  51  South.  230,  failing  to  set  out  in  tele- 
gram either  in  words  or  substance,  demurrable;  Hall  v.  West.  U.  Tel.  Co.,  139 
N.  C.  369,  52  S.  E.  50,  where  the  mental  anguish  is  not  set  up  as  the  separate 
cause  of  action,  demurrer  irregular ;  Havener  v.  West.  U.  Tel.  Co.,  117  N.  C. 
540,  23  S.  E.  457,  where  complaint  was  broad  enough  to  embrace  any  damage 
for  the  negligent  delivery  that  plaintiff  might  have  suffered ;  West.  U.  Tel.  Co. 
V.  Campbell,  41  Tex.  Civ.  App.  204,  91  S.  W.  312,  damages  cannot  be  recovered 
unless  asked  for ;  West.  U.  Tel.  Co.  v.  Bell,  48  Tex.  Civ.  App.  359,  107  S.  W. 
570.  not  necessary  to  allege  that  company  had  notice  that  plaintiff  was  hus- 
band of  addressee ;  Hartzog  v.  West.  U.  Tel.  Co.  (Miss.)  34  South.  361,  stating 
good  cause  of  action;  Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky.  788,  112 
S.  W.  897,  19  L.  R.  A.  (N.  S.)  575,  states  the  cause  of  action ;  West.  U.  Tel.  Co. 
V.  Jackson,  163  Ala,  9,  50  South.  316,  not  necessary  to  allege  contractual  rela- 
tions between  the  sendee  and  the  company  ;  West.  U.  Tel.  Co.  v.  Pelzer  (Tex.  Civ. 
App.)  35  S.  W.  836,  variance  between  allegation  and  truth;  Simmons  v.  West. 
U.  Tel.  Co.,  63  S.  C.  425,  41  S.  E.  521,  57  L.  R.  A.  607,  allegations  not  irrele- 
vant ;  Howard  v.  West.  U.  Tel.  Co.,  25  Ky.  Law  Rep.  828,  76  S.  W.  387,  allega- 
tions sufficient ;  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  33  S.  W.  748,  de- 
fendant not  prejudiced  by  allegation;  West.  U.  Tel.  Co.  v.  Cook,  supra,  not 
necessary  for  plaintift:  to  allege  that  he  had  replied  to  a  delayed  message. 

Electric  comiJCinics.- — In  an  action  against  an  electric  company  for  a  negli- 
gent escape  of  electricity  resulting  in  injuries,  the  declaration  should  allege 
that  it  was  the  duty  of  the  company  to  prevent  the  accident  and  that  it  had  a 
reasonable  opportunity  to  discharge  such  duty.  Scheiber  v.  United  Tel.  Co., 
153  Ind.  609,  55  N.  E.  742 ;  Tel.  Co.  v.  Sokola,  34  Ind.  App.  429,  73  N.  E.  143 ; 
Graves  v.  Tel.  Ass'n  (C.  C.)  1.32  Fed.  387 ;  Telephone  Co.  v.  Cheshire,  12  Ga. 
App.  652,  78  S.  E.  53 ;  by  adding  the  general  averment  that  it  was  negligently 
or  carelessly  done  or  omitted,  Boyd  v.  Portland  Elec.  Co.,  40  Or.  126,  66  Pac. 
576,  57  L.  R.  A.  619 ;  Chaperon  v.  Portland  Elec.  Co.,  41  Or.  39,  67  Pac.  928 : 
Snyder  v.  Wheeling  Electrical  Co.,  43  W.  Va.  661,  28  S.  E.  733,  64  Am.  St.  Rep. 
922,  39  L.  R.  A.  499;  Telephone,  etc.,  Co.  v.  Davis,  12  Ga.  App.  28,  76  S.  E. 
786 ;  Tel.,  etc.,  Co.  v.  Howell,  124  Ga.  1050,  53  S.  E.  577,  4  Ann.  Cas.  707 ;  Mor- 
gan V.  Electric  Co.,  213  Pa.  151,  62  Atl.  638 ;  Whitten  v.  Power,  etc.,  Co.  (C. 
C.)  132  Fed.  782.  In  determining  whether  declaration  states  a  cause  of  ac- 
tion, the  care  required  of  the  company,  together  with  the  presumption  of  neg- 
ligence often  arising,  will  be  considered.  Alton  R.,  etc.,  Co.  v.  Foulds,  81  111. 
App.  323.    Plaintiff  cannot  declare  upon  one  cause  of  action  and  recover  upon 

21  Southern  Florida  Tel.  Co.  v.  Maloney,  34  Fla.  338,  16  South.  280,  com- 
plaint defective  where  it  merely  alleges  that  the  company  refuses  to  receive 
the  message,  without  alleging  that  it  owned  or  operated  a  telegraph  line  or 
had  any  facilities  for  transmitting  messages  or  was  engaged  in  such  business, 
or  had  an  office  at  the  place  to  which  the  message  was  addressed,  or  even  that 
it  refused  to  receive  the  message  was  willful  or  wrongful. 


I    499)  PLEADING,  PRACTICE   AND   EVIDENCE  633 

message  was  delivered  to  the  company  for  transmission,-^  and  that 
the  charges  were  paid  or  tendered,  although  this  is  not  essential.^^ 
If  the  action  is  brought  by  the  addressee,  in  contract,  he  should 
aver  in  the  declaration  that  the  sender  was  acting  as  his  agent  in 
that  particular  instance."*  If  the  action  is  in  contract,  the  contract 
of  sending  must  be  sufficiently  pleaded  ;^^  and,  if  in  tort,  the  al- 
legation must  show  that  the  failure  of  the  message  to  reach  its 
destination  promptly  and  correctly  was  caused  by  the  negligence 
of  the  company  in  transmitting  it.^"  The  blank  forms  of  these 
companies  generally  contain  a  stipulation  to  the  effect  that  the 
messages  shall  be  presented  for  transmission  in  writing,  but  it  is 
not  necessary  for  the  declaration  to  aver  this  fact,^^  because,  when 
the  company  has  accepted  the  message  it  is  presumed  that  it  has 

another.  Gannon  v.  Laclede  Gaslight  Co.,  145  Mo.  502,  46  S.  W.  968,  47  S.  W. 
907,  43  L.  R.  A.  505,  overruled  on  another  point  by  Hendley  v.  Globe  Refinery 
Co.,  106  Mo.  App.  20,  79  S.  W.  1163.  Allegations  which  merely  set  out  the 
conclusions  of  the  pleader  upon  the  legal  effect  of  an  ordinance,  but  do  not 
allege  the  provisions  of  the  ordinance  either  in  terms  or  in  substance,  so  that 
the  court  could  determine  what  was  required  of  the  company,  is  not  sufficient- 
ly definite  as  against  a  special  demurrer.  Brush  Elec.  Light,  etc.,  Co.  v.  Le- 
fevre,  93  Tex.  604,  57  S.  W.  640,  77  Am.  St.  Rep.  S9S,  49  L.  R.  A.  771. 

Pleadings  held  sufficient. — See  following  cases:  Ala.  City,  etc.,  R.  Co.  v.  Ap- 
pleton,  171  Ala.  324,  54  South.  638,  Ann.  Cas.  1913A,  1181;  Sheffield  Co.  v. 
Morton,  161  Ala.  153,  49  South.  772 ;  Dow  v.  Tel.,  etc.,  Co.,  157  Cal.  182.  103 
Pac.  587 ;  Lighting  Co.  v.  Tyler,  177  Ind.  278,  96  N.  E.  768 ;  Eining  v.  Rail- 
road, etc.,  Co.,  133  Ga.  458,  66  S.  E.  237 ;  Downs  v.  Andrews,  145  Mo.  App.  173, 
130  S.  W.  472 ;  Downs  v.  Tel.  Co.,  161  Mo.  App.  274,  143  S.  W.  889 ;  Sonuuer  v. 
Service  Corp.,  79  N.  J.  Law,  349,  75  Atl.  892 ;  West.  U.  Tel.  Co.  v.  Wells,  50 
Fla.  474,  39  South.  838,  2  L.  R.  A.  (N.  S.)  1072,  111  Am.  St.  Rep.  129,  7  Ann. 
Cas.  531,  jurisdiction  of  court. 

2  2  Need  not  state  that  the  message  was  presented  during  the  company's  of- 
fice hours.    West.  U.  Tel.  Co.  v.  Pells,  2  Willson,  Civ.  Cas.  Ct.  App.  §  41. 

23  West.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53;  West.  U.  Tel.  Co.  v.  Henley,  157 
Ind.  90,  60  N.  E.  682 ;  West.  U.  Tel.  Co.  v.  Snodgrass,  94  Tex.  284,  60  S.  W. 
308,  86  Am.  St.  Rep.  851. 

Forwarding. — Not  sufficient  to  allege  that  the  company  failed  to  forward  a 
message,  without  some  allegation  of  payment  or  offer  to  pay  the  cost  thereof. 
Abbott  v.  West.  U.  Tel.  Co.,  86  Minn.  44,  90  N.  W.  1. 

24  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23; 
West.  U.  Tel.  Co.  v.  Cleveland,  169  Ala.  131,  53  South.  SO,  Ann.  Cas.  1912B,  534. 

25  Need  not  allege  that  a  contract  of  transmission  ivas  made  in  expressed 
terms.  West.  U.  Tel.  Co.  v.  Rowe,  44  Tex.  Civ.  App.  84,  OS  S.  W.  228.  See,  al- 
so. West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23, 
sufficient  to  show  a  contract  or  transmission;  Milliken  v.  West.  C.  Tel.  Co., 
110  N.  Y.  403,  18  N.  E.  251,  1  L.  R.  A.  281,  reversing  53  N.  Y.  Super.  Ct.  Ill, 
sufficient  to  show  a  special  contract. 

26  Washington,  etc.,  Tel.  Co.  v.  Hobson,  15  Grat.  (Va.)  122 ;  West.  U.  Tel. 
Co.  V.  Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  St.  Rep.  169,  language 
showing  negligence  proximate  cause  of  injury. 

27  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23. 


634  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  500 

waived  this  right,  or,  rather,  it  is  estopped  from  claiming  the  right 
after  the  message  has  been  accepted. 

§  500.  Allegations  as  to  damages. — Where  a  telegraph,  tele- 
phone, or  electric  company  has  violated  a  duty  toward  or  breached 
a  contract  with  the  plaintiff,  and  by  reason  thereof  the  law  would 
impute  certain  damages  as  the  natural,  necessary,  and  logical  con- 
sequence, such  damages  need  not  specifically  be  set  forth  in  the 
complaint,  but  are,  upon  proper  averment  of  such  breach  or  wrong, 
recoverable  under  a  claim  for  damages  generally.'®  So,  where  the 
plaintiff  alleges  in  his  declaration  that  a  contract  was  made  with 
a  telegraph  company  to  transmit  a  message  and  that  the  company 
had  failed  to  carry  out  the  contract,  nominal  damages  may  be 
recovered  therefor,  although  no  substantial  damages  are  shown. ^^ 
It  has  been  held  that,  where  there  is  a  general  allegation  of  dam- 
ages resulting  from  the  breach  of  such  a  contract,  the  price  paid 
for  transmission  may  be  recovered. ^^  Again,  where  it  is  alleged 
that  as  a  result  of  the  company  negligently  failing  to  transmit  or 
deliver  a  message  announcing  the  illness  or  death  of  a  near  rela- 
tive of  the  plaintiff,  whereby  he  was  prevented  from  being  present 
before  or  at  the  death  of  such  relative,  or  from  being  present  at 
his  funeral,  such  damages  for  mental  anguish  resulting  naturally 
from  such  breach  may  be  recovered  under  a  general  allegation  of 
damages.^^  On  the  other  hand,  if  substantial  compensatory  dam- 
ages are  claimed,  they  should  be  proved.^-  Furthermore,  if  special 
damages  are  claimed,  the  declaration  must  allege  them  specifically 
and  in  detail  so  that  the  company  will  not  be  taken  by  surprise;  ^^ 

2  8  So  Relle  v.  West.  U.  Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  805. 

2  9  Stafford  v.  West.  U.  Tel.  Co.  (C.  C.)  73  Fed.  273;  West.  U.  Tel.  Co. 
V.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  R.  A.  (N.  S.)  560,  125  Am.  St. 
Rep.  1077. 

3  0  West.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46.    See,  also,  Stafford  v.  West.  U.  Tel.  Co.  (C.  C.)  73  Fed.  273. 

31  So  Relle  v.  West.  U.  Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  805.  See,  also, 
Havener  v.  West.  U.  Tel.  Co.,  117  N.  C.  540,  23  S.  E.  457.  But  where  the 
relationship  is  remote  the  rule  is  otherwise.  Amos  v.  West.  U.  Tel.  Co.,  79 
S.  C.  259,  60  S.  E.  660,  128  Am.  St.  Rep.  845 ;  Harrelson  v.  Tel.  Co.,  90  S.  C. 
132,  72  S.  E.  882.  Contra,  Bush  v.  Tel.  Co.,  93  S.  C.  176,  76  S.  E.  197,  under 
statute. 

32  Bashinsky  v.  West.  U.  Tel.  Co.,  1  Ga.  App.  761,  58  S.  E.  91;  Bierhaus 
V.  West.  U.  Tel.  Co.,  8  Ind.  App.  246,  34  N.  E.  581,  allegations  held  suffi- 
cient ;  Trigg  v.  West.  U.  Tel.  Co.,  4  Ga.  App.  416,  61  S.  E.  855,  can  recover 
nominal  damages  only  if  complaint  shows  that  the  damages  could  have  been 
avoided,  by  the  exercise  of  ordinary  care ;  Bass  v.  Postal  Tel.  Cable  Co., 
127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  489,  allegation  demurrable. 

33  Bass  V.  Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A. 
(N.  S.)  489;  Pacific  Pine  Lbr.  Co.  v.  West.  U.  Tel.  Co.,  123  Cal.  428,  56  Pac. 
103;    Graddy  v.  West.   U.  Tel.  Co.,  43  S,  W.  468,  19  Ky.  Law  Rep.  1455; 


§    500)  PLEADING,  PRACTICE   AND   EVIDENCE 


635 


liowever,  if  they  are  defectively  pleaded,  or  if  they  are  too  remote 
or  otherwise  unrecoverable,  the  plaintiff  will  not  be  denied  a  recov- 
ery of  general  or  nominal  damages.^*  The  general  rule  is  that,  if 
special  damages  are  claimed,  the  declaration  must  allege  that  the 
company  was  informed  of  the  fact  that  such  damages  would  result 
in  case  of  a  failure  to  transmit  or  deliver  the  message.  If  the 
message  does  not  show  such  fact,  then  the  manner  in  which  the 
company  derived  such  must  be  alleged.^^     Some  of  the  courts  hold 

Barrett  v.  West.  U.  Tel.  Co.,  42  Mo.  App.  542;  West.  U.  Tel.  Co.  v.  Turner 
(Tex.  Civ.  App.)  78  S.  W.  362;  West.  U.  Tel  Co.  v.  Partlow,  30  Tex.  Civ. 
App.  599,  71  S.  W.  584,  action  for  employment,  expense  of  securing  another 
position  must  be  alleged,  otherwise  unrecoverable;  Capers  v.  West.  TJ.  Tel. 
Co.,  71  S.  C.  29,  50  S.  E.  5.37;  W^est.  U.  Tel.  Co.  v.  Bell,  24  Tex.  Civ.  App. 
572,  59  S.  W.  918 ;  Simmons  v.  West.  U.  Tel.  Co.,  63  S.  C.  425,  41  S.  E.  521, 
57  L.  R.  A.  607,  physical  suffering,  medicine,  and  nursing;  Mood  v.  West. 
U.  Tel.  Co.,  40  S.  C.  524,  19  S.  E.  67,  loss  of  employment;  Lee  v.  West.  U. 
Tel.  Co..  51  Mo.  App.  375,  action  before  justice  of  the  peace,  rule  does  not 
apply;  Bashinsky  v.  West.  U.  Tel.  Co.,  1  Ga.  App.  761,  58  S.  E.  91;  Ferguson 
V.  Anglo-American  Tel.  Co.,  151  Pa.  211,  25  Atl.  40;  Purdom  Naval  Stores 
Co.  V.  West.  U.  Tel.  Co.  (C.  C.)  153  Fed.  327;  West.  U.  Tel.  Co.  v.  Linney 
(Tex.  Civ.  App.)  28  S.  W.  234;  West  U.  Tel.  Co.  v.  Wilhelm,  48  Neb.  910, 
■67  N.  W.  870;  West.  U.  Tel.  Co.  v.  True,  105  Tex.  344,  148  S.  W.  561,  41 
L.  R.  A.    (N.  S.)  1188,  sufficient. 

Mental  anguish  cases. — Having  to  leave  the  corpse  on  platform  because 
plaintiff  was  not  met  at  station.  West.  IT.  Tel.  Co.  v.  Turner  (Tex.  Civ.  App.) 
78  S.  W.  362,  or  missing  funeral  or  burial,  Graddy  v.  West.  U.  Tel.  Co.,  43 
S.  W.  468,  19  Ky.  Law  Rep.  1455,  should  be  alleged.  It  has  been  held  that, 
where  plaintiff  was  prevented  to  attend  the  illness  or  burial  of  a  near 
relative,  it  should  be  affirmatively  shown  that,  but  for  the  negligence  of 
the  company,  the  plaintiff  not  only  could,  but  would,  have  gone.  West.  U. 
Tel.  Co.  V.  Bell,  42  Tex.  Civ.  App.  462,  92  S.  W.  1036;  West.  U.  Tel.  Co. 
v.  Rowe,  44  Tex.  Civ.  App.  84,  98  S.  W.  228.  Contra,  Harrison  v.  West. 
U.  Tel.  Co.,  71  S.  C.  386,  51  S.  E.  119.  But  it  is  not  necessary  to  set  forth 
the  evidence  of  such  fact.  Howard  v.  West.  U.  Tel.  Co.,  76  S;  W.  387,  25 
Ky.  Law  Rep.  828;    West.  U.  Tel.  Co.  v.  Rowe,  supra. 

34  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  St. 
Rep.  169 ;  West.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132 
Am.  St.  Rep.  46;  Trigg  v.  W^est.  U.  Tel.  Co.,  4  Ga.  App.  416,  61  S.  E.  855; 
West.  U.  Tel.  Co.  v.  Hopkins,  49  Ind.  223;  Alexander  v.  West.  U.  Tel.  Co., 
66  Miss.  161,  5  South.  397,  14  Am.  St.  Rep.  5.56,  3  L.  R.  A.  71 ;  Taliferro  v. 
West.  U.  Tel.  C^.,  54  S.  W.  825,  21  Ky.  Law  Rep.  1290;  Hall  v.  West.  U. 
Tel.  Co.,  139  N.  C.  369,  52  S.  E.  50 ;  Stafford  v.  West.  U.  Tel.  Co.  (C.  C.)  73 
Fed.  273. 

35  Graddy  v.  West.  U.  Tel.  Co.,  43  S.  W.  468,  19  Ky.  Law  Rep.  1455;  Taylor 
v.  West.  U.  Tel.  Co.,  101  S.  W.  969,  31  Ky.  Law  Rep.  240;  Fass  v.  West. 
U.  Tel.  Co.,  82  S.  C.  461,  64  S.  E.  2.35;  West.  IT.  Tel.  Co.  v.  Turner  (Tex. 
Civ.  App.)  78  S.  W.  362 ;  West.  U.  Tel.  Co.  v.  Steele  (Tex.  Civ.  App.)  110  S. 
W.  546. 

Cipher  message. — Must  allege  that  company  was  notified  of  the  value  and 
importance  of  the  message.  Harrison  v.  West.  U.  Tel.  Co.,  3  Willson,  Civ. 
App.  Ct.  App.  §  43. 

Mental  anguish. — Rule  applied  in  actions  to  recover  damages  for  mental 
anguish.     Fass   v.   West.   U.  Tel.   Co.,   supra;    West.   U.   Tel.   Co.  v.   Steele, 


636  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  501 

that  the  declaration  should  show  whether  the  damages  are  actual 
or  exemplary;  ^®  however,  there  are  many  courts  upholding  a  con- 
trary rule.^^  In  any  event,  sufficient  facts  should  be  alleged  to  war- 
rant such  damages. ^^ 

§  501.  Same  continued — copy  of  telegram — part  of  pleading. — 
In  most  of  the  cases  brought  against  telegraph  companies  to  re- 
cover damages  for  the  negligent  transmission  or  delivery  of  a 
message,  the  message  is  written  out  in  the  declaration.  This  is 
usually  done  to  better  show  that  there  was  a  contract  made,  and 
also  to  show  that  the  company  was  informed  by  the  face  of  the 
message  of  its  importance. ^^  In  furtherance  of  this  proof,  they 
often  attach  a  copy  of  the  telegram  to  the  pleadings,  and  ask  that 
it  may  be  made  a  part  thereof.  AVhen  the  reqviest  is  made,  it  is 
generally  held  that  all  the  reasonable  stipulations  contained  in  the 
blank  become  a  part  of  the  pleadings. ■*"  We  may  say  that  all  of 
the  printed  contracts  in  this  form  are  made  a  part  of  the  pleadings, 

supra ;  Denipsey  v.  West.  U.  Tel.  Co.,  77  S.  C.  399,  58  S.  E.  9,  "notwitlistand- 
ing  the  defendant  had  every  reason  to  know  the  message  was  important"  is 
sulficient  to  apprise  company.  Tel.,  etc.,  Co.  v.  Givens  (Tex.  Civ.  App.) 
1.39  S.  W.  676;  Tel.  Co.  v.  Samuels  (Tex.  Civ.  App.)  141  S.  W.  S02 ;  must 
allege  that  there  were  special  relations  of  intimacy  or  affection,  Amos  v. 
West.  U.  Tel.  Co.,  79  S.  C.  259,  60  S.  E.  660.  128  Am.  St.  Rep.  845 ;  Little 
v.  West.  U.  Tel.  Co.,  79  S.  C.  255,  60  S.  E.  663 ;  McDowell  v.  West.  U.  Tel. 
Co.,  79  S.  C.  257,  60  S.  E.  662;  Seddon  v.  Tel.  Co.,  146  Iowa,  743,  126  X. 
W.  969 ;  Harrelson  v.  Tel.  Co.,  90  S.  C.  132,  72  S.  E.  882 ;  Stewart  v.  Tel. 
Co.,  93  S.  C.  119,  76  S.  E.  Ill ;  that  the  company  had  notice  of  such,  Amos 
V.  West.  U.  Tel.  Co.,  supra.  Contra,  Graham  v.  West.  U,  Tel.  Co.,  93  S. 
C.  173,  76  S.  E.  200. 

36  McAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W.  715. 

3T  See  Machen  v.  West.  U.  Tel.  Co^  63  S.  C  363,  41  S.  E.  448;  Butler 
V.  West.  U.  Tel.  Co.,  62  S.  C.  222,  40  S.  E.  162,  89  Am.  St.  Rep.  893. 

38  West  U.  Tel.  Co.  v.  Godsey  (Tex.  App.)  16  S.  W.  789 ;  Daniel  v.  West.  U. 
Tel.  Co.,  61  Tex.  452,  48  Am.  Rep.  305. 

Allegations  not  sufficient,  where  it  contains  indefinite  allegations  of  negli- 
gence, Daniel  v.  West.  U.  Tel.  Co.,  supra ;  or  gi-oss  negligence  unaccompanied 
by  facts  to  warrant  such  damages,  AVest.  U.  Tel.  Co.  v.  Godsey,  supra ;  but 
sufficient  where  it  alleges  "willful  negligence,"  Hartzog  v.  West.  U.  Tel. 
Co.  (Miss.)  34  South.  361 ;  or  "wanton,  willful  and  grossly  negligent,"  Butler 
V.  West.  U.  Tel.  Co.,  62  S.  C.  222,  40  S.  E.  162,  89  Am.  St.  Rep.  893;  or 
"gross  negligence,"  "carelessness,"  "wantonness,"  and  "reckless  mismanage- 
ment," Machen  v.  West.  U.  Tel.  Co.,  63  S.  C.  363,  41  S.  E.  448;  Machen  v. 
West.  U.  Tel.  Co.,  supra. 

39  However,  not  necessary,  Butler  v.  West.  U.  Tel.  Co.,  62  S.  C.  222,  40 
S.  E.  162,  89  Am.  St.  Rep.  893;  Lee  v.  West.  U.  Tel.  Co.,  51  Mo.  App.  375; 
unless  the  message  was  in  cipher,  Bashinsky  v.  West.  U.  Tel.  Co.,  1  Ga. 
App.  761,  58  S.  E.  91.  See  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46  South. 
1024,  127  Am.  St.  Rep.  169. 

4  0  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94.  See,  also, 
Loper  V.  West.  U.  Tel.  Co.,  70  Tex.  689,  8  S.  W.  600,  16  Am.  St.  Rep.  864. 


§    502)  PLEADING,  PRACTICE  AND  EVIDENCE  637 

but  the  company  can  take  advantage  only  of  those  v^hich  are  rea- 
sonable.'*^ 

§  502.  Same  continued — amendments  liberally  allowed. — The 
strictness  with  which  the  common-law  rule  regarded  the  pleadings 
brought  against  private  persons  and  corporations  has  been  greatly 
obviated  by  the  liberal  allowance  of  statutes  in  most  of  the  states 
in  allowing  amendments  to  them.  It  has  become  so,  by  these  stat- 
utes, that  almost  any  reasonable  amendment  may  be  made  to  the 
complaint  or  declaration  of  the  plaintiff;*^  and  where,  under  the 
common-law  rule,  the  plaintiff  may  have  been  demurred  out  of 
court,  he  may,  under  the  statute  rule,  reinstate  his  case  by  an 
amendment  of  the  error  made  in  the  declaration.  Thus,  where  the 
declaration  averred  that  the  message  was  delivered  to  the  com- 
pany at  a  certain  place  on  the  line,  but  in  fact  it  was  delivered  at 
another  place,  the  declaration  may  be  amended  so  as  to  correct 
the  mistake.'*^  The  amendment  may  go  further  and  show  that  the 
message  was  delivered  to  another  company  other  than  the  defend- 
ant, but  accepted  by  the  latter;  **  but,  in  such  a  case,  it  seems  that 
it  must  be  shown  that  the  defendant's  negligence  was  the  cause  of 
the  loss.  A  misnomer  may  be  amended  if  the  defendant  is  not 
prejudiced  in  his  rights.  The  declaration  may  be  amended  so  as 
to  show  a  different  amount  and  the  character  of  the  damages  claim- 
ed. But  we  think,  if  the  negligent  act  of  the  defendant  occurred 
in  a  certain  manner,  an  amendment  cannot  be  made  without  the 
defendant  having  a  ground  for  continuance  of  the  cause,  where  the 
act  is  averred  as  having  occurred  otherwise,  and  materially  differ- 
ent to  that  first  alleged  in  the  pleadings.  It  is  unnecessary  to 
discuss  this  subject  futher,  since  there  have  been  volumes  more 
ably  written  on  this  particular  subject  which  are  available. 

41  Precedent  conditions  must  be  alleged  as  having  been  complied  with. 
West.  U.  Tel.  Co.  v.  Hays  (Tex.  Civ.  App.)  63  S.  W.  171;  Albers  v.  West. 
U.  Tel.  Co..  98  Iowa,  51,  66  N.  W.  1040.  But  conditions  held  not  precedent. 
See  Sherrill  v.  West.  U.  Tel.  Co.,  109  N.  C.  527,  14  S.  E.  94 ;  West.  U.  Tel. 
Co.  v.  Trumbull,  1  Ind.  App.  121,  27  N.  E.  313;  West.  U.  Tel.  Co.  v.  Finer, 
9  Tex.  Civ.  App.  152,  29  S.  W.  66.  However,  where  this  is  a  statutory  re- 
quirement, rule  otherwise.  Heald  v.  West.  U.  Tel.  Co.,  129  Iowa,  326,  105 
N.  W.  5SS. 

4  2  West.  U.  Tel.  Co.  v.  Corso,  121  Ky.  322,  89  S.  W.  212,  28  Ky.  Law  Rep. 
290,  11  Ann.  Cas.  1065 ;  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844 ; 
West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App.  43,  60  S.  W.  982 ;  West  U.  Tel. 
Co.  V.  Pelzer  (Tex.  Civ.  App.)  35  S.  W.  S:'.6 ;  Hall  v.  West.  U.  Tel.  Co.,  59 
Fla.  275,  51  South.  819,  27  L.  R.  A.  (N.  S.)  6.39,  damages  improperly  alleged 
may  be  reached  bv  motion  to  strike  out  or  to  amend. 

43  Conyers  v.  Postal  Tel.  Cable  Co.,  92  Ga.  619,  19  S.  E.  253,  44  Am.  St. 
Rep.  100. 

44  Id. 


638  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  503 

§  503.  Action — whether  in  contract  or  in  tort. — Sometimes  it 
becomes  difficult  for  the  court  to  decide  whether  the  action  is 
brought  for  a  breach  of  the  contract  of  sending  or  whether  it  is  for 
a  breach  of  its  public  duty.  In  order  to  determine  this  fact,  the 
court  should  look  to  the  nature  of  the  cause  of  action  stated  in 
the  complaint  or  declaration,  and  if  the  special  contract  is  not  set 
out  they  will  generally  construe  the  pleadings  as  founded  in  tort.*^ 
It  has  been  held  that,  where  the  action  is  founded  on  a  special 
contract  and  a  breach  thereof  resulting  in  damages  to  the  plain- 
tiff, it  is  not  necessary  to  allege  in  the  complaint  that  the  defendant 
is  a  public  corporation,  or  a  common  carrier  for  hire,  where  it  is 
made  so  by  statute;  but  where  the  action  is  founded  in  tort,  or  a 
breach  of  its  public  duties,  it  is  necessary  to  state  these  facts,  or 
averments  equivalent  thereto.*®  Sufficient  facts  must  be  averred 
to  show  that  it  has  public  duties  to  perform,  and  that  it  has  failed 
to  discharge  these  to  the  injury  of  the  plaintiff.'*'^  It  is  generally 
held  that  a  declaration  is  demurrable  where  it  contains  two  counts, 
one  where  it  is  averred  that  the  defendant  is  guilty  of  a  breach  of 
a  contact  and  the  other  which  alleges  that  it  has  negligently  failed 
to  discharge  its  public  duty,*^  In  other  words,  counts  in  tort  and 
counts  in  contract  cannot  be  joined  in  the  same  action. 

§  504.  Actions  for  statutory  penalty — variance,  etc. — Following 
the  general  rule  that  penal  statutes  must  be  strictly  construed,  it 
is  held  that  the  pleadings  in  an  action  brought  against  telegraph 
companies  to  recover  a  statutory  penalty,  are  usually  enforced 
with  more  strictness  than  pleadings  in  the  ordinary  actions  to  re- 
cover damages.  The  complaint  or  declaration  must  allege  all  the 
facts  necessary  to  bring  the  case  not  only  within  the  letter  of  the 
statute  but  within  its  spirit  as  well.*®    Thus  it  must  allege  that  the 

45  Frink  v.  Potter,  17  111.  406;  Hell  v.  St.  Louis,  etc.,  R.  Co.,  16  Mo.  App. 
363;  Atlantic  R.  Co.  v.  Laird,  58  Fed.  760,  7  C.  C.  A.  489;  New  Orleans, 
etc.,  R.  Co.,  V.  Hurst,  36  Miss.  660,  74  Am.  Dec.  785;  Heim  v.  McCaughan, 
32  Miss.  17,  66  Am.  Dec.  588. 

4  6  Bristol  V.  Rensselaer,  etc.,  R.  Co.,  9  Barb.  (N.  Y.)  158;  Southern  Ex. 
Co.  V.  McVeigh,  20  Grat.   (Va.)  264. 

4  7  Greenberg  v.  West.  U.  Tel.  Co.,  89  Ga.  754,  15  S.  E.  651;  S.  Florida 
Tel.  Co.  V.  :Maloney,  34  Fla.  338,  16  South.  280;  May  v.  West.  U.  Tel.  Co., 
112  Mass.  90 ;  Lewis  v.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  59  S.  W. 
303;  Abbott  v.  West.  U.  Tel.  Co.,  86  Minn.  44,  90  N.  W.  1;  West.  U.  Tel. 
Co.  V.  Rowe,  44  Tex.  Civ.  App.  84,  98  S.  W.  228;  West.  U.  Tel.  Co.  v.  Wil- 
son, 93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23 ;  Milliken  v.  West.  U.  Tel. 
Co.,  110  N.  Y.  403,  18  N.  E.  251,  1  L.  R.  A.  281,  reversing  53  N.  Y.  Super. 
Ct.  111. 

48  Norfolk,  etc.,  R.  Co.  v.  Wysor,  82  Va.  2.50. 

49  West.  U.  Tel.  Co.  v.  Kinney,  106  Ind.  468,  7  N.  E.  191;  Greenberg  v. 
West.  U.  Tel.  Co.,  89  Ga.  7&4,  15  S.  E.  651. 


§    504)  PLEADING,  PRACTICE   AND   EVIDENCE  639 

charges  were  paid  or  tendered,  and  that  the  case  comes  within  the 
statute. ^^  So,  if  the  statute  provides  that  only  such  companies  as 
are  "engaged  in  telegraphing  for  the  public,"  and  the  allegations 
in  the  complaint  state  that  it  was  "engaged  in  the  business  of 
transmitting  telegraphic  dispatches  for  hire,"  this  will  not  be  a  com- 
pliance with  the  statute. ^^  A  statutory  penalty  cannot  be  recovered 
where  the  complaint  avers  that  the  defendant  negligently  trans- 
mitted a  message  whereby  he  suffers  a  loss,  when  the  statute  pro- 
vides that  the  recovery  can  only  be  had  where  the  company  has 
negligently  delayed  the  delivery  of  the  message,  or  vice  versa.^^  It 
is  not  necessary  for  the  copy  of  the  message  to  be  set  out  in  the 
pleading  in  these  cases;  °^  nor  is  it  necessary  that  it  should  negative 
matters  of  defense.^*  Thus,  where  the  rule  of  the  company  is  that 
it  will  deliver  all  messages  free  of  charge  within  the  free  delivery 
limit  it  is  not  necessary  for  the  declaration  to  contain  an  averment 
that  the  addressee  lived  within  the  free  delivery  limits,  since  if 
such  should  not  be  the  fact,  it  is  a  defense  to  be  used  by  the  com- 
pany.^^  It  is  a  general  rule  of  procedure  that  the  proof  must  be 
consistent  with  the  averments  in  the  pleadings,  but  if  the  variance 
is  on  immaterial  allegations,  the  complaint  will  be  good.^*^     It  is 

50  West.  U.  Tel.  Co.  v.  Mossier,  95  Ind.  32 ;  West.  U.  Tel.  Co.  v.  Ferguson, 
57  Ind.  495. 

In  a  common-law  remedy  to  recover  damages,  it  Is  not  necessary  to  show 
that  the  charges  were  paid.  West.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53 ;  Milliken 
V.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  IS  N.  E.  251,  1  L.  R.  A.  281.  But  all  the 
facts  enumerated  in  the  statute  as  necessary  to  render  the  contract  valid 
must  he  shown.  Gist  v.  West.  U.  Tel.  Co.,  45  S.  C.  344,  23  S.  E.  143,  55  Am. 
St.  Rep.  763. 

51  West.  U.  Tel.  Co.  v.  Axtell,  69  Ind.  199;  West.  U.  Tel.  Co.  v.  Roberts, 
87  Ind.  377 ;    West.  U.  Tel.  Co.  v.  Adams,  87  Ind.  598,  44  Am.  Rep  776. 

6  2  Wilkins  v.  West.  U.  Tel.  Co.,  68  Miss.  6,  8  South.  678. 

63  West.  U.  Tel.  Co.  v.  Meredith,  95  Ind.  93;  Lee  v.  West.  U.  Tel.  Co.,  51 
Mo.  App.  375 ;  Butler  v.  West.  U,  Tel.  Co.,  62  S.  C.  222,  40  S.  E.  162,  89  Am. 
St.  Rep.  893. 

54  Cowan  V.  West.  U.  Tel.  Co.,  122  Iowa,  379,  98  N.  W.  281,  64  L.  R.  A. 
545,  101  Am.  St.  Rep.  268;  West.  IT.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7 
South.  419,  18  Am.  St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Henley,  1.57  Ind.  90, 
60  N.  E.  682 ;  West.  U.  Tel.  Co.  v.  Cook,  45  Tex.  Civ.  App.  87,  99  S.  W.  1131 ; 
West.  U.  Tel.  Co.  v.  Whitson,  145  Ala.  420,  41  South.  405. 

55  Id. 

56  Thus,  where  the  complaint  alleged  that  the  me.ssage  sent  in  March,  the 
plaintiff  might  still  show  it  to  have  been  sent  in  January.  West.  U.  Tel.  Co. 
V.  Kilpatriek,  97  Ind.  42 ;  Pope  v.  West.  U.  Tel.  Co.,  9  111.  App.  283 ;  West. 
U.  Tel.  Co.  V.  Rol>erts,  34  Tex.  Civ.  App.  76,  78  S.  W.  522 ;  West.  U.  Tel.  Co. 
V.  Pelzer  (Tex.  Civ.  App.)  35  S.  W.  836;  West.  U.  Tel.  Co.  v.  Linney  (Tex. 
Civ.  App.)  28  S.  W.  234;  West.  U.  Tel.  Co.  v.  Hinkle,  3  Tex.  Civ.  App.  518, 
22  S.  W.  1004.  See  Ogilvie  v.  West.  U.  Tel.  Co.,  83  S.  C.  8,  64  S.  E.  860,  137 
Am.  St.  Rep.  791. 


640  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  505 

only  where  the  variance  is  on  material  averments  that  the  rule  is 
applicable. ^'^  If  the  message  was  delivered  to  the  company  on  Sun- 
day, the  declaration  must  allege  its  necessity  of  being  sent  on  that 
day,  in  order  to  recover  under  these  statutes. '^^ 

§  505.  Plea  to  the  declaration. — At  the  common  law,  whether 
the  action  sounded  in  contract  or  in  tort,  it  was  generally  suffi- 
cient for  the  company  to  plead  the  general  issue,^®  and  a  general 
denial  will  be  sufficient  in  the  states  in  which  the  code  procedure 
is  used,  but  as  new  matter  must  be  specially  pleaded  under  the 
code,  it  will  sometimes  be  necessary  to  answer  specially. ^°  Thus, 
if  the  claim  is  not  presented  within  the  required  time,  or  if  the 
message  was  not  ordered  to  be  repeated,  or  if  there  is  a  failure  on 
the  part  of  the  plaintiff  to  comply  with  any  of  the  stipulations  con- 
tained in  the  message  blank,  the  plea  should  specially  aver  these 
facts. ^^  If  the  message  is  sent  in  cipher,  and  the  company  is  not 
informed  of  its  importance,  an  averment  of  this  fact  should  be 
made ;   and  it  will  be  an  error  in  the  court  to  strike  from  the  plea 

5  7  West.  U.  Tel.  Co.  v.  Smith,  88  Tex.  9,  28  S.  W.  931,  30  S.  W.  549,  re- 
versing (Tex.  Civ.  App.)  30  S.  W.  957 ;  West.  U.  Tel.  Co.  v.  Byrd,  34  Tex.  Civ. 
App.  594.  79  S.  W.  40 ;   Telephone  Co.  v.  Brown,  6  Ala.  App.  339,  59  South.  329. 

5  8  West.  U.  Tel.  Co.  v.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224; 
West.  U.  Tel.  Co.  v.  Griffin,  1  Ind.  App.  46,  27  N.  E.  113 ;  West.  U.  Tel.  Co.  v. 
Henley,  23  Ind.  App.  14,  54  N.  E.  775 ;  West.  U.  Tel.  Co.  v.  Eskridge,  7  Ind. 
App.  208,  33  N.  E.  238.     See,  also,  cases  in  note  20,  supra. 

59  Hutchinson  on  Carriers  (2d  Ed.),  §  758;  I.  C.  R.  Co.  v,  Johnson,  34  111. 
389 ;  St.  Louis,  etc.,  R.  Co.  v.  Knight,  122  U.  S.  79,  7  Sup.  Ct.  1132,  30  L.  Ed. 
1077;  Mitchiner  v.  West.  U.  Tel.  Co.,  70  S.  C.  522,  50  S.  E.  190;  Telephone 
Co.  V.  Calhoun,  13  Ga.  App.  482,  79  S.  E.  371;  Hinson  v.  West.  U.  Tel.  Co., 
91  S.  C.  338,  74  S.  E.  752,  Ann.  Cas.  1914A,  114. 

60  What  must  &e  specially  pleaded. — West.  U.  Tel.  Co.  v.  Trumbull,  1  Ind. 
App.  121,  27  N.  E.  313,  presenting  claim  in  time ;  West.  U.  Tel.  Co.  v.  Whit- 
son,  145  Ala.  426,  41  South.  405,  free  delivery  limit ;  Kendall  v.  West.  U.  Tel. 
Co.,  56  Mo.  App.  192,  presenting  claim ;  Collins  v.  West,  U.  Tel.  Co.,  145 
Ala.  412,  41  South.  160,  8  Ann.  Cas.  208;  West.  U.  Tel.  Co.  v.  Henderson, 
89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep.  148,  free  delivery  limits ;  Harris 
V.  West.  U.  Tel.  Co.,  121  Ala.  519,  25  South.  910,  77  Am.  St.  Rep.  70,  present- 
ing claim ;  Conrad  v.  West.  U.  Tel.  Co.,  162  Pa.  204,  29  Atl.  888,  connecting 
line;  Martin  v.  Sunset  Tel.,  etc.,  Co.,  18  Wash.  260,  51  Pac.  376,  presenting 
claim;  West.  U.  Tel.  Co.  v.  Dinney  (Tex.  Civ.  App.)  28  S.  W.  234,  presenting 
claim ;  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W.  216,  special  con- 
tract ;  West.  U.  Tel.  Co.  v.  Rowell,  166  Ala.  651,  51  South.  880 ;  Telephone  Co.  v. 
Harris,  105  Tex.  320,  148  S.  W.  289,  failure  to  pay  extra  charges;  West.  U. 
Tel.  Co.  V.  Saunders,  164  Ala.  234,  51  South.  176,  137  Am.  St.  Rep.  35,  double 
pleadings,  motion  to  strike  out  proper  practice.  Pleas  held  insufficient,  see 
Telephone  Co.  v.  Fuel,  165  Ala.  391,  51  South.  571;  Park  v.  Telephone  Co., 
167  Ala.  .339,  52  South.  884;  Telephone  Co.  v.  Sledge,  7  Ala.  App.  650,  62 
South.  390. 

61  West.  U.  Tel.  Co.  v.  Saunders,  164  Ala.  234,  51  South.  176,  137  Am.  St. 
Rep.  35.     See,  also,  other  cases  cited  in  note  60,  supra. 


§    506)  PLEADING,  PRACTICE  AND  EVIDENCE  641 

such  an  averment. "^  The  plaintiff  should  have  notice  of  the  rules 
of  the  company  in  order  for  them  to  be  binding  on  him;  and  if  a 
plea  to  a  complaint  against  one  of  these  companies  avers  that  a 
message,  received  for  transmission,  was  written  on  one  of  the 
blanks  upon  which  the  requirement  for  notice  of  damages  within 
sixty  days  was  printed,  and  was  sent  subject  to  the  contract  ex- 
pressed thereon  and  of  which  this  requirement  was  a  part,  it  is 
equivalent  to  an  averment  of  notice  of  the  rule  on  plaintiff's  part.^^ 
§  506.  The  issue  and  proof. — In  an  action  against  a  telegraph. 
telephone,  or  electric  company,  the  evidence  will  be  limited  as  in 
all  other  cases  against  corporations  or  private  persons  to  the  issue 
involved,*'*  so  evidence  of  a  breach  of  a  contract  or  tort  other  than 
the  one  alleged  in  the  declaration  will  be  inadmissible.*'^  So  also 
it  seems  that,  if  the  complaint  counts  entirely  upon  the  failure  of 
the  company  to  promptly  deliver  the  message,  he  cannot  recover 
where  the  loss  has  been  sustained  by  a  negligent  transmission. *'•' 
Where  special  damages  are  claimed,  they  must  not  only  be  plead- 
ed," but  proved  as  alleged.^^     In  an  action  to  recover  damages 

62  Hill  V.  West.    U.  Tel.  Co,.  42  S.  C.  367,  20  S.  E.  135,  46  Am.  St.  Rep.  734. 
See  Harrison  v.  West.  U.  Tel.  Co.,  3  Willson,  Civ.  Cas.  Ct.  App.  §  43. 
6  3  Harris  v.  West.  U.  Tel.  Co.,  121  Ala.  519,   25   South.  910,  77   Am.   St. 

Rep.  70. 

64  Barrett  v.  West.  U.  Tel.  Co.,  42  INIo.  App.  542 ;   West.  U.  Tel.  Co.  v.  Byrd, 

84  Tex.  Civ.  App.  594,  79  S.  W.  40;  Martin  v.  West.  U.  Tel.  Co.,  81  S.  C.  432, 
G2  S.  E.  833;  Lofton  v.  Electric  Co.,  61  Fla.  293,  54  South.  959;  Brown  v. 
Light,  etc.,  Co.,  137  Mo.  App.  718,  109  S.  W.  1032.  See  Cutler  v.  Light,  etc., 
Co..  SO  Conn.  470.  68  Atl.  1006 ;    Winkelman  v.  Light  Co.,  110  Mo.  App.  184, 

85  S.  W.  99;  Telephone  Co.  v.  Thomas,  45  Tex.  Civ.  App.  20,  99  S.  W.  879; 
Power  Co.  v.  Hooper,  46  Tex.  Civ.  App.  257,  102  S.  W.  133,  variance  held  im- 
material ;  Fickeisen  v.  Electrical  Co.,  67  W.  Va.  335,  67  S.  E.  788,  27  L.  R.  A. 
(N.  S.)  893,  failure  to  prove  ownership  of  wire;  Telephone  Co.  v.  Booker, 
103  Va.  594,  50  S.  E.  148;  Railroad,  etc.,  Co.  v.  Cockrum,  179  Ala.  372,  60 
South.  304.  See,  however,  Lutolf  v.  United  Elec.  Lt.  Co.,  184  Mass.  53.  67 
N.  E.  1025;  Melican  v.  Missouri-Edison  Elec.  Co.,  90  Mo.  App.  595;  Ogilvie 
V.  West.  U.  Tel.  Co.,  83  S.  C.  8,  64  S.  E.  860,  137  Am.  St.  Rep.  790 ;  Baker  v. 
West.  U.  Tel.  Co.,  84  S.  C.  477,  66  S.  E.  182,  137  Am.  St.  Rep.  848;  West. 
U.  Tel.  Co.  V.  Sights.  34  Okl.  461,  126  Pac.  234,  Ann.  Cas.  1914C,  204,  42 
L.  R.  A.  (N.  S.)  419 ;  Traction  Co.  v.  Daily,  111  Va.  665,  69  S.  E.  9G3 ;  West. 
U.  Tel.  Co.  V.  Milton,  53  Fla.  484,  43  South.  495,  125  Am.  St.  Rep.  1077,  11 
L.  R.  A.  (N.  S.)  560. 

6  5  West.  U.  Tel.  Co.  v.  Byrd,  34  Tex.  Civ.  App.  594,  79  S.  W.  40. 

6  6  Council  V.  West.  U.  Tel.  Co.,  116  Mo.  34,  22  S.  W.  345,  20  L.  R.  A.  172, 
38  Am.  St.  Rep.  575. 

67  Amos  V.  West.  U.  Tel.  Co.,  79  S.  C.  2.59,  60  S.  E.  660,  128  Am.  St.  Rep.  845. 

6  8  Barrett  v.  West.  U.  Tel.  Co.,  42  Mo.  App.  542 ;   West.  U.  Tel.  Co.  v.  Turner 
(Tex.  Civ.  App.)  78  S.  W.  362;    Fass  v.  West.  U.  Tel.  Co.,  82  S.  C.  461.  04 
S.  E.  235.    See  McNeil  v.  Postal  Tel.  Cable  Co.,  154  Iowa,  241,  134  N.  W.  611, 
Ann.  Cas.  1914A,  1294,  38  L.  R.  A.  (N.  S.)  727. 
Jones  Tel.(2d  Ed.) — 41 


642  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  507 

for  the  death  of  a  horse  caused  by  the  delay  of  the  company  in 
delivering  a  message  requesting  the  attendance  of  a  veterinary 
surgeon,  the  sole  issue  is  whether  such  death  was  due  to  delay  in 
the  treatment  caused  by  the  failure  to  deliver  the  message,  regard- 
less of  negligence  in  the  treatment  of  the  horse  after  the  dispatch 
was  delivered. ^^  In  actions  brought  to  recover  damages  for  mental 
anguish  and  in  which  the  question  arises  whether  the  relationship 
is  too  remote  to  give  rise  to  a  presumption  of  mental  anguish, 
evidence  of  any  special  relations  of  intimacy  is  not  admissible 
unless  alleged. '^° 

§  507.  Cause — proximate — remote. — In  order  that  the  injured 
party  may  recover  for  an  alleged  negligence  of  a  telegraph,  tele- 
phone, or  electric  company,  it  must  be  shown  that  the  company's 
negligence  was  the  proximate  cause  of  the  injury.'^^  While  this 
is  the  undisputed  principle  of  law  in  such  cases,  yet  there  has  not 
been  any  rule  laid  down  by  which  it  may  be  determined  as  to 
whether  or  not  the  negligence  is  proximate  or  remote.  In  other 
words,  there  has  not  been  nor  can  there  be  a  line  drawn  separat- 
ing the  two,  so  that  it  may  be  said  that  it  is  a  subject  to  be  placed 
on  one  or  the  other  side  of  this  line,  but  the  facts  in  each  partic- 
ular case  must  be  considered  in  determining  the  question. '^^  After 
the  facts  have  been  presented,  they  must  then  be  sufficient  to  war- 
rant a  jury  in  finding  that  the  negligence  was  the  proximate  cause 
of  the  injury ;  that  is,  facts  and  circumstances  must  be  proved  suffi- 
ciently to  bring  conviction  to  a  reasonable  mind,  without  resorting 
to  mere  conjecture  or  uncertainty,  and  mere  presumption  that  the 
company's  neglect  of  duty  was  the  proximate  cause  of  the  injury. "^^ 

6  9  Hendershot  v.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am.  St. 
Rep.  313. 

70  McDowell  V.  West.  U.  Tel.  Co.,  79  S.  C.  257,  60  S.  E.  662;  Amos  v.  West. 
U.  Tel.  Co.,  79  S.  C.  259,  60  S.  E.  660,  128  Am.  St.  Rep.  845;  Little  v.  West. 
U.  Tel.  Co.,  79  S.  C.  255,  60  S.  E.  663. 

71  See  §§  520,  522;  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495, 
125  Am.  St.  Rep.  1077,  11  L.  R.  A.  (N.  S.)  560,  holding  that  a  proximate  cause 
is  one  that  leads  to  or  produces  or  directly  contributes  to  producing  the  re- 
sult or  loss.  Hall  v.  West.  U.  Tel.  Co.,  59  Fla.  275,  51  South.  819,  27  L.  R.  A. 
(N.  S.)  639;  Providence-Washington  Ins.  Co.  v.  West.  U.  Tel.  Co.,  247  111.  84, 
93  N.  E.  134,  30  L.  R.  A.  (N.  S.)  1170.  139  Am.  St.  Rep.  314.  Compare  Brown 
V.  Chesapeake  &  Ohio  R.  Co.,  135  Ky.  798,  123  S.  W.  298,  25  L.  R.  A.  (N.  S.)  717. 

7  2  Hendershot  v.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am. 
St.  Rep.  313 ;  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70 
Am.  St.  Rep.  205,  43  L.  R.  A.  214 ;  West.  U.  Tel.  Co.  v.  Simpson,  64  Kan.  309. 
67  Pac.  839;  Strahorn-Hutton-Evans  Coms.  Co.  v.  West.  U.  Tel.  Co.,  101  Mo. 
App.  500,  74  S.  W.  876 ;  Higdon  v.  West.  U.  Tel.  Co.,  132  N.  C.  726,  44  S.  E.  558. 

7  3  Hendershot  v.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am,  St. 
Rep.  313.     See  §§  520,  522. 


I 


§    508)  PLEADING,  PRACTICE   AND   EVIDENCE  643 

A  jury  must  not,  in  determining  this  question,  indulge  In  con- 
jecture, speculation,  or  guesswork,  although  they  need  not  be  con- 
vinced to  an  absolute  certainty ;  if  there  is  a  preponderance  of  the 
evidence  to  the  effect  that  negligence  was  the  proximate  cause  of 
the  injury,  the  jury  is  warranted  in  finding  the  company  liable 
therefor.''*  Thus  a  delay  of  five  hours  in  delivering  a  message, 
the  importance  of  which  was  shown  on  its  face,  to  a  veterinary 
surgeon  requesting  his  immediate  attendance  to  treat  a  very  val- 
uable horse,  was  negligence  on  the  part  of  the  company ;  and  if 
by  a  prompt  delivery  the  surgeon  would  probably  have  gotten  to 
the  horse  in  time  to  have  saved  its  life,  then,  the  proximate  cause 
of  the  death  of  the  animal  would  be  the  delay  in  the  delivery  of 
the  message.'^  Where  the  plaintiff  informs  the  company  that  he  is 
expecting  to  receive  an  important  message  and,  after  this  informa- 
tion, the  company  delays  the  delivery  of  a  telegram,  whereby  the 
plaintiff  is  defeated  in  capturing  a  fugitive  from  justice,  and  there- 
by loses  the  reward,  the  company's  negligent  delay  is  the  proxi- 
mate cause  of  the  loss  and  it  is,  therefore,  liable  for  so  much  there- 
of.''^ It  must  be  shown  that  the  prompt  delivery  would  have  pre- 
vented the  loss; ''"'  as,  where  a  warning  message,  directed  to  a  man 
who  was  being  pursued,  was  not  delivered,  and  the  addressee  was 
killed  by  his  pursuers,  it  was  held  that  there  could  be  no  recovery, 
since  it  did  not  appear  that  the  prompt  delivery  of  the  message 
would  have  saved  his  life."^ 

§  508.  Contributory  negligence — same  rule. — The  same  rule  as 
above  will  apply  where  the  company  attempts  to  set  up,  as  a  de- 
fense, the  contributory  negligence  of  the  injured  party.  The  plain- 
tiff must  use  ordinary  care  in  carrying  out  his  business  transac- 
tions with  these  companies,  and  if  he  fails  to  do  so,  which  con- 
tributes proximately  to  the  company's  neglect,  he  cannot  recover.^® 
While  it  is  difficult  to  say  as  to  whether  or  not  the  want  of  the 
injured  party  to  use  ordinary  care  has  contributed  proximately  to 
the  company's  negligence,  yet  it  may  be  said  that  it  does  con- 
tribute proximately  to  the  injury  when  it  is  an  active  and  effective 

74  Id.  75  1(1. 

7  6  McPeek  v.  West.  U.  Tel,  Co.,  107  Iowa,  356,  78  N.  W.  G3,  70  Am.  St.  Rep. 
205,  43  L.  R.  A.  214. 

7  7  See  §§  208,  520. 

7  8  Ross  V.  West.  U.  Tel.  Co.,  81  Fed.  676,  26  C.  C.  A.  564;  Barnes  v.  West. 
U.  Tel.  Co.,  24  Nev.  125,  50  Pac.  438,  74  Am.  St.  Rep.  791.  In  this  case  it 
was  held  that  unreasonable  delay  in  the  delivery  of  a  message  was  the  proxi- 
mate cause  of  an  injury  caused  by  being  run  over  by  rail  cars  due  to  the  in- 
jured party's  negligence. 

7  9  Note  §§  210,  520,  522. 


644  TELEGRArH  AND  TELEPHONE  COMPANIES         (§  508 

cause  of  the  injury  in  any  degree,  however  slight,  and  not  the  mere 
condition  or  occasion  of  it.  That  is,  if  both  the  injured  party  and 
the  company  have  been  guilty  of  negligence,  but  that  of  the  com- 
pany is  the  more  immediate  cause  of  the  injury,  the  company  will 
be  liable.^''  On  the  other  hand,  if  it  appears  that  the  injury  would 
have  nevertheless  occurred  had  the  company  exercised  ordinary 
care,  the  plaintiff  cannot  recover,  however  negligent  the  company 
may  have  been.  In  other  words,  the  act  must  have  been  caused  by 
the  negligence  of  the  company  unconnected  with  any  fault  of 
the  plaintiff,  and  as  the  result  of  which  the  injury  would  not  have 
been  inflicted. ^^  With  regard  to  the  burden  of  proof  as  to  con- 
tributory negligence  in  actions  against  electric  companies  for  dam- 
ages for  personal  injuries  there  exists  as  in  the  case  of  actions  for 
negligent  injuries  generally  a  conflict  of  opinion.  Thus,  accord- 
ing to  some  authorities,  where  the  action  of  both  parties  must  have 
combined  to  produce  the  injury,  it  devolves  upon  the  plaintiff  to 
show  that  he  was  not  himself  guilty  of  negligence,  and  he  must 
show  affirmatively  that  he  was  in  the  exercise  of  due  and  reason- 
able care  when  the  injury  happened.®'  However,  the  proof  need 
not  be  direct,  but  may  be  inferred  from  the  circumstances  of  the 

8  0  Suburban  Elec.  Co.  v.  Nugent,  5S  N.  J.  Law,  658,  34  Atl.  10G9,  32  L.  R.  A. 
700.  See.  also,  Bigelow  on  Torts.  311 ;  Beach  on  Con.  Neg.  36 ;  Wharton  on 
Neg.  §  303 ;  Shearman  &  Redf.  on  Neg.  §  33 ;  McAunich  v.  Mississippi,  etc., 
R.  Co.,  20  Iowa,  ,338;  Murphy  v.  Deane,  101  Mass.  455,  3  Am.  Rep.  390; 
Norris  v.  Litchfield,  35  N.  H.  271,  69  Am.  Dec.  546;  Washington  v.  B.  &  O. 
R.  R.  Co.,  17  W.  Va.  190.  In  this  case  the  court  said:  "Properly  speaking, 
contributory  negligence,  as  the  very  words  impart,  arises  when  the  plaintiff 
as  well  as  the  defendant  has  done  some  act  negligently,  or  has  omitted 
through  negligence  to  do  some  act  which  it  was  their  respective  duty  to  do, 
and  the  combined  negligence  of  the  two  parties  has  directly  produced  the  in- 
jury. On  the  contrary,  if  the  act  of  the  defendant  is  the  Immediate  cause 
of  the  injury,  no  preceding  negligence  or  improper  conduct  of  the  plaintiff 
v.ould  prevent  him  from  recovering;  for  in  such  a  case  his  preceding  negli- 
gence or  improper  conduct  would  not  be  in  law  regarded  as  any  part  of  the 
cause  of  the  injury,  and  would  not  therefore  be  held  to  be  contributory  negli- 
gence. The  plaintiff's  preceding  negligence  or  improper  conduct  is  in  such 
case  a  mere  condition,  and  not  a  cause  of  the  injury.  Though  it  may  be  in 
such  a  case  that  the  injury  could  not  possibly  have  happened  without  this 
preceding  negligence  or  improper  conduct  of  the  plaintiff,  that  is,  without 
circumstances  being  in  the  actual  condition  in  which  the  plaintiff  had  improp- 
erly placed  them,  he  may  in  such  case  nevertheless  recover ;  for  in  the  view 
of  the  law,  which  now  looks  to  the  remote  cause,  which  we  have  called 
a  condition,  but  only  the  proximate  cause,  the  injury  in  such  a  case  would 
be  held  to  be  caused  by  the  defendant  only." 

81  Gentzkow  v.  Portland  Ry.  Co.,  54  Or.  114,  102  Pac.  614,  135  Am.  St.  Rep. 
821 ;    Ross  v.  West.  U.  Tel.  Co.,  91  Fed.  676,  26  C.  C.  A.  564. 

82  Clements  v.  Louisiana  Elec.  Lt.  Co.,  44  La.  Ann.  692,  11  South.  51,  32 
Am.  St.  Rep.  348,  16  L.  R.  A.  43 ;  West.  U.  Tel.  Co.  v.  Sights,  34  Okl.  461,  126 
Pac.  234,  42  L.  R.  A.  (N.  S.)  419,  Ann.  Cas.  1914C,  204. 


§    509)  PLEADING,  PRACTICE  AND   EVIDENCE  645 

case.^^  However,  contributory  negligence  on  the  part  of  the  plain- 
tiff, according  to  other  authorities,  is  matter  of  defense,  the  burden 
of  proving  which  rests  upon  the  defendant,^*  and  the  plaintiff  is 
not  required  to  show  that  he  was  free  from  negligence. ^^  In  all 
cases  where  the  question  is  whether  or  not  the  alleged  negligence 
is  the  proximate  cause  of  the  injury,  it  is  a  question  of  fact  to  be 
decided  by  a  jury.**^ 

§  509.  Presumption  of  negligence — burden  of  proof. — In  ordi- 
nary actions  brought  to  recover  damages  for  personal  injuries, 
there  is  probably  no  presumption  of  negligence  against  either 
party;  the  mere  fact  of  injury  being  sustained  creates  no  such  pre- 
sumption, except  where,  from  the  peculiar  circumstances  involved, 
the  familiar  maxim  of  res  ipsa  loquitur  is  applicable. ^'^  But  in  sim- 
ilar actions  against  electric  companies  the  mere  introduction  of  the 
facts  surrounding  an  injury  from  electricity,  showing  that  such 
injury  resulted  from  contact  with  live  electric  wires,  or  other 
appliances,  when  out  of  their  proper  condition  or  out  of  their  proper 
place,  may  suffice,  under  the  doctrine  of  res  ipsa  loquitur,  to  raise 
a  prima  facie  presumption  that  such  companies  having  such  ap- 
pliances in  charge  have  been  negligent  in  the  performance  of  their 
duty,*^^  and  to  place  upon  them  the  burden  of  overthrowing  such 

ssMyhan  v.  Louisiana  Elec.  Lt,  etc.,  Co.,  41  La.  Ann.  964,  6  South. 
799,  17  Am.  St.  Rep.  436,  7  L.  R.  A.  172;  Stevens  v.  United  Gas,  etc..  Co,. 
73  N.  H.  159,  60  Atl.  848,  70  L.  R.  A.  119 ;  Clements  v.  Louisiana  Elec.  Lt. 
Co.,  44  La.  Ann.  692,  11  South.  51,  32  Am.  St.  Rep.  348,  16  L.  R.  A.  43. 

s*  Ilaynes  v.  Raleigh  Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  41  Am  St  Rep 
786,  26  L.  R.  A.  810. 

S5  Gentzkow  v.  Portland  Ry.  Co.,  54  Or.  114,  102  Pae.  614,  135  .Im.  St  Ren 
821. 

so  See  §  520.  See,  also,  West.  U.  Tel.  Co.  v.  Morris,  83  Fed.  992.  28  C.  C.  A. 
56 ;  Wallingford  v.  West.  U.  Tel.  Co.,  60  S.  C.  201,  38  S.  E.  443,  629. 

8  7  Thompson  on  Neg.  1227-1235,  §  3;  Cooley  on  Torts,  796;  Shear.  &  Red. 
on  Neg.  §  59 ;  Wharton  on  Neg.  §§  421,  422 ;  Addison  on  Torts,  17,  366 ;  Bigelow 
on  Torts,  596 ;  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142 
Pac.  156,  L.  R.  A.  1915A,  120,  quoting  author. 

»«  See  §§  194,  198.  See,  also,  Texarkana  Gas,  etc.,  Co.  v.  Orr,  59  Ark.  215,  27 
S.  W.  66,  43  Am.  St.  Rep.  30;  Ala.  City,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324. 
54  South.  638,  Ann.  Cas.  1913A,  1181 ;  Giraudi  v.  San  Jose  Elec,  etc.,  Co.,  107 
Cal.  120,  40  Pac.  108,  48  Am.  St.  Rep.  114,  28  L.  R.  A.  596 ;  Denver  Cons.  Elec. 
Co.  V.  Simpson,  21  Colo.  371,  41  Pac.  499,  31  L.  R.  A.  566 ;  Diller  v.  Northern 
California  Power  Co.,  162  Cal.  531,  123  Pac.  359,  Ann.  Cas.  1913D,  90S ;  Clem- 
ents  V.  Louisiana  Elec.  Lt.  Co.,  44  La.  Ann.  692,  11  South.  51,  16  L.  R.  A.  43,  32 
Am.  St.  Rep.  348 ;  Hebert  v.  Lake  Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35  South. 
731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101 ;  Brown  v.  Edison  Elec.  111.  Co.,  90 
Md.  400,  45  Atl.  182,  78  Am.  St.  Rep.  442,  46  L.  R.  A.  745 ;  West.  U  Tel  Co  v 
State,  82  Md.  293,  33  Atl.  763,  51  Am.  St.  Rep.  464,  31  L.  R.  A.  572 ;  Walter  v. 
Baltimore  Elec.  Co.,  109  Md.  513,  71  Atl.  953,  22  L.  R.  A.  (N.  S.)  1178;  Griffin 
V.  United  Elec.  Co.,  164  Mass.  492,  41  N.  E.  675,  49  Am.  St.  Rep.  477,  32  L.  R.  A. 


646  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  509 

presumption.^^  And  where,  in  an  action  against  a  telegraph  or 
teleplione  company,  it  is  shown  that  a  message  has  been  delivered 
to  it  and  a  material  error  has  been  made  in  its  transmission,^"  or 

400 ;  St.  Louis  v.  Bay  State,  etc.,  R.  Co.,  216  Mass.  255,  103  N.  E.  639,  Ann. 
Cas.  1915B,  706,  49  L.  R.  A.  (N.  S.)  447 ;  Gannon  v.  Laclede  Gas  Lt.  Co.,  145 
Mo.  502.  46  S.  W.  968,  47  S.  W.  907,  43  L.  R.  A.  505,  overruled  on  another  point 
by  Heiidley  v.  Globe  Refinei-y  Co.,  100  Mo.  App.  20,  79  S.  W.  1103 ;  Gilbert  v. 
Duluth  Gen.  Elec.  Co.,  93  Minn.  99,  100  N.  W.  653,  106  Am.  St.  Rep.  430 ;  Mize 
V.  Rocky  Mountain  Bell  Tel.  Co.,  38  Mont.  521,  100  Pac.  971,  129  Am.  St.  Rep. 
659,  16  Ann.  Cas.  1189 ;  Suburban  Elec.  Co.  v.  Nugent,  58  N.  J.  Law,  658,  34 
Atl.  1009,  32  L.  R.  A.  700;  Newark  Elec.  Lt.,  etc.,  Co.  v.  Ruddy,  02  N.  J.  Law, 
505,  41  Atl.  712,  57  L.  R.  A.  624 ;  Trenton  Pass.  Ry.  Co.  v.  Cooi>er,  60  N.  J. 
Law,  219,  37  Atl.  730,  64  Am.  St.  Rep.  592,  38  L.  R.  A.  637 ;  Haynes  v.  Raleigh 
Gas  Co.,  114  N.  C.  203,  19  S.  E.  344,  41  Am.  St.  Rep.  786,  26  L.  R.  A.  810 ;  Tur- 
ner V.  Southern  Power  Co.,  154  N.  C.  131,  69  S.  E.  767,  32  L.  R.  A.  (N.  S.)  848 ; 
Fisher  v.  New  Bern,  140  N.  C.  506,  53  S.  E.  342,  111  Am.  St.  Rep.  857,  5  L.  R. 
A.  (N.  S.)  542 ;  Perham  v.  Portland  Gen.  Elec.  Co.,  33  Or.  451,  53  Pac.  14,  24, 
72  Am.  St.  Rep.  730,  40  L.  R.  A.  799 ;  Carroll  v.  Grande  Ronde  Elec.  Co.,  47 
Or.  424,  84  Pac.  389,  6  L.  R.  A.  (N.  S.)  290 ;  Boyd  v.  Portland  Elec.  Co.,  40  Or. 
126,  66  Pac.  576,  57  L.  R.  A.  619 ;  Alexander  v.  Nanticoke  Light  Co.,  209  Pa. 
571,  58  Atl.  1068,  67  L.  R.  A.  475 ;  Burnett  v.  Ft.  Worth  Lt.,  etc.,  Co.,  102  Tex. 
31,  112  S.  W.  1040,  19  L.  R.  A.  (N.  S.)  504 ;  Delahimt  v.  United  Tel.,  etc.,  Co., 
215  Pa.  241,  64  Atl.  515,  114  Am.  St.  Rep.  958 ;  Abrams  v.  Seattle,  60  Wash. 
356,  111  Pac.  168,  140  Am.  St.  Rep.  916 ;  Snyder  v.  Wheeling  Elec.  Co.,  43  W. 
Ya.  661,  28  S.  E.  733,  64  Am.  St.  Rep.  922,  39  L.  R.  A.  499 ;  Runyan  v.  Kana- 
wha, etc.,  Lt.  Co.,  68  W.  Va.  609,  71  S.  E.  259,  35  L.  R.  A.  (N.  S.)  430. 

8  9  Denver  Con.  Elec.  Co.  v.  Simpson,  21  Colo.  371,  41  Pac.  499,  31  L.  R.  A. 
566 ;  Hebert  v.  Lake  Charles  Ice,  etc.,  Co.,  Ill  La.  522,  35  South.  731,  100  Am. 
St.  Rep.  505,  64  L.  R.  A.  101 ;  Ala.  City,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324, 
54  South.  638,  Ann.  Cas.  1913A,  1181 ;  West.  U.  Tel.  Co.  v.  State,  82  Md.  293, 
33  Atl.  763,  51  Am.  St.  Rep.  464,  31  L.  R.  A.  572 ;  Alexander  v.  Nanticoke  Lt. 
Co.,  209  Pa.  571,  58  Atl.  1068,  67  L.  R.  A,  475 ;  Haynes  v.  Raleigh  Gas  Co.,  114 
N.  C.  203,  19  S.  E.  344,  41  Am.  St.  Rep.  786,  26  L.  R.  A,  810 ;  Delahunt  v. 
United  Tel.,  etc.,  Co.,  215  Pa.  241,  64  Atl.  515,  114  Am.  St.  Rep.  958 ;  Abrams 
V.  Seattle,  60  AVash.  356,  111  Pac.  168,  140  Am.  St.  Rep.  916 ;  Runyan  v.  Kana- 
wha, etc.,  Co.,  68  W.  Va.  609,  71  S.  E.  259,  35  L.  R.  A.  (N.  S.)  430.  But  see 
Launing  v.  Pittsburg  Ry.  Co.,  229  Pa.  575,  79  Atl.  136,  32  L.  R.  A.  (N.  S.)  1043, 
where  doctrine  is  denied  in  the  case  of  a  traveler  on  the  street  injured  by  an 
appliance  of  the  company  using  electricity  upon  or  over  the  street. 

90  Arkansas.— y^'est.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R. 
A.  744. 

Georfjia.—West.  U.  Tel.  Co.  v.  Cohen,  73  Ga.  522. 

/(?fl/io.— Strong  V.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  30  L.  R.  A. 
(N.  S.)  400,  Ann.  Cas.  1912A,  55. 

Illinois.— Vi'est.  U.  Tel.  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  279 ;  West.  U. 
Tel.  Co.  V.  Hart,  62  111.  App.  121 ;  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21 
N.  E,  4,  15  Am.  St.  Rep.  109. 

/Mrfia Ha.— West.  U.  Tel.  Co.  v.  Meek,  49  Ind.  53. 

loita.— Wise  V.  West.  U.  Tel.  Co.,  137  Iowa.  329,  113  N.  W.  819 ;  Turner  v. 
Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep.  605. 

Kansas.— West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  679,  17  Pac.  309,  5  Am.  St.  Rep. 
795 ;  West.  U.  Tel.  Co.  v.  Howell,  38  Kan.  685.  17  Pac.  313. 

Ji/a inc.— Bartlett  v.  West.  U.  Tel.  Co..  62  Me.  209,  16  Am.  Rep.  437;  Ayer  v. 
West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353. 


§    509)  PLEADING,  PRACTICE   AND  EVIDENCE  647 

that  an  unusual  delay  has  been  made  in  its  delivery,'^  or  that  it 
has  been  transmitted  but  not  delivered,''-  or  that  it  has  not  been 

Mississippi.— ^\e^t.  U.  Tel.  Co.  v.  Goodbar,  7  South.  214. 

Missouri.— Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  671,  37  S.  W.  904,  5S  Am.  SL 
Rep.  609,  34  L.  R.  A.  492.  But  see  Cowen  Lbr.  Co.  v.  West.  U.  Tel.  Co.,  58 
Mo.  App.  257. 

NeJ)raska.— West.  U.  Tel.  Co.  v.  Kemp,  44  Neb.  194,  62  N.  W.  451,  48  Am.  St. 
Rep.  723. 

Neic  Mexico.— State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211, 
142  Pac.  156,  L.  R.  A.  1915 A,  120. 

New  Yorfc.— Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep. 
165 ;  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St.  Rep. 
662 ;  Rittenliouse  v.  Independent  Line,  44  N.  Y.  263,  4  Am.  Rep.  673 ;  Wolfskehl 
V.  AVest.  U.  Tel.  Co.,  46  Hun,  542. 

OTiio.— West.  U.  Tel.  Co.  v.  Sullivan,  82  Ohio  St.  14,  91  N.  E.  867,  137  Am.  St. 
Rep.  754;  West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500; 
Bowen  v.  Lake  Erie  Tel.  Co.,  1  Ohio  Dec.  (Reprint)  574. 

Oklahoma.— "Levy  v.  Tel.  Co.,  39  Okl.  416,  135  Pac.  42S. 

Pennsylvama.— Bailey  v.  West.  IJ.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L. 
R.  A.  (N.  S.)  502,  19  Ann.  Cas.  895. 

Tcras.— West.  TJ.  Tel.  Co.  v.  Brown  (Tex.  Civ.  App.)  75  S.  W.  359 ;  West.  U. 
Tel.  Co.  V.  Hamilton,  36  Tex.  Civ.  App.  .300,  81  S.  W.  1052 ;  West.  U.  Tel.  Co.  v. 
Ra gland  (Tex.  Civ.  App.)  61  S.  W.  421 ;  West.  U.  Tel.  Co.  v.  Tobin  (Tex.  Civ. 
App.)  56  S.  W.  540 ;  West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App.  43,  60  S.  W. 
982 ;  West.  U.  Tel.  Co.  v.  Hines,  22  Tex.  Civ.  App.  315,  54  S.  W.  627 ;  West.  U. 
Tel.  Co.  V.  Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599. 

Vtah.—Viertz  v.  West.  U.  Tel.  Co.,  7  Utah,  446,  27  Pac.  172,  13  L.  R.  A.  510. 

U7iited  States.— West.  U.  Tel.  Co.  v.  Cook,  61  Fed.  624,  9  C.  C.  A.  (iSO. 

»!  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  R.  A.  1915 A,  120;  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128 

9  2  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  R.  A.  1915A,  120 ;  Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79 ;  Barrett  v. 
West.  U.  Tel.  Co.,  42  Mo.  App.  542 ;  West.  U.  Tel.  Co.  v.  Merrill,  144  Ala.  618, 
39  South.  121,  113  Am.  St.  Rep.  66 ;  Pope  v.  West.  U.  Tel  Co.,  9  111.  App.  283 ; 
Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128  Am.  St.  Rep.  581 ; 
West.  U.  Tel.  Co.  v.  Bertram,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  1152 :  Hunter 
V.  West.  U.  Tel.  Co.,  130  N.  C.  602,  41  S.  E.  796 ;  Rosser  v.  West.  U.  Tel.  Co., 

130  N.  C.  251,  41  S.  E.  378;  Sherrill  v.  West.  U.  Tel.  Co.,  116  N.  C.  6.55,  21  S.  E. 
429 ;  Hoaglin  v.  Telephone  Co.,  161  N.  C.  390,  77  S.  E.  417.  See  West.  U.  Tel. 
Co.  v.  Sullivan,  82  Ohio  St.  14,  91  N.  E.  867,  137  Am.  St.  Rep.  754,  holding 
that  the  burden  is  upon  the  plaintiff  to  show  that  the  receiver  was  at  the 
place  to  which  the  message  was  addressed  in  sufficient  time  to  permit  of 
delivery. 

Delay  of  sender's  agent. — Negligence  of  a  telegraph  company  may  he  in- 
ferred from  its  long  delay  in  transmitting  a  message,  but  not  from  the  delay 
which  may  be  imputed  to  an  agency  selected  by  the  sender  to  receive  the 
message.  When  the  sender  of  the  message  directed  it  to  be  mailed  at  a  certain 
place,  he  constituted  the  post  office,  the  postal  officials  at  that  place,  his  agents 
to  receive  and  transmit  the  message,  and  delivery  by  the  defendant  to  the  pos- 
tal officials  by  mailing  was  a  fulfillment  of  its  duty.  Lyles  v.  West.  U.  Tel. 
Co.,  84  S.  C.  1,  65  S.  E.  832,  137  Am.  St.  Rep.  829  ;  Lefler  v.  West.  U.  Tel.  Co., 

131  N.  C.  355,  42  S.  E.  819,  59  L.  R.  A.  477 ;  West.  it.  Tel.  Co.  v.  Shaw,  40  Tex. 
Civ.  App.  277,  90  S.  W.  58 ;  Hinson  v.  West.  U.  Tel.  Co.,  91  S.  C.  338,  74  S.  E, 
752,  Ann.  Cas.  1914A,  114. 


648  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  509 

transmitted,"^  or  that  a  material  word  has  been  omitted  in  the 
message,^*  it  is  presumed  that  the  company  has  been  guilty  of 
negligence,  and  the  burden  is  on  the  latter  to  disprove  such  neg- 
ligence."^    This  is  the  universal  rule;    and  when  the  plaintiff  has 

Am.  St.  Rep.  581 :  Kirby  v.  West.  U.  Tel.  Co.,  77  S.  C.  404,  58  S.  E.  10,  122  Am. 
St.  Rep.  580 ;  Ogilvie  v.  West.  U.  Tel.  Co.,  83  S.  C.  8,  64  S.  E.  860,  137  Am.  St. 
Rep.  790 ;  West.  U.  Tel.  Co.  v.  Fatman,  73  Ga.  285,  54  Am.  Rep.  877 ;  Potter  v. 
West.  U.  Tel.  Co.,  138  Iowa,  406,  110  N.  W.  1.30 ;  West.  U.  Tel.  Co.  v.  Scircle, 
103  Ind.  227,  2  N.  E.  604 ;  Harkness  v.  West.  U.  Tel.  Co.,  73  Iowa,  190,  34  N. 
W.  811,  5  Am.  St.  Rep.  672 ;  West.  U.  Tel.  Co.  v.  Parsons,  72  S.  W.  800,  24  Ky. 
Law  Rep.  2008 ;  West.  U.  Tel.  Co.  v.  Fisher,  107  Ky.  513,  54  S.  W.  830,  21  Ky. 
Law  Rep.  1293 ;  Sliepard  v.  West.  U.  Tel.  Co.,  143  K  C.  244,  55  S.  E.  704,  118 
Am.  St.  Rep.  796 ;  Kendall  v.  West.  U.  Tel.  Co.,  56  Mo.  App.  192 ;  Alexander  v. 
West.  U.  Tel.  Co.,  141  N.  C.  75,  53  S.  E.  657 ;  Carter  v.  West.  U.  Tel.  Co.,  141 
N.  C.  374,  54  S.  E.  274 ;  Kirby  v.  West.  U.  Tel.  Co.,  77  S.  C.  404,  58  S.  E.  10,  122 
Am.  St.  Rep.  580 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  489,  49  S.  E.  165,  103 
Am.  St.  Rep.  955,  67  L.  R.  A.  985,  1  Ann.  Cas.  349 ;  Eaker  v.  West.  U.  Tel.  Co., 
75  S.  C.  97,  55  S.  E.  129 ;  Harrison  v.  West.  U.  Tel.  Co.,  136  N.  C.  381,  48  S.  E. 
772 ;  Arial  v.  West.  U.  Tel.  Co.,  70  S.  C.  418,  50  S.  E.  6 ;  Cogdell  v.  West.  U. 
Tel.  Co.,  135  N.  C.  431,  47  S.  E.  490 ;  Hellams  v.  West.  U.  Tel.  Co.,  70  S.  C.  S3, 
49  S.  E.  12 ;  Poulnot  v.  West.  U.  Tel.  Co.,  69  S.  C.  545,  48  S.  E.  622 ;  Ypung 
V.  West.  U.  Tel.  Co.,  65  S.  C.  93,  43  S.  E.  448;  Hendricks  v.  West.  U.  Tel. 
Co.,  126  N.  C.  304,  35  S.  E.  543,  78  Am.  St.  Rep.  658;  Telephone  Co. 
V.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78  Am.  St.  Rep.  906,  50  L.  R.  A.  277 ; 
West.  U.  Tel.  Co.  v.  Bouchell,  28  Tex.  Civ.  App.  23,  67  S.  W.  159;  West.  U. 
Tel.  Co.  V.  Smith,  88  Tex.  9,  28  S.  W.  931,  30  S.  W.  549 ;  West.  U.  Tel.  Co.  v. 
Carter  (Tex.  Civ.  App.)  20  S.  W.  834 ;  West.  U.  Tel.  Co.  v.  Boots,  10  Tex.  Civ. 
App.  540,  31  S.  W.  825 ;  Dorgan  v.  West.  U.  Tel.  Co.,  Fed.  Cas.  No.  4,004 ;  Tele- 
phone Co.  V.  Snell,  3  Ala.  App.  263,  56  South.  854 ;  A^olquardsen  v.  Iowa  Tel. 
Co.,  148  Iowa,  77,  126  N.  W.  928,  28  L.  R.  A.  (N.  S.)  554 ;  Baker  v.  Telephone 
Co.,  87  S.  C.  174,  69  S.  E.  151 ;  Leppard  v.  Telephone  Co.,  88  S.  C.  388,  70  S.  E. 
1004;  Garner  v.  Telephone  Co.,  87  S.  C.  316,  69  S.  E.  510;  Wilhelm  v.  Tele- 
phone Co.,  90  S.  C.  536,  73  S.  E.  865 ;  Webb  v.  West.  U.  Tel.  Co.,  167  N.  C.  488, 
83  S.  E.  568. 

93  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep.  211 ; 
State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156,  L. 
R.  A.  191.5A,  120,  quoting  author. 

9  4  Fowler  v.  West.  U.  Tel.  Co.,  80  Me.  381,  15  Atl.  29,  6  Am.  St.  Rep.  211. 
See  other  cases  in  note  90,  supra. 

95  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  R.  A.  1915A,  120,  quoting  author ;  West.  U.  Tel.  Co.  v.  Tyler,  74  111.  168,  24 
Am.  Rep.  279 ;  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A. 
744 ;  West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  604 ;  Harkness  v.  West. 
U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  West.  U.  Tel.  Co. 
v.  Crall,  38  Kan.  679,  17  Pac.  309,  5  Am.  St.  Rep.  795 ;  Cogdell  v.  West.  U.  Tel. 
Co.,  135  N.  C.  431,  47  S.  E.  490 ;  Sherrill  v.  West.  U.  Tel.  Co.,  116  N.  C.  6.55,  21 
S.  E.  429;  West.  U.  Tel.  Co.  v.  Smith,  88  Tex.  9,  28  S.  W.  931,  30  S.  W.  549; 
West.  U.  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301,  41  Am.  Rep.  500 ;  West.  U.  Tel. 
Co.  V.  Bertram,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  1152 ;  West.  U.  Tel.  Co.  v. 
Cook,  61  Fed.  624,  9  C.  C.  A.  680 ;  Jackson  v.  Telephone  Co.,  174  Mo.  App.  70, 
156  S.  W.  801 ;  Telephone  Co.  v.  Glenn  (Tex.  Civ.  App.)  156  S.  W.  1116 ;  Tele- 
phone Co.  V.  Chilton,  100  A*rk.  296,  140  S.  W.  26 ;  Seddon  v.  Telephone  Co.,  146 
Iowa,  743,  126  N.  W.  969 ;  Lothian  v.  Telephone  Co.,  25  S.  D.  319,  126  N.  W. 
€21 ;  Telephone  Co.  v.  Ivy,  177  Fed.  63,  100  C.  C.  A.  481 ;  Garner  v.  Telephone 


§    510)  PLEADING,  PRACTICE  AND   EVIDENCE  649 

shown  a  delivery  to  the  company  and  that  an  error  has  been  made, 
or  that  the  message  has  been  delayed  in  its  delivery,  his  case  is 
made  oiit."^  The  reason  of  the  rule  is  obvious.  If  the  burden  were 
cast  upon  the  plaintiff,  he  could  never  make  out  his  case.  It  would 
be  nothing  more  nor  less  than  a  fight  in  the  dark  to  impose  such  a 
duty  upon  him,  since  the  proof  of  these  negligent  acts  are  almost 
always  in  the  sole  possession  of  the  defendant  company.  Being 
peculiarly  within  the  knowledge  of  the  company,  it  is  no  hardship 
on  them  to  be  required  to  furnish  the  proof  of  the  causes  of  errors 
or  delays. ®''  Therefore  one  reason  why  we  think  the  stipulation  in 
the  message  blanks  requiring  the  claim  for  damages  to  be  presented 
to  the  company  within  a  certain  time  is  reasonable  is  that  the  com- 
pany may  be  notified  of  the  injury  in  time  to  make  a  prompt  in- 
vestigation of  the  matter.''^  The  same  rule  will  apply  where  the 
suit  is  against  one  company,  when  the  error  has  been  made  on  a 
connecting  line.  The  burden  is  on  the  defendant  to  show  that  the 
connecting  line,  and  not  its  own  negligence,  caused  the  loss.^" 

§  510.  Same  continued — effect  of  stipulation. — It  has  been  held 
that  proof  of  delivery  of  a  message  to  a  telegraph  or  telephone 
company  for  transmission,  and  an  error  made  in  the  transmission^ "° 

Co.,  87  S.  C.  31G,  G9  S.  E.  510 ;  Leppard  v.  Telephone  Co.,  SS  S.  C.  388,  70  S.  E. 
1004 ;  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L.  R.  A.  (N.  S.) 
502,  19  Ann.  Cas.  895.  See  Potter  v.  West.  U.  Tel.  Co.,  138  Iowa,  406,  110  N. 
W.  130 ;  Volquardsen  v.  Iowa  Tel.  Co.,  148  Iowa,  77,  126  N.  W.  928,  28  L.  E.  A. 
(N.  S.)  554,  failure  of  telephone  company  to  furnish  proper  connections  within 
reasonable  time. 

9  6  See  §  522. 

9  7  state  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  R.  A.  1915A,  120,  quoting  author ;  Brown  v.  West.  U.  Tel.  Co.,  85  S.  C.  495, 
67  S.  E.  146,  137  Am.  St.  Rep.  914,  need  not  prove  at  what  point  on  the  line 
the  failure  occurred,  as  in  another  state,  thereliy  changing  the  law  regarding 
thereto,  Chattanooga  Elec.  Ry.  Co.  v.  Mingle,  103  Tenn.  667,  .56  S.  W.  23,  76 
Am.  St.  Rep.  703. 

9  8  State  Bank  of  Commerce  v.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  R.  A.  191.5A,  120,  quoting  author. 

99  In  De  La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  Ann.  383,  the  defendant 
company  contended  that  it  was  not  the  first  carrier,  and  that  the  plaintiff 
failed  to  prove  that  the  error  in  transmission  occurred  on  its  line,  and  showed 
an  expressed  provision  in  its  printed  blanks  that  it  would  not  be  liable  for 
errors  occurring  on  connecting  lines.  It  was  held  that,  whether  defendant 
was  the  first  carrier  or  not,  it  was  peculiarly  within  its  power,  and  it  was  its 
duty  to  prove  that  the  error  did  not  occur  on  its  line.  State  Bank  of  Commerce 
V.  West.  U.  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156,  L.  R.  A.  1915A,  120,  quoting 
author. 

looBreese  v.  United  States  Tel.  Co.,  48  N.  T.  132,  8  Am.  Rep.  526;  Altman 
v.  West.  U.  Tel.  Co.  (Sup.)  84  N.  Y.  Supp.  54 ;  Halsted  v.  Postal  Tel.  Cable  Co., 
193  N.  Y.  293,  85  N.  E.  1078,  127  Am.  St.  Rep.  952,  19  L.  R.  A.  (N.  S.)  1021,  af- 
firming 120  App.  Div.  433,  104  N.  Y.  Supp.  1016 ;  Primrose  v.  West.  U.  Tel.  Co., 
154  U.  S.  1,  14  Sup.  Ct.  1098,  38  L.  Ed.  883 ;  Jones  v.  West.  U.  Tel.  Co.  (C.  C.) 


650  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  510 

or  an  unusual  delay  in  its  delivery,^"^  will  not  alone  authorize  the 
recovery  of  more  than  the  price  paid  for  transmission,  where  the 
contract  of  sending  contained  special  limitations  of  the  company's 
liability.^''-  Thus,  in  some  of  those  jurisdictions  which  hold  the 
stipulation  reasonable  which  requires  the  message  to  be  repeated, 
otherwise  the  company  will  not  be  liable  beyond  the  amount  paid 
for  transmission,  it  is  held  that  such  negligence — except  for  willful 
misconduct  or  gross  negligence  ^°^ — of  the  company  is  not  presum- 
ed, but  that  the  burden  is  cast  upon  the  sender  to  show  such  by 
independent  facts  or  by  circumstances  connected  with  the  principal 
fact.^°*  It  was  at  first,  and  is  now,  difficult  to  show  by  wdiat 
method  the  plaintifif  can  prove  the  negligence  of  these  companies ; 
but  any  independent  fact  or  circumstance,  connected  with  the 
principal  fact,  may  be  resorted  to  for  such  proof.^*'^     It  must  be 

IS  Fed.  717.  See  Stone  v.  Cable  Co..  35  R.  I.  498.  87  Atl.  319,  46  L.  R.  A.  (N. 
S.)  180.  Compare  Redington  v.  Pacific  Postal  Tel.  Co.,  107  Cal.  317,  40  Pac. 
432,  48  Am.  St.  Rep.  132;  Postal  Tel.  Cable  Co.  v.  Robertson,  36  Misc.  Rep. 
785,  74  N.  Y.  Supp.  876. 

101  Birkett  v.  West.  U.  Tel.  Co.,  103  Micb.  361,  61  N.  W.  645,  50  Am.  St. 
Rep.  374,  33  L.  R.  A.  404 ;  Jacob  v.  West.  U.  Tel.  Co.,  135  Mich.  600,  98  N.  W. 
402 ;  Ayres  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634 ;  Riley  v. 
West.  U.  Tel.  Co.,  8  Misc.  Rep.  217,  28  N.  Y.  Supp.  581.  See  Kiley  v.  West. 
U.  Tel.  Co.,  109  N.  Y.  231,  16  N.  E.  75.  See,  also,  Clement  v.  West.  U.  Tel.  Co., 
137  Mass.  463 ;  West.  U.  Tel.  Co.  v.  Coggin,  68  Fed.  137,  15  C.  C.  A.  231. 

102  Halsted  v.  Postal  Tel.  Cable  Co.,  193  N.  Y.  293,  85  N.  E.  1078,  127  Am. 
St.  Rep.  952,  19  L.  R.  A.  (N.  S.)  1021,  affirming  120  App.  Div.  433,  104  N. 
Y.  Supp.  1016;  Wheelock  v.  Postal  Tel.  Cable  Co.,  197  Mass.  119,  83  N.  E. 
313,  14  Ann.  Cas.  188;  Kiley  v.  West.  U.  Tel.  Co.,  109  N.  Y.  231,  16  N.  E. 
75;  Ayres  v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634;  Alt- 
man  V.  Telephone  Co.   (Sup.)  84  N.  Y.  Supp.  54. 

losMowry  v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  Y.  Supp.  666;  Postal 
Tel.  Cable  Co.  v.  Nichols,  159  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.) 
870;  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519; 
Fleischner  v.  Pacific  Postal  Tel.  Cable  Co.  (C.  C.)  55  Fed.  738;  White  v. 
West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710;  Weld  v.  Cable  Co.,  148  App.  Div. 
588,  133  N.  Y.  Supp.  228;  Lothian  v.  Telephone  Co.,  25  S.  D.  319,  126  N. 
W.  621.  See  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L.  R. 
A,  (N.  S.)  502,  19  Ann.  Cas.  895;  Halsted  v.  Postal  Tel.  Cable  Co.,  193  N. 
Y.  293,  85  N.  E.  1078,  127  Am.  St.  Rep.  952,  19  L.  R.  A.  (N.  S.)  1021 ;  Ayres 
v.  West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634 ;  Kiley  v.  West.  U. 
Tel.  Co.,  109  X.  Y.  231,  16  N.  E.  75.  See,  also,  Monsees  v.  West.  U.  Tel.  Co., 
127  App.  Div.  289,  111  N.  Y,  Supp,  53. 

loiWomack  v.  West.  U.  Tel.  Co.,  58  Tex.  180,  44  Am.  Rep.  614;  Aiken  v. 
West.  U.  Tel.  Co.,  69  Iowa,  31,  28  N.  W.  419,  58  Am.  Rep.  210 ;  West.  U.  Tel. 
Co.  V.  Neill,  57  Tex.  283,  44  Am.  Rep.  589;  Sweatland  v.  Illinois,  etc.,  Tel. 
Co.,  27  Iowa,  433,  1  Am.  Rep.  285;  West.  U.  Tel.  Co.  v.  Bennett,  1  Tex.  Civ. 
App.  558,  21  S.  W.  699;  Redington  v.  Pacific  Postal  Tel.  Cable  Co.,  107  Cal. 
317,  40  Pac.  432,  48  Am.  St.  Rep.  132.  See,  also,  other  cases  in  note  102, 
supra. 

105  Suburban  Elec.  Co.  v.  Nugent,  58  N.  J.  Law,  658,  34  Atl.  1069,  32  L. 
R.  A.  700. 


M 


§    511)  PLEADING,  PRACTICE  AND  EVIDENCE  G51 

understood  that  this  rule  is  only  applicable  in  those  jurisdictions 
where  such  stipulations  are  held  as  being  reasonable. ^°® 

§  511.  Evidence. — It  does  not  matter  whether  the  plaintiff  sues 
on  the  contract  of  sending,  or  upon  the  breach  of  duty,  in  order 
to  recover  damages  for  loss  or  injury  sustained  by  an  error  made 
in  the  transmission  or  delay  in  the  delivery ;  he  must  prove,  in 
general,  a  delivery  of  the  message  to  the  company, ^''^  a  contract 
on  its  part  either  express  or  implied  to  transmit  the  message,  and 
its  failure  to  perform  the  duty  according  to  the  agreement.^"^  In 
other  words,  he  must  show  that  the  company  owes  him  a  duty 
which  is  imposed  on  it  by  law,  or  which  arises  out  of  a  con- 
tract, and  a  breach  of  this  duty,  whereby  he  has  suffered  a 
loss   or   an   injury. ^°^     We   have   elsewhere   considered   what   evi- 

106  West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  079,  17  Pac.  309,  5  Am.  St.  Rep. 
795;  West.  U.  Tel.  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  279;  Ayer  v.  West. 
U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353;  Reed  v.  West.  U. 
Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609,  34  L.  R.  A.  492; 
Bartlett  v.  West.  U.  Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437 ;  Sherrill  v.  West. 
U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429;  West.  U.  Tel.  Co.  v.  Griswold,  37 
Ohio  St.  301,  41  Am.  Rep.  500;  West.  U.  Tel.  Co.  v.  Cook,  61  Fed.  624,  9  C. 
C.  A.  680;  Gillis  v.  West.  U.  Tel.  Co.,  61  Vt.  461,  17  Atl.  736,  15  Am.  St. 
Rep.  917,  4  L.  R.  A.  611.  In  a  few  cases  holding  sufh  stipulations  invalid 
as  against  the  company's  negligence  are  valid  as  regard  to  errors  due  to 
unavoidable  causes,  such  as  atmospheric  interferences,  Sweatland  v.  Illinois, 
etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285 ;  and  the  burden  is  upon  the  plain- 
tiff to  show  such  negligence,  Sweatland  v.  Illinois,  etc.,  Tel.  Co.,  supra ; 
Aiken  v.  West.  U.  Tel.  Co.,  69  Iowa,  31,  28  N.  W.  419,  58  Am.  Rep.  210; 
Postal  Tel.  Cable  Co.  v.  Sunset  Const.  Co.,  102  Tex.  148,  114  S.  W.  98,  re- 
versing on  other  grounds  109  S.  W.  265.  But  see  West.  U.  Tel.  Co.  v.  Tyler, 
supra;    Bartlett  v.  West.  U.  Tel.  Co.,  supra. 

107  Alexander  v.  West.  U.  Tel.  Co.,  158  N.  C.  473,  74  S.  E.  449,  42  L.  R. 
A.  (N.  S.)  407,  acceptance  may  be  found  from  evidence  that,  in  response  to  a 
telephone  request,  a  messenger  appeared  and  took  the  message.  See  Graham 
V.  Detroit,  etc.,  R.  Co.,  151  Mich.  629,  115  N.  W.  993,  25  L.  R.  A.  (N.  S.)  326. 
See,  also,  §  276  et  seq. ;  West.  U.  Tel.  Co.  v.  Lillard,  86  Ark.  208,  110  S.  W. 
1035.  17  L.  R.  A.  (N.  S.)  836,  oral  evidence  of  contents. 

losPearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St. 
Rep.  662;  Angell  on  Carriers  (5th  Ed.)  §  461;  Hutchinson  on  Carriers  (2d 
Ed.)  §  759.  See,  also,  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E. 
4,  15  Am.  St.  Rep.  109 ;  West.  U.  Tel.  Co.  v.  Lillard,  SO  Ark.  208,  110  S.  W. 
1035,  17  L.  R.  A.   (N.  S.)  836. 

109  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519; 
West.  U.  Tel.  Co.  v.  Barnes,  95  Tenu.  271,  32  S.  W.  207;  Ayres  v.  West,  u! 
Tel.  Co.,  65  App.  Div.  149,  72  N.  Y.  Supp.  634 ;  Altman  v.  West.  U.  Tel.  Co. 
(Sup.)  84  N.  Y.  Supp.  54;  West.  U.  Tel.  Co.  v.  Smith,  88  Tex.  9,  28  S.  W. 
031.  30  S.  W.  549 ;  West.  U.  Tel.  Co.  v.  Bennett,  1  Tex.  Civ.  App.  558,  21  S. 
W.  699 ;  Hargrave  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  60  S.  W.  687 ;  West. 
U.  Tel.  Co.  v.  Bertram,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  1152;  White 
v.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710;  Hauser  v.  West.  U.  Tel,  Co.,  150 
N.  C.  557,  04  S.  E.  .503;  Wampum  First  Nat.  Bank  v.  West.  U.  Tel.  Co.,  34 
Pa.  Super.  Ct.  R.  488;    Slaughter  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  112 


652  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  511 

dence  was  necessary  to  constitute  a  delivery  ;^^°  what  necessary 
to  constitute  a  contract;  ^^^  what  presumption  arose  in  such  cas- 
gg.ii2  -^hat  must  be  shown  where  there  are  connecting  lines ;^^^ 
and  upon  whom  the  burden  of  proof  rests. ^^*  We  shall  later  con- 
sider, at  some  length,  the  admissibility  of  telegrams  as  evidence,^ ^^ 
so  there  is  but  little  to  be  said  at  this  place.  The  rule  for  the  ad- 
missibility of  evidence  against  telegraph,  telephone,  and  electric 
companies  is  the  same  as  that  in  other  cases;  ^^^  the  evidence  must 
always  be  responsive  to  the  issue  involved. ^^'^  As  we  have  said, 
the  company  may  defend  by  showing  that  the  loss  or  injury  was 
caused  by  the  act  of  God,  by  the  public  enemy,  by  public  author- 
ity,^^® or  by  the  fault  or  negligence  of  the  plaintiff.^ ^'*  Therefore 
any  evidence  may  be  admitted  which  goes  to  show  that  the  loss  or 
injury  resulted  from  any  one  of  these  causes.^-"  These  companies 
may  also,  as  elsewhere  stated,  limit  their  common-law  duty  to  a 
certain  extent  by  a  special  contract  to  that  efifect,^-^  or  they  may 
limit  their  other  liabilities  by  stipulations  contained  in  the  contract 
of  sending;  ^^^  and  when  the  damages  sustained  fall  within  such 

S.  W.  688;  Telephone,  etc.,  Co.  v.  Glawson,  13  Ga.  App.  520,  79  S.  E.  488; 
Cameron  v.  Telephone  Co.,  90  S.  C.  50.3,  74  S.  E.  929;  Telephone  Co.  v. 
Cates,  105  Tex.  324,  148  S.  W.  281;  Mullinax  v.  Telephone  Co.,  156  N.  C. 
.541,  72  S.  E.  583.  As  in  other  civil  actions  the  burden  is  upon  the  plaintiff 
to  establish  his  case.  United  States  Tel.  Co.  v.  Gildersleve,  supra ;  Hauser 
V.  West.  U.  Tel.  Co.,  supra;  West.  U.  Tel,  Co.  v.  Barnes,  supra;  White  v. 
West.  U.  Tel.  Co.,  supra. 

110  See  chapter  XII. 

111  See  chapter  XII. 

112  See  §  509. 

113  See  §  454  et  seq. 

114  See  §  509. 

115  Chapter  XXVII. 

lie  See  §  513.  Evidence  the  res  gestce,  Trenton  Pass.  R.  Co.  v.  Cooper,  60 
N.  J.  Law,  219,  37  Atl.  730,  64  Am.  St.  Rep.  592,  38  L.  R.  A.  637 ;  Lewis  v. 
Bowling  Green  Gas  Lt.  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.) 
1169 ;  and  the  competency  and  admissibility  of  expert  and  opinion  evi- 
dence. Burns  v.  Delaware,  etc.,  Tel.  Co.,  70  N.  J.  Law,  745,  59  Atl.  220, 
592,  67  L.  R.  A.  956;  Block  v.  Milwaukee  St.  Ry.  Co.,  89  Wis.  371,  61  N. 
W.  1101,  46  Am.  St.  Rep.  849,  27  L.  R.  A.  365,  holding  that  a  physician  is 
competent  to  testify  that  the  condition  of  a  person  whom  he  was  called  upon 
to  attend  could  have  been  produced  by  contact  with  a  wire  heavily  charged 
with  electricity,  and  also  as  to  whether  in  his  opinion  there  was  reasonable 
probability  of  ultimate  recovery  from  such  injury. 

11 T  See  §§  506,  522. 

118  See  chapter  XV.  See  Vinson  v.  Southern  Bell  Tel.,  etc.,  Co.,  188  Ala. 
292,  66  South.  100,  L.  R.  A.  1915C,  450,  as  a  result  of  a  cause  over  which  com- 
pany had  no  control. 

119  See  §  508. 

120  See  chapters  XII,  XIII,  XV.  See  Vinson  v.  Southern  Bell  Tel.,  etc., 
Co.,  188  Ala.  292,  66  South.  100,  L.  R.  A.  1915C,  450. 

121  See  chapter  XVI.  122  id. 


§    512)  PLEADING,  PRACTICE   AND   EVIDENCE  653 

limitations  or  result   from   a   noncompliance   with   them,   evidence 
which  tends  to  show  such  facts  may  be  admitted.^ '^ 

§  512.  Same  continued — il'lustrations. — No  evidence  should  be 
admitted  which  will,  in  any  way,  prejudice  the  rights  of  either  the 
plaintiff  or  the  company.^"*  So  it  is  not  proper  to  admit  evidence 
to  show  that  the  defendant  is  a  wealthy  corporation ;  it  seems, 
however,  that  such  evidence  may  be  admitted  when  there  has  been 
a  willful  injury  and  exemplary  damages  are  claimed. ^-^  Evidence 
which  shows  the  embarrassed  financial  condition  of  the  sender  is 
inadmissible  for  the  same  reason,  when  the  purpose  of  such  is  to 
have  a  bearing  on  the  question  of  damages  for  the  loss  of  a  valuable 
bargain  in  consequence  of  the  company's  negligence. ^-^  Evidence 
cannot  be  admitted  to  show  that,  for  the  alleged  negligence,  a  de- 
duction had  been  made  from  the  pay  of  the  operator  by  one  of 
the  superior  officers. ^-'^  Where  the  plaintiff  sues  to  recover  dam- 
ages sustained  by  a  failure  to  deliver  a  message  to  a  physician, 
requesting  him  to  visit  the  former's  family,  evidence  which  tends 
to  show  that  the  medical  charges  were  not  prepaid  according  to  the 
physician's  practice  is  inadmissible.^-®  The  statements,  declara- 
tions, or  acts  of  the  agents  or  operators  of  these  companies  are 
only  admissible  when  others,  similar  to  these,  are  allowed  in  other 
cases ;  that  is,  they  can  only  be  admitted  when  they  became  a  part 
of  the  res  gestcB.^^^  The  plaintiff  may  introduce  evidence  showing 
that  other  messages  were  sent  on  the  same  day  as  his,  and  were 
properly  transmitted  and  delivered ;  ^^^  and  when  the  action  is  for 
mental  suffering,  caused  by  the  plaintiff  being  kept  away  from  the 

123  Id.  124  See  §  520. 

12  5  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148.  See  §  513.  Carraichael  v.  Southern  Bell,  etc.,  Co.,  162  N.  C.  33.3, 
78  S.  E.  ,507,  Ann.  Cas.  1915A,  983. 

126  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844.     See  §  514, 

12 T  Grinnell  v.  West.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep.  485. 

128  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  IS  Am.  St. 
Rep.  148. 

129  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  358;  West.  U.  Tel.  Co.  v.  Way,  83 
Ala.  542,  4  South.  844;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W. 
598,  1  L.  R.  A.  728,  10  Am.  St.  Rep.  772 ;  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex. 
364.  IS  S.  W.  701.  See,  also,  Union  R.,  etc.,  Co.  v.  Riegel,  73  Pa.  72 ;  Green 
V.  Boston,  etc.,  R.  Co.,  128  IMass.  221,  35  Am.  Rep.  370 ;  Bennett  v.  Northern 
Pac.  R.  Co.,  12  Or.  49,  6  Pac.  160;  Queen  v.  Peters,  16  New  Bruns.  77: 
Carmichael  v.  Southern  Bell  Tel.,  etc.,  Co.,  162  N.  C.  3.33,  78  S.  E.  507,  Ann. 
Cas.  191.5A,  983,  holding  that.  In  an  action  against  a  telegraph  company  for 
wrongful  and  malicious  removal  of  plaintiff's  telephone,  evidence  of  plaintiff's 
daughter  as  to  the  misconduct  of  defendant's  agent  in  thrusting  a  bill  into  her 
hand  and  al)ruptly  telling  her  that  he  would  cut  the  phone  out  if  it  was  not 
paid  promptly,  was  admissible  as  res  fjestw. 

130  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  364,  18  S.  W.  701. 


654  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  513 

bedside  of  his  dying  mother,  evidence  may  be  admitted  to  show  that 
the  plaintiff  was  the  favorite  child  of  the  mother.^^^  Where  the 
plaintifif's  good  faith,  in  making  a  certain  purchase  in  pursuance 
of  the  erroneous  telegram,  is  in  question,  he  may  show  his  under- 
standing of  the  message  and  that  he  acted  on  the  basis  of  such  un- 
derstanding.^^- It  may  be  said,  in  conclusion,  that  all  evidence 
pertinent  to  the  substantial  issue  involved,  and  tending  in  any. 
wise  to  throw  light  on  the  whole  transaction,  is  admissible, ^^^  sub- 
ject, however,  to  the  general  exclusionary  rules  of  evidence  applied 
in  other  actions. ^^^ 

§  513.  Evidence  of  negligence — wealth  or  poverty  of  either 
party — company. — It  might  be  well  to  discuss  at  this  place  the  ad- 
missibility of  certain  evidence  touching  on  the  wealth  or  poverty 
of  either  party  to  cases  arising  out  of  the  company's  negligence  in 
the  transmission  and  delivery  of  messages.  It  is  a  general  rule  of 
evidence  that  no  evidence  is  admissible  save  such  as  is  material, 
relative  and  pertaining  to  the  allegations  contained  in  the  plead- 
ings,^^^  and,  in  a  case  arising  out  of  negligence,  no  facts  can  be 

131  Id. 

132  Aiken  v.  West.  U.  Tel.  Co.,  69  Iowa,  31,  28  N.  W.  419,  58  Am.  Eep.  210. 
13  3  Denver  Con.  Elec.  Co.  v.  Simpson,  21  Colo.  271,  41  Pac.  499,  31  L.  R.  A. 

566;  Rueker  v.  Sherman  Oil,  etc.,  Co.,  29  Tex.  Civ.  App.  418,  68  S.  W.  818; 
Alabama  City  R.,  etc.,  Co.  v.  Appleton,  171  Ala.  324,  54  South.  638.  Ann.  Cas. 
1913A,  1181;  Telephone,  etc.,  Co.  v.  Abeles,  94  Ark.  254,  126  S.  W.  724,  140 
Am.  St.  Rep.  115,  21  Ann.  Cas.  1006;  Dow  v.  Telephone,  etc.,  Co.,  157  Cal. 
182,  106  Pac.  587;  Electric  Co.  v.  Walters,  39  Colo.  301,  318,  89  Pac.  815; 
Younie  v.  Water  Co.,  15  Idaho,  56,  96  Pac.  193;  Gas,  etc.,  Co.  v.  Clark,  109 
111.  App.  20;  Gas,  etc.,  Co.  v.  State.  109  Md.  186,  72  Atl.  651;  Anthony  v. 
Telephone  Co.,  165  IMich.  388,  130  N.  W.  659;  Smith  v.  Telephone  Co.,  113 
Mo.  App.  429,  87  S.  W.  71 ;  Fish  v.  Light,  etc.,  Co.,  189  N.  Y.  336,  82  N.  E. 
150,  13  L.  R.  A.  (N.  S.)  226 :  Gas,  etc.,  Co.  v.  Ocon  (Tex.  Civ.  App.)  130  S.  W. 
846;  Nagle  v.  Hake,  123  Wis.  256,  101  N.  W.  409;  Leque  v.  Gas,  etc.,  Co., 
133  Wis.  .547,  113  N.  W.  946;  Railroad,  etc.,  Co.  v.  Miles.  88  Miss.  204,  40 
South.  748 ;  Ohrstrom  v.  Tacoma,  57  Wash.  121,  106  Pac.  629 ;  Thompson  v. 
Light,  etc.,  Co.,  77  N.  H.  92,  88  Atl.  216;  Webster  v.  Light,  etc.,  Co.,  158 
App.  Div.  210,  143  N.  Y.  Supp.  57 ;  Swan  v.  Railroad  Co.,  41  Utah,  518,  127 
Pac.  267. 

i34Martinek  v.  Swift,  122  Iowa,  611,  98  X.  W.  477;  Fitzgerald  v.  Edison 
111.  Co.,  200  Pa.  540,  50  Atl.  161,  86  Am.  St.  Rep.  732 ;  Alabama  City,  etc.,  R. 
Co.  V.  Appleton,  171  Ala.  324,  54  South.  638,  Ann.  Cas.  1913A,  1181;  Dow  v. 
Telephone,  etc.,  Co.,  157  Cal.  182,  106  Pac.  587;  Light  Co.  v.  Fredericks,  109 
Md.  595,  72  Atl.  534 ;  Milne  v.  Telephone  Co.,  29  R.  I.  504,  72  Atl.  716 ;  Trac- 
tion Co.  V.  Daily,  111  Va.  665,  69  S.  E.  963. 

135  West.  U.  Tel.  Co.  v.  James.  31  Tex.  Civ.  App.  503,  73  S.  W.  79;  Whitten 
V.  West.  U.  Tel.  Co.,  141  N.  C.  361,  54  S.  E.  289 ;  West.  U.  Tel.  Co.  v.  Karr, 
5  Tex.  Civ.  App.  60,  24  S.  W.  302 ;  West.  U.  Tel.  Co.  v.  Westmoreland,  150 
Ala.  654,  43  South.  790;  Telephone  Co.  v.  West,  165  Ala.  399,  51  South.  740; 
Telephone  Co.  v.  Henderson,  62  Tex.  Civ.  App.  457,  131  S.  W.  1153 ;  Telephone 
Co.  V.  Guinn  (Tex.  Civ.  App.)  130  S.  W.  616;  Telephone  Co.  v.  Landry  (Tex. 
Civ.  App.)  134  S.  W.  848 ;    Ellison  v.  Telephone  Co.,  163  N.  C.  5,  79  S.  E.  277 ; 


§    513)  PLEADING,  PRACTICE  AND   EVIDENCE  655 

alleged  in  the  pleadings,  or  admitted  in  evidence,  as  a  general  rule, 
except  such  as  are  descriptive  of  the  negligent  act.^^*'  The  first 
question  which  presents  itself  under  this  subject  is  whether  or  not 
the  wealth  or  poverty  of  either  of  the  parties  should  be  shown  in 
the  case?  As  a  general  rule,  the  wealth  of  the  company  cannot 
be  shown  in  a  case  arising  out  of  its  negligent  acts.  In  the  first 
place,  it  is  not  the  wealth  of  the  company  that  causes  the  negligent 
act,  nor  the  injury  arising  therefrom ;  and  for  this  reason  the  plead- 
ings would  be  demurrable  if  such  allegations  were  contained  there- 
in ;  and  another  reason  would  be,  if  this  fact  were  allowed  to  re- 
main in  the  bill  as  material,  or  if  there  were  evidence  admitted  to 
this  effect  over  the  company's  objections,  it  would  have  the  tend- 
ency to  prejudice  the  jury  against  the  company.  But  if  the  negli- 
gent act  of  the  company  is  alleged  to  have  been  willful,  for  which 
exemplary  or  punitive  damages  are  claimed,  the  wealth  of  the  com- 
pany may  be  shown. ^^^    This  kind  of  damages  in  the  main  are  im- 

Telephone  Co.  v.  Daniels  (Tex.  Civ.  App.)  152  S.  W.  1116.  See  Marab  v.  Tele- 
phone  Co.,  167  Mich.  192,  1.32  N.  W.  56S ;  Telephone  Co.  v.  White  (Tex.  Civ. 
App.)  149  S.  W.  790.  Immaterial  or  irrelevant  evidence  inadmissible.  Grin- 
uell  v.  West.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep.  485;  West.  U.  Tel.  Co. 
v.  Way,  83  Ala.  542,  4  South.  844 ;  West.  U.  Tel.  Co.  v,  Mellon,  96  Teun.  66, 
33  S.  W.  725 ;  West.  U.  Tel.  Co.  v.  Stiles,  89  Tex.  312,  34  S.  W.  438 ;  West. 
U.  Tel.  Co.  V.  Waller,  96  Tex.  589,  74  S.  W.  751,  97  Am.  St.  Rep.  936 ;  West. 
U.  Tel.  Co.  V.  Jackson,  35  Tex.  Civ.  App.  419,  80  S.  W.  649;  West.  U.  Tel. 
Co.  v.  McMillan  (Tex.  Civ.  App.)  25  S.  W.  821;  Telephone  Co.  v.  Cleveland, 
169  Ala.  131,  53  South.  SO,  Ann.  Cas.  1912B,  534 ;  Jenkins  v.  Telephone,  etc., 
Co.,  7  Ga.  App.  484,  67  S.  E.  124;  Telephone  Co.  v.  Snell,  3  Ala.  App.  263, 
56  South.  854. 

136  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507.  9  S.  W.  598,  10  Am.  St.  Rep. 
772,  1  L.  R.  A.  728 ;  Telephone  Co.  v.  Henderson,  62  Tex.  Civ.  App.  457,  131 
S.  W.  1153 ;  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  6.53,  128  Am. 
St.  Rep.  581 ;  West.  U.  Tel.  Co.  v.  James,  31  Tex.  Civ.  App.  503,  73  S.  W.  79 ; 
West.  U.  Tel.  Co.  v.  Hearne,  7  Tex.  Civ.  App.  67,  26  S.  W.  478 ;  West.  U.  Tel. 
Co.  V.  Drake,  14  Tex.  Civ.  App.  601,  38  S.  W.  632 ;  Gulf,  etc.,  R.  Co.  v.  Wil- 
son. 69  Tex.  7.39,  7  S.  W.  653 ;   West.  U.  Tel.  Co.  v.  Crawford  (Tex.  Civ.  App.) 

75  S.  W.  843;  Pacific  Postal  Tel.  Cable  Co.  v.  Fleischner,  68  Fed.  899,  14 
C.  C.  A.  166;  Arkansas,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117,  100  S.  W.  760. 
See  West.  U.  Tel.  Co.  v.  Drake,  supra;  West.  U.  Tel.  Co.  v.  Moran,  52  Tex. 
Civ.  App.  117,  113  S.  W.  625;  Bailey  v.  West.  U.  Tel.  Co.,  150  N.  C.  316, 
63  S.  E.  1044 ;  West.  U.  Tel.  Co.  v.  Frith,  105  Tenn.  167,  58  S.  W.  118 ;  West. 
U.  Tel.  Co.  V.  Lydon,  82  Tex.  364,  18  S.  W.  701 ;    Bolton  v.  West.  U.  Tel.  Co., 

76  S.  C.  529,  57  S.  E.  543 ;  Sabine  Valley  Tel.  Co.  v.  Oliver,  46  Tex.  Civ.  App. 
428,  102  S.  W.  925 ;  Mize  v.  Rocky  :\Iountain  Bell  Tel.  Co..  38  Mont.  521,  100 
Pac.  971,  129  Am.  St.  Rep.  6.59,  16  Ann.  Cas.  1189,  not  necessary  to  prove  every 
act  of  negligence  charged,  but  should  show  that  it  directly  produced  the  in- 
jury ;  Gannon  v.  Laclede  Gas  Et.  Co.,  145  Mo.  502,  46  S.  W.  968,  47  S.  W.  907, 
43  L.  R.  A.  505,  variance  between  allegation  and  proof  not  always  fatal ; 
Makay  v.  Southern  Bell  Tel.,  etc.,  Co.,  Ill  Ala.  337,  19  South.  695,  56  Am.  St. 
Rep.  59.  31  L.  R.  A.  589,  direct  proof  not  necessary  where  defendant  Impliedly 
admits  the  fact. 

13  7  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 


Go6  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  514 

posed  on  the  company  by  way  of  punishment  for  its  willful  wrongs. 
In  order  to  impose  the  proper  punishment  to  meet  the  injury  in- 
flicted, the  wealth  of  the  company  must  be  considered ;  for  the 
greater  the  wealth  of  the  latter,  the  greater  must  be  the  damages 
imposed.  The  most  successful  way  of  punishing  these  and  other 
corporations  for  their  willful  wrongs  is  by  awarding  damages 
against  them  for  such  wrongs,  and  the  better  remedy  in  deterring 
the  commission  of  other  and  similar  wrongs  is  by  awarding  dam- 
ages in  every  case  commensurate  with  their  wealth. 

§  514.  Same  continued — party  injured. — Where  the  plaintiff  has 
lost  a  great  bargain  in  a  contract  of  sale  of  property,  by  the  com- 
pany negligently  delaying  a  message  concerning  such  sale,  the  evi- 
dence of  the  embarrassed  financial  condition  of  the  sendee  is  not 
admissible. ^^^  Neither  could  he  show  the  condition  of  his  family, 
nor  his  future  prospects  in  other  lines  of  business;  but  only  such 
evidence  could  be  admitted  as  pertained  to  the  negligent  act  of  the 
company.  It  seems,  however,  that  where  the  negligent  act  has 
been  willful,  he  may  show  his  wealth  and  standing  or  reputation. 
Almost  the  same  reasons  may  be  given  why  the  wealth  or  reputa- 
tion of  the  plaintiff  should  be  shown  as  those  stated  above,  in  the 
admissibility  of  evidence  of  the  wealth  of  the  company.  Damages 
in  the  way  of  compensation  for  a  willful  wrong  of  the  company  to 
a  man  of  limited  means  or  of  small  reputation,  would  not  be  suffi- 
cient for  a  man  of  greater  wealth  or  more  extensive  reputation. 
Therefore,  in  considering  the  amount  of  damages  to  be  awarded 
for  a  willful  act  of  the  company  in  the  transmission  of  messages 
intrusted  to  its  care,  the  wealth  or  reputation  of  the  plaintiff  may 
be  shown  in  order  to  arrive  at  a  proper  amount  of  damages. ^^^ 

§  515.  Declaration  of  agents. — The  general  principle  of  law 
with  respect  to  the  admissibility  of  statements  and  declarations 
of  agents  as  against  their  principals  are  applicable  here.  Therefore 
statements  or  declarations  of  agents  or  employes  of  these  com- 
panies are  inadmissible  as  evidence  against  the  company,^*"  unless 

Rep.  14S;  Carmichael  v.  Soutnern  Bell,  etc.,  Tel.  Co.,  162  N.  C.  333,  78  S.  E. 
507,  Ann.  Cas.  1915A,  983. 

13  8  West.  U.  Tel.  Co.  v.  Way,  S3  Ala.  542,  4  South.  844. 

139  See  West.  U.  Tel.  Co.  v.  Holland,  11  Ala.  App.  510,  66  South.  926. 

140  West.  r.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148;  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844;  Graddy  v. 
West.  U.  Tel.  Co.,  43  S.  W.  468,  19  Ky.  Law  Rep.  1455 ;  Sweatland  v.  Illinois, 
etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285;  Grinnell  v.  West.  U.  Tel.  Co., 
113  Mass.  299,  18  Am.  Rep.  485;  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  358; 
Southwestern  Tel.,  etc.,  Co.  v.  Gotcher,  93  Tex.  114,  53  S.  W.  686;  West.  U. 
Tel.  Co.  V.  Wofford  (Tex.  Civ.  App.)  42  S.  W.  119. 


I    515)  PLEADING,  PRACTICE  AND  EVIDENCE  657 

the  same  is  made  while  acting-  within  the  scope  of  their  duties,  at 
the  time  when  the  negligent  act  is  alleged  to  have  been  committed, 
and  is  made  with  reference  to  such  act.^'*^  In  other  words,  the 
declaration  or  statement  must  be  part  of  the  res  gest(T.'^*^  Thus  a 
statement  made  by  an  agent  of  a  telegraph  company  is  not  compe- 
tent as  against  the  company,  to  prove  that  a  message  was  not  trans- 
mitted, when  not  made  in  the  performance  of  any  duty  relating 
to  its  transmission.^*^  But  a  statement  that  the  message  had  not 
been  delivered,  made  in  answer  to  an  inquiry,  has  been  held  to  be 
admissible  as  a  "part  of  the  same  transaction,"  and  not  relating  to 
past  occurrences.^**  Every  statement  or  declaration  of  an  agent  of 
these  companies,  telling  how  the  negligent  act  was  committed,  and 
made  at  or  during  the  time  of  such  commission,  is  admissible  as 
being  that  of  the  company,  to  show  how  the  same  was  commit- 
ted.^*^ Thus  the  statement  of  the  company's  messenger  that  he 
cannot  find  the  addressee — who  is  the  party  injured — and  made  at 
the  time  he  is  looking  for  the  addressee,  is  admissible  against  the 
company;  ^*®  or  any  statement  made  by  the  messenger  concerning 
the  contents  of  the  message,  and  which,  it  was  claimed,  the  com- 

141  Evans  v.  West.  U.  Tel.  Co.,  102  Iowa,  219,  71  N.  W.  219;  West.  U. 
Tel.  Co.  V.  Rowell.  153  Ala.  295,  45  South.  73;  Alabama  City,  etc.,  R.  Co.  v. 
Appleton,  171  Ala.  324.  54  South.  638,  Ann.  Cas.  1913A,  llSl ;  Fail  v.  West. 
U.  Tel.  Co.,  80  S.  C.  207,  60  S.  E.  €97,  61  S.  E.  258 ;  Carland  v.  West.  U.  Tel. 
Co.,  118  Mich.  369,  76  N.  W.  762.  74  Am.  St.  Kep.  394,  43  L.  R.  A.  280 ;  Glover 
V.  West.  U.  Tel.  Co.,  78  S.  C.  502,  59  S.  E.  526 ;  West.  U.  Tel.  Co.  v.  Simmons 
(Tex.  Civ.  App.)  93  S.  W.  686 ;  West.  U.  Tel.  Co.  v.  Cooper,  29  Tex.  Civ.  App. 
591,  69  S.  W.  427 ;  West.  U.  Tel.  Co.  v.  Davis,  24  Tex.  Civ.  App.  427,  59  S.  W. 
46 ;  West.  U.  Tel.  Co.  v.  Reeves,  8  Tex.  Civ.  App.  37.  27  S.  W.  318 ;  West.  U. 
Tel.  Co.  V.  Bennett,  1  Tex.  Civ.  App.  558,  21  S.  W.  699 ;  West.  U.  Tel.  Co.  v. 
Lydon,  82  Tex.  364,  18  S.  W.  701 ;  Southern  Tel.,  etc.,  Co.  v.  Evans,  54  Tex. 
Civ.  App.  63,  116  S.  W.  418;  City  of  Austin  v.  Nuchols,  42  Tex.  Civ.  App. 
5,  94  S.  W.  336;  Lynchburg  Tel.  Co.  v.  Booker,  103  Va.  594,  50  S.  E.  148; 
East  Tennessee  Tel.  Co.  v.  Sims.  18  Ky.  Law  Rep.  761,  20  Ky.  Law  Rep.  1330. 
36  S.  W.  171,  38  S.  W.  131;  West.  U.  Tel.  Co.  v.  Wells,  50  Fla.  474,  39 
South.  838,  2  L.  R.  A.  (N.  S.)  1072,  111  Am.  St.  Rep.  129,  7  Ann.  Cas.  531, 
not  hearsay ;  Vinson  v.  Southern  Bell  Tel.,  etc.,  Co.,  188  Ala.  292,  66  South. 
100,  L.  R.  A.  1915C,  450. 

142  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844;  Lewis  v.  Bowling 
Green  Gas  L.  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.)  1169 ;  Har- 
rington V.  Com'rs,  153  N.  C.  437,  69  S.  E.  399.  See  other  cases  in  note  141, 
supra.  But  see  Zentner  v.  Oshkosh  Gas  L.  Co.,  126  Wis.  196,  105  N.  W.  911 ; 
City  of  Wynnewood  v.  Cox,  31  Okl.  563,  122  Pac.  528,  Ann.  Cas.  1913E,  349. 

143  Aiken  v.  West.  U.  Tel.  Co.,  5  S.  C.  358. 

144  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844. 

145  See  cases  in  note  141,  supra. 

146  Evans  v.  West.  U.  Tel.  Co.,  102  Iowa,  219,  71  N.  W.  219.  See,  also,  Car- 
land  V.  West.  U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762,  74  Am.  St.  Rep.  394, 
43  L.  R.  A.  280 ;   West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  364,  18  S.  W.  701. 

Jones  Tel. (2d  Ed.)— 42 


658  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  516 

pany  wrong-fully  and  negligently  disclosed,  and  made  at  the  time 
the  messenger  was  delivering  same,  is  admissible  against  the  com- 
pany to  show  that  the  contents  of  the  message  were  negligently 
disclosed. ^^'^ 

§  516.  Subsequent  acts  of  company — of  plaintiff. — Any  act  of 
the  company  made  through  its  agents,  and  after  the  time  the  neg- 
ligent act  of  the  company  is  claimed  to  have  been  committed,  and 
not  connected  with  said  negligence,  cannot  be  shown  against  the 
company  in  an  action  against  it  for  damages  caused  by  such  neg- 
lect.^*® Thus,  in  an  action  against  a  telegraph  company  for  negli- 
gence in  the  transmission  of  a  message,  evidence  is  inadmissible 
against  the  company  to  show  that,  because  of  the  alleged  neg- 
ligence, one  of  its  officers  made  a  deduction  from  the  pay  of  one 
of  its  operators.^*®  Or,  if  one  of  the  operators  was  discharged  a 
few  days  after  the  negligent  act,  or  if  new  and  different  machinery 
or  instruments  were  substituted  for  those  in  use  at  the  time  of  the 
act,  these  facts  could  not  be  shown  in  evidence  against  the  com- 
pany in  an  action  for  the  negligent  act.^^*^  But  any  subsequent  act 
of  the  plaintift  toward  the  company,  disconnected  with  the  busi- 
ness transaction  in  which  the  negligent  act  is  claimed  to  have  been 
committed,  yet  in  the  furtherance  of  the  consummation  of  such 
business,  may  be  admitted  to  show  the  negligence  of  the  com- 
pany ;^^^    as,  where   the   sender  sends   a   second   message   to   the 

147  West.  U.  Tel.  Co.  v.  Bennett,  1  Tex.  Civ.  App.  558,  21  S.  W.  G99.  See, 
also,  Cocke  v.  West.  U.  Tel.  Co.,  84  Miss.  380,  36  South.  392. 

148  Alabama  City,  etc.,  R.  Co.  v.  Appletou,  171  Ala.  324,  54  South.  638,  Ann. 
Cas.  1913A,  1181;  Colorado  Elec.  Co.  v.  Lubbers,  11  Colo.  505,  19  Pac.  479, 
7  Am.  St.  Rep.  255 ;  Ziehm  v.  United  Elec,  etc.,  P.  Co.,  104  Md.  48,  64  Atl.  61 : 
Kraatz  v.  Brush  Elec.  L.  Co.,  82  Mich.  457,  46  N.  W.  787;  City  of  Wynne- 
wood  V,  Cocke,  31  Okl.  563,  122  Pac.  528,  Ann.  Cas.  1913E,  349 ;  Geer  v.  New 
York,  etc.,  Tel.  Co.,  144  App.  Div.  874,  129  N.  Y.  Supp.  784;  Harrington  v. 
Com'rs,  153  N.  C.  437,  69  S.  E.  .399;  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.) 
15  Atl.  624;  Randall  v.  Northwestern  Tel.  Co.,  54  AVis.  140,  11  N.  W.  419. 
41  Am.  Rep.  17.     See,  also,  §  209. 

149  See  Cocke  v.  West.  U.  Tel.  Co.,  84  Miss.  380,  36  South.  392. 

150  See  §  209. 

151  Ala.  City,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324,  54  South.  638,  Ann. 
Cas.  191.3A,  1181;  Pennsylvania  Tel.  Co.  v.  Yarnau  (Pa.)  15  Atl.  624;  Randall 
V.  Northwestern  Tel.  Co.,  54  AVis.  140,  11  N.  AY.  419,  41  Am. .  Rep.  17.  See, 
also,  Wittleder  v.  Citizens'  Elec.  111.  Co.,  47  App.  Div.  410,  62  N.  Y.  Supp.  297 ; 
Southwestern  Tel.,  etc.,  Co.  v.  Thompson  (Tex.  Civ.  App.)  157  S.  W.  1185,  as 
to  contest  of  ownership  or  maintenance  of  appliance.  Subsequent  repairs  may 
be  incidentally  admissible  as  proof  of  the  conditions  existing  at  the  time 
of  the  accident.  Dow  v.  Sunset,  etc.,  Tel.  Co.,  157  Cal.  182,  100  Pac.  587; 
Kath  V.  E.  St.  Louis,  etc.,  R.  Co..  232  111.  126,  83  N.  E.  533,  15  L.  R.  A.  (N.  S.) 
1109;  Consolidated  Gas  Elec,  etc,  Co.  v.  State,  109  Md.  186,  72  Atl.  651. 
It  may  be  shown  that  when  a  certain  condition  was  remedied  soon  after  an 
accident  the  difficulty  causing  the  particular  injury  ceased.     Dow  v.  Sunset, 


§    517)  PLEADING,  PRACTICE  AND   EVIDENCE  659 

operator  at  the  destination  of  the  first  message  with  instructions  to 
deliver  the  first,  this  act  of  the  plaintiff  may  be  admitted  to  show 
the  negligent  delay  in  delivering  the  first.^^^  ^^d  it  has  further 
been  held  that  evidence  could  be  admitted  to  show  that  the  plaintiff 
sent  another  message  at  the  same  time  to  the  same  place — but  to 
another  person — and  received  a  reply  to  same,  in  order  to  show  that 
the  company  was  guilty  of  negligence  in  transmitting  and  deliver- 
ing the  first.^^^ 

§  517.  Evidence  of  plaintiff's  good  faith — erroneous  messages. 
When  a  message  has  been  erroneously  transmitted  and  acted  on  by 
the  plaintiff  to  his  injury,  any  evidence  as  to  his  understanding  of 
the  message  may  be  admitted  for  the  purpose  of  showing  his  good 
faith  in  relying  on  it,  as  understood,  and  that  he  acted  on  the  basis 
of  that  understanding.^^*  Thus  the  plaintiff,  who  receives  in  reply 
to  a  message  to  his  stockholder  a  message  stating  the  price  of  cattle, 
and  buys  according  to  his  understanding  of  the  message  in  such  a 
way  as  to  make  a  profit  on  them,  may  introduce,  as  evidence,  the 
telegram  received,  to  show  whether  or  not  the  error  was  such  as 
would  lead  a  careful  and  prudent  man  to  act  thereon  as  he  acted, 
and  thereby  to  show  his  good  or  bad  faith. ^^^  And  where  the  mean- 
ing of  a  telegram  is  couched  in  such  terms  as  to  be  ambiguous  to 
persons  not  engaged  in  the  same  business  as  that  of  the  plaintiff', 
it  may  be  explained  by  the  testimony  of  the  sender.^^®  Thus  evi- 
dence as  to  the  price  of  goods  in  certain  markets  on  a  specified  day, 
by  a  person  who  testifies  that  he  knew  the  fact,  is  competent  to  go 
to  the  jury  in  the  absence  of  evidence  that  he  did  not  know  such 
fact.  The  object  in  introducing  such  latter  evidence  is  to  prove 
that  the  price  had  advanced  in  the  meantime,  and  that  plaintiff  was 
therefore  obliged  to  pay  a  higher  price  than  would  have  been  neces- 
sary had  the  first  message  been  sent  promptly. 

etc.,  Tel.  Co.,  supra;  "Union  L..,  etc.,  Power  Co.  v.  Lakoman,  156  Ky.  ,33,  IGO 
S.  W.  723,  in  which  the  court  said:  "Changes,  repairs,  or  precautions  after 
an  injury  are  not  admissible  to  show  negligence,  or  as  amounting  to  an  ad- 
mission of  negligence.  But  one  well-settled  exception  to  the  rule  is  that  such 
evidence  is  admissible  to  show  that  the  condition  complained  of  caused  the 
injury."  See  §  209.  See,  also,  Vinson  v.  Southern  Bell  Tel.,  etc.,  Co.,  188 
Ala.  292,  66  South.  100,  L.  R.  A.  1915C,  450. 

152  Grinnell  v.  West.  U.  Tel.  Co.,  113  Mass.  299,  18  Am.  Rep.  485. 

15  3  West.  U.  Tel.  Co.  v.  Frith,  105  Tenn.  167,  58  S.  W.  118. 

154  West.  U.  Tel.  Co.  v.  Lydon.  82  Tex.  364,  18  S.  W.  701;  Aiken  v.  West. 
U.  Tel.  Co.,  69  Iowa,  31,  28  N.  W.  419,  58  Am.  Rep.  210;  U.  S.  Tel.  Co.  v. 
Wenger,  55  Pa.  262,  93  Am.  Dec.  751. 

155  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  364,  18  S.  W.  701;  Henry  v.  West. 
U.  Tel.  Co.,  73  Wash.  260,  131  Pac.  812,  46  L.  R.  A.  (N.  S.)  412. 

156  Aiken  v.  West.  U.  Tel.  Co.,  69  Iowa,  31,  28  N.  W.  419,  58  Am.  Rep.  210. 


•660  TELEGRAPH  AND  TELEPHONE   COMPANIES  (§    518 

§  518.  Same  continued — other  cases. — In  an  action  against  a 
telegraph  company  for  failure  to  deliver  a  message,  if  the  defendant 
attempts  to  justify  itself  under  the  plea  that  the  plaintiff  was  an 
obscure  and  unknown  person,  the  latter  may  testify  as  to  the  na- 
ture of  his  business,  or  introduce  evidence  to  show  a  want  of  due 
diligence  on  the  part  of  the  company  to  ascertain  his  where- 
abouts.^" He  may  tender  and  introduce  in  evidence  business 
cards,  letter  heads  and  envelopes  (particularly  after  he  has  testi- 
fied, without  objection,  that  he  so  used  them),  for  the  purpose  of 
showing  that  he  had  used  the  ordinary  means  of  advertising  him- 
self, and  that  defendant,  in  the  exercise  of  reasonable  diligence, 
might  have  found  some  person  who  could  give  information  as  to 
his  address. ^^^  Evidence  of  the  proximity  of  the  place  of  business 
and  the  residence  of  the  plaintiff  to  the  office  to  which  the  message 
was  transmitted, ^^^  and  that  it  could  have  been  forwarded  to  him 
from  either  place  in  time  to  prevent  the  loss,  is  competent.^*"' 
Where  the  message  on  which  suit  is  brought  for  failure  to  deliver 
was  addressed  to  a  physician,  the  company  cannot  introduce  evi- 
dence in  its  defense  that  it  was  the  custom  of  such  physician  not  to 
make  certain  calls  without  prepayment  of  his  professional  charg- 
es.^^'^  Since  it  is  not  right  for  these  companies  to  speculate  on 
the  chances  that  such  summons  will  or  will  not  be  obeyed,  they 
cannot,  therefore,  introduce  evidence  respecting  such  speculations, 
or  evidence  which  would  furnish  no  excuse  for  the  negligence  com- 

157  Messenger  informed,  West.  U.  Tel.  Co.  v.  "Waller,  37  Tex.  Civ.  App.  515, 
84  S.  W.  695 :  West.  U.  Tel.  Co.  v.  Bell,  48  Tex.  Civ.  App.  359,  107  S.  W.  570, 
well  known ;  West.  U.  Tel.  Co.  v.  James,  31  Tex.  Civ.  App.  503,  73  S.  W.  79 ; 
West.  U.  Tel.  Co.  v.  Drake,  14  Tex.  Civ.  App.  601,  38  S.  W.  632 ;  Gulf,  etc.,  K. 
Co.  V.  Wilson,  69  Tex.  739,  7  S.  W.  653,  by  witness ;  West.  U.  Tel.  Co.  v.  James, 
supra ;  Martin  v.  West.  U.  Tel.  Co.,  81  S.  C.  432,  62  S.  E.  833,  no  inquiry  was 
made  of  him ;  Arkansas,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117,  100  S.  W.  760 ; 
West.  U.  Tel.  Co.  v.  James,  supra.  But  see  West.  U.  Tel.  Co.  v.  Craige,  44 
Tex.  Civ.  App.  214,  90  S.  W.  681. 

15  8  West.  U.  Tel.  Co.  v.  Collins,  45  Kan.  88,  25  Pac.  187,  10  L.  R.  A.  515, 
note.  See,  also,  Carland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  76  N.  W.  762,  74 
Am.  St.  Rep.  394,  43  L.  R.  A.  280.  See  West.  U.  Tel.  Co.  v.  Waller  (Tex.  Civ. 
App.)  72  S.  W.  264. 

150  West.  U.  Tel.  Co.  v.  James,  31  Tex.  Civ.  App.  503,  73  S.  W.  79;  West.  U. 
Tel.  Co.  v.  Woods,  56  Kan.  737,  44  Pac.  989.  Where  other  telegrams  had  been 
delivered  to  him.  West.  U.  Tel.  Co.  v.  Manker,  145  Ala.  418,  41  South.  850; 
without  difficult  search,  West.  U.  Tel.  Co.  v.  Davis,  24  Tex.  Civ.  App.  427,  59 
S.  W.  46 ;  if  inquiry  had  been  made,  information  would  have  been  given,  West. 
U.  Tel.  Co.  V.  Drake,  14  Tex.  Civ.  App.  601,  38  S.  W.  632.  But  see  West.  U. 
Tel.  Co.  V.  Redinger,  22  Tex.  Civ.  App.  362,  54  S.  W.  417,  not  within  the  de- 
livery limits. 

160  Gulf,  etc.,  R.  Co.  v.  Wilson,  69  Tex.  739,  7  S.  W.  653. 

161  West.  U.  Tel.  Co.  v.  Woods,  56  Kan.  737,  44  Pac.  989. 


g    519)  PLEADING,  PRACTICE   AND   EVIDENCE  661 

plained  of.^*'^  Letters  and  statements  of  the  addressee  as  to  the 
reasons  for  his  failure  to  purchase  stock  for  the  plaintiff,  ordered 
by  letter  and  telegram,  have  been  held  to  be  inadmissible  in  any 
action  for  failure  to  deliver  the  telegram. ^^^  When  a  telegraph 
company  contracts  to  furnish  an  oil  broker  with  accurate  quota- 
tions of  prices  of  oil,  and  to  transmit  his  message  for  purchases  and 
sales,  he  may  show,  when  sued  on  the  contract,  the  quotations  fur- 
nished and  directions  given  in  reliance  thereon.^"'*  And  his  testi- 
mony as  to  purchases  and  sales  made  under  such  directions,  at 
places  where  he  was  not  personally  present,  is  admissible,  and 
cannot  be  excluded  under  the  rule  requiring  the  production  of  the 
best  evidence,  as  the  purpose  of  the  rule  is  to  exclude  evidence 
merely  substitutional  in  its  character.^'^s  On  failure  to  deliver  a 
message,  it  is  not  error  to  exclude  evidence  which  shows  that  the 
message  was  sent  by  telephone,  where  it  was  not  delivered.^®" 

§  519.  Questions  for  the  court. — Questions  of  law  arising  in 
actions  against  telegraph,  telephone,  and  electric  companies  are 
for  the  determination  of  the  court. ^''^  It  is  the  duty  of  the  court 
to  construe  the  pleadings  as  a  matter  of  law  and  to  determine  the 
issue  made,  the  sufficiency  of  the  allegations,  and  whether  they 
are  sufficiently  denied. ^®^  The  question  whether  there  is  variance 
between  the  pleadings  and  the  proof  is  also  for  the  court  to  de- 
termine. The  court  should  determine  the  admissibility,  material- 
ity, relevancy,  or  competency  of  evidence,  or  the  competency  of 
witnesses.  If,  on  the  one  hand,  no  material  or  essential  matter  in 
the  pleadings  is  supported  by  evidence,  or,  on  the  other,  the  evi- 
dence is  clear  and  without  conflict,  the  court  may  direct  a  ver- 
dict or  grant  a  nonsuit,^^''  and  should  do  so  if  requested. ^^°     The 

162  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep. 
148 ;  Telephone  Co.  v.  Cleveland,  169  Ala.  131,  53  South.  80,  Ann.  Cas.  1912B, 
534. 

163  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep. 
772,  1  L.  R.  A.  728. 

164  U.  S.  Tel.  Co.  V.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751. 

165  West.  U.  Tel.  Co.  v.  Stevenson,  128  Pa.  442,  18  Atl.  441,  15  Am.  St.  Rep. 
687,  5  L.  R.  A.  515. 

im  West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep. 
579. 

167  Helmann  v.  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32 ;  West.  U.  Tel.  Co. 
V.  Lehman,  105  Md.  442,  60  Atl.  296,  measure  of  damages,  a  question  of  law. 

168  West.  U.  Tel.  Co.  v.  Saunders,  164  Ala.  234,  51  South.  176,  137  Am.  St. 
Rep.  35. 

i'69  Brumfield  v.  West.  U.  Tel.  Co.,  97  Iowa,  693,  66  N.  W.  898;  Hartstein  v. 


i"6  West.  U.  Tel.  Co.  v.  Elliott,  131  Ky.  340,  115  S.  W.  228,  22  D.  R.  A.  (N. 
S.)  761 ;  West.  U.  Tel.  Co.  v.  Housewright,  5  Tex.  Civ.  App.  1,  23  S.  W.  824 ; 
Cutts  V.  West.  U.  Tel.  Co.,  71  Wis.  46,  36  N.  W.  627. 


662  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  520 

construction  of  the  contracts  of  transmission  ^^^  and  other  writ- 
ing ^'^  in  the  case  is  a  question  of  law,  and  it  is  the  duty  of  the 
court  to  construe  them,  and  state  to  the  jury  their  terms  and  legal 
efifect.  It  has  ordinarily  been  held  that  the  reasonableness  of 
stipulations  contained  in  the  contracts  of  transmission  limiting 
the  common-law  liability  of  telegraph  companies,  and  the  rules 
and  regulations  of  these  companies  which  affect  the  conduct  of 
their  business  regarding  their  office  hours^'^  are  questions  of  law 
to  be  determined  by  the  court.  However,  it  has  been  held  that 
it  was  a  qviestion  for  the  jury  whether  a  certain  stipulation  which 
is  ordinarily  valid  would  be  unreasonable  in  its  application  to  the 
facts  and  circumstances  of  a  particular  case.^^^ 

§  520.  Questions  for  the  jury. — It  is  a  general  rule  that  all  ques- 
tions of  fact  should  be  left  to  the  jury.^^^  Thus  it  is  usually  a 
question  for  the  jury  to  determine,  under  proper  instructions  from 
the  court,  whether,  under  the  circumstances  of  a  given  case,  the 
company  on   the  one  hand  was  guilty  of  the  acts  and  omissions 

West.  U.  Tel.  Co.,  89  Wis.  531,  62  N.  W.  412 ;  Petty  v.  Telephone  Co.,  1,38  Ga. 
314,  75  S.  E.  152 ;  Telephone  Co.  v.  Calhoun,  13  Ga.  App.  479,  79  S.  E.  371 ; 
Wells  y.  West.  U.  Tel.  Co.,  144  Iowa,  G05,  123  N.  W.  371,  24  L.  R.  A.  (N.  S.) 
1045,  13S  Am.  St.  Rep.  317. 

171  Thompson  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  120,  30  S.  W.  2.50. 

172  West.  U,  Tel.  Co.  v.  Way,  83  Ala.  .542,  4  South.  S44. 

1T3  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W.  528;  West.  U.  Tel.  Co.  v. 
Love  Banks  Co.,  73  Ark.  205,  S3  S.  W.  949,  3  Ann.  Cas.  712 ;  West.  U.  Tel.  Co. 
V.  Crider,  107  Ky.  600,  54  S.  W.  963,  21  Ky.  Law  Rep.  1336 ;  West.  U.  Tel.  Co. 
V.  Scott,  87  S.  W.  289,  27  Ky.  Law  Rep.  975 ;  West.  U.  Tel.  Co.  v.  Phillips,  2 
Tex.  Civ.  App.  608,  21  S.  W.  638 ;  Id.  (Tex.  Civ.  App.)  30  S.  W.  494 ;  Heimann 
V.  West.  U.  Tel.  Co.,  57  Wis.  562,  16  N.  W.  32 ;  Smith  v.  West.  U.  Tel.  Co.,  109 
Ark.  .35,  158  S.  W.  975.  Contra,  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219,  21 
Pac.  988. 

174  West.  U.  Tel.  Co.  v.  Phillips,  2  Tex.  Civ.  App.  608,  21  S.  W.  638,  30  S.  W. 
494 ;  West.  U.  Tel.  Co.  v.  Timmons  (Tex.  Civ.  App.)  136  S.  W.  1169.  See  Ogilvie 
V.  West.  U.  Tel.  Co.,  83  S.  C.  8,  64  S.  E.  860.  137  Am.  St.  Rep.  790. 

175  West.  U.  Tel.  Co.  v.  Gillis,  89  Ark.  483,  117  S.  W.  749,  131  Am.  St.  Rep. 
115 ;  Garrett  v.  West.  U.  Tel.  Co.,  83  Iowa,  257,  49  N.  W.  88 ;  West.  U.  Tel.  Co. 
V.  Merrill,  144  Ala.  618,  39  South.  121,  113  Am.  St.  Rep.  66 ;  Taylor  v.  West.  U. 
Tel.  Co.,  101  S.  W.  969,  31  Ky.  Law  Rep.  240;  West.  U.  Tel.  Co.  v.  Burns,  164 
Ala.  2.52,  51  South.  373 ;  Larsen  v.  Cable  Co.,  150  Iowa,  748,  130  N.  W.  813 ; 
Salinger  v.  Telephone  Co.,  147  Iowa,  484,  126  N.  W.  362 ;  Telephone  Co.  v.  Chil- 
ton, 100  Ark.  296,  140  S.  W.  26 ;  West.  U.  Tel.  Co.  v.  Sledge,  7  Ala.  App.  650,  62 
South.  390.  See  Marriott  v.  West.  U.  Tel.  Co.,  84  Neb.  443,  121  N.  W.  241,  133 
Am.  St.  Rep.  633 ;  Knowlton  v.  Des  Moines  Edison  L.  Co.,  117  Iowa,  451,  90 
N.  W.  818 ;  Barker  v.  Boston  Elec.  L.  Co.,  178  Mass.  503,  60  N.  E.  2 ;  Com.  Elec. 
Co.  V.  Rose,  214  111.  545,  73  N.  E.  780 ;  Rowe  v.  Electric  Co.,  114  111.  App.  535 ; 
Id.,  213  111.  318,  72  N.  E.  711 ;  Telephone  Co.  v.  Sokola,  34  Ind.  App.  429,  72  N. 
E.  143 ;  Musolf  v.  Electric  Co.,  108  Minn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.) 
451 ;  Brubaker  v.  Light  Co.,  130  Mo.  App.  439,  110  S.  W.  12 ;  Walters  v.  R.  R. 
Co.,  178  N.  Y.  50,  70  N.  E.  98;  Braun  v.  Electric  Co.,  200  N.  Y.  484,  94  N.  E. 
206,  34  L.  R.  A.  (X.  S.)  1089,  140  Am.  St.  Rep.  645,  21  Ann.  Cas.  370 ;  Leque  v. 


§   520)  PLEADING,  PRACTICE   AND  EVIDENCE  663 

complained  of/^®  and  whether  the  plaintifif  on  the  other  hand 
was  guilty  of  contributory  negligence  and  such  as  to   defeat  his 

Gas,  etc.,  Co.,  13.3  Wis.  547,  113  N.  W.  94G ;  Sykes  v.  Portland,  177  Mich.  290, 
143  N.  W.  326.  See  Lauf,'lilin  v.  Service  Corp.,  83  S.  C.  62,  64  S.  E.  1010 ;  Obr- 
strom  V.  Tacoma,  57  Wash.  121,  106  Pac.  629;  Abrams  v.  Seattle,  60  Wash. 
356,  111  Pac.  168,  140  Am.  St.  Rep.  916. 

176  Economy  L.,  etc.,  Co.  v.  Hiller,  203  111.  518,  68  N.  B.  72,  affirming  106  111. 
App.  306 ;  Walters  v.  Denver  Consolidated  Elec.  L.  Co.,  12  Colo.  App.  145,  54 
Pac.  960 ;  Lexington  R.  Co.  v.  Fain,  71  S.  W.  628,  24  Ky.  Law  Rep.  1443 ;  Bar- 
ker V.  Boston  Elec.  L.  Co.,  178  Mass.  503,  60  N.  E.  2 ;  Lutolf  y.  United  Elec.  L. 
Co.,  184  Mass.  53,  67  N.  E.  1025 ;  Wagner  v.  Brooklyn  Heights  R.  Co.,  174  N. 
Y.  520,  66  N.  E.  1117,  affirming  69  App.  Div.  349,  74  N.  Y.  Supp.  809 ;  Hovey  v. 
Michigan  Tel.  Co.,  124  Mich.  607,  83  N.  W.  600;  Wolpers  v.  New  York,  etc., 
Elec.  L.  Co.,  91  App.  Div.  424,  86  N.  Y.  Supp.  845 ;  Wittleder  v.  Citizens  Elec. 
111.  Co.,  47  App.  Div.  410,  62  N.  Y.  Supp.  297 ;  Fitzgerald  v.  Edison  Elec.  111. 
Co.,  207  Pa.  lis,  56  Atl.  350 ;  Boyd  v.  Portland  Elec.  Co.,  40  Or.  126,  66  I'ac. 
576,  57  L.  R.  A.  619 ;  Griffith  v.  New  England,  etc.,  Tel.,  72  Vt.  441,  48  Atl.  643, 
52  L.  R.  A.  919 ;  Lighting  Co.  v.  Sullivan,  22  App.  D.  C.  115 ;  Telephone,  etc., 
Co.  V.  Bruce,  89  Ark.  581,  117  S.  W.  564 ;  Dow  v.  Telephone,  etc.,  Co.,  1.57  Cal. 
382,  106  Pac.  587;  Pierce  v.  Gas,  etc.,  Co.,  161  Cal.  176,  118  Pac.  700;  Alabama 
City,  etc.,  R.  Co.  v.  Appleton,  171  Ala.  324,  54  South.  638,  Ann.  Cas.  1913A, 
1181 ;  Hausler  v.  Electric  Co.,  240  111.  201,  88  N.  E.  561 ;  Seith  v.  Electric  Co., 
241  111.  252,  89  N.  E.  425,  132  Am.  St.  Rep.  204,  24  L.  R.  A.  (N.  S.) 
978 ;  Snyder  v.  Telephone  Co.,  135  Iowa,  215,  112  N.  W.  776,  14  L.  R.  A.  (N.  S.) 
321 ;  T^wis  v.  Gas  Light  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.) 
1169 ;  Evans  v.  Telephone  Co.,  124  Ky,  620,  99  S.  W.  936,  30  Ky.  Law  Rep.  833 ; 
Light  Co.  V.  Dean,  142  Ky.  678,  134  S.  W.  1115 ;  Warren  v.  Railroad  Co.,  141 
Mich.  298,  104  N.  W.  613 ;  Linton  v.  Light,  etc.,  Co.,  188  Mass.  276,  74  N.  E.  321 ; 
Johnson  v.  City,  164  Mich.  251,  129  N.  W.  29,  Ann.  Cas.  1912B,  866 ;  Musolt  v. 
Electric  Co.,  108  IMinn.  369,  122  N.  W.  499,  24  L.  R.  A.  (N.  S.)  451 ;  SteindorfE 
V.  Gas  L.  Co.,  92  Minn.  496,  100  N.  W.  221 ;  Birsch  v.  Elec.  Co.,  36  Mont.  574, 
93  Pac.  940;  Booker  v.  Railroad  Co.,  144  Mo.  App.  273,  128  S.  W.  1012;  Brooks 
V.  Gas  Co.,  70  N.  J.  Law,  211,  57  Atl.  396 ;  Lydston  v.  Liglit,  etc.,  Co.,  75  N. 
IT.  23,  70  Atl.  385,  21  Ann.  Cas.  1236 ;  Lee  v.  Railroad  Co.,  140  App.  Div.  779, 
125  N.  Y.  Supp.  840;  Miller  v.  Light,  etc.,  Co.,  212  Pa.  593,  62  Atl.  32;  Crowe  v. 
Light  Co.,  209  Pa.  580,  58  Atl.  1071 ;  Telephone  Co.  v.  Thomas,  45  Tex.  Civ. 
App.  20,  99  S.  W.  879 ;  Railroad  Co.  v.  Rubin,  102  Va.  809,  47  S.  E.  834 ;  Light 
Co.  V.  Halliburton  (Tex.  Civ.  App.)  136  S.  W.  584 ;  Traction  Co.  v.  Daily,  111 
Va.  665,  69  S.  E.  963 ;  Thornburg  v.  Railroad  Co.,  65  W.  Va.  379,  64  S.  E.  358 ; 
Anderson  v.  Railroad  Co.,  36  Wash.  387,  78  Pac.  1013,  104  Am.  St.  Rep.  962 ; 
Williams  v.  Lumber  Co.,  124  Wis.  328,  102  N.  W.  589 ;  Gas,  etc.,  Co.  v.  Letson, 
135  Fed.  969,  68  C.  C.  A.  453  ;  Gas,  etc.,  Co.  v.  Bell,  152  Fed.  677,  82  C.  C.  A.  25  ; 
Shank  v.  Power  Co.,  205  Fed.  833,  124  C.  C.  A.  35  ;  Webster  v.  Light,  etc.,  Co.,  158 
App.  Div.  210,  143  N,  Y.  Supp.  57  ;  Dugan  v.  Electric  Co.,  241  Pa.  565,  88  Atl.  437 ; 
Hayes  v.  Power  Co.,  95  S.  C.  2.30,  78  S.  E.  956;  Telephone,  etc.,  Co.  v. 
Shirley  (Tex.  Civ.  App.)  155  S.  W.  663 ;  Swan  v.  Ry.  Co.,  41  Utah.  518, 
127  Pac.  267;  Lyles  v.  West.  U.  Tel.  Co.,  84  S.  C.  1,  65  S.  E.  832,  137  Am. 
St.  Rep.  829;  Ogilvie  v.  West.  U.  Tel.  Co.,  83  S.  C.  8,  64  S.  E.  860,  137 
Am.  St.  Rep.  790;  Klopf  v.  West.  U.  Tel.  Co.,  100  Tex.  540,  101  S.  W.  1072, 
123  Am.  St.  Rep.  831,  10  L.  R.  A.  (N.  S.)  498 ;  Box  v.  Postal  Tel.  Cable  Co.,  165 
Fed.  138,  91  C.  C.  A.  172,  28  L.  R.  A.  (N.  S.)  566;  West.  U.  Tel.  Co.  v. 
Price,  137  Ky.  758,  126  S.  W.  1100,  29  L.  R.  A.  (N.  S.)  836 ;  Cumberland  Tel., 
etc.,  Co.  v.  Peacher  Mill  Co.,  129  Tenn.  374,  164  S.  W.  1145,  L.  R.  A.  1915A, 
1045 ;  Bergin  v.  So.  New  England  Tel.  Co.,  70  Conn.  54,  38  Atl.  888,  39  L.  R.  A. 
192 ;  Illingsworth  v.  Boston  Elec.  L.  Co.,  161  Mass.  583,  37  N.  E.  778,  25  L.  R. 


664  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  520 

right  to  recover.^^'^  It  is  necessary  that  sufficient  evidence  be 
introduced  to  support  either  the  plaintiff's  cause  of  action  ^^®  or  to 

A.  552 ;  IMize  v.  Rocky  Mountain  Bell  Tel.  Co.,  3S  Mont.  521,  100  Pac.  791.  129 
Am.  St.  Rep.  659,  16  Ann.  Cas.  11S9 ;  Braun  v.  Electric  Co.,  200  N.  Y.  4S4.  94 
^^  E.  206,  140  Am.  St.  Rep.  645,  21  Ann.  Cas.  370,  34  L.  R.  A.  (N.  S.)  10S9 ;  Per- 
ham  V.  Electric  Co.,  33  Or.  451,  53  Pac.  14,  24,  72  Am.  St.  Rep.  730,  40  L.  R. 
A.  799 ;  Abrams  v.  Seattle,  60  Wash.  356,  111  Pac.  168,  140  Am.  St.  Rep.  916 ; 
Block  V.  Milwaukee  St.  Ry.  Co.,  89  AVis.  371,  61  N.  W,  1101,  46  Am.  St.  Rep. 
849,  27  L.  R.  A.  3C5. 

The  jury  must  determine  the  extent  to  which  wires  should  be  insulated,  or 
otherwise  guarded.  Parsons  v.  Charleston  Consolidated  R.,  etc.,  Co.,  69  S.  C. 
305,  48  S.  E.  284,  104  Am.  St.  Rep.  800 ;  Dumphy  v.  Montreal  L.,  etc.,  Co.,  9 
Ann.  Cas.  749 ;  whether  proper  safety  devices  have  been  furnished.  Southwest- 
ern Tel.,  etc.,  Co.  v.  Abeles,  94  Ark.  254,  126  S.  W.  724,  140  Am.  St.  Rep.  115, 

21  Ann.  Cas.  1006 ;  duty  as  to  inspection  and  repair  of  appliances,  Lewis  v. 
Bowling  Green  Gas  L.  Co.,  135  Ky.  611,  117  S.  W.  278,  22  L.  R.  A.  (N.  S.)  1169 ; 
Alabama  City,  etc.,  R.  Co.  v.  Appleton,  supra;  Perham  v.  Electric  Co.,  supra. 
Macon  v.  Paducah  St.  Ry.  Co.,  62  S.  W.  490,  23  Ky.  Law  Rep.  46,  whether  de- 
fendant was  grossly  negligent  thereby  authorizing  punitive  damages. 

17  7  Texarkana  Gas,  etc.,  Co.  v.  Orr,  59  Ark.  215,  27  S.  W.  66,  43  Am.  St.  Rep. 
30;  Electric  Co.  v.  Lubbers,  11  Colo.  505,  19  Pac.  479,  7  Am.  St.  Rep.  2.55; 
Giraudi  v.  San  Jose  Elec,  etc.,  Co.,  107  Cal.  120,  40  Pac.  108,  48  Am.  St.  Rep. 
114,  28  L.  R.  A.  596 ;  Brush  Elec.  Lighting  Co.  v.  Kelley,  126  Tnd.  220.  25  X.  E. 
832,  10  L.  R.  A.  250;  Lewis  v.  Bowling  Green  Gas  L.  Co.,  135  Ky.  611,  117  S. 
W.  278,  22  L.  R.  A.  (N.  S.)  1169 ;  Barto  v.  Iowa  Tel.  Co.,  126  Iowa,  241.  101  X. 
W.  876,  106  Am.  St.  Rep.  347 ;  Bourget  v.  Cambridge,  156  Mass.  391,  31  X.  E. 
390,  16  L.  R.  A.  605  ;  Illingsworth  v.  Boston  Elec.  L.  Co.,  161  Mass.  583,  37  X.  E. 
778,  25  L.  R.  A.  552 ;  Griffin  v.  United  Elec.  L.  Co.,  164  Mass.  492,  41  X.  E.  675, 
49  Am.  St.  Rep.  477,  32  L.  R.  A.  400 ;  Hodgins  v.  Bay  City,  156  Mich.  687,  121 
X.  W.  274,  1.32  Am.  St.  Rep.  546 ;  Stevens  v.  United  Gas,  etc.,  Co.,  73  X.  H.  159, 
60  Atl.  848,  70  L.  R.  A.  119 ;  Fox  v.  Manchester,  183  X.  Y.  141,  75  X.  E.  1116, 
2  L.  R.  A.  (X.  S.)  474  ;  Braun  v.  Electric  Co.,  200  X.  Y.  484,  94  X.  E.  206,  140  Am. 
St.  Rep.  645,  21  Ann.  Cas.  370,  34  L.  R.  A.  (X.  S.)  1089 ;  Gentzkow  v.  Portland 
Ry.  Co.,  54  Or.  114.  102  Pac.  014,  135  Am.  St.  Rep.  821 ;  Fitzgerald  v.  Edison 
Elec.  111.  Co.,  200  Pa.  540,  50  Atl.  161,  86  Am.  St.  Rep.  732;  ilerron  v.  Pittsburg, 
204  Pa.  509,  54  Atl.  311,  93  Am.  St.  Rep.  798;  Griffith  v.  Xew  England,  etc., 
Tel.  Co.,  72  Vt.  441,  48  Atl.  643,  52  L.  R.  A.  919 ;  Miner  v.  Franklin  County 
Tel.  Co..  83  Yt.  311,  75  Atl.  653,  23  L.  R.  A.  (X.  S.)  1195 ;  Anderson  v.  Railroad 
Co.,  36  Wash.  387,  78  Pac.  1013,  104  Am.  St.  Rep.  962. 

17S  Sultan  V.  West.  U.  Tel.  Co.,  92  Miss.  785,  46  South.  827;  Potter  v.  West. 
U.  Tel.  Co..  138  Iowa,  406,  116  X.  W.  130;  Reynolds  v.  AVest.  U.  Tel.  Co.,  81 
Mo.  App.  223 ;  Mims  v.  West.  U.  Tel.  Co.,  82  S.  C.  247,  64  S.  E.  236 ;  Willis  v. 
West.  U.  Tel.  Co.,  150  X.  C.  318,  64  S.  E.  11 ;  Balderston  v.  West.  U.  Tel.  Co., 
79  S.  C.  160,  60  S.  E.  435 ;  Klopf  v.  West.  U.  Tel.  Co.,  100  Tex.  540,  101  S.  W. 
1072,  123  Am.  St.  Rep.  831,  10  L.  R.  A.(X.  S.)  498;  West.  U.  Tel.  Co.  v.  Han- 
kins,  50  Tex.  Civ.  App.  513,  110  S.  AY.  539 ;  Barefoot  v.  West.  U.  Tel.  Co..  28 
Tex.  Civ.  App.  457,  67  S.  W.  912 ;  West.  U.  Tel.  Co.  v.  Merrill  (Tex.  Civ.  App.) 

22  S.  AY.  826 ;  Box  v.  Postal  Tel.  Cable  Co.,  165  Fed.  138,  91  C.  C.  A.  172.  28 
L.  R.  A.  (X.  S.)  566 ;  Gannon  v.  Laclede  Gas  L.  Co.,  145  Mo.  502,  46  S.  W.  938, 
47  S.  W.  907,  43  L.  R.  A.  505;  Telephone  Co.  v.  Johnson,  164  Ala.  229,  51 
South.  230;  Guess  v.  Telephone  Co.,  102  Miss.  691,  59  South.  876;  Stone  v. 
Postal  Tel.   Cable   Co.,   35  R.    I.  498,  87  Atl.  319,   46  L.   R.   A.    (X.    S.)   ISO. 

Mental  anguish  coses.— See  West.  U.  Tel.  Co.  v.  Hanley,  85  Ark.  263,  107  S. 
W.  1168 ;  West.  U.  Tel.  Co.  v.  Caldwell,  126  Ky.  42,  102  S.  W,  840,  31  Ky.  Law 


§    520)  PLEADING,  PRACTICE   AND   EVIDENCE  665 

sustain  the  defense  relied  upon  by  the  defendant/'^^  and  so,  if  such 
has  been  submitted  and  there  is  a  conflict  therein,^ ^"^  it  is  the  duty 
of  the  court  to  submit  the  case  to  the  jury  under  proper  instruc- 
tions. Occasionally  the  question  arises  whether  the  party  who  re- 
ceives a  message  for  transmission  is  the  agent  of  the  company, 
when  it  does  the  jury  should  pass  on  the  question.^*'  Very  fre- 
quently the  question  is  to  be  determined  whether  a  telegraph  or 
telephone  company  has  been  guilty  of  negligence  -^^-  in  the  trans- 
mission ^^^  or  delivery  ^^*   of  a  message   intrusted  to  its   care,  or 

Rep.  497,  12  L.  R.  A.  (N.  S.)  748 ;  Gerock  v.  West.  U.  Tel.  Co.,  142  N.  C.  22,  54 
S.  E.  782 ;  West.  U.  Tel.  Co.  v.  Gulick,  48  Tex.  Civ.  App.  78,  106  S.  W.  698. 

17  9  Garrett  v.  West.  U.  Tel.  Co.,  S3  Iowa,  2.57,  49  N.  W.  88 ;  Hinson  v.  West. 
U.  Tel.  Co..  91  S.  C.  3.88,  74  S.  E.  752,  Ann.  Cas.  1914A,  114. 

ISO  West.  U.  Tel.  Co.  v.  Bowman,  141  Ala.  175,  37  South.  493;  West.  U.  Tel. 
Co.  V.  Rowell,  153  Ala.  295,  45  South.  73 ;  West.  U.  Tel.  Co.  v.  Gillis,  89  Ark. 
483,  117  S.  W.  749,  131  Am.  St.  Rep.  115 ;  Roberts  v.  West.  U.  Tel.  Co.,  76  S.  C. 
275,  56  S.  E.  960 ;  Hunter  v.  West.  U.  Tel.  Co.,  130  N.  C.  602,  41  S.  E.  796 ; 
West.  U.  Tel.  Co.  v.  Merrill,  144  Ala.  618,  39  South.  121,  113  Am.  St.  Rep.  66 ; 
Wiggs  V.  Southwestern  Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  110  S.  W.  179.  See  West. 
U.  Tel.  Co.  V.  Haley,  143  Ala.  586,  39  South.  386;  Cumberland  Tel.,  etc.,  Co.  v. 
Peacher  Mill  Co.,  129  Tenu.  374,  164  S.  W.  1145,  L.  R.  A.  1015A,  1045,  opinion 
evidence  ultimate  fact  for  jury. 

isi  West.  U.  Tel.  Co.  v.  McLeod  (Tex.  Civ.  App.)  22  S.  W.  988 ;  West.  U.  Tel. 
Co.  V.  Craven  (Tex.  Civ.  App.)  95  S.  W.  633 ;  Brandon  v.  Tel.,  etc.,  Co.,  146  Ky. 
639.  143  S.  W.  11. 

182  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  668;  West.  U.  Tel.  Co.  v.  Elliott,  7 
Tex.  Civ.  App.  482,  27  S.  W.  219 ;  Potter  v.  West.  U.  Tel.  Co.,  1.38  Iowa,  406, 
116  N.  W.  130;  Barnes  v.  West.  U.  Tel.  Co.  (C.  C.)  120  Fed.  550;  Beasley  v. 
West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181 ;  Markley  v.  West.  U.  Tel.  Co.,  144  Iowa, 
105,  122  N.  W.  136,  138  Am.  St.  Rep.  263 ;  Telephone  Co.  v.  Wilson,  97  Ark.  198, 
133  S.  W.  845 ;  Seddon  v.  Telephone  Co.,  146  Iowa,  743,  126  N.  W.  9G9 ;  Beggs 
V.  Cable  Co.,  258  111.  238,  101  N.  E.  612 ;  Bank  v.  Tel.  Co.,  159  Iowa,  720,  1.39 
N.  W.  552,  Ann.  Cas.  1915D,  243;  Guess  v.  Telephone  Co.,  102  Miss.  691,  59 
South.  876 ;  Telephone  Co.  v.  Parham  (Tex.  Civ.  App.)  152  S.  W.  819. 

1S3  Box  V.  Postal  Tel.  Cable  Co.,  165  Fed.  138,  91  C.  C.  A.  172,  28  L.  R.  A. 
(N.  S.)  566;  Beasley  v.  West.  U.  Tel.  Co.  (C.  0.)  39  Fed.  181;  West  U.  Tel. 
Co.  V.  McGown,  42  Tex.  Civ.  App.  565,  93  S.  W.  710 ;  Faubion  v.  West.  U.  Tel. 
Co.,  36  Tex.  Civ.  App.  98,  81  S.  W.  56 ;  Telephone  Co.  v.  Griffith,  161  Ala.  241, 
50  South.  91 ;  Telephone  Co.  v.  Louisell,  161  Ala.  231,  50  South.  87 ;  Mackorell 
v.  Telephone  Co.,  90  S.  C.  498,  73  S.  E.  359,  875. 

is-t  Potter  V.  West.  U.  Tel.  Co.,  138  Iowa,  406,  116  N.  W.  130;  Ark.,  etc.,  R. 
Co.  V.  Stroude,  82  Ark.  117,  100  S.  W.  760 ;  llurlburt  v.  West.  U.  Tel.  Co.,  123 
Iowa,  295,  98  N.  W.  794 ;  West.  U.  Tel.  Co.  v.  Timmons,  93  Ga.  345,  20  S.  E. 
649;  Kernodle  v.  West.  U.  Tel.  Co.,  141  N.  C.  436,  54  S.  E.  423,  8  Ann.  Cas. 
469 ;  Lyne  v.  West.  U.  Tel.  Co.,  123  N.  C.  129,  31  S.  E.  350 ;  Thomas  v.  West. 
U.  Tel.  Co.,  120  Ky.  194,  85  S.  W.  760,  27  Ky.  Law  Rep.  569 ;  Glover  v.  West. 
U.  Tel.  Co.,  78  S.  C.  502,  59  S.  E.  526 ;  Postal  Tel.  Cable  Co.  v.  Pratt,  85  S.  W. 
225,  27  Ky.  Law  Rep.  430 ;  Poulnot  v.  West.  U.  Tel.  Co.,  69  S.  C.  545,  48  S.  E. 
622 ;  West.  U.  Tel.  Co.  v.  Daniels,  15  Ky.  Law  Rep.  815 ;  Klopf  v.  West.  U.  Tel. 
Co.,  100  Tex.  540,  101  S.  W.  1072,  123  Am.  St.  Rep.  831,  10  L.  R.  A.  (N.  S.) 
498 ;  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219,  21  Pac.  988 ;  West.  U.  Tel.  Co. 
V.  Cooper,  71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep.  772,  1  L.  R.  A.  728 ;  West. 
U.  Tel.  Co.  v.  De  Jarles,  8  Tex.  Civ.  App.  109.  27  S.  W.  792 ;   Evans  v.  West.  U. 


666  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  520 

whether  it  negligently  made  an  error  in  transmission/^^  and 
whether  such  negligence,  in  either  case,  was  the  proximate  cause 
of  the  injury,^*^  it  is  held  in  all  such  cases  to  be  a  question  of  fact 
for  the  jury.  It  is  a  question  for  the  jury  whether  the  conduct 
of  the  company  has  been  so  gross,  wanton,  or  willful  as  to  warrant 
the  recovery  of  exemplary  damages.^"  It  is  a  question  for  the 
determination  of  the  jury  whether  the  defendant  company  has 
submitted  sufficient  evidence  to  rebut  any  negligence  which  may 

Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  609 ;  Thompson  v.  West.  U.  Tel.  Co.,  10  Tex. 
Civ.  App.  120,  30  S.  W.  250 ;  West.  U.  Tel.  Co.  v.  Jones,  81  Tex.  271,  16  S.  W. 
1006 ;  West.  U.  Tel.  Co.  v.  Nortlicutt,  158  Ala.  539,  48  South.  553,  132  Am.  St. 
Eep.  38 ;  West.  U.  Tel.  Co.  v.  Lehman,  105  Md.  412,  66  Atl.  266 ;  Southwestern 
Tel.,  etc.,  Co.  v.  McCoy  (Tex.  Civ.  App.)  114  S.  W.  387 ;  West.  U.  Tel.  Co.  v. 
Davis  (Tex.  Civ.  App.)  51  S.  W.  2.58 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50 
South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058 ;  Telephone  Co.  v.  Griffith, 
161  Ala.  241,  50  South.  91 ;  Telephone  Co.  v.  Jackson,  163  Ala.  9,  50  South.  316 ; 
Telephone  Co.  v.  Snell,  3  Ala.  App.  263,  56  South.  854;  Marab  v.  Telephone 
Co.,  167  Mich.  192,  132  N.  W.  568 ;  Telephone  Co.  v.  Wilson,  97  Ark.  198,  133  S. 
W.  845 ;  Kivett  v.  Telephone  Co.,  156  N.  C.  296,  72  S.  E.  388 ;  Telephone  Co.  v. 
McMullin,  98  Ark.  347,  135  S.  W.  909 ;  Owen  v.  Telephone  Co.,  89  S.  C.  190.  71 
S.  E.  782 ;  Baker  v.  Telephone  Co.,  87  S.  C.  174,  69  S.  E.  151 ;  Hoaglin  v.  Tele- 
phone Co.,  161  N.  C.  390,  77  S.  E.  417 ;  Telephone  Co.  v.  Boteler,  183  Ala.  457, 
62  South.  821 ;  Wall  v.  Telephone  Co.,  92  S.  C.  449,  75  S.  E.  690 ;  Robertson  v. 
Telephone  Co.,  95  S.  C.  356,  78  S.  E.  977. 

185  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  668;  Hart  v.  West.  U.  Tel.  Co.  (Cal.) 
4  Pac.  657 ;  Sherrerd  v.  Telephone  Co.,  146  Wis.  197,  131  N.  W.  341. 

i86Dempsey  v.  West.  U.  Tel.  Co.,  77  S.  C.  399,  58  S.  E.  9 ;  Garrett  v.  West. 
U.  Tel.  Co.,  83  Iowa,  257,  49  N.  W.  88 ;  Toale  v.  West.  U.  Tel.  Co.,  76  S.  C.  248, 
57  S.  E.  117 ;  Marsh  v.  West.  U.  Tel.  Co.,  65  S.  C.  430,  43  S.  E.  953 ;  Beasley 
v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  181 ;  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C. 
402,  63  S.  E.  71,  22  L.  R.  A.  (N.  S.)  540 ;  Providence- Wash.  Ins.  Co.  v.  West.  U. 
TeL  Co.,  247  111.  84,  93  N.  E.  1.34,  30  L.  R.  A.  (N.  S.)  1170,  139  Am.  St.  Rep.  314 ; 
West.  U.  Tel.  Co.  v.  Sights,  34  Okl.  461,  126  Pac.  234,  Ann.  Cas.  1914C,  204,  42 
L.  R.  A.  (N.  S.)  419 ;  Kivett  v.  Telephone  Co.,  156  N.  C.  296,  72  S.  E.  388 ;  Tele- 
phone Co.  V.  Ford,  8  Ga.  App.  514,  70  S.  E.  65 :  Seddon  v.  Telephone  Co.,  146 
Iowa,  743,  126  N.  W.  969 ;  Mullinax  v.  Telephone  Co.,  156  N.  C.  541,  72  S.  E. 
583 ;  Telephone  Co.  v.  Evans,  108  Ark.  39,  156  S.  W.  424 ;  Ahem  v.  Oregon  Tel., 
etc.,  Co.,  24  Or.  276,  33  Pac.  403,  35  Pac.  549,  22  L.  R.  A.  635. 

Electric  com/jajues.— See  Musolf  v.  Electric  Co.,  108  Minn.  369,  122  N.  W. 
499,  24  L.  R.  A.  (N.  S.)  451 ;  Block  v.  Milwaukee,  etc.,  R.  Co.,  89  Wis.  371,  61  N. 
W.  1101,  46  Am.  St.  Rep.  849,  27  L.  R.  A.  365;  Huber  v.  La  Crosse  City  R 
Co..  92  Wis.  636,  66  N.  W.  708,  53  Am.  St.  Rep.  940,  31  L.  R.  A,  583.  See 
Mitchell  V.  Electric  Co.,  129  N.  C.  166,  39  S.  E.  801,  85  Am.  St.  Rep.  735,  55 
L.  R.  A.  398,  when  negligence  .shown  and  no  contributory  negligence  of  plain- 
tiff, court  may  charge  jury.  Compare  Brown  v.  Chesapeake,  etc.,  R.  Co.,  135 
Ky.  798.  123  S.  W.  298,  25  L.  R.  A.  (N.  S.)  717. 

1ST  Mims  v.  West.  U.  Tel.  Co.,  82  S.  C.  247,  64  S.  E.  236;  West.  U.  Tel.  Co.  v. 
Cunningham,  99  Ala.  314,  14  South.  579 ;  Glover  v.  West.  U.  Tel.  Co.,  78  S.  C. 
502,  59  S.  E.  526 ;  Marsh  v.  West.  U.  Tel.  Co.,  65  S.  C.  4.30,  43  S.  E.  953 ;  Wil- 
helm  V.  Telephone  Co.,  90  S.  C.  536,  73  S.  E.  865 ;  Trapp  v.  Telephone  Co.,  92 
S.  C.  214,  75  S.  E.  210 ;  Cable  Co.  v.  Christian,  102  Miss.  845,  .59  South.  933 ; 
Ogilvie  V.  West.  U.  Tel.  Co.,  83  S.  C.  8,  64  S.  B.  860,  137  Am.  St.  Rep.  790. 
See  §  618  et  seq. 


-§    520)  PLEADING,  PRACTICE   AND   EVIDENCE  667 

be  presumed. ^^^  The  jury  should  determine  whether  the  company 
had  any  information/^"  derived  from  any  source/""  of  special 
circumstances  which  would  warrant  the  recovery  of  special  dam- 
ages. Where  the  question  arises  in  regard  to  the  rules,  regula- 
tions and  lim'tations  of  the  company,  it  is  a  question  for  the  jury; 
so,  whether  certain  regulations  were  established,^"^  and  what 
they  were,^"^  whether  the  plaintiff  had  notice  of  such  regulations 
or  limitations,^"^  and  whether  he  assented  to  these,^"*  whether  he 
presented  his  claim  in  time  and  in  accordance  to  the  company's 
stipulation  in  this  respect,^"^  or  whether  any  of  such  stipula- 
tions, regulations,  or  limitations  were  waived,  are  questions  for 
the  jury.^"®  In  cases  where  damages  are  sought  to  be  recovered 
for  mental  anguish,  the  jury  should  decide  whether  such  injury 
has  been  sustained  ^"'^  as  the  direct  and  proximate  result  of  the 
company's    negligence.^'"®     Thus,    in    actions    brought    to    recover 

188  Hunter  v.  West.  U.  Tel.  Co.,  130  N.  C.  602,  41  S.  E.  796;  Hart  v.  West. 
V.  Tel.  Co.  (Colo.)  4  Pac.  657 ;  West.  U.  Tel.  Co.  v.  Edsall,  63  Tex.  66S ;  West. 
U.  Tel.  Co.  V.  Brown  (Tex.  Civ.  App.)  75  S.  W.  359 ;  White  v.  West.  U.  Tel.  Co. 
(C.  C.)  34  Fed.  710.  But  see  West.  U.  Tel.  Co.  v.  Elliott,  131  Ky.  340,  115  S.  W. 
228,  22  L.  R.  A.  (N.  S.)  761.  presumption  overcome. 

189  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  St. 
Rep.  169 ;  McNeil  v.  Postal  Tel.  Cable  Co.,  154  Iowa,  241,  134  N.  W.  611,  Ann. 
Cas.  1014A,  1294,  3S  Jj.  R.  A.  (N.  S.)  727 :  West.  U.  Tel.  Co.  v.  True,  105  Tex. 
344,  148  S.  W.  561,  41  L.  R.  A.  (N.  S.)  1188. 

190  West  U.  Tel.  Co.  v.  May,  8  Tex.  Civ.  App.  176,  27  S.  W.  760;  Wolff  v. 
West.  U.  Tel.  Co.,  42  Tex.  Civ.  App.  30,  94  S.  W.  1062 ;  Wallingford  v.  West. 
U.  Tel.  Co.,  60  S.  C.  201,  38  S.  E.  443,  629. 

191  West.  U.  Tel.  Co.  v.  Love  Banks  Co.,  73  Ark.  205,  83  S.  W.  949,  3  Ann. 
Cas.  712. 

192  Id. 

193  AVebl)e  v.  West.  U.  Tel.  Co.,  169  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep.  207. 

194  West.  U.  Tel.  Co.  v.  De  Golyer,  27  111.  App.  489;  Webbe  v.  West.  U.  Tel. 
Co.,  169-  111.  610,  48  N.  E.  670,  61  Am.  St.  Rep.  207 ;  Beggs  v.  Cable  Co.,  258 
111.  238,  101  N.  E.  612. 

195  West.  U.  Tel.  Co.  v.  De  Golyer,  27  111.  App.  489;  West.  U.  Tel.  Co.  v. 
Piner,  9  Tex.  Civ.  App.  1.52,  29  S.  W.  66,  whether  night  or  day  message,  dif- 
fei'ent  stipulations  therein. 

190  West.  U.  Tel.  Co.  v.  Hines,  96  Ga.  688,  23  S.  E.  845,  51  Am.  St.  Rep. 
159;  Wheelock  v.  Postal  Tel.  Cable  Co.,  197  Mass.  119,  83  N.  E.  313,  14 
Ann.  Cas.  188;  West.  U.  Tel.  Co.  v.  Stevenson,  128  Pa.  442,  18  Atl.  441,  15 
Am.  St.  Rep.  687,  5  L.  R.  A.  515. 

197  West.  U.  Tel.  Co.  v.  Merrill,  144  Ala.  618,  39  South.  121,  113  Am.  St. 
Rep.  66 ;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  'South.  712 ;  West.  U. 
Tel.  Co.  V.  Blair,  51  Tex.  Civ.  App.  427,  113  S.  W.  164 ;  Busbee  v.  Telephone 
Co.,  89  S.  C.  567,  72  S.  E.  499 ;  Telephone  Co.  v.  Cleveland,  169  Ala.  131,  53 
South.  80,  Ann.  Cas.  1912B,  534;  Telephone  Co.  v.  Bennett,  3  Ala.  App.  275, 
57  South,  87 ;  Telephone  Co.  v.  Sisson,  155  Ky.  624,  160  S.  W.  168 ;  Ellison 
V.  Telephone  Co.,  163  N.  C.  5,  79  S.  E.  277. 

198  West.  U.  Tel.  Co.  v.  Caldwell,  126  Ky.  42,  102  S.  W.  840,  31  Ky.  Law 
Rep.  497,  12  L.  R.  A.  (N.  S.)  748;  AVest.  U.  Tel.  Co.  v.  Morrill,  144  Ala.  618, 
39  South.  121,  113  Am.  St.  Rep.  66 ;    Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531, 


GG8  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  520 

damages  for  mental  anguish  suffered  in  consequence  of  the  com- 
pany failing  to  transmit  and  deliver  in  time  a  message  announc- 
ing the  serious  illness,  death  or  burial  of  some  person  related  to 
the. plaintiff,  it  is  ordinarily  a  question  for  the  jury  whether  the 
plaintiff  could  and  would  have  gone  if  the  message  had  been  de- 
livered in  time,^®®  and  whether,  under  the  circumstances,  he  could 
and  would  have  arrived  in  time.^°°  So  also,  where  the  message 
is  one  summoning  a  physician,  it  is  a  question  for  the  jury  wheth- 
er he  could  have  arrived  in  time  to  treat  the  patient  if  the  mes- 
sage had  been  delivered  in  time.^°^  The  jury  should  also  pass 
on  the  question  whether  the  plaintiff  was  in  any  wise  guilty  of 
negligence  in  the  particular  case,  and  whether  he  has  exercised 
reasonable  care  in  minimizing  the  resulting  injury  or  loss.^*'^  The 
constitution  and  statutory  laws  of  another  state  are  facts  to  be 
proved  as  are  any  other  facts  in  the  case  by  the  party  who  seeks 
to  take  advantage  of  any  difference  that  may  exist  between  them 
and  the  law  of  the  forum. -"^^  And  when  the  law  of  a  foreign  coun- 
try is  to  be  determined  by  considering  numerous  decisions  which 
may  be  more  or  less  conflicting,  or  which  bear  upon  the  subject 
only  collaterally  or  by  way  of  analogy,  and  where  inferences  may 
be  drawn  from  them,  the  question  is  one  of  fact  to  be  determined 
by  the  jury.^"* 

48  S.  E.  538,  104  Am.  St,  Rep.  828,  2  Ann.  Cas.  52;  Wiggs  v.  Southwestern 
Tel.,  etc.,  Co.  (Tex.  Civ.  App.)  110  S.  W.  179;  Beasley  v.  West.  U.  Tel.  Co. 
(C.  C.)  39  Fed.  181;  Telephone  Co.  v.  Griffith,  161  Ala.  241,  50  South.  91; 
West.  U.  Tel.  Co.  v.  Bickerstaff,  100  Ark.  1,  138  S.  W.  997,  Ann.  Cas.  1913B, 
242 ;    Poe  v.  Telephone  Co.,  160  N.  C.  315,  76  S.  E.  81, 

199  West.  U.  Tel.  Co.  v.  Ridenour,  35  Tex.  Civ.  App.  574,  80  S.  W.  1030; 
Roberts  v.  West.  U.  Tel.  Co.,  70  S.  C.  275,  56  S.  E.  960 ;  West.  U.  Tel.  Co.  v. 
May,  8  Tex.  Civ.  App.  176,  27 -S.  W.  760;  Telephone  Co.  v.  Robbins,  3  Ala. 
App.  234,  56  South.  879. 

200  Wiggs  V.  Southwestern  Tel.  Co.  (Tex.  Civ.  App.)  110  S.  W.  179;  West. 
U.  Tel.  Co.  V.  Merrill,  144  Ala.  618,  39  South.  121,  113  Am.  St.  Rep.  66; 
Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  .,39  Fed.  181;  Telephone  Co.  v.  Jarrell 
(Tex.  Civ.  App.)  138  S.  W.  1165;  Kivett  v.  Telephone  Co.,  156  X.  C.  296,  72 
S.  E.  388.  But  see  West.  U.  Tel.  Co,  v.  Housewright,  5  Tex.  Civ,  App.  1, 
23  S.  W.  824,  evidence  without  conflict. 

2  01  West.  U,  Tel.  Co.  v.  Haley,  143  Ala.  586,  39  South.  386. 

Contract  xcould  have  'been  accepted,.. — The  addressee  may  testify  that  if  the 
message  had  been  delivered  he  would  have  accepted  the  ofter  contained 
therein.  West.  U.  Tel.  Co.  v.  Sights,  34  Okl.  461,  126  Pac.  234,  Ann.  Cas. 
1914C,  204,  42  L.  R.  A.  (N.  S.)  419. 

202  Willis  V.  West.  U.  Tel.  Co.,  73  S.  C.  379,  53  S.  E.  639;  Dempsey  v.  West. 
U.  Tel.  Co.,  77  S.  C.  399,  58  S.  E.  9 ;  West.  U.  Tel.  Co.  v.  Johnsey,  49  Tex.  Civ, 
App.  487,  109  S.  W.  251 ;   Cobb  v.  Telephone  Co.,  85  S.  C.  430,  67  S.  E.  549. 

203  Woods  V.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S,  E,  653,  128  Am.  St.  Rep. 
581, 

20  4  Elec.  Welding  Co.  v.  Prince,  200  Mass.  386,  80  N,  E.  947,  128  Am.  St, 


§    521)  PLEADING,  PRACTICE   AND   EVIDENCE  6G9 

§  521.  Instructions. — The  jury  being  in  possession  of  all  the 
evidence  in  the  case,  it  is  the  duty  of  the  court  to  instruct  them 
fully,  clearly,  and  correctly  on  the  law  pertaining-  to  the  issue 
involved ;  ^°^  but  the  manner  in  which  this  is  done  is  not  different 
from  that  in  other  cases. ^*^®  In  charging  the  jury,  the  court  is 
confined  to  the  issue  involved  and  made  by  the  pleadings  and 
the  evidence. ^°^     The  charge  must  be  given  in   the  manner  pre- 

Rep.  434.  Compare  Wylie  v.  Cotter,  170  Mass.  356,  49  N.  E.  746,  64  Am.  St. 
Rep.  305 ;  Wickersham  v.  Johnston,  104  Cal.  407,  38  Pac.  89,  43  Am.  St.  Rep. 
118. 

20  5  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St. 
Rep.  38;  West.  U.  Tel.  Co.  v.  Scott,  87  S.  W.  289,  27  Ky.  Law  Rep.  975; 
West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712 ;  West.  U.  Tel.  Co. 
V.  Herning,  71  S.  W.  642,  24  Ky.  Law  Rep.  1433 ;  Hinson  v.  Postal  Tel.  Cable 
Co.,  132  N.  C.  460,  43  S.  E.  945 ;  West.  U.  Tel.  Co.  v.  Lehman,  105  Md.  442, 
66  Atl.  2G6;  Thompson  v.  West.  U.  Tel.  Co.,  106  N.  C.  549,  11  S.  E.  269; 
Mitchell  V.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016;  West. 
U.  Tel.  Co.  V.  Stubbs,  43  Tex.  Civ.  App.  132,  94  S.  W.  1083 ;  West.  U.  Tel. 
Co.  V.  McDonald,  42  Tex.  Civ.  App.  229,  95  S.  W.  691 ;  West.  U.  Tel.  Co.  v. 
Rawls  (Tex.  Civ.  App.)  62  S.  W.  136;  Telephone  Co.  v.  Chilton,  100  Ark. 
296.  140  S.  W.  26 ;  Weld  v.  Cable  Co.,  148  App.  Div.  588.  133  N.  Y.  Supp.  228 ; 
Telephone  Co.  v.  Gilliland  (Tex.  Civ.  App.)  130  S.  W.  212;  Telephone  Co.  v. 
Guinn  (Tex.  Civ.  App.)  130  S.  W.  616;  Telephone,  etc.,  Co.  v.  Carter,  1  Tenn. 
Civ.  App.  750;  Telephone  Co.  v.  Wilson  (Tex.  Civ.  App.)  152  S.  W.  1169; 
West.  r.  Tel.  Co.  v.  Price.  137  Ky.  758,  126  S.  W.  1100,  29  L.  R.  A.  (N.  S.)  836 ; 
Carmichael  v.  So.  Bell.  Tel.,  etc.,  Co.,  162  N.  C.  333,  78  S.  E.  507,  Ann.  Cas. 
1915A,  983.    See,  also,  §  619. 

20  6  Perham  v.  Electric  Co.,  33  Or.  451,  53  Pac.  14,  24,  72  Am.  St.  Rep.  730, 
40  L.  R.  A.  799;  Harrison  v.  Electric  L.  Co.,  195  Mo.  606,  93  S.  W.  951,  7 
L.  R.  A.  (N.  S.)  293 ;  Runyan  v.  Kanawha,  etc.,  Co.,  68  W.  Va.  609,  71  S.  E. 
259,  35  L.  R.  A.  (N.  S.)  430 ;  Ergo  v.  Merced,  etc..  Gas,  etc.,  Co.,  161  Cal.  334, 
119  Pac.  101,  41  L.  R.  A.  (N.  S.)  79 ;  Hodgins  v.  Bay  City,  156  Mich.  687,  121 
N.  W.  274,  132  Am.  St.  Rep.  546;  Mitchell  v.  Power  Co.,  45  S.  C.  146,  22 
S.  E.  767,  31  L.  R.  A.  577 ;  Snyder  v.  Electric  Co.,  43  W.  Va.  661,  28  S.  E. 
733,  64  Am.  St.  Rep.  922,  39  L.  R.  A.  499;  Southwestern  Tel.,  etc.,  Co.  v. 
Abeles,  94  Ark.  254,  126  S.  W.  724,  140  Am.  St.  Rep.  115,  21  Ann.  Cas.  1006. 

Burden  of  proof.— An.  instruction  is  erroneous  which  places  the  burden  of 
proof  upon  the  wrong  party.  Dehougne  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.) 
84  S.  W.  1066;  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W.  216; 
West.  TJ.  Tel.  Co.  v.  Bennett.  1  Tex.  Civ.  App.  558,  21  S.  W.  699. 

207  Ark.,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117,  100  S.  W.  760;  West.  U.  Tel. 
Co.  V.  Daniels,  15  Ky.  Law  Rep.  813;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala. 
254,  48  South.  712;  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South. 
553,  132  Am.  St.  Rep.  38;  West.  U.  Tel.  Co.  v.  Morgan,  92  Miss.  108,  45 
South.  427;  West.  U.  Tel.  Co.  v.  Manker,  145  Ala.  418,  41  South.  850;  Bol- 
ton v.  West.  U.  Tel.  Co.,.  76  S.  C.  529,  57  S.  E.  543 ;  West.  U.  Tel.  Co.  v. 
McXair,  120  Ala.  99,  23  South.  801;  Landry  v.  West.  U.  Tel.  Co.,  102  Tex. 
67,  113  S.  W.  10;  Id.  (Tex.  Civ.  App.)  108  S.  W.  461;  West.  U.  Tel.  Co.  v. 
Bowen,  97  Tex.  621,  81  S.  W.  27,  reversing  (Tex.  Civ.  App.)  76  S.  W.  613; 
West.  U.  Tel.  Co.  v.  Wisdom,  85  Tex.  261,  20  S.  W,  56,  34  Am.  St.  Rep.  805 ; 
West.  U.  Tel.  Co.  v.  Gulick,  48  Tex.  Civ.  App.  78,  106  S.  W.  698;  West.  U. 
Tel.  Co.  V.  Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251 ;  West.  U.  Tel.  Co. 
V.  Ayers,  41  Tex.  Civ.  App.  627,  93  S.  W.  199 ;    West.  U.  Tel.  Co.  v.  Adams, 


670  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  521 

scribed  by  the  law  of  the  forum,  arid,  if  in  accordance  with  this, 
it  is  given  orally,  it  must  not  be  argumentative  '"^  or  in  any  man- 
ner misleading,-"^  and  must  not  be  an  invasion  of  the  province 
of  the  jury.-^°  Requested  instructions  should  be  given  if  they  con- 
form to  the  issue  involved,-^^  otherwise  they  should  be  refused;  -^^ 

39  Tex.  Civ.  App.  517,  87  S.  W.  1060 ;  Seffel  v.  West.  U.  Tel.  Co.  (Tex.  Civ. 
App.)  65  S.  W.  897 ;  West.  U.  Tel.  Co.  v.  Newnum  (Tex.  Civ.  App.)  78  S.  W. 
700 ;  West.  U.  Tel.  Co.  v.  Norton  (Tex.  Civ.  App.)  62  S.  W.  1081 ;  West.  U.  Tel. 
Co.  V.  Redinger,  22  Tex.  Civ.  App.  362,  54  S.  W.  417;  West.  U.  Tel.  Co.  v. 
Thompson,  18  Tex.  Civ.  App.  609,  45  S.  W.  429 ;  West.  U.  Tel.  Co.  v.  Waller 
(Tex.  Civ.  App.)  47  S.  W.  396 ;  West.  U.  Tel.  Co.  v.  Lyles  (Tex.  Civ.  App.)  42 
S.  W.  636 ;  West.  U.  Tel.  Co.  v.  Housewright,  5  Tex  Civ.  App.  1,  23  S.  W.  824 ; 
West.  U.  Tel.  Co.  v.  Drake  (Tex.  Civ.  App.)  29  S.  W.  919;  West.  U.  Tel.  Co. 
V.  Cocke  (Tex.  Civ.  App.)  22  S.  W.  1005 ;  Cutts  v.  West.  U.  Tel.  Co.,  71  Wis.  46. 
36  N.  W.  627 ;  Washington,  etc.,  Tel.  Co.  v.  Hobson,  15  Grat.  (Va.)  122 ;  West. 
U.  Tel.  Co.  v.  Bickerstaff,  100  Ark.  1,  138  S.  W.  997,  Ann.  Cas.  1913B,  242 ; 
Telephone  Co.  v.  Conder  (Tex.  Civ.  App.)  138  S.  W.  447.  See  Boyd  v.  Electric 
Co.,  40  Or.  126,  66  Pac.  576,  57  L.  R.  A..  619 ;  Denver  v.  Sherret,  88  Fed.  226, 
31  C,  C.  A.  499 ;  Geismann  v.  Electric  Co.,  173  Mo.  654,  73  S.  W.  654 ;  Pierce 
V.  Gas,  etc.,  Co.,  161  Cal.  176,  118  Pac.  700. 

208  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St. 
Rep.  38;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254.  48  South.  712;  Postal 
Tel.  Cable  Co.  v.  Lathrop,  131  111.  575,  23  N.  E.  583,  19  Am.  St.  Rep.  55,  7 
L.  R.  A.  474;  Telephone  Co.  v.  Rowell,  166  Ala.  651,  51  South.  880;  Tele- 
phone Co.  T.  Archer,  96  Ark.  213,  131  S.  W.  702,  Ann.  Cas.  1912B,  593. 

209  West.  U.  Tel.  Co.  v.  Harvey,  67  Kan.  729,  74  Pac.  250;  West.  U.  Tel. 
Co.  V.  McNairy,  34  Tex.  Civ.  App.  389,  78  S.  W.  969 ;  Thompson  v.  West.  U. 
Tel.  Co.,  106  N.  C.  549,  11  S.  E.  269;  AVest.  U.  Tel.  Co.  v.  Drake,  14  Tex. 
Civ.  App.  mi,  38  S.  W.  632 ;  Mitchell  v.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App. 
262,  33  S.  W.  1016;  West.  U..  Tel.  Co.  v.  Lehman,  105  Md.  442,  66  Atl.  266; 
West.  U.  Tel.  Co.  v.  Hope,  11  111.  App.  289;  West.  U.  Tel.  Co.  v.  Benson, 
159  Ala.  254,  48  South.  712;  Arkansas,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117, 
100  S.  W.  760 ;  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W.  528 ;  West. 
U.  Tel.  Co.  V.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St.  Rep.  38; 
West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South.  73;  Telephone  Co.  v. 
Archer,  96  Ark.  213,  131  S.  W.  702,  Ann.  Cas.  1912B,  593;  Telephone  Co.  v. 
Burns,  164  Ala.  252,  51  South.  373 ;  Markley  v.  Telephone  Co.,  151  Iowa,  012, 
132  N.  W.  37 ;   Hoaglin  v.  Telephone  Co.,  161  N.  C.  390,  77  S.  E.  417., 

210  West.  U.  Tel.  Co.  v.  Hope,  11  111.  App.  289;  Kernodle  v.  West.  U.  Tel. 
Co.,  141  N.  C.  436,  54  S.  E.  423,  8  Ann.  Cas.  469 ;  West.  U.  Tel.  Co.  v.  North- 
cutt, 158  Ala.  539,  48  South.  553,  132  Am.  St.  Rep.  38;  Sherrill  v.  West.  U. 
Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429 ;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala. 
254,  48  South.  712;  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  364,  18  S.  W.  701; 
West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep.  772, 
1  L.  R.  A.  728;  Reed  v.  West.  U.  Tel.  Co.,  31  Tex.  Civ.  App.  116,  71  S.  W. 
3S9;  West.  U.  Tel.  Co.  v.  Johnson,  16  Tex.  Civ.  App.  546,  41  S.  W.  307: 
Mitchell  V.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016;  West. 
U.  Tel.  Co.  V.  Karr,  5  Tex.  Civ.  App.  60,  24  S.  W.  302 ;  Boyd  v.  Electric  Co., 
41  Or.  336,  68  Pac.  810. 

211  Sherrill  v.  West.  U.  Tel.  Co.,  116  N.  C.  655,  21  S.  E.  429;    West.  U.  Tel. 

212  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St. 
Rep.  38 ;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712 ;  Arkansas, 
etc..  R.  Co.  V.  Stroude,  82  Ark.  117,  100  S.  W.  760;  TelepLone  Co.  v.  Wilson, 
D7  Ark.  198,  133  S.  W.  845. 


§    521)  PLEADING,  PRACTICE   AND   EVIDENCE  671 

and  if  the  law  has  been  covered  by  other  instructions,  such  re- 
quested instructions  should  be  refused. ^^^  In  a  great  number  of 
cases  brought  against  these  companies  for  damages,  it  is  generally 
alleged  that  the  loss  or  injury  is  the  result  of  the  company's  neg- 
ligence, and  more  especially  is  this  so  where  the  action  is  for  a 
breach  of  duty.  Negligence  being  a  question  for  the  jury  -^*  and  to 
be  determined  from  all  the  facts  and  circumstances  theretofore 
submitted,  it  would  be  proper  for  the  court  to  instruct  them  that 
the  company  should  not  be  held  liable  if  they  should  believe  from 
such  evidence  that  it  used  that  degree  of  care  a  reasonably  prudent 
man  would  have  used  in  his  own  behalf  under  like  circumstanc- 
es.^^^  If  the  object  of  a  message  could  not  have  been  accomplish- 
ed, even  though  the  company  had  not  been  guilty  of  negligently 
transmitting  or  delivering  it,  the  company  should  not  be  held  lia- 
ble, and  the  jury  should  be  so  instructed. ^^^  Where  the  action  is 
to  recover  damages  for  mental  or  physical  suffering,  it  is  proper 
for  the  court  to  distinguish  between  suffering  actually  endured  and 
the  suffering  which  is  necessarily  an  incident  to  the  inducing  cause 
of  such  suffering.^^^  Thus,  in  an  action  brought  to  recover  dam- 
ages for  injuries  to  a  wife  by  the  failure  of  a  telegraph  company 
to  deliver  a  message  sent  to  her  physician,  the  court  should  charge 
the  jury  in  such  away  as  to  distinguish  between  suffering  actually 
endured  by  her  and  the  suffering  necessarily  incident  to  her  confine- 
Co.  V.  Weniski,  84  Ark.  457,  106  S.  W.  486;  Thompson  v.  West.  U.  Tel.  Co., 
106  N.  C.  549,  11  S.  E.  269 ;  Southwestern  Tel.,  etc.,  Co.  v.  Gotcher.  9.']  Tex. 
114,  53  S.  W.  686 ;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  .598,  10 
Am.  St.  Rep.  772,  1  L.  R.  A.  728 ;  West.  U.  Tel.  Co.  v.  Thompson  Milling  Co., 
41  Tex.  Civ.  App.  22.3,  91  S.  W.  .307;  Robertson  v.  Telephone  Co.,  95  S.  C. 
356,  78  S.  E.  977;  Lyles  v.  West.  U.  Tel.  Co.,  84  S.  C.  1,  65  S.  E.  832,  187 
Am.  St.  Rep.  829. 

213  West.  U.  Tel.  Co.  v.  Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251 ; 
Arkansas,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117,  100  S.  W.  760;  West.  U.  Tel. 
Co.  V.  Adams,  39  Tex.  Civ.  App.  517,  87  S.  W.  1060;  Erie  Tel.,  etc.,  Co.  v. 
Grimes,  82  Tex.  89,  17  S.  W.  S31 ;  West.  U.  Tel.  Co.  v.  Odom,  21  Tex.  Civ. 
App.  537,  52  S.  W.  632 ;  Herlitzke  v.  Telephone  Co.,  145  Wis.  185,  130  N.  W. 
59;  Carmichael  v.  So.  Bell.  Tel.,  etc.,  Co.,  162  N.  C.  333,  78  S.  E.  507,  Ann. 
Cas.  1915A,  983,  insufficient  in  supplying  omission  of  another  given. 

214  See  §  920. 

215  Gulf,  etc.,  R.  Co.  V.  Wilson,  69  Tex.  739,  7  S.  W.  653. 

216  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  1  L.  R.  A.  728,  10 
Am.  St.  Rep.  772. 

217  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  1  L..  R.  A.  728, 
10  Am.  St.  Rep.  772.  See,  also,  Harrison  v.  West.  U.  Tel.  Co.,  130  N.  C.  381, 
48  S.  E.  772 ;  Glover  v.  West.  U.  Tel.  Co.,  78  S.  C.  502,  59  S.  E.  526 ;  West 
U.  Tel.  Co.  V.  Johnson,  164  Ala.  229,  51  South.  230;  Shepard  v.  West.  U.  Teh 
Co.,  143  N.  C.  244,  55  S.  E.  704,  118  Am.  St.  Rep.  796,  of  considering  ques- 
tions of  instruction  in  mental  anguish  cases. 


672  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  522 

ment.-^^  If  the  plea  of  the  defendant  should  contain  averments 
to  the  effect  that  the  plaintiff  contributed  to  the  loss  or  injury,  and 
there  is  evidence  to  sustain  the  averment,  it  will  be  error  for  the 
court  to  charge  the  jury  that  the  defendant  is  liable,  if  they  find 
that  it  negligently  transmitted  or  delivered  the  message. ^^^ 

§  522.  Weight  and  sufficiency. — In  actions  against  telegraph, 
telephone,  and  electric  companies,  as  in  other  civil  cases,  the  plain- 
tiff must  make  out  his  case  by  a  preponderance  of  the  evidence.^^° 
In  all  actions  based  upon  contract  or  tort,  there  are  several  es- 
sential matters  which  must  be  alleged  and  proved ;  that  is  to  say, 
it  must  be  shown  that  there  is  a  valid  enforceable  contract  between 
the  plaintiff  and  the  company  and  that  out  of  which  the  action 
arises,  or  that  the  company  owes  a  duty  to  the  plaintiff  in  the  par- 
ticular instance,^^^  and  that  the  contract  or  tort  has  been  breached 
through  the  negligence  of  the  company,  and  thereby  proximately 
causing  the  injury  complained  of^--  to  plaintiff's  damage. ^"^  In 
establishing  each  of  these  facts,  it  must  be  done  by  a  preponder- 
ance of  evidence.  The  plaintiff  must  prove  by  a  preponderance 
of  the  evidence  facts  and  circumstances  sufficient  to  recover  ex- 
emplary damages  ^^*  or  damages  for  mental  anguish  -^^  where  ei- 

218  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  59S,  1  L.  R.  A.  728, 
10  Am.  St.  Rep.  772. 

219  West.  U.  Tel.  Co.  v.  McNair,  120  Ala.  99,  23  South.  SOI. 
220Newsome  v.  West.  U.  Tel.  Co.,  144  N.  C.  178,  56  S.  E.  863;    Slaughter 

V.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  112  S.  W.  688 :  Graham  v.  Detroit,  etc, 
R.  Co.,  151  Mich.  629,  115  N.  W.  993,  25  L.  R.  A.  (N.  S.)  326;  West.  U.  Tel. 
Co.  V.  True,  105  Tex.  344,  148  S.  W.  561,  41  L.  R.  A.  (N.  S.)  1188 ;  Telephone, 
etc.,  Co.  V.  Jarrell  (Tex.  Civ.  App.)  138  S.  W.  1165;  Herlitzke  v.  Telephone 
Co.,  145  Wis.  185,  130  N.  W.  59 ;  Smith  v.  Telephone,  etc.,  Co.,  109  Ark.  35, 
158  S.  W.  975  ;•  Goodwin  v.  Telephone  Co.  (Tex.  Civ.  App.)  160  S.  W.  107. 

221  Sweatland  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa,  433,  1  Am.  Rep.  285;  Alkon 
V.  West.  U.  Tel.  Co.,  69  Iowa,  31,  28  N.  W.  419,  58  Am.  Rep.  210;  Ayres  v. 
West.  U.  Tel.  Co.,  65  App.  Div.  149,  72  N.  T.  Supp.  634 ;  West.  U.  Tel.  Co.  v. 
Barnes,  95  Tenn.  271,  32  S.  W.  207 ;  Telephone  Co.  v.  Wright,  169  Ala.  104, 
53  South.  95;  Telephone,  etc.,  Co.  v.  Kelly,  103  Ark.  442,  147  S.  W.  457; 
Telephone  Co.  v.  McFrancis  (Tex.  Civ.  App.)  149  S.  W.  574 ;  Bertuch  v.  Tele- 
phone, etc.,  Co.,  79  Misc.  Rep.  10,  139  N.  Y.  Supp.  289. 

222Kewsome  v.  West.  U,  Tel.  Co.,  144  N.  C.  178,  56  S.  E.  863;  Hauser  v. 
West.  U.  Tel.  Co.,  150  N.  C.  557,  64  S.  E.  503 ;  Slaughter  v.  West.  U.  Tel.  Co. 
(Tex.  Civ.  App.)  112  S.  W.  688 ;  Telephone  Co.  v.  Duke,  108  Ark.  8,  156  S.  W. 
452. 

22  3  West.  U.  Tel.  Co.  v.  Morris  (Tex.  Civ.  App.)  33  S.  W.  1025 ;  West.  U.  Tel. 
Co.  V.  Waxelbaum,  113  Ga.  1017,  39  S.  E.  443,  56  L.  R.  A.  741 ;  West.  U.  Tel. 
Co.  V.  Bertram,  1  White  &  W.  Civ.  Cas.  Ct.  App.  §  1152 ;  West.  U.  Tel.  Co.  v. 
Williams,  163  Fed.  513,  90  C.  C.  A.  143. 

221  Johnson  v.  West.  U.  Tel.  Co.,  82  S.  C.  87,  63  S.  E.  1.  See  Busbee  v.  Tele- 
phone Co.,  89  S.  C.  567,  72  S.  E.  499. 

225  Hauser  v.  West.  U.  Tel.  Co.,  150  N.  C.  557,  64  S.  E.  503;  West.  U.  Tel. 
Co.  V.  Long,  90  Ark.  203,  118  S.  W.  405;  Telephone  Co.  v.  Johnson,  164  Ala. 


§    522a)  PLEADING,  PRACTICE   AND   EVIDENCE  673 

ther  kind  is  claimed.  Where  the  defendant  is  relying  on  affirma- 
tive defense, '^^  or  where  there  is  a  prima  facie  case  of  negligence  to 
be  overcome  by  him,^-'^  he  must  submit  sufficient  evidence  to  pre- 
ponderate that  of  the  plaintiff.  It  devolves  upon  the  plaintiff 
to  show  by  a  preponderance  of  evidence  that  the  company  has 
been  guilty  of  negligence, ^^®  and  that  such  negligence  was  the 
proximate  cause  of  the  injury  or  loss.^^^  Whether  this  has  been 
done  must  be  determined  by  the  evidence  in  each  particular  case. 
So  also  the  same  rule  applies  where  it  is  attempted  to  be  shown 
that  there  was  no  contributory  negligence,^^*'  or  that  there  is 
enough  evidence  to  support  the  verdict  for  the  plaintiff.^^^ 

§  522a.  Expert  evidence — cause  of  death. — Opinions  of  wit- 
nesses specially  qualified  to  testify  to  matters  involving  scientific 
or  technical  knowledge  of  electrical  currents  not  possessed  by 
an  ordinary  witness  are  frequently  received  in  actions  against  elec- 
trical companies.  If,  in  such  cases,  the  jury  are  equally  capable 
with  the  witness  of  forming  an  opinion  from  the  facts  stated, 
such  evidence  is  inadmissible.^^^  Furthermore,  to  render  such 
evidence  admissible,  the  witness  must  be  specially  qualified  to  give 

229,  51  South.  230 ;  Telephone  Co.  v.  Moore  (Tex.  Civ.  App.)  139  S.  W.  1020 ; 
Telephone  Co.  v.  Wright,  169  Ala.  101,  53  South.  95 ;  Ellison  v.  Telephone  Co., 
163  N.  C.  5,  79  S.  E.  277 ;  Telephone  Co.  v.  Glenn  (Tex.  Civ.  App.)  156  S.  W. 
1116.    See  §§  601,  602. 

2  26  West.  U.  Tel.  Co.  v.  Olivarri  (Tex.  Civ.  App.)  110  S.  W,  930;  Kendall  v. 
West.  U.  Tel.  Co.,  56  Mo.  App.  192 ;  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.) 
33  S.  W.  742. 

22T  See  §  509. 

22  8  Light,  etc.,  Co.  v.  Sheridan,  200  III.  439,  65  N.  E.  1070;  Owensboro  v. 
Knox,  76  S.  W.  191,  25  Ky.  Law  Rep.  6S0 ;  West.  U.  Tel.  Co.  v.  State,  82  Md. 
293,  33  Atl.  763,  51  Am.  St.  Rep.  464,  31  L.  R.  A.  572 ;  Braham  v.  Electric  Co., 
72  App.  Div.  456,  76  N.  Y.  Supp.  578 ;  Ludwig  v.  Metropolitan,  etc.,  R.  Co.,  71 
App.  Div,  210,  75  N.  Y.  Supp.  667;  Boyd  v.  Electric  Co.,  41  Or.  336,  68  Pae. 
810 ;  Herron  v.  Pittsburg,  204  Pa.  509,  54  Atl.  311,  93  Am.  St.  Rep.  798 ;  Pisher 
V.  New  Bern,  140  N.  C.  506,  53  S.  E.  342,  5  L.  R.  A.  (N.  S.)  542,  111  Am.  St. 
Rep.  857. 

22  0  Atlanta  Consol.,  etc.,  R.  Co.  v.  Owings,  97  Ga.  663,  25  S.  E.  377,  33  D.  R. 
A.  798 ;  Paine  v.  Elec.  111.  Co.,  64  App.  Div.  477,  72  N.  Y.  Supp.  279 ;  Electric, 
etc.,  Co.  V.  McCoy  (Tex.  Civ.  App.)  149  S.  W.  534. 

2^0  Knowlton  v.  Des  Moines,  etc.,  L.  Co.,  117  Iowa,  451,  90  N.  W.  818;  Clem- 
ents v.  Electric  L.  Co.,  44  La.  Ann.  692,  11  South.  51,  32  Am.  St.  Rep.  348,  16 
L.  R.  A.  43 ;  Electric  L.  Co.  v.  Johnson,  67  Neb.  393,  03  N.  W.  778 ;  Snyder  v. 
Telephone  Co.,  135  Iowa,  215,  112  N.  W.  776,  14  L.  R.  A.  (N.  S.)  321 ;  Gas,  etc., 
Co.  V.  State,  109  Md.  186,  72  Atl.  655 ;  Von  Trebra  v.  Gas  L.  Co.,  209  Mo.  648, 
108  S.  W.  559;  Dutcher  v.  Electric  Co.,  123  App.  Div.  765,  108  N.  Y.  Supp.  567; 
Davenport  v.  Electric  Co.,  242  Mo.  Ill,  145  S.  W.  454;  Crosby  v.  Railroad 
Co.,  53  Or.  490,  100  Pac.  300,  101  Pac.  204. 

2  31  See  §  511  et  seq. 

232  Thus  the  stringing  of  wires  from  one  pole  to  another  through  branches  of 
Jones  Tel.(2d  Ed.) — 43 


674  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  522a 

it,-^''  and  the  question  involved  must  be  material  and  one  which 
requires  special  knowledge. ^^*  Even  then,  when  such  evidence 
is  admissible,  the  question  must  ultimately  be  determined  by  the 
jury.^'''^  Electrical  experts  are  sometimes  called  to  testify  to  mat- 
ters concerning  the  safety  or  danger  of  certain  electrical  construc- 
tions, such  as  the  installation  of  interior  fixtures,'^"  or  the  con- 
struction of  the  line.-^'^  Then,  there  are  certain  incidents  in  the 
management  of  electric  lighting  and  heating  systems  which  may 
be  beyond  the  knowledge  of  jurors  so  as  to  require  the  evidence  of 
such  witnesses. ^^^  Experts  may  testify  as  to  the  nature  and  cause 
of  electrical  currents,-^^  and  the  efTect  thereof  upon  objects  com- 
ing in  contact  therewith.^*"  It  is  sometimes  difficult  in  determin- 
ing whether  an  electrical  shock  is  the  cause  of  the  death  of  a  per- 

intervening  trees.  Flynn  v.  Boston  Elec.  L.  Co.,  171  Mass.  395,  50  N.  E.  9.37 ; 
Meelaan  v.  Holyoke,  etc.,  Ry.  Co.,  186  Mass.  511,  72  N.  B.  61.  See  Drown  v. 
New  England  Tel.,  etc.,  Co.,  81  Vt.  358,  70  Atl.  599. 

233  See  Electric  Co.  v.  Corbin,  109  Md.  412,  72  Atl.  606;  Anthony  v.  Cass  Co. 
Home  Tel.  Co.,  165  Mich.  388,  130  N.  W.  659 ;  Monds  v.  Dunn,  163  N.  C.  108, 
79  S.  E.  303;  Denison,  etc.,  Power  Co.  v.  Patton  (Tex.  Civ.  App.)  135  S.  W. 
1040. 

234  See  Anthony  v.  Cass  -Co.  Home  Tel.  Co.,  165  Mich.  3SS,  130  N.  W.  659. 

235  Electric  L.,  etc.,  Co.  v.  State,  109  Md.  186,  72  Atl.  651;  Swan  v.  Salt 
Lake,  etc.,  R.  Co.,  41  Utah,  518,  127  Pac.  267.  But  see  Clark  v.  Johnson 
County  Tel.  Co.,  146  Iowa,  428,  123  N.  W.  327 ;  Cumbei-land  Tel.,  etc.,  Co.  v. 
Peacher  Mill  Co.,  129  Tenn.  374,  164  S.  W.  1145,  D.  R.  A.  1915A,  1045,  a  wit- 
ness cannot  give  his  opinion  that  a  fire  was  probably  caused  by  the  lightning 
following  the  wires. 

2  36  See  Fish  v.  Electric  L.,  etc.,  Co.,  189  N.  Y.  336,  82  N.  E.  150,  13  L.  R.  A. 
(N.  S.)  226 ;  Excelsior  Elec.  Co.  v.  Sweet,  57  N.  J.  Law,  224,  30  Atl.  553,  to  ex- 
plain the  imperfections  in  certain  constructions ;  German-American  Ins.  Co.  v. 
Electric  L.,  etc.,  P.  Co.,  103  App.  Div.  310,  93  N.  Y.  Supp.  46,  affirmed  in  185 
N.  Y.  581,  78  N.  E.  1103 ;  Webster  v.  Richmond  L.,  etc.,  Co.,  158  App.  Div.  210, 
143  N.  Y.  Supp.  57. 

237  Southwestern  Tel.,  etc.,  Co.  v.  Luckie  (Tex.  Civ.  App.)  153  S.  W.  1158; 
Warren  v.  City  Electric  Ry.  Co.,  141  Mich.  298,  104  N.  W.  613 ;  Murphy  v.  Pa- 
cific Tel.,  etc.,  Co.,  68  Wash.  643,  124  Pac.  114;  Electric  Co.  v.  Walters,  39 
Colo.  301,  89  Pac.  815 ;  Citizens'  Tel.  Co.  v.  Thomas,  45  Tex.  Civ.  App.  20,  99 
S.  W.  879 ;  Fritz  v.  West.  U.  Tel.  Co.,  25  Utah,  263,  71  Pac.  209 ;  Bernier  v. 
St.  Paul  Gas  L.  Co.,  92  Minn.  214,  99  N.  W.  778 ;  Kansas  City,  etc.,  R.  Co.  v. 
Rogers,  203  Fed.  462,  121  C.  C.  A.  586;  Barrett  v.  New  England,  etc.,  Tel.  Co., 
201  Mass.  117,  87  N.  E.  565. 

238  Jacksonville  Elec.  Co.  v.  Sloan,  52  Fla.  257,  42  South.  516;  Cleburne 
Elec,  etc.,  Co.  v.  McCoy  (Tex.  Civ.  App.)  149  S.  W,  534 ;  Consolidated  Gas,  etc., 
Co.  V.  State,  109  Md.  186,  72  Atl.  651. 

239  Prince  v.  Lowell  Elec.  L.  Corp.,  201  Mass.  276,  87  N.  E.  558;  Riley  v. 
City  of  Independence,  258  Mo.  671,  167  S.  W.  1022,  Ann.  Cas.  1915D,  748 ;  No- 
lan V.  Newton  St.  Ry.  Co.,  206  Mass.  384,  92  N.  E.  505 ;  Denver  Tramway  Co. 
V.  Reid,  4  Colo.  App.  53,  35  Pac.  2G9. 

240  Escambia  Co.  Elec.  L.,  etc.,  Co.  v.  Sutherland,  61  Fla.  167,  55  South.  83; 
Anthony  v.  Cass  Co.  Home  Tel.  Co.,  165  Mich.  388,  130  N.  W.  659. 


§    523)  PLEADING,  PRACTICE   AND   EVIDENCE  675 

son  in  the  absence  of  eyewitness  to  the  accident;  but  the  rule  is 
that,  where  a  person  is  found  dead  in  proximity  to  an  electrical  ap- 
pliance, contact  with  which  is  capable  of  producing  death,  and  no 
cause  for  his  death  other  than  the  electric  current  is  presented,  the 
jury  may  be  authorized  to  find  that  death  was  caused  by  an  elec- 
tric current  passing  from  the  appliance.-*-^ 

§  523.  Appeal  and  error. — It  is  a  general  rule  of  law  that  a  par- 
ty cannot  have  a  case  reversed  on  an  error  which  has  not  been 
prejudicial  to  him.^*^  So,  where  such  error  results  from  the  ad- 
mission of  certain  evidence  -*^  or  the  giving  of  certain  instruc- 
tions -**  to  the  jury,  and  the  appellant  is  not  harmed  or  prejudiced 
in  his  cause  thereby,  he  could  not  obtain  a  reversal  therefor.  All 
evidence  must  be  submitted  on  the  trial  of  the  case  and  not  in  the 
appellate  court,^*^  and  so,  if  the  evidence  has  thus  been  omitted 
in  the  first  court,  it  would  be  no  ground  for  a  reversal  of  the  case. 
The  case  cannot  be  reversed  on  the  fact  that  the  verdict  was  based 
upon  conflicting  evidence,^*®  provided  there  was  enough  to  sup- 
port the  verdict.'*'^  However,  if  there  is  not  enough  evidence  to 
support   such   a  verdict,    it   would   be   grounds   for   reversing   the 

241  Staab  V.  Rocky  Mountain  Bell  Tel.  Co.,  23  Idaho,  314,  129  Pac.  107S ; 
Indianapolis,  etc.,  Co.  v.  Dolby,  47  Ind.  App.  406,  92  N.  E.  7.39 ;  Smith  v.  Twin 
City  Rapid  Transit  Co.,  102  Minn.  4,  112  N.  W.  1001 ;  Suburban  Elec.  Co.  v. 
Nugent,  58  N.  J.  Law,  658,  34  Atl.  1069,  32  L.  R.  A.  700 ;  Morgan  v.  Westmore- 
land Elec.  Co.,  213  Pa.  151,  62  Atl.  638 ;  Citizens'  Tel.  Co.  v.  Thomas,  45  Tex. 
Civ.  App.  20,  99  S.  W.  879 ;  Ohrstrom  v.  Tacoma,  57  Wash.  121,  106  Pac.  629 ; 
Economy,  etc.,  Power  Co.  v.  Sheridan,  200  111.  4.39,  65  N.  E.  1070;  Martin  v. 
Des  Moines,  etc.,  L.  Co.,  131  Iowa,  724,  106  N.  W.  359;  Byerly  v.  Light,  etc., 
Co.,  130  Mo.  App.  593,  109  S.  W.  1065. 

242  Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  10.34,  70  Am.  St. 
Rep.  181 ;  Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky.  788,  112  S.  W.  897,  19 
L.  R.  A.  (N.  S.)  575. 

243  West.  U.  Tel.  Co.  v.  Littlejohn,  72  Miss.  1025,  18  South.  418;  Roberts  v. 
West.  U.  Tel.  Co.,  76  S.  E.  275,  56  S.  E.  960 ;  West.  U.  Tel.  Co.  v.  Hamilton, 
30  Tex.  Civ.  App.  300,  81  S.  W.  10.52. 

244  Postal  Tel.  Cable  Co.  v.  Lathrop,  131  111.  575,  23  N.  E.  583,  19  Am.  St. 
Rep.  55,  7  L.  R.  A.  474 ;  Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N. 
W.  10.34,  70  Am.  St.  Rep.  181 ;  West.  U.  Tel.  Co.  v.  Lehman,  105  Md.  442,  66 
Atl.  266 ;  Sherrill  v.  West.  U.  Tel.  Co.,  117  N.  C.  352,  23  S.  E.  277 ;  Southwest- 
ern Tel.,  etc.,  Co.  v.  Owens  (Tex.  Civ.  App.)  116  S.  W.  89 ;  West.  U.  Tel.  Co.  v. 
Stephens,  2  Tex.  Civ.  App.  129,  21  S.  W.  148 ;  West.  U.  Tel.  Co.  v.  Edmonson 
(Tex.  Civ.  App.)  40  S.  W.  622 ;  Telephone,  etc.,  Co.  v.  Smithdeal,  104  Tex.  2.58, 
136  S.  W.  1049. 

24  5  West.  U.  Tel.  Co.  v,  De  Golyer,  27  111.  App.  489 ;  West.  U.  Tel.  Co.  v.  Hop- 
kins, 49  Ind.  223. 

2  40  West.  U.  Tel.  Co.  v.  Jones,  81  Tex.  271,  10  S.  W.  1006. 

247  West.  U.  Tel.  Co.  v.  Jones,  81  Tex.  271,  16  S.  W.  1006;  Harper  v.  West. 
U.  Tel.  Co.,  92  Mo.  App.  304 ;  Gulf,  etc.,  R.  Co.  v.  Wilson,  69  Tex.  739,  7  S.  W. 
653. 


676  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  523 

case.^*^  So  also,  if  an  error  has  been  made,  and  the  judgment  ren- 
dered thereon  can  be  corrected,  or  where  it  is  partially  wrong  and 
the  bad  part  can  be  separated  from  the  good,  the  case  will  not  be 
subject  to  a  reversal. -*° 

248  Gulf,  etc.,  R.  Co.  V.  Wilson,  69  Tex.  739,  7  S.  W.  653. 

249  Pacific  Postal  Tel.  Cable  Co.  v.  Fleischner,  66  Fed.  899,  14  CCA.  166. 


I    524)  MEASURE   OF  DAMAGES  677 


CHAPTER  XX 

MEASURE  OF  DAMAGES 

§  524.  Scope  of  chapter. 

525.  Damages  defined — nominal  damages. 

52r..  General  rule — Hadley  v.  Baxendale. 

527.  Same  continued — not  only  actual  but  contemplative  damages. 

528.  Actions  in  contract  and  in  tort— applicable  to  both. 

529.  Same  continued — c-haracter  of  damages  arising  from  each — kind   of 

actions — amount   of  information. 

530.  Remote  damages. 

531.  Same  continued — speculative  damages. 

532.  Intervening  causes. 

533.  Effect  of  special  circumstances — notice. 

534.  How  communicated  to  the  company — information. 

535.  Same  continued — damages— remote  and  speculative. 

536.  Cipher  or  otherwise  unintelligible  messages. 

537.  Same  continued — reason  of  rule. 

538.  Contrary  view. 

539.  When  message  discloses  its  importance. 

540.  Same  continued — need  not  be  informed  of  all  facts. 

541.  Question  for  jury, 

542.  Same  continued — extrinsic  facts  of  importance. 

543.  Messages  relating  to  business  transactions. 

544.  Rule  in  "mental  anguish  cases." 

545.  Same  continued — relationship  of  person  affected. 

546.  Same  continued — reason  of  rule — nearness  of  relationship. 

547.  Same  continued — interest  of  the  party  in  the  transaction. 

548.  Same  continued — deprived  of  the  addressee's  consolation. 

549.  Damages  which  might  have  been  prevented. 

550.  Same — damages  which  could  not  have  been  prevented — contributory 

negligence. 

§  524.  Scope  of  chapter. — It  is  our  purpose,  in  this  chapter,  to 
discuss  at  some  length  the  amount  of  damages  which  may  be  re- 
covered against  telegraph  companies  for  breaches  of  their  contrac- 
tual or  public  duties,  and  the  means  by  which  the  measurement  of 
same  may  be  ascertained.  While  commenting  upon  this  subject,  it 
may  be  proper  to  state  at  the  outset  that  there  is  no  visible  distinc- 
tion between  the  rule  laid  down  and  generally  followed  by  all 
courts  and  text-writers  to  ascertain  these  facts  in  cases  against  tele- 
graph companies  and  that  in  actions  against  other  corporations^ 
and  private  persons;    for  this  reason  it  will  not  be  necessary  to 

1  See  §  526.  See,  also,  West.  U.  Tel.  Co.  v.  Foy,  32  Okl.  801,  124  Pac.  305, 
49  L.  R.  A.  (N.  S.)  343. 


678  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  525 

discuss  extensively  the  common  and  accepted  rule  whereby  the 
measure  of  damages  is*  ascertained  in  such  cases,  but  simply  to  ex- 
plain and  illustrate  this  rule  as  it  is  applicable  particularly  to  ac- 
tions against  telegraph  companies. 

§  525.  Damages  defined — nominal  damages. — The  term  "dam- 
ages" means  a  pecuniary  satisfaction  which  a  party  may  recover 
against  another,  in  an  action  wherein  it  is  alleged  that  the  latter  has 
infringed  upon  some  of  the  former's  legal  rights  to  his  loss  or  in- 
jury. So  it  may  be  seen  that  there  must  be  an  infringement  of  some 
legal  right  before  an  action  can  successfully  be  maintained;^  and, 
where  there  has  been  an  infringement  of  these  rights,  damages  in- 
evitably result,  It  is  the  act  of  infringement  of  these  legal  rights, 
and  not  the  consequence  of  such  act,  which  makes  out  the  case,  yet 
it  is  necessary  to  know  the  consequences  in  order  to  determine  the 
amount  of  damages  to  be  recovered.  The  general  rule  is  that  dam- 
ages are  in  the  nature  of  a  compensation ;  so  it  follows  from  this 
that  the  plaintiff  can  recover,  at  the  utmost,  only  such  damages  as 
are  coextensive  with  the  loss  or  injury  sustained.  If  it  cannot  be 
shown  that  there  is  an  injury  or  loss  sustained  by  the  act  of  in- 
fringement, only  nominal  damages,  if  any,  can  be  recovered.  So, 
where  a  telegraph  company  has  made  a  contract  to  transmit  and 
deliver  a  message,  but  has  failed  to  carry  out  such  contract,  the 
party  whose  rights  are  violated  thereby  would  be  entitled  to  re- 
cover nominal  damages,  at  least,  although  he  does  not  show  any 
actual  damages,^  but  only  nominal  damages  could  be  recovered  if 
he  fails  to  show  any  actual  recoverable  damages.'*  The  party  thus 
injured  may  be  allowed  to  recover  as  actual  damages,^  the  charges 

2  Rocky  Mountain  Bell  Tel.  Co.  v.  Utah  Ind.  Tel.  Co.,  31  Utah,  377,  88  Pac.        m 
26,  8  L.  R.  A.  (N.  S.)  1153. 

3  West.  U.  Tel.  Co.  v.  Haley,  143  Ala.  586,  39  South.  386 ;  Richmond  Hosiery 
Mills  T.  West.  U.  Tel.  Co.,  123  Ga.  216,  51  S.  E.  290;  West.  U.  Tel.  Co.  v. 
Westmoreland,  150  Ala.  654,  43  South.  790;  Glenn  v.  West.  U.  Tel.  Co.,  1 
Ga.  App.  S21,  58  S.  E.  S3;  Denham  v.  West.  U.  Tel.  Co.,  87  S.  W.  788.  27 
Ky.  Law  Rep.  999 ;  West.  U.  Tel.  Co,  v.  Bryant,  17  Ind.  App.  70,  46  N.  E.  358 ; 
Geroclv  v.  West.  U.  Tel.  Co.,  147  N.  C.  1,  60  S.  E.  637;  West.  U.  Tel.  Co.  v. 
Hendricks,  26  Tex.  Civ.  App.  366,  63  S.  AV.  341;  Hall  v.  West.  U.  Tel.  Co., 
139  X.  C.  369,  52  S.  E.  50;  Hibbard  v.  West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am. 
Rep.  775 ;  Reynolds  v.  West.  U.  Tel.  Co.,  81  Mo.  App,  223 ;  Howard  v.  West. 
U,  Tel.  Co.,  106  Ark.  559,  153  S.  W.  803. 

4  Merrill  v.  West.  U.  Tel.  Co.,  78  Me.  97,  2  Atl.  847 ;  Smith  v.  West.  U.  Tel. 
Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126;  Beatty  Lbr.  Co.  v.  West,  U.  Tel.  Co., 
52  W.  Va.  410,  44  S.  E.  309;  Walser  v.  West.  U.  Tel.  Co.,  114  N.  C.  440,  19 
S.  E.  366 ;  Cherokee  Tanning  Extract  Co.  v.  West.  U.  Tel.  Co.,  143  N.  C.  376, 
55  S.  E.  777,  118  Am.  St.  Rep.  S06 ;  West.  U.  Tel.  Co.  v.  Williams,  163  Fed. 
513,  90  C.  C.  A.  143;  Larsen  v.  Postal  Tel.  Cable  Co.,  150  Iowa,  748,  130 
N.  W.  813. 

5  West.  U.  Tel.  Co.  v.  Lawson,  66  Kan.  660,  72  Pac.  283 ;    Real  v.  West.  U. 


I 


§    526)  MEASURE   OF   DAMAGES  G79 

paid  for  transtnission,"  whether  the  action  is  in  contract  or  tort/ 
provided  said  charges  have  been  actually  paid  by  him ;  ^  however, 
this  is  the  limit  of  his  recovery  where  no  actual  damages  are 
shown." 

§  526.  General  rule — Hadley  v.  Baxendale. — It  being  presumed 
that  the  plaintiff  has  been  injured  in  some  of  his  rights,  and  that  he 
is  entitled  to  be  compensated  in  damages  therefor,  the  question 
which  then  presents  itself  is,  By  what  method  can  the  amount  to 
be  awarded  be  measured;  or,  in  other  words,  by  what  means  can 
the  loss  or  injury  sustained  be  measured  or  determined,  so  that  the 
plaintifif  may  be  awarded  an  amount  in  damages  equivalent  to,  or 
coextensive  with,  the  loss  or  injury  as  a  compensation  therefor? 
The  rule  laid  down  on  this  subject,  and  the  one  to  be  followed  in 
this  work,  is  so  generally  used  that  it  has  become  a  proverb  in  law, 
and  is  universally  recognized  and  accepted  as  a  fundamental  prin- 
ciple in  the  law  of  damages  for  a  negligent  breach  of  a  contract. 
The  rule  upon  which  all  cases  of  this  nature  have  been  based  is  that 
given  in  the  well-known  English  case  of  Hadley  v.  Baxendale,  and 
the  exact  statement  of  the  rule  therein  given  is  that,  "When  two 
parties  have  made  a  contract  which  one  of  them  has  broken,  the 
damages  which  the  other  party  ought  to  receive  in  respect  of  such 
breach  of  contract  should  be  such  as  may  fairly  and  reasonably  be 
considered,  either  as  arising  naturally,  i.  e.,  according  to  the  usual 
course  of  things,  from  such  breach  of  contract  itself,  or  such  as 
may  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties  at  the  time  they  made  the  contract,  as  the  probable  re- 
sult of  the  breach  of  it."  ^°     As  can  be  seen,  this  rule  excludes  the 

Tel.  Co.,  153  N.  C.  331,  69  S.  E.  247 ;    Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522, 
76  Atl.  736,  43  L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas.  895.     See  §  02S. 

6  West.  U.  Tel.  Co.  v.  Lawson,  66  Kan.  6G0,  72  Pac.  283;  West.  U.  Tel. 
Co.  V.  Crumpton,  138  Ala.  632,  36  South.  517;  Taliferro  v.  West.  U.  Tel. 
Co.,  52  S.  W.  825,  21  Ky.  Law  Rep.  1290:  Abeles  v.  West.  U.  Tel.  Co.,  37 
Mo.  App.  554 ;  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155 ;  Kennon  v. 
West.  U.  Tel.  Co.,  126  N.  C.  232,  35  S.  E.  468;  West.  U.  Tel.  Co.  v.  Adams, 
75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A.  844.     See  §  628. 

7  West.  U.  Tel.  Co.  V.  Westmoreland,  150  Ala.  654,  43  South.  790.     See  §  628. 

8  Bass  V.  Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.) 
489. 

9  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  :Miun.  1.55 ;  Hushes  v.  West,  U.  Tel. 
Co.,  114  N.  C.  70,  19  S.  E.  100,  41  Am.  St.  Rep.  782;  Pennington  v.  West. 
U.  Tel.  Co.,  67  Iowa,  631,  24  N.  W.  45,  25  N.  W.  838,  56  Am.  Rep.  367 ;  Levy 
V.  West.  U.  Tel.  Co.,  35  Mo.  App.  170 ;  West.  U.  Tel.  Co.  v.  Parks  (Tex.  Civ. 
App.)  25  S.  W.  813 ;  Cutts  v.  West.  U.  Tel.  Co.,  71  Wis.  46,  36  N.  W.  627.  See 
§  628. 

10  Hadley  v.  Baxendale,  9  Exch.  341;  Stone  v.  Postal  Tel.  Cable  Co.,  35  R. 
I.  498,  87  Atl.  319,  46  L.  R.  A.  (N.  S.)  180. 


080  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  526 

consideration  of  all  damages  which  are  remote  or  speculative,  and 
only  such  as  are  the  proximate  consequence  of  the  injury  com- 
plained of  can  be  recovered.  The  rule  itself  is  a  definite  statement 
of  what  damages  the  breach  of  a  contract  is  the  proximate  cause/^ 
and  the  accepted  maxim,  Causa  proxima  non  remofa  spectatur,  ex- 
cludes the  consideration  of  all  damages  which  are  not  the  proxi- 
mate result  of  the  injury  alleged  to  have  been  committed.  Hence 
it  may  be  stated  as  a  general  rule  that  a  telegraph  company  is  lia- 
ble for  such  damages  as  naturally  and  proximately  arise  from  its 
negligent  failure  to  transmit  and  deliver  a  message  without  unrea- 
sonable delay.^^  j 

11  Primrose  v.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098,  38  L.  Ed. 
8S3 ;  Pacific  Postal  Tel.  Cable  Co.  v.  Fleiscliner,  66  Fed.  899,  14  C.  C.  A.  166 ; 
MoBride  v.  Sunset  Tel.  Co.  (C.  C.)  96  Fed.  81 ;  West.  U.  Tel.  Co.  v.  Henley, 
23  Ind.  App.  14,  54  N.  E.  775.  Compare  Squire  v.  West.  U.  Tel.  Co.,  98  Mass. 
232,  93  Am.  Dec.  157;  Postal  Tel.  Cable  Co.  v.  Barwise,  11  Colo.  App.  328, 
53  Pac.  2.52 ;  Chapman  v.  West.  U.  Tel.  Co.,  90  Ky.  265,  13  S.  W.  S80 ;  Smith 
V.  West.  U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126;  Bartlett  v.  West.  U. 
Tel.  Co.,  62  Me.  209,  16  Am.  Rep.  437;  West.  U.  Tel.  Co.  v.  Church,  3  Neb. 
<Unof.)  22,  90  N.  W.  878,  57  L.  R.  A.  909;  Mackay  v.  West.  U.  Tel.  Co.,  16 
Nev.  226;  Leonard  v.  New  York,  etc.,  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446; 
Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep.  165 ;  Curtin  v. 
West.  U.  Tel.  Co.,  14  Misc.'  Rep.  459,  36  N.  Y.  Supp.  1111 ;  Baniesville  First 
Nat.  Bank  v.  West.  U.  Tel.  Co.,  30  Ohio  St.  565,  27  Am.  Rep.  485 ;  West.  U. 
Tel.  Co.  V.  Edmondson,  91  Tex.  206,  42  S.  W.  549;  Rowell  v.  West.  U.  Tel. 
Co.,  75  Tex.  26,  12  S.  W.  534 ;  West.  U.  Tel.  Co.  v.  Murray,  29  Tex.  Civ.  App. 
207,  68  S.  W.  549 ;  Fisher  v.  West.  U.  Tel.  Co.,  119  Wis.  146,  98  N,  W.  545. 

i2Kagy  V.  West.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117  Am.  St. 
Rep.  278;  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579; 
Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79;  Parks  v,  Alta  California 
Tel.  Co.,  13  Cal.  422,  73  Am.  Dec.  589 ;  Postal  Tel.  Cable  Co.  v.  Barwise,  11 
Colo.  App.  328,  53  Pac.  252 ;  West.  U.  Tel.  Co.  v.  Hyer,  22  Fla.  637,  1  South. 
129,  1  Am.  St.  Rep.  222;  West,  U.  Tel.  Co.  v.  Fontaine,  58  Ga.  433;  West. 
U.  Tel.  Co.  V.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480;  Tyler  v.  West.  U. 
Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38 ;  West.  U.  Tel.  Co.  v.  Kemp,  55  111.  App. 
583 ;  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109 ; 
West.  U.  Tel.  Co.  v.  Buchanan,  35  Ind.  429,  9  Am.  Rep.  744;  Bierhaus  v. 
West.  U.  Tel.  Co.,  8  Ind.  App.  246,  34  N.  E.  581 ;  West  v.  West.  U.  Tel.  Co., 
39  Kan.  93, 17  Pac.  807,  7  Am.  St.  Rep.  530 ;  Bartlett  v.  West.  U.  Tel.  Co.,  62  Me. 
209,  16  Am.  Rep.  437 ;  Birney  v.  N.  Y.,  etc.,  Ptg.  Tel.  Co.,  18  Md.  341,  81  Am. 
Dec.  607 ;  Grinnell  v.  West.  U.  Tel.  Co.,  113  Mass.  299,  IS  Am.  Rep.  485 ;  West. 
U.  Tel.  Co.  V.  Carew,  15  Mich.  525;  Leonard  v.  New  York,  etc.,  Tel.  Co.,  41 
N.  Y.  544,  1  Am.  Rep.  446 ;  Baldwin  v.  West.  U.  Tel.  Co.,  45  N.  Y.  744,  6 
Am.  Rep.  165 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  489,  49  S.  E.  165,  103 
Am.  St.  Rep.  955,  67  L.  R.  A.  985,  1  Ann.  Cas.  349 ;  West.  U.  Tel.  Co.  v.  Gris- 
wold,  37  O^io  St.  301,  41  Am.  Rep.  500;  Wolf  v.  West.  U.  Tel.  Co.,  62  Pa. 
83,  1  Am.  Rep.  387;  West.  U.  Tel.  Co.  v.  Neill,  57  Tex.  283,  44  Am.  Rep. 
589;  West.  U.  Tel.  Co.  v.  Jobe,  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  1036; 
West.  U.  Tel.  Co.  v.  Reynolds,  77  Va.  173,  46  Am.  Rep.  715;  Hibbard  v. 
West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775 ;  West.  U.  Tel.  Co.  v.  Short, 
53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744 ;  West.  U.  Tel.  Co.  v.  Crumpton,  138 
Ala.  632,  36  South.  517;   West.  U.  Tel.  Co.  v.  Reed,  3  Aln.  App.  253,  57  South. 


§    527)  MEASURE   OF   DAMAGES  681 

§  527.  Same  continued — not  only  actual  but  contemplative  dam- 
ages.— It  is  not  so  difficult  to  understand  the  rule,  as  it  is  very- 
clear  that  the  injured  party  should  recover  all  the  damages  caused 
as  a  proximate  result  of  a  breach  of  a  contract,  but  it  is  its  applica- 
tion to  the  different  cases  which  puzzles  and  confuses  the  courts. ^^ 
The  rule  does  not  become  much  more  comprehensive  when  it  fur- 
ther states  that  the  damages  must  flow  directly  and  naturally  from 
the  breach  and  that  they  must  be  certain,  both  in  this  nature,  and 
in  respect  to  the  cause  from  which  they  proceed.  Under  this  rule, 
only  such  damages  can  be  recovered  as  may  fairly  be  supposed  to 
have  entered  into  the  contemplation  of  the  parties'  minds  at  the 
time  of  making  the  contract,  as  might  naturally  be  expected  to  arise 
from  its  breach.^*    As  was  very  ably  said  on  this  subject :  "It  is  not 

S3;  Cain  v.  Tel.  Co.,  89  Kan.  787,  1.3.3  Pac.  874;  West.  U.  Tel.  Co.  v.  Foy, 
32  Old.  801,  124  Pac.  30.5,  49  L.  R.  A.  (N.  S.)  343;  Cordell  v.  West.  U.  Tel. 
Co.,  149  N.  C.  402,  63  S.  E.  71,  22  L.  R.  A.  (N.  S.)  540;  West.  U.  Tel.  Co.  v. 
Milton,  53  Fla.  484,  43  Soutli.  495,  11  L.  R.  A.  (N.  S.)  5C0,  125  Am.  St.  Rep. 
1077 ;  Stone  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46  L.  R.  A. 
(N.  S.)  180 ;  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43  L.  R.  A. 
(N.  S.)  502,  19  Ann.  Cas.  895 ;  Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky> 
788,  112  S.  W.  897,  19  L.  R.  A.  (N.  S.)  575;  West.  U.  Tel.  Co.  v.  Crawford, 
20  Okl.  143,  116  Pac.  925,  35  L.  R.  A.  (N.  S.)  930 ;  West.  U.  Tel.  Co.  v.  Cald- 
well, 126  Ky.  42,  102  S.  W.  840,  12  L.  R.  A.  (N.  S.)  748 ;  West.  U.  Tel.  Co.  v. 
Price,  137  Ky.  758,  126  S.  W.  1100,  29  L.  R.  A.  (N.  S.)  836 ;  Providence-Wasb- 
ington  Ins.  Co.  v.  West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E.  134,  30  L.  R.  A. 
(N.  S.)  1170,  139  Am,  St.  Rep.  314;  Postal  Tel.  Cable  Co.  v.  Nichols,  1^^9 
Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870,  14  Ann.  Cas.  369 ;  Kolliuer  v. 
West.  U.  Tel.  Co.,  126  Minn.  122,  147  N.  W.  961,  52  L.  R.  A.  (N.  S.)  1180; 
West.  U.  Tel.  Co.  v.  Barlow,  51  Fla.  351,  40  South.  491,  4  L.  R.  A.  (N.  S.) 
262 ;  Stewart  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045,  IS  L.  R.  A. 
(N.  S.)  692,  127  Am.  St.  Rep.  205 ;  Strong  v.  West.  U.  Tel.  Co.,  18  Idaho,  389, 
109  Pac.  910,  30  L.  R.  A.  (N.  S.)  409,  Ann.  Cas.  1912A,  55;  Henry  v.  West. 
U.  Tel.  Co.,  73  Wash.  260,  131  Pac.  812,  46  L.  R.  A.  (N.  S.)  412 ;  Clark  Mfg. 
Co.  V.  West.  U.  Tel.  Co.,  152  N,  C.  157,  67  S.  E.  329,  27  L.  R.  A.  (N.  S.)  643 ; 
Bass  V.  Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.) 
489;  Carmichael  t.  Southern  Bell  Tel.  Co.,  157  N.  C.  21,  72  S.  E.  619,  39' 
L.  R.  A.  (N.  S.)  651,  Ann.  Cas.  1913B,  1117. 

13  Leonard  v.  New  York,  etc.,  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446; 
Louisiana  Mut.  Ins.  Co.  v.  Tweed,  7  Wall.  44,  19  L.  Ed.  65. 

14  Postal  Tel.  Cable  Co.  v.  Barwise,  11  Colo.  App.  328,  53  Pac.  252;  West. 
U.  Tel.  Co.  V.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744 ;  West.  U.  Tel. 
Co.  V.  Hogue,  79  Ark.  33,  94  S.  W.  924 ;  Smith  v.  West.  U.  Tel.  Co.,  S3  Ky. 
104,  4  Am.  St.  Rep.  126 ;  Hildreth  v.  West.  U.  Tel.  Co.,  56  Fla.  387,  47  South. 
820 ;  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155 ;  McColl  v.  West.  U.  Tel. 
Co.,  44  N.  Y.  Super.  Ct.  487,  7  Abb.  N.  C.  151 ;  Hughes  v.  West.  U.  Tel.  Co.,. 
79  Mo.  App.  133 ;  Kennon  v.  West.  U.  Tel.  Co.,  126  N.  C.  232,  35  S.  E.  468 ; 
Williams  v.  West.  U.  Tel.  Co.,  136  N.  C.  82,  48  S.  E.  559,  1  Ann.  Cas.  3.59; 
West.  U.  Tel.  Co.  v.  Pratt,  IS  Okl.  274,  89  Pac.  237 ;  Postal  Tel.  Cable  Co.  v. 
Sunset  Constr.  Co.,  102  Tex.  148,  114  S.  W.  98,  reversing  (Civ.  App.)  lOO 
S.  W.  265 ;  Kirby  v.  West.  U.  Tel.  Co.,  77  S.  C.  404,  58  S.  E.  10,  122  Am.  St. 
Rep.  580;    West.  U.  Tel.  Co.  v.  Twaddell,  47  Tex.  Civ.  App.  51,  103   S.  W. 


682  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  527 

required  that  the  parties  must  have  contemplated  the  actual  dam- 
ages which  are  to  be  allowed.  But  the  damages  must  be  such  as 
the  parties  may  fairly  be  supposed  to  have  contemplated  when  they 
made  the  contract,  *  *  *  ^s  both  parties  are  usually  equally 
bound  to  know  and  be  informed  of  the  facts  pertaining  to  the  execu- 
tion or  breach  of  a  contract  which  they  have  entered  into.  I  think 
a  more  precise  statement  of  this  rule  is  that  a  party  is  liable  for  all 
the  direct  damages  which  both  parties  to  the  contract  would  have 
contemplated  as  flowing  from  its  breach,  if,  at  the  time  they  entered 
into  it,  they  had  bestowed  proper  attention  upon  the  subject  and 
had  been  fully  informed  of  the  facts."  ^^  It  is  questionable  in  con- 
sidering this  subject — and  much  more  so  is  it  the  case,  when  apply- 

1120 ;  Key  v.  West.  U.  Tel.  Co.,  76  S.  C.  301,  56  S.  E.  962 ;  McBride  v.  Sunset 
Tel.  Co.  (C.  C.)  96  Fed.  81 ;  Hall  v.  West.  U.  Tel.  Co.,  59  Fla.  275,  51  South. 
819,  27  L.  R.  A.  (N.  S.)  639;  McMillan  v.  West.  U.  Tel.  Co.,  60  Fla.  131,  53 
South.  329,  29  L.  R.  A,  (N.  S.)  891;  West.  U.  Tel.  Co.  v.  Sullivan,  82  Ohio 
St.  14,  01  N.  E  867,  137  Am.  St.  Rep.  754;  Fitch  v.  West.  U.  Tel.  Co.,  150 
Mo.  App.  149,  130  S.  W.  44 ;  West.  U.  Tel.  Co.  v.  Young  (Tex.  Civ.  App.)  1.30 
S.  W.  257;  West.  U.  Tel.  Co.  v.  Burris  (Tex.  Civ.  App.)  147  S.  W.  1173;  West. 
U.  Tel.  Co.  V.  Graham,  1  Colo.  230,  9  Am.  Rep.  136;  Tyler  v.  West.  U.  Tel. 
Co.,  60  111.  421,  14  Am.  Rep.  38 ;  Manville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214, 
18  Am.  Rep.  8;  Turner  v..Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am,  Rep.  605; 
Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157;  Lee  v.  West.  U. 
Tel.  Co.,  51  INIo.  App.  375 ;  West.  U.  Tel.  Co.  v.  MuUins,  44  Neb.  732,  62  N.  W. 
880 ;  Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep.  165 ;  First 
National  Bank  v.  West.  U.  Tel.  Co.,  30  Ohio  St.  555,  27  Am.  Rep.  485 ;  Smith 
v.  West.  U.  Tel.  Co.,  150  Fa.  561,  24  Atl.  1049 ;  West.  U.  Tel.  Co.  v.  Campbell, 
36  Tex.  Civ.  App.  276,  81  S.  W.  580 ;  Kopperl  v.  West.  U.  Tel.  Co.  (Tex.  Civ. 
App.)  85  S.  W.  1018 ;  West.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577, 
31  L.  Ed.  479 ;  Kagy  v.  West.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117 
Am.  St.  Rep.  278 ;  Parks  v.  Alta  Cal.  Tel.  Co.,  13  Cal.  422,  73  Am.  Dec.  589 ; 
West.  U.  Tel.  Co.  v.  Shotter,  71  Ga.  760;  Tyler  v.  West.  U.  Tel.  Co.,  60  111. 
421,  14  Am.  Rep.  38;  West.  U.  Tel.  Co.  v.  Valentine,  18  111.  App.  57;  West. 
U.  Tel.  Co.  T.  Harris,  19  111.  App.  347 ;  Hadley  v.  AVest.  U.  Tel.  Co.,  115  Ind. 
191,  15  N.  E.  845 ;  Sprague  v.  West.  U.  Tel.  Co.,  6  Daly  (N.  Y.)  200 ;  Mowry 
v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  Y.  Supp.  666 ;  United  States  Tel.  Co. 
V.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751 ;  Marr  v.  West.  U.  Tel.  Co.,  85  Tenu. 
529,  3  S.  W.  496 ;  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  4 
L.  R.  A.  660,  10  Am.  St.  Rep.  699. 

Statutory  provision — effect  of. — A  statute  making  a  company  liable  for  "all 
damages  occasioned"  does  away  with  the  requirements  of  the  general  rule 
that  notice  of  the  special  circumstances  must  be  given  from  which  special 
damages  would  be  likely  to  result.  Fisher  v.  West.  U.  Tel.  Co.,  119  Wis.  146, 
96  N.  W.  545.  All  damages  are  the  natural  and  proximate  result.  Barker 
V.  West.  U.  Tel.  Co.,  134  Wis.  147,  114  N.  W.  439,  14  L.  R.  A.  (N.  S.)  533,  126 
Am.  St.  Rep.  1017.  But,  on  the  contrary,  see  Hughes  v.  West.  U.  Tel.  Co., 
supra;  Wheelock  v.  Postal  Tel.  Cable  Co.,  197  Mass.  119,  83  N.  E.  313,  14 
Ann.  Cas.  188. 

15  Leonard  v.  New  York,  etc.,  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  446;  We.st. 
U.  Tel.  Co.  V.  Church,  3  Neb.  (Unof.)  22,  90  N.  W.  878,  57  L.  R.  A.  909 ;  West. 
U.  Tel.  Co.  V.  Edmondson,  91  Tex.  206,  42  S.  W.  549. 


§    528)  MEASURE   OF   DAMAGES  683 

ing  the  rule  to  actions  against  telegraph  companies — as  to  the 
extent  of  the  information  which  the  company  may  •  have  of  the 
nature  of  the  message,  and  the  effect  in  negligently  transmitting 
or  delivering  it."  It  is  very  often  the  case  that  messages  are 
couched  in  such  language  as  to  be  wholly  unintelligible  to  the  com- 
pany. They  may  be  entirely  clear  and  easily  understood,  both  by 
the  sender  and  the  addressee,  but  at  the  same  time  the  company  or 
the  operator  may  be  altogether  ignorant  of  the  purposes  of  them. 
So  it  follows  from  the  general  rule  that,  in  order  to  hold  these  com- 
panies liable  for  damages  flowing  directly  and  proximately  from 
the  breach  of  the  contract  of  sending,  they  must  have  had  some 
knowledge  of  the  nature  of  the  contract  and  the  damages  which 
may  be  supposed  to  have  entered  into  the  contemplation  of  the  par- 
ties' minds  at  the  time  the  contract  was  made,  as  may  have  been 
expected  as  would  be  the  result  of  its  breach.^''  The  reason  of  this 
is  obvious;  since,  if  the  nature  and  object  of  the  message  had  been 
known,  the  parties  might  have  specially  provided  for  the  breach  of 
the  contract  by  special  terms  as  to  damages  in  that  case.^® 

§  528.  Actions  in  contract  and  in  tort — ^^applicable  to  both. — 
While  actions  against  telegraph  companies  are  not  necessarily  or 
usually  brought  for  a  breach  of  their  contracts,  but  for  the  breach 
of  a  public  duty,  yet  the  latter,  as  said,  depends  somewhat  upon  the 
former,  since  it  would  not  have  occurred  had  it  not  been  that  the 
company  violated  its  contractual  duties.^'*  The  general  rule,  how- 
ever, for  ascertaining  the  measure  of  damages  is  applicable  in  both 
kinds  of  actions. -°  In  an  action  in  tort,  or  for  a  breach  of  a  public 
duty,  the  damages  which  a  plaintiff  can  recover  are  in  satisfaction 
of  the  natural  and  proximate  consequence  of  the  defendant's  act;  -^ 
in  other  words,  they  are  in  satisfaction  of  the  loss  that  might  rea- 
sonably have  been  expected  under  the  particular  circumstances  to 
occur. -^     While  this  rule  is  applicable  to  both  kinds  of  actions,  it 

16  See  §§  529,  534. 

17  See  §§  529,  534.  See,  also,  Kolliner  v.  West.  U.  Tel.  Co.,  126  Miun.  122, 
147  N.  W.  961,  52  L.  R.  A.  (N.  S.)  ISO. 

18  Id. 

19  West.  U.  Tel.  Co.  v.  Hogue,  79  Ark.  33,  94  S.  W.  924. 

20  Kennon  v.  West.  U.  Tel.  Co.,  126  N.  C.  232,  35  S.  E.  46S ;  West.  U.  TeL 
Co.  V.  Hogue,  79  Ark.  33,  94  S.  W.  924 ;  Poteet  v.  West.  U.  Tel.  Co.,  74  S.  C. 
491,  55  S.  E.  113;  Newsome  v.  West.  U.  Tel.  Co.,  153  N.  C.  153,  69  S.  E.  10. 
See,  also,  cases  cited  in  note  14,  supra.  See  I'hillips  v.  West.  U.  Tel.  Co. 
(Mo.  App.)  184  S.  W.  958,  messenger  running  into  woman  on  return  from  do- 
livering  a  message. 

21  Sutherland  on  Dam.  21. 

22  Smith  T.  West.  U.  Tel.  Co.,  S3  Ky.  104,  4  Am.  St.  Rep.  126,  holding  that 
the  rule  does  not  require  that  the  parties  must  have  contemplated  such  dam- 


684  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  529 

must  be  understood,  however,  that  the  character  or  the  nature  of 
the  damages  may  be  different  in  each.  For  instance,  punitive  da.n- 
ages  may  be  recovered  in  an  action  of  tort,  where  it  was  committed 
with  a  mahcious  motive,  but  it  cannot  be  recovered  in  an  action 
ex  contractu.-^  So  also,  as  it  will  be  further  discussed  later,-*  it 
seems  that  the  company  need  not  have  had  the  same  information 
of  the  nature  of  the  message  and  the  probable  result  which  would 
arise  in. a  failure  to  transmit  or  deliver  it,  as  it  would  in  an  action 
brought  for  a  breach  of  its  contract,  in  order  to  hold  it  liable  in  an 
action  in  tort.  In  other  words,  where  the  action  is  in  contract,  the 
damages  are  restricted  to  a  more  narrow  limit  than  in  actions  in 
tort.  As  was  said:  "In  all  actions  sounding  in  tort,  the  injured 
party  is  not  limited  to  damages  which  might  reasonably  have  been 
within  the  contemplation  of  the  parties,  but  recovery  may  be  had 
for  all  the  injurious  results  which  flow  therefrom,  by  ordinary, 
natural  sequence,  without  the  interposition  of  any  other  negligent 
act  or  overpowering  force."  ^^ 

§  529.  Same  continued — character  of  damages  arising  from  each 
— kind  of  actions — amount  of  information. — The  amount  and  na- 
ture of  information  of  the  purpose  of  a  telegram,  necessary  to  hold 
these  companies  liable  in  actions  in  contract  and  in  tort,  may  be 
different,  or  unequal,  as  coming  from  different  sources,  of  some  of 
which  the  company  is  presumed  to  take  cognizance.  Having  cer- 
tain public  duties  to  perform,  on  a  failure  to  properly  discharge 

ages,  but  it  does  require  that  tlie  damages  may  be  such  that  the  parties  may 
fairly  be  supposed  to  have  coutemplated,  or,  at  least,  would  have  contem- 
plated as  following  from  the  breach  of  duty  if  they  had  been  informed  of 
all  facts. 

2  3  See  chapter  XXIV. 

2  4  See  §  529. 

2  5  Mentzer  v.  West.  U.  Tel.  Co.,  93  Iowa,  757,  62  N.  W.  1,  57  Am.  St.  Rep. 
294,  28  L.  R.  A.  72;  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4, 
15  Am.  St.  Rep.  109 ;  West.  U.  Tel.  Co.  v.  Allen,  66  INIiss.  549,  6  South.  461 ; 
Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.)  226 ;  West.  U.  Tel.  Co.  v.  Fenton, 
52  Ind.  1 ;  Smith  v.  West.  U.  Tel.  Co.,  S3  Ky.  104,  4  Am.  St.  Rep.  126 ;  Mil- 
liken  V.  West.  U.  Tel.  Co.,  110  N.  Y.  403,  18  N.  E.  251,  1  L.  R.  A.  281;  Young 
V.  West.  U.  Tel.  Co.,  107  N.  C.  370,  11  S.  E.  1044,  22  Am.  St.  Rep.  883.  9  L.  R.  A. 
669,  note;  West.  U.  Tel.  Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am. 
St.  Rep.  920,  6  L.  R.  A.  844 ;  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78 
N.  W.  63,  70  Am.  St.  Rep.  205,  43  L.  R.  A.  214 ;    Cordell  v.  West.  U.  Tel.  Co., 

149  N.  C.  402,  63  S.  E.  71,  22  L.  R.  A.  (N.  S.)  540 ;    Fitch  v.  West.  U.  Tel.  Co., 

150  Mo.  App.  149,  130  S.  W.  44 ;  Wiggs  v.  Telephone,  etc.,  Co.  (Tex.  Civ.  App.) 
110  S.  W.  179;  Kerns  v.  Telephone  Co.,  170  Mo.  App.  642,  157  S.  W.  106; 
West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  R.  A.  (X.  S.)  560, 
125  Am.  St.  Rep.  1077 ;  Penn  v.  West.  U.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16, 
41  L.  R.  A.  (N.  S.)  223 ;   American  Ex.  Co.  v.  Postal  Tel.  Cable  Co.,  97  Xeb.  701, 

151  N.  W.  240. 


§    630)  MEASURE   OF   DAMAGES  685 

them,  they  will  be  liable  to  any  one  injured  thereby.  For  instance, 
they  hold  themselves  out  as  being  ready  and  willing  to  transmit  all 
proper  messages  tendered  to  them;  and,  as  people  seldom  resort  to 
these  companies  for  their  services  unless  the  matter  is  of  much  im- 
portance and  must  be  attended  to  quickly,  it  is  presumed  that  they 
w^ill  transmit  the  message  in  the  exact  words  in  which  it  was  de- 
livered to  them,  and  deliver  it  to  the  addressee  as  promptly  and 
speedily  as  it  is  possible  for  them  to  do.  This  is  a  public  duty 
which  they  owe  to  every  one  who  applies  to  them  for  services,  and 
one  which  they  must  take  daily  cognizance  of;  and,  when  they  fail 
to  discharge  this  duty,  it  is  supposed  that  they  contemplated,  at  the 
time  of  accepting  this  service,  the  result  of  such  failure.  It  is  fur- 
ther presumed  that  they  know — where  no  information  is  given 
them  to  the  contrary — that  all  messages  delivered  to  them  are  of 
importance,  and  that  great  loss  or  injury  may  be  the  result  of  a 
failure  on  their  part  to  properly  discharge  their  duty,  and  that  they, 
therefore,  are  supposed  to  have  contemplated  all  the  damages  flow- 
ing naturally  and  directly  from  such  failure,  although  they  may 
not  have  had  any  actual  knowledge  of  what  damages  might  result 
at  the  time  of  accepting  the  message.  In  an  action  brought  against 
them  for  a  breach  of  their  contract,  they  are  not  held  liable  for  a 
breach  of  their  public  duty,  but  are  responsible  for  only  such  dam- 
ages as  may  have  been  the  direct  and  proximate  result  of  the  breach 
of  contract,  and  such  as  may  have  been  contemplated  at  the  time 
of  making  the  contract.  The  information  of  the  importance  of  the 
message  and  the  probable  consequences  of  its  not  being  properly 
sent  and  delivered  do  not  come,  as  in  actions  in  tort,  from  the  pub- 
lic position  which  they  occupy. ^^ 

§  530.  Remote  damages. — It  is  presumed  that  the  reader  has 
had  cause  ere  this  to  study  and  master,  to  a  certain  extent,  the 
difference  between  proximate  and  remote  damages;  for  this  rea- 
son—and for  the  further  reason  that  the  subject  is,  in  a  sense,  for- 
eign to  the  scope  of  this  work — we  shall  refrain  from  entering  into 
it  at  any  great  length.  While  there  is  a  distinction  between  the 
two  kinds  of  damages,  yet  in  many  instances  the  distinction  is  so 
slight  that  it  is  difficult  to  decide  on  which  side  the  damages  be- 
long.2^  The  damages  must  be  the  natural  and  direct  result  of  the 
breach,  or  such  as  flow  therefrom  by  ordinary  and  natural  se- 
quence ;  2^  if  there  is  an  addition  of  any  other  negligent  act  or  ovev- 

2^  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  4S4,  43  South.  495,  11  L.  R.  A.  (N.  S.) 
560,  125  Am.  St.  Rep.  1077,  citing  autlior. 

2  7  Smitli  V.  West.  U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126. 

2  8  Wilson  V.  West.  U.  Tel.  Co.,  124  Ga.  131.  52  S.  E.  153;    Champion  Cliem. 


686  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  530 

powering  force,  intervening  and  aiding  in  any  wise  the  result,  the 
damages  will  be  too  remote  to  be  recovered.^''  The  law  does  not 
hold  these  companies  liable  for  every  possible  consequence  of 
their  negligence,  but  only  for  such  as  are  the  proximate  and  natural 
results  of  their  wrongful   acts.^° 

Wks.  V.  Postal  Tel.  Cable  Co.,  123  111.  App.  20 ;  HildrettL  v.  West.  U.  Tel.  Co., 
56  Fla.  3S7,  47  South.  820 ;  West.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  491,  31 
Pac.  393;  Postal  Tel.  Cable  Co.  v.  Barwise.  11  Colo.  App.  32S,  53  Pac.  2.52; 
Smith  V.  West.  U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126;  Beaupre  v.  Pa- 
cific, etc.,  Tel.  Co.,  21  Minn.  155 ;  Bennett  v.  West.  U.  Tel.  Co.,  129  Iowa,  607, 
106  N.  W.  13 ;  Walser  v.  West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366 ;  Yazoo, 
etc.,  R.  Co.  V.  Foster  (Miss.)  23  South.  581;  Lowery  v.  West.  U.  Tel. 
Co.,  60  N.  Y.  198,  19  Am.  Rep.  154 :  Fisher  v.  West.  U.  Tel.  Co.,  119  Wis.  146, 
96  N.  W.  545;  Cutts  v.  West.  U.  Tel.  Co.,  71  Wis.  46,  36  N.  W  627; 
West.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  McMil- 
lan V.  West.  U.  Tel.  Co.,  60  Fla.  131,  53  South.  329,  29  L.  R.  A.  (N.  S.)  891 ; 
West.  U.  Tel.  Co.  v.  Emerson,  161  Ala.  221,  49  South.  820 ;  Volquardsen  v.  Iowa 
Tel.  Co.,  148  Iowa,  77,  126  N.  W.  928,  28  L.  R.  A.  (N.  S.)  554 ;  West.  U.  Tel.  Co. 
V.  Rhett  (Miss.)  50  South.  696 ;  West.  U.  Tel.  Co.  v.  Crawford,  29  Okl.  143,  116 
Pac.  925,  35  L.  R.  A.  (N.  S.)  930 ;  Johnson  v.  West.  U.  Tel.  Co.,  75  S.  C.  54,  54 
S.  E.  826 :  Anderson  v.  West.  U.  Tel.  Co.,  85  S.  C.  2.52,  67  S.  E.  232,  477 ;  West. 
U.  Tel.  Co.  V.  Lawson,  182  Fed.  369,  105  C.  C.  A.  451 ;  Sturtevant  v.  Telephone 
Co.,  109  Me.  479,  84  Atl.  998 ;  Hoaglin  v.  West.  U.  Tel.  Co.,  161  N.  C.  390,  77 
S.  E.  417 ;  Davies  v.  West.  U.  Tel.  Co.,  93  S.  C.  318,  76  S.  E.  820 ;  Hall  v.  West. 
U.  Tel.  Co.,  59  Fla.  279,  51  South.  819,  27  L.  R.  A.  (N.  S.)  639 ;  West.  U.  Tel. 
Co.  V.  Barlow,  51  Fla.  351,  40  South.  491,  4  L.  R.  A.  (N.  S.)  262. 

Effect  of  statutory  provision. — The  rule  not  affected  by  making  companies 
liable  for  "all  damages  occasioned,"  Fisher  v.  West.  U.  Tel.  Co.,  supra  ;  Cutts  v. 
West.  U.  Tel.  Co.,  supra  ;  or  "liable  for  special  damages,"  Hughes  v.  West.  U. 
Tel.  Co.,  79  Mo.  App.  133 ;  or  for  the  damages  "actually  caused"  by  their  neg- 
ligence, Wheelock  v.  Postal  Tel.  Cable  Co.,  197  Mass.  119,  83  N.  E.  313,  14 
Ann.  Cas.  188. 

29  Smith  V.  West.  U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126;  West.  U.  Tel. 
Co.  V.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  West.  U.  Tel.  Co.  v. 
Graham,  1  Colo.  230,  9  Am.  Rep.  136 ;  Hadley  v.  West.  U.  Tel.  Co.,  115  Ind. 
191,  15  N.  E.  845;  West.  U.  Tel.  Co.  v.  Crall,  39  Kan.  580,  IS  Pac.  719;  Squire 
V.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157;  Landsberger  v.  Magnetic 
Tel.  Co.,  32  Barb.  (N.  Y.)  530 ;  McColl  v.  West.  U.  Tel.  Co.,  44  N.  Y,  Super.  Ct. 
487,  7  Abb.  N.  C.  151 ;  Lowery  v.  United  States  Tel.  Co.,  60  N.  Y.  198,  19  Am. 
Rep.  154 ;  First  Nat.  Bank  v.  Tel.  Co.,  30  Ohio  St.  555,  27  Am.  Rep.  485 ;  Reli- 
ance Lumber  Co.  v.  West.  U.  Tel.  Co.,  58  Tex.  394,  44  Am.  Rep.  620;  West.  U. 
Tel.  Co.  V.  Munford,  87  Tenn.  190,  10  S.  W.  318,  2  L.  R.  A.  601,  10  Am.  St.  Rep. 
630 ;  Hibbard  v.  West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775 ;  Stevenson  v. 
Montreal  Tel.  Co.,  16  U.  C.  Q.  B.  530 ;  Kinghorne  v.  Montreal  Tel.  Co.,  IS  Id. 
60 ;  McAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W.  715 ;  West.  U.  Tel.  Co. 
V.  Smith,  76  Tex.  253,  13  S.  W.  169 ;  Bodkin  v.  West.  U.  Tel.  Co.  (C.  C.)  31 
Fed.  134 ;  West.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  491,  31  Pac.  393 ;  Lowery 
V.  West.  U.  Tel.  Co.,  60  N.  Y.  198,  19  Am.  Rep.  154 ;  Ross  v.  West.  U.  Tel.  Co., 
81  Fed.  676,  26  C.  C.  A.  564 ;  Bennett  v.  West.  U.  Tel.  Co.,  129  Iowa.  607,  106 
N.  W.  13 ;  Walser  v.  West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366 ;  Milling  Co. 
V.  West.  U.  Tel.  Co.,  9  Ga.  App.  728,  72  S.  E.  179 ;  Higdon  v.  West.  U,  Tel.  Co., 
132  N.  C.  726,  44  S.  E.  558 ;  Willoughby  v.  Telephone  Co.  (Sup.)  133  N.  Y.  Supp. 
268. 

3  0  Reed  V.  West.  U.  Tel.  Co..  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609, 


J 


§    531)  MEASURE   OF   DAMAGES  687 

§  531.  Same  continued — speculative  damages. — It  must  be 
borne  in  mind  that,  in  order  to  recover  damages  from  telegraph 
companies  for  their  wrongful  acts,  the  damages  must  be  the  result 
of  the  most  probable  and  natural  consequences  of  the  act,  and  such 
as  a  man  of  ordinary  care  and  foresight  would  have  contemplated 
at  the  time  the  contract  was  made  as  a  probable  result  of  a  breach 
thereof,  and  not  such  as  depended  upon  the  happening  of  some  pos- 
sible event.^^  The  company's  negligence  may  have  had  some 
causal  connection  with  the  damages  complained  of,  and  may  have 
exerted  a  material  influence  in  producing  the  final  result,  yet  the 
company  cannot  be  held  liable  for  such  damages  when  subsequent 
intervening  causes  took  advantage  of  such  negligence,  and  ulti- 
mately brought  about  the  result  of  which  complaint  is  made."- 
So,  if  the  damages  are  uncertain,  speculative,  contingent,  or  too 
remote, ^^  or,  if  no  actual  loss  has  been  sustained,   recovery   will 

.34  L.  R.  A.  492 ;  Hays  v.  West.  U.  Tel.  Co.,  7  S.  C.  16,  48  S.  E.  608,  106  Am.  St. 
Rep.  731,  67  L.  R.  A.  4S1,  3  Ann.  Cas.  424 ;  Brooks  v.  West.  U.  Tel.  Co.,  26 
Utah,  147,  72  Pae.  499 ;  Postal  Tel.  Cable  Co.  v.  Lathrop,  33  111.  App.  400,  af- 
firmed in  131  111.  575,  23  N.  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ;  Hildreth 
V.  West.  U.  Tel.  Co.,  56  Fla.  387,  47  South.  820 ;  West.  U.  Tel.  Co.  v.  Merritt, 
55  Fla.  462,  46  South.  1024,  127  Am.  St.  Rep.  169 ;  West.  U.  Tel.  Co.  v.  Blanch- 
ard,  68  Ga.  299,  45  Am.  Rep.  480 ;  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43 
South.  495,  125  Am.  St.  Rep.  1077,  11  L.  R.  A.  (N.  S.)  560 ;  West.  U.  Tel.  Co.  v. 
Auslet,  53  Tex.  Civ.  App.  264,  115  S.  W.  624 ;  West.  U.  Tel.  Co.  v.  Edsall,  74 
Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835 ;  Texas,  etc.,  Tel.,  etc.,  Co.  v.  Macken- 
zie, 36  Tex.  Civ.  App.  178,  81  S.  W.  581;  West.U.  Tel.  Co.  v.  Hines,  22  Tex. 
Civ.  App.  315,  54  S.  W.  627 ;  West.  U.  Tel.  Co.  v.  Wofford,  32  Tex.  Civ.  App. 
427,  72  S.  W.  620,  74  S.  W.  943 ;  McMillan  v.  West.  U.  Tel.  Co.,  60  Fla.  131,  53 
South.  329,  29  L.  R.  A.  (N.  S.)  891 ;  Kolliner  v.  West.  U.  Tel.  Co.,  126  Minn. 
122,  147  N.  W.  961,  52  L.  R.  A.  (N.  S.)  1180;  Cumberland  Tel.,  etc.,  Co.  v. 
Jackson,  95  Miss.  79,  48  South.  614 ;  Stiles  v.  West.  U.  Tel.  Co.,  2  Ariz.  308,  15 
Pac.  712;  West.  U.  Tel.  Co.  v.  Graham,  1  Colo.  230,  9  Am.  Rep.  136;  Hooker  v. 
West.  U.  Tel.  Co.,  45  Fla.  363,  34  South.  901 ;  Savannah,  etc.,  Towboat  Co.  v. 
West  U.  Tel.  Co.,  124  Ga.  478,  52  S.  E.  766 ;  Wolf  v.  West.  U.  Tel.  Co.,  24  Pa. 
Super.  Ct.  129 ;  West.  U.  Tel.  Co.  v.  Gossett,  15  Tex.  Civ.  App.  52,  38  S.  W. 
536. 

-1  See  cases  cited  in  notes,  28,  29.  and  30,  supra. 

Such  as  are  capable  of  computation  with  reasonable  certainty.  Walser  v. 
West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366 ;  McMillan  v.  West.  U.  Tel.  Co., 
60  Fla.  131,  53  South.  329,  29  L.  R.  A.  (N.  S.)  891. 

32  See  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155;  Postal  Tel.  Cable  Co. 
V.  Barwise,  11  Colo.  App.  328,  53  Pac.  252 ;  Kiley  v.  West.  U.  Tel.  Co.,  39  Ilun 
(N.  Y.)  158,  affirmed  in  109  N.  Y.  231,  16  N.  E.  75 ;  McMillan  v.  West.  U.  Tel. 
Co.,  60  Fla.  131,  53  South.  329,  29  L.  R.  A.  (N.  S.)  891.  See,  also.  Smith  v. 
West.  U.  Tel.  Co.,  83  Ky.  104.  4  Am.  St.  Rep.  126. 

33  Kenyon  v.  West.  U.  Tel.  Co.,  100  Cal.  454,  35  Pac.  75 ;  West.  U.  Tel.  Co.  v. 
Watson,  94  Ga.  202,  21  S.  E.  457,  47  Am.  St.  Rep.  151 ;  Postal  Tel.  Co.  v.  Bar- 
wise,  11  Colo.  App.  328,  53  Pac.  252 ;  James  v.  West.  U.  Tel.  Co.,  86  Ark.  339. 
Ill  S.  W.  276 ;  West.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  491,  31  Pac.  393 ; 
West.  U.  Tel.  Co.  v.  Crall,  .39  Kan.  580,  18  Pac.  719 ;  Bennett  v.  West.  U.  Tel. 
Co.,  129  Iowa,  607,  106  N.  W.  13  ;  Chapman  v.  West.  U.  Tel.  Co.,  90  Ky.  265, 


G88  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  531 

be  denied.^'*  So  also  a  recovery  will  be  denied  where  uncertain,  spec- 
ulative, or  contingent  profits  are  attempted  to  be  recovered  and  the 
same  are  such  as  might  or  might  not  have  been  made;^^  how- 
ever, damages  may  be  recovered  for  all  gains  prevented  or  losses 
actually  sustained,^"  provided  they  are  certain  and  such  as  might 
naturally  be  expected  to  arise  in  consequence  of  the  breach  of  duty 
complained  of.^^  If,  on  the  other  hand,  an  effort  is  being  made 
to  recover  the  profits  on  the  expected  bargain  or  purchase  of 
stocks,  grain,  or  cotton  which  was  never  made,  but  which,  it  is 
claimed,  might  have  been  consummated,  had  the  company  dis- 
charged its  duty  in  promptly  delivering  the  message  regarding 
same,  the  recovery  wall  be  denied.^®  So,  if  an  agent  or  broker  of 
the  plaintiff  is  directed  by  him  by  telegram  to  buy  or  sell  short  and 
the  message  is  delayed  and  the  transaction  directed  is  never  en- 
tered  into,   a  recovery   would  be   denied  ;^^    but  if  the   message 

13  S.  W.  SSO,  12  Ky.  Law  Rep.  265 ;  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn. 
155 ;  Smitli  v.  West.  U.  Tel.  Co.,  S3  Ky.  104.  4  Am.  St.  Rep.  126 ;  Kiley  v.  West. 
U.  Tel.  Co.,  39  Huu  (N.  Y.)  15S,  affirmed  in  109  N.  Y.  231,  16  N.  E.  75 ;  West.  U. 
Tel.  Co.  V.  Connelly,  2  Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  113 ;  Walser  v.  West. 
U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366 ;  West.  U.  Tel.  Co.  v.  Hall,  124  U.  S. 
444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  Alexander  v.  West.  U.  Tel.  Co.  (C.  C.)  126 
Fed.  445 ;  McMillan  v.  West.  U.  Tel.  Co.,  60  Fla.  131,  53  Soutli.  329,  29  L.  R.  A. 
(N.  S.)  891 ;  Volquardsen  v.  Iowa  Tel.  Co.,  148  Iowa,  77,  126  N.  W.  928,  28 
L.  R.  A.  (N.  S.)  554;  West.  U.  Tel.  Co.  v.  Young  (Tex.  Civ.  App.)  130  S.  W. 
257 ;  Lebanon,  etc.,  Tel.  Co.  v.  Lanhan  Lumber  Co.,  131  Ky.  718,  115  S.  W.  824, 
21  L.  R.  A.  (N.  S.)  115,  18  Ann.  Cas.  1066. 

34  Bass  V.  Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.) 
489 ;  Pacific  Pine  Lumber  Co.  v.  West.  U.  Tel.  Co.,  123  Cal.  428,  56  Pac.  103 ; 
West.  U.  Tel.  Co.  v.  Watson,  82  Miss.  101,  33  South.  76. 

35  Bennett  v.  West.  U.  Tel.  Co.,  129  Iowa,  607,  106  N.  W.  13 ;  West.  U.  Tel. 
Co.  v.  Crall,  39  Kan.  580,  18  Pac.  719 ;  West.  U.  Tel.  Co.  v.  Graham,  1  Colo. 
230,  9  Am.  Rep.  136 ;  West.  U.  Tel.  Co.  v.  Lehman,  106  Md.  318,  67  Atl.  241,  14 
Ann.  Cas.  736;  Johnson  v.  West.  U.  Tel.  Co.,  79  Miss.  58,  29  South.  787,  89  Am. 
St.  Rep.  584 ;  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155 ;  Bird  v.  West.  U. 
Tel.  Co.,  76  S.  C.  345,  56  S.  E.  973 ;  xMcMillan  v.  West.  U.  Tel.  Co.,  60  Fla.  131, 
53  South.  329,  29  L.  R.  A.  (N.  S.)  891 ;  Larsen  v.  Postal  Cable  Co.,  150  Iowa, 
748,  130  N.  W.  813 ;  Newsome  v.  West.  U.  Tel.  Co.,  153  N.  C.  153,  69  S.  E.  10. 

30  Manville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214,  18  Am.  Rep.  8;  Kerns  v.  Tele- 
phone Co.,  170  Mo.  App.  642,  157  S.  ^Y.  100. 

37  West.  U.  Tel.  Co.  v.  Wilhelm,  48  Neb.  910,  67  N.  W.  870;  Manville  v.  West. 
U.  Tel.  Co.,  37  Iowa,  214,  18  Am.  Rep.  8 ;  Hays  v.  West.  U.  Tel.  Co.,  70  S.  C. 
16,  48  S.  E.  608,  106  Am.  St.  Rep.  731,  67  L.  R.  A.  481,  3  Ann.  Cas.  424 ;  West. 
U.  Tel.  Co.  v.  Williams  (Tex.  Civ.  App.)  137  S.  W.  148 ;  West.  U.  Tel.  Co.  v. 
Lawson,  182  Fed.  309,  105  C.  C.  A.  451.  See,  also.  West.  U.  Tel.  Co.  v.  Eu- 
banks,  100  Ky.  591,  38  S.  W.  1008,  IS  Ky.  Law  Rep.  995,  66  Am.  St.  Rep.  361, 
36  L.  R.  A.  711 ;  West.  U.  Tel.  Co.  v.  Auslet,  53  Tex.  Civ.  App.  264,  115  S.  W. 
624. 

3s  Hibbard  v.  West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775 ;  West.  U.  Tel. 
Co.  V.  Fellner,  58  Ark.  29,  22  S.  W.  917,  41  Am.  St.  Rep.  81 ;  Smith  v.  West. 
U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126. 

39  Hibbard  v.  West.  U.  Tel.  Co.,  33  Wis.  558,  14  Am.  Rep.  775 ;  West.  U.  Tel. 


§    532)  MEASURE  OF   DAMAGES  68&- 

had  been  promptly  delivered,  thereby  enabling  the  plaintiff  to  have 
purchased  at  a  lov/er  price  than  he  was  comp'elled  to  do  as  a  re- 
sult of  a  delay  in  the  delivery  of  such  message,  an  actual  loss  is 
sustained  for  which  a  recovery  may  be  had.*° 

§  532.  Intervening  causes. — If  a  subsequent  intervening  cause  *^ 
takes  advantage  of  the  negligence  of  the  company,  which  may  have 
had  a  causal  connection  with  the  result,  and  ultimately  produces 
the  damages  complained  of,  the  company  will  not  be  liable.*-  In 
other  words,  damages  cannot  be  recovered  which  are  the  result 
of  the  consequences  of  secondary  and  remote  causes  indirectly 
growing  out  of  a  breach  of  the  contract.*^  Thus,  where  the  loss  is 
occasioned  by  two  causes — the  shortcoming  of  the  telegraph  com- 
pany in  not  delivering  the  message  and  the  felonious,**  fraudu- 
lent,*^ or  negligent  *^  act  of  a  third  person — the  company  will  not 
be  liable.  In  one  of  these  cases  a  telegram  was  delivered  to  the 
company  asking  a  remittance  of  $500  from  the  addressee.  Through 
the  negligence  of  the  company  the  message  was  changed  so  as  to 
read  $5,000,  and  this  amount  was  sent  to  the  sendee  who,  on  re- 
ceiving this,  absconded ;  it  was  held  that  the  company  was  not  lia- 
ble. The  court  said :  "The  embezzlement  could  not  reasonably 
have  been  expected,  and  did  not  naturally  flow  from  the  wrong  of 
the  defendant.     The   cause  of  the   loss   was  the   criminal   act  of 

Co.  V.  Fellner,  58  Ark.  29,  22  S.  W.  917,  41  Am.  St.  Rep.  81 ;  West.  U.  Tel.  Co. 
V.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  Cahn  v.  West.  U.  Tel.  Co., 
48  Fed.  SIO,  1  C.  C.  A.  107. 

4  0  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dee.  751;  Pearsall 
V.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St.  Rep.  662 ;  Swan  v. 
West.  U.  Tel.  Co.,  129  Fed.  318,  63  C.  C.  A.  550,  67  L.  R.  A.  153. 

41  I.owery  v.  West.  U.  Tel.  Co.,  60  N.  Y.  198,  19  Am.  Rep.  154;  Ross  v.  West. 
U.  Tel.  Co.,  81  Fed.  076,  26  C.  C.  A.  564 ;  Bodkin  v.  West.  U.  Tel.  Co.  (C.  C.) 
31  Fed.  134,  storms  or  floods. 

42  Ross  V.  West.  U.  Tel.  Co.,  81  Fed.  676,  26  C.  C.  A.  564 ;  Bodkin  v.  West. 
U.  Tel.  Co.  (C.  C.)  31  Fed.  134.  But  see  Providence-Washington  Ins.  Co.  v. 
West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E.  134,  30  L.  R.  A.  (N.  S.)  1170,  139  Am. 
St.  Rep.  314 ;  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  R. 
A.  (N.  S.)  560,  125  Am.  St.  Rep.  1077,  falling  market  not  intervening  cause. 

43  Pegram  v.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep. 
557 ;  West.  U.  Tel.  Co.  v.  Crawford,  29  Okl.  143,  116  Pac.  925,  35  L.  R.  A.  (N. 
S.)  930;  Providence-Washington  Ins.  Co.,  247  HI.  84,  93  N.  E.  134,  30  L.  R.  A. 
(N.  S.)  1171,  139  Am.  St.  Rep.  314 ;  Hall  v.  West.  U.  Tel.  Co.,  59  Fla.  275,  51 
South.  819,  27  L.  R.  A.  (N.  S.)  639. 

4  4  Lowery  v.  West.  U.  Tel.  Co.,  60  N.  Y.  198,  19  Am.  Rep.  154 ;  Ross  v.  West. 
U.  Tel.  Co.,  81  Fed.  676,  26  C.  C.  A.  564. 

45  Lowery  v.  West.  U.  Tel.  Co.,  60  N.  Y.  198,  19  Am.  Rep.  154;  Strahorn, 
etc.,  Comn.  Co.  v.  West.  U.  Tel.  Co.,  101  Mo.  App.  500,  74  S.  W.  876. 

46  Hidgon  v.  West.  U.  Tel.  Co.,  132  N.  C.  726,  44  S.  E.  558 ;  West  U.  Tel.  Co. 
V.  Briscoe,  IS  Ind.  App.  22,  47  N.  E.  473. 

Jones  Tel.(2d  Ed.) — 44 


090  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  533 

Brown,  conceived  and  executed  after  the  defendant  had  ceased  to 
have  any  relation  to  the  money.  The  plaintiff's  right  of  action  for 
the  negligence  was  complete  before  the  money  was  misappropriat- 
ed by  Brown ;  and  if  suit  had  then  been  brought,  the  damages 
would  not  have  been  measured  by  the  amount  of  money  sent  by 
the  plaintiff.  The  most  that  can  be  said  is  that  by  the  negligence 
of  the  company  an  opportunity  was  afforded  Brown  to  commit  a 
fraud  upon  the  plaintiff.  This  does  not,  within  the  cases,  make 
the  company  chargeable  with  the  loss  resulting  from  the  con- 
version." *'^  The  same  ruling  was  held  in  a  case  similar  to  the 
above,  where  the  plaintiff  sent  a  message  inquiring  as  to  the  finan- 
cial standing  of  certain  parties  who  had  presented  drafts  to  them 
and  concluded :  "If  everything  is  all  right,  you  need  not  dispatch. 
If  not  right,  answer  by  Saturday  evening  (13th)."  On  Monday  at 
1-:55  p.  m.  a  reply  was  delivered  to  the  company  stating:  "Parties 
will  accept  if  bill  of  lading  accompanies  draft.  Parties  stand  fair." 
This  message  was  never  transmitted  and  before  3  o'clock  on  the 
same  day,  the  plaintiff,  having  received  no  reply,  cashed  the  drafts, 
which  were  eventually  lost.  The  court  held  that  the  dishonesty  of 
the  parties  who  drew  the  draft,  and  not  the  negligence  of  the  com- 
pany, was  the  cause  of  the  loss.*^ 

§  533.  Effect  of  special  circumstances — notice. — It  must  ever  be 
kept  in  mind,  while  considering  the  amount  of  damages  to  be  re- 
covered from  a  telegraph  company  for  negligently  transmitting  or 
delivering  a  message,  that  only  such  can  be  recovered  as  might 
be  supposed  to  have  entered  into  the  contemplation  of  the  parties' 
minds  at  the  time  of  making  the  contract,  as  would  be  the  most 
probable  and  natural  result  of  such  negligence.*®  If  there  were 
special  circumstances  connected  with  the  sending  of  the  message 
which  would  be  the  cause  of  a  greater  loss  or  injury  in  case  it 
was  not  correctly  transmitted  and  promptly  delivered,  the  company 
will  not  be  liable  on  account  of  these  facts,  unless  it  should  have 
notice  of  such  at  the  time  the  contract  of  sending  was  made.^°     It 

47  Lowery  v.  West.  U.  Tel.  Co.,  60  N.  Y.  19S,  19  Am.  Rep.  154. 

4  8  First  Nat.  Bank  v.  West.  U.  Tel.  Co.,  30  Ohio  St.  555,  27  Am.  Kep.  4S5. 

4  a  West.  U.  Tel.  Co.  V.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  R.  A.  (N.  S.) 
560,  125  Am.  St.  Rep.  1077,  quoting  author.  See,  also,  other  cases  cited  in 
note  14,  supra. 

Mental  anguish. — See  §  587. 

5  0  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744 ;  Postal 
Tel.  Cable  Co.  v.  Barwise,  11  Colo.  App.  328,  53  Pac.  252 ;  West.  U.  Tel.  Co.  v. 
Hogue,  79  Ark.  33,  94  S.  W.  924 ;  McColl  v.  West.  U.  Tel.  Co.,  44  N.  Y.  Super. 
Ct.  487 ;  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155 ;  Hildreth  v.  West.  U. 
Tel.  Co.,  56  Fla.  387,  47  South.  820 ;  Smith  v.  West.  U.  Tel.  Co.,  S3  Ky.  104,  4 
Am.  St.  Rep.  126 ;  Taylor  v.  West.  U.  Tel.  Co.,  101  S.  W.  969,  31  Ky.  Law  Rep, 


I 


§    533)  MEASURE   OF   DAMAGES  691 

is  not  supposed  that  in  every  possible  loss  the  company's  negli- 
gence may  be,  to  a  certain  extent,  the  cause ;  but  it  is  only  such  re- 
sults as  a  man  of  ordinary  understanding  might  have  contemplated 
would  be  the  natural  and  probable  result.  So,  if  the  special  cir- 
cumstances connected  with  the  sending  of  the  message  were  such 
as  would  not  have  been  contemplated  by  the  company  as  being  a 
probable  result  of  its  negligence,  the  same  cannot  be  considered  in 
the  awarding  of  damages.  Thus,  where  plaintiff  sent  a  message  to 
her  husband,  requesting  him  to  come  home  to  their  sick  child, 
but  the  husband  failed  to  reach  home  as  soon  as  he  would  have 
done  in  case  the  message  had  been  promptly  delivered  to  him,  the 
plaintiff  cannot  recover  damages  for  physical  and  mental  suffering 
brought  about  by  reason  of  her  pregnancy,  while  nursing  the  child, 

240 :  Cason  v.  West.  U.  Tel.  Co.,  77  S.  C.  157,  57  S.  E.  722 ;  West.  U.  Tel.  Co.  v. 
Coffin,  SS  Tex.  94,  30  S.  W.  896 ;  Clio  Gin  Co.  v.  West.  U.  Tel.  Co.,  82  S.  C.  405, 
64  S.  E.  426 ;  Lewin-Cole  Comn.  Co.  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  115 
S,  W.  313 ;  West.  U.  Tel.  Co.  v.  Twaddell,  47  Tex.  Civ.  App.  51,  103  S.  W.  1120 ; 
West.  U.  Tel.  Co.  v.  Clifton,  68  Miss.  307,  8  South.  746;  Clark  Mfg.  Co.  v. 
West.  U.  Tel.  Co.,  152  N.  C.  157,  67  S.  E.  329,  27  L.  R.  A.  (N.  S.)  643 ;  Stone  v. 
Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46  L.  R.  A.  (N.  S.)  180 ;  West. 
U.  Tel.  Co.  V.  True,  101  Tex.  236,  106  S.  W.  315 ;  West.  U.  Tel.  Co.  v.  Woods 
(Tex.  Civ.  App.)  133  S.  W.  440;  Guilford  v.  West.  U.  Tel.  Co.,  163  Ala.  1,  50 
South.  112 ;  West.  U.  Tel.  Co.  v.  Askew,  92  Ark.  133,  122  S.  W.  107 ;  Bashinsky 
v.  West.  U.  Tel.  Co.,  1  Ga.  App.  761,  58  S.  E.  91 ;  Illinois  Smelting,  etc.,  Co.  v. 
West.  U.  Tel.  Co.,  146  111.  App.  163 ;  Wells  v.  West.  U.  Tel.  Co.,  144  Iowa,  605, 
123  N.  W.  371,  24  L.  R.  A.  (N.  S.)  1045,  138  Am.  St.  Rep.  317 ;  Postal  Tel.  Cable 
Co.  V.  Louisville  Cotton  Oil  Co.,  136  Ky.  843,  122  S.  W.  852,  125  S.  W,  266 ; 
Marriott  v.  West.  U.  Tel.  Co.,  84  Neb.  443,  121  N.  W.  241,  133  Am.  St.  Rep. 
633 ;  West.  U.  Tel.  Co.  v.  Pratt,  18  Okl.  274,  89  Pac.  237 ;  West.  U.  Tel.  Co.  v. 
Mellor,  33  Tex.  Civ.  App.  264,  76  S.  W.  249 ;  West.  U.  Tel.  Co.  y.  BiggerstaCtf, 
177  Ind.  168,  97  N.  E.  531 ;  Fitch  v.  Telephone  Co.,  150  Mo.  App.  149,  130  S.  W. 
44 ;  Christmon  v.  Telephone  Co.,  159  N.  C.  195,  74  S.  E.  325 ;  West.  U.  Tel.  Co. 
V.  Farrington  (Tex.  Civ.  App.)  131  S.  W.  609 ;  Telephone  Co.  v.  Barkley,  62  Tex. 
Civ.  App.  573,  131  S.  W.  849 ;  Lyles  v.  West.  U.  Tel.  Co.,  77  S.  C.  174,  57  S.  E. 
725,  12  L.  R.  A.  (N.  S.)  534 ;  Foreman  v.  West.  U.  Tel.  Co.,  141  Iowa,  32,  116 
N.  W.  724,  19  L.  R.  A.  (N.  S.)  374 ;  West.  U.  Tel.  Co.  v.  Garlington,  101  Ark. 
487,  142  S.  W.  854,  49  L.  R.  A.  (N.  S.)  300 ;  West.  U.  Tel.  Co.  v.  Glover,  138  Ky. 
500,  128  S.  W.  587,  49  L.  R.  A.  (N.  S.)  308 ;  Thurman  v.  West.  U.  Tel.  Co.,  127 
Ky.  137,  105  S.  W.  155,  14  L.  R.  A.  (N.  S.)  499 ;  Middleton  v.  West.  U.  Tel.  Co., 
183  Ala.  213,  62  South.  744,  49  L.  R.  A.  (N.  S.)  305 ;  West.  U.  Tel.  Co.  v.  Oastler. 
90  Ark.  268,  119  S.  W.  285,  49  L.  R.  A.  (N.  S.)  325 ;  Anniston  Cordage  Co.  v. 
West.  U.  Tel.  Co.,  161  Ala.  216,  49  South.  770,  30  L.  R.  A.  (N.  S.)  1116,  135  Am. 
St.  Rep.  124 ;  West.  U.  Tel.  Co.  v.  True,  105  Tex.  344,  148  S.  W.  561,  41  L.  R. 
A.  (N.  S.)  1188 ;  McNeil  v.  Postal  Tel.  Cable  Co.,  154  Iowa,  241,  134  N.  W.  611, 
38  L.  R.  A.  (N.  S.)  727,  Ann.  Cas.  1914A,  1294 ;  Providence-Washington  Ins.  Co. 
V.  West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E.  134,  30  L.  R.  A.  (N.  S.)  1170,  139  Am. 
St.  Rep.  314.    See  §  554,  note  19. 

May  recover  ivhere  notice  given. — But  where  the  company  had  such  notice, 
recovery  may  be  had  if  the  loss  was  the  proximate  consequence  of  the  com- 
pany's negligent  act  and  was,  or  should  have  been,  contemplated  as  probable 
or  likely  to  follow  negligence.    West.  U.  Tel.  Co.  v.  Iloyt,  89  Ark,  118,  115  S. 


<)92  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  534 

when  the  company  had  no  knowledge  of  her  pregnancy.^^  So, 
where  the  plaintiff  received  a  message  telling  him  that  his  trial 
was  set  for  such  a  day,  but  the  company  negligently  changed  the 
date  set  for  the  trial,  w^hich  caused  the  plaintiff  to  make  a  trip 
to  the  place  at  which  the  trial  was  to  be  had  on  the  date  stated 
in  the  message,  it  was  held  that  he  could  not  recover  damages  for 
his  mill  being  necessarily  kept  idle  during  his  absence,  when  the 
company  had  no  information  that  this  would  be  the  result. ^^  He 
may,  how^ever,  be  allowed  his  necessary  expenses  incurred  in  such 
a  trip,^^  including  a  reasonable  attorney's  fee.""^ 

§  534.  How  communicated  to  the  company — information. — It  is 
immaterial  as  to  how  the  special  circumstances  may  be  communi- 
cated tothe  company;  if  it  was  sufficiently  informed  of  this  fact 
at  the  time  the  message  w^as  delivered,  it  will  be  liable  for  all  dam- 
ages arising  directly  therefrom. ^^     The  information  may  be  com- 

W.  941 ;  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  125  Am.  St. 
•  Rep.  1077,  11  L.  R.  A.  (N.  S.)  560 ;  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46 
South.  1024,  127  Am.  St.  Rep.  169 ;  Postal  Tel.  Cable  Co.  v.  Rhett  (Miss.)  35 
South.  829 ;  Sultan  v.  West.  U.  Tel.  Co.,  92  Miss.  785,  46  South.  827 ;  McGregor 
V.  West.  U.  Tel.  Co.,  85  Mo.  App.  308  ;  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76 
Atl.  736,  43  L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas.  895 ;  West.  U.  Tel.  Co.  v.  Hous- 
ton Rice  Mill  Co.  (Tex.  Civ.  App.)  93  S.  W.  1084 ;  Postal  Tel.  Cable  Co.  v.  Levy 
(Tex.  Civ.  App.)  102  S.  W.  134;  Postal  Tel.  Cable  Co.  v.  Sunset  Constr.  Co., 
102  Tex.  148,  114  S.  W.  98 ;  Brooks  v.  West.  U.  Tel.  Co.,  26  Utah,  147,  72  Pac. 
499. 

51  West.  U,  Tel.  Co.  v.  Pearce,  82  Miss.  487,  34  South.  152.    See  §  587. 

5  2  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A.  744. 

5  3  See  §  543. 

5  4  West.  U.  Tel.  Co.  v.  McLaurin,  70  Miss.  26,  13  South.  36. 

5  5  West.  U.  Tel.  Co.  v.  Henley,  23  Ind.  App.  14,  54  N.  E.  775;  West.  U. 
Tel.  Co.  V.  Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  Rep.  169 ;  McPeek 
v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St.  Rep.  205,  43 
L.  R.  A.  214 ;  Herron  v.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696 ;  Thomas 
V.  West.  U.  Tel.  Co.,  120  Ky.  194.  85  S.  W.  760,  27  Ky.  Law  Rep.  569 ;  Mackay 
V.  West.  U.  Tel.  Co.,  16  Nev,  222 ;  Smith  v.  West.  U.  Tel.  Co.,  80  Neb.  395, 
114  N.  W.  288;  Rittenhouse  v.  Independent  Telephone  Line,  44  N.  Y.  263,  4 
Am.  Rep.  673 ;  Sprague  v.  West.  U.  Tel.  Co.,  6  Daly  (N.  Y.)  200,  affirmed  in 
67  X.  Y.  590 ;  Jones  v.  West.  U.  Tel.  Co.,  70  S.  C.  539,  50  S.  E.  198 ;  Id.,  75 
S.  C.  208,  55  S.  E.  318 ;  Dayvis  v.  West.  U.  Tel.  Co.,  139  N.  C.  79,  51  S.  E.  898 ; 
West.  U.  Tel.  Co.  v.  Hidalgo  (Tex.  Civ.  App.)  99  S.  W.  426;  Erie  Tel.,  etc., 
Co.  V.  Grimes,  82  Tex.  89,  17  S.  W.  831 ;  West.  U.  Tel.  Co.  v.  Bell  (Tex.  Civ. 
App.)  90  S.  W.  714;  West.  U.  Tel.  Co.  v.  Griffin,  27  Tex.  Civ.  App.  306,  65 
S.  W.  661;  Postal  Tel.  Cable  Co.  v.  Nichols,  159  Fed.  643,  89  C.  C.  A.  585, 
16  L.  R.  A.  (N.  S.)  870;  West.  U.  Tel.  Co.  v.  Vanway  (Tex.  Civ.  App.)  54 
S.  W.  414 ;  Ward  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  51  S.  W.  259 ;  West. 
U.  Tel.  Co.  V.  Nagle,  11  Tex.  Civ.  App.  539,  32  S.  W.  707;  West.  U.  Tel.  Co. 
V.  Jobe,  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  1036 ;  West.  U.  Tel.  Co.  v.  Willi- 
ford,  2  Tex.  Civ.  App.  574,  22  S.  W.  244;  Harrison  v.  West.  U.  Tel.  Co.,  3 
Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  §  43 ;  Marriott  v.  West.  U.  Tel.  Co.,  84  Neb. 
448,  121  N.  W.  241,  133  Am.  St.  Rep.  633 ;  Heath  v.  West.  U.  Tel.  Co.,  87  S.  C. 
219,  69  S.  E.  283 ;    Goodwin  v.  Telephone  Co.  (Tex.  Civ.  App.)  160  S.  W.  107 ; 


II 


§    535)  MEASURE   OF   DAMAGES  693 

municated  by  the  message  itself,  which  may  have  the  nature  of 
the  special  circumstances  on  its  face.^"  When  this  is  the  case, 
there  is  no  doubt  of  the  company's  liability.  And  the  information 
may  be  communicated  to  the  operator  at  the  time  the  message  is 
delivered  to  him,  either  by  the  sender  or  his  agent.^'^  If  it  can  be 
shown  that  the  company  or  its  operator  acquired  the  information 
at  the  time  the  message  was  delivered  for  transmission,  there  is 
no  doubt  that  this  is  as  good  information  as  if  the  message  itself 
showed  the  circumstances  on  its  face.^^  While  the  rule  is  that 
extrinsic  evidence  cannot  be  admitted  for  the  purpose  of  changing 
the  terms  of  a  written  contract,  yet  it  may  be  admitted  for  the 
purpose  of  showing  what  the  intention  was.  Such  evidence  may  be 
admitted  to  show  what  the  parties  contemplated,  at  the  making  of 
the  contract,  would  be  the  supposed  probable  result  of  the  breach 
of  such  contract. ^^ 

§  535.  Same  continued — damages — remote  and  speculative. — It 
does  not  matter  whether  there  were  special  circumstances  connect- 
West.  U.  Tel.  Co.  V.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  R.  A.  (N.  S.)  561, 
125  Am.  St.  Rep.  1077 ;  West.  U.  Tel.  Co.  v.  Pruett  -(Tex.  Civ.  App.)  35  S.  W. 
78 ;  Gulf,  etc.,  R.  Co.  v.  Loouie,  82  Tex.  323,  18  S.  W.  221,  27  Am.  St.  Rep. 
891;  West.  U.  Tel.  Co.  v.  Lawson,  182  Fed.  369,  105  C.  C.  A.  451.  See  Pope 
V.  West.  U.  Tel.  Co.,  14  111.  App.  531.  But  see  Wlieelock  v.  Postal  Tel.  Cable 
Co.,  197  Mass.  119,  83  N.  E.  313,  14  Ann.  Cas.  188 ;  Dorgan  v.  West.  U.  Tel. 
Co.,  Fed.  Cas.  No.  4,004. 

5  6Hadley  v.  West.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845;  West.  U.  Tel. 
Co.  V.  Coffin,  88  Tex.  94,  30  S.  W.  896 ;  Postal  Tel.  Cable  Co.  v.  Latlirop.  131 
111.  575,  23  N.  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ;  Bierhaus  v.  West. 
U.  Tel.  Co.,  8  Ind.  App.  246,  34  N.  E.  581 ;  Pepper  v.  West.  U.  Tel.  Co.,  87 
Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep.  699,  4  L.  R.  A.  060 ;  Parks  v.  Alta 
California  Tel.  Co.,  13  Cal.  422,  73  Am.  Dec.  589 ;  West.  U.  Tel.  Co.  v.  Ilines, 
96  Ga.  688,  23  S.  E.  845,  51  Am.  St.  Rep.  159 ;  Pladley  v.  West.  U.  Tel.  Co., 
115  Ind.  191,  15  N.  E.  845;  Manville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214,  18 
Am.  Rep.  8 ;  True  v.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156 ;  Rit- 
tenhouse  v.  Independent,  etc.,  Tel.  Co.,  44  N.  Y.  263,  4  Am.  Rep.  073 ;  United 
States  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751 ;  West.  U.  Tel.  Co.  v. 
Sheffield,  71  Tex.  570,  10  S.  W.  752.  10  Am.  St.  Rep.  790;  Martin  v.  AVest. 
U.  Tel.  Co.,  1  Tex.  Civ.  App.  143,  20  S.  W.  860 ;  West.  U.  Tel.  Co.  v.  Williford, 
2  Tex.  Civ.  App.  574,  22  S.  W.  244 ;  West.  U.  Tel.  Co.  v.  Morrison  (Tex.  Civ. 
App.)  33  S.  W.  1025 ;  Thompson  v.  West.  U.  Tel.  Co.,  64  Wis.  531,  25  N.  W. 
789,  54  Am.  Rep.  644.     See,  also,  §§  539,  540,  542,  and  543. 

•'■'7  See  Pope  v.  West.  U.  Tel.  Co.,  14  111.  App.  531;  West.  U.  Tel.  Co.  v. 
Weniski,  84  Ark.  457,  100  S.  W.  486;  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla. 
462,  40  South.  1024,  127  Am.  St.  Rep.  169;  Fitch  v.  Telephone  Co.,  150  INIo. 
App.  149.  130  S.  W.  44;  Wiggs  v.  Telephone,  etc.,  Co.  (Tex.  Civ.  App.)  110 
S.  W.  179. 

5  8  See  §  587. 

50  See  Ilerron  v.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696;  McPeek  v. 
West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St.  Rep.  205,  43  L.  R.  A. 
214 ;  Rittenhouse  v.  Independent,  etc.,  Tel.  Co.,  44  N.  Y.  263,  4  Am.  Rep.  673 ; 
West.  U.  Tel.  Co.  v.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835; 
West.  U.  Tel.  Co.  v.  Jobe,  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  1036. 


G94  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  536 

ed  with  the  sending  of  the  message,  and  that  these  facts  were 
properly  and  sufficiently  communicated  to  the  company;  they  can- 
not control  the  measure  of  damages,  where  they  are  essentially  re- 
mote or  speculative  in  character.'^°  Thus,  where  the  sender  loses 
the  opportunity  to  conduct  a  profitable  speculation,  or  to  secure 
contingent  profits,  he  cannot  recover  for  these,  although  the  com- 
pany may  have  been  informed  of  the  nature  and  character  of  the 
message.  So  also,  where  the  basis  of  the  action  is  the  negligence 
of  the  company  in  failing  to  deliver  promptly  the  message  request- 
ing the  addressee  to  meet  the  plaintift  at  a  station,  damages  are 
not  recoverable  for  fatigue  and  exposure  incident  to  the  plaintifif's 
being  compelled  to  walk  from  the  station,  nor  for  impairment  of 
health  resulting  therefrom;*'^  neither  could  the  expenses  for  the 
hiring  of  a  conveyance  be  recovered.*^-  It  was  held,  however,  that 
if  the  operator  knew  that  the  sender  was  a  woman,  and  the  place 
to  which  the  message  requested  the  addressee  to  meet  her  was  a 
flag  station,  the  company  is  put  on  notice  that  a  failure  of  the  mes- 
sage being  delivered  will  necessitate  her  walking,  and  it  will  be 
liable  therefor,  but  riot  for  sickness  resulting  from  the  fatigue 
and  exposure  to  which  she  was  subjected. ^^ 

§  536.  Cipher  or  otherwise  unintelligible  messages. — From 
what  has  been  said  in  the  preceding  section,  the  logical  conclu- 
sion which  naturally  follows  is  that,  where  a  telegraph  company 
receives  a  cipher  ^^  message,  or  one  otherwise  unintelligible/^  and 

6  0  See  §§  530,  531. 

61  Stafford  v.  West.  V.  Tel.  Co.  (C.  C.)  73  Fed.  273;  Yazoo,  etc.,  R.  Co.  v. 
Foster  (Miss.)  23  South.  581;  West.  U.  Tel.  Co.  v.  Smith,  76  Tex.  253,  13 
S.  W.  169. 

6  2  West.  U.  Tel.  Co.  v.  Smith.  76  Tex.  253,  13  S.  W.  169. 

6  3  West.  U.  Tel.  Co.  v.  Norton  (Tex.  Civ.  App.)  62  S.  W.  1081.  See,  also, 
West.  U.  Tel.  Co.  v.  Bryant,  17  Ind.  App.  70,  46  N.  E.  358 ;  West.  U.  Tel.  Co. 
V.  Ragland  (Tex.  Civ.  App.)  61  S.  W.  421 ;  West.  U.  Tel.  Co.  v.  Karr,  5  Tex. 
Civ.  App.  60,  24  S.  W.  302. 

64  West.  U.  Tel.  Co.  v.  Wilson,  32  Fla.  527,  14  South.  1,  37  Am.  St.  Rep. 
125.  22  L.  R.  A.  434,  overruling  West.  U.  Tel.  Co.  v.  Hyer,  22  Fla.  637,  1 
South.  129,  1  Am.  St.  Rep.  222:  Hart  v.  West.  U.  Tel.  Co.,  66  Cal.  579,  6 
Pac.  637,  56  Am.  Rep.  119;  West.  U.  Tel.  Co.  v.  Martin,  9  111.  App.  587; 
West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  St.  Rep. 
169 ;  Wheelock  v.  Postal  Tel.  Cable  Co.,  197  Mass.  119,  83  N.  E.  313,  14  Ann. 
Cas.  188 ;  MacKay  v.  West.  TJ.  Tel.  Co.,  16  Nev.  222 ;  Beaupre  v.  Pacific,  etc., 
Tel.  Co.,  21  Minn.  155 ;  Abeles  v.  West.  U.  Tel.  Co..  37  Mo.  App.  554 ;  Hughes 
v.  West.  U.  Tel.  Co..  79  Mo.  App.  133 ;  Hughes  v.  West.  U.  Tel.  Co.,  114  N.  C. 
70.  19  S.  E.  100,  41  Am.  St.  Rep.  782 ;  Cannon  v.  West.  U.  Tel.  Co.,  100  N.  C. 
300.  6  S.  E.  731,  6  Am.  St.  Rep.  590 ;  Hill  v.  West.  U.  Tel.  Co.,  42  S.  C.  367, 
20  S.  E.  135,  40  Am.  St.  Rep.  734 ;  Fergusson  v.  Anglo-American  Tel.  Co.,  178 
Pa.  377,  35  Atl.  979,   56  Am.  St.   Rep.   770.  35  L.  R.  A.   554.   distinguishing 


6  5  See  note  65  on  following  page. 


Jl 


§    536)  MEASURE   OF   DAMAGES  ■  695 

the  nature  and  the  purpose  of  which  are  only  known  by  the  sender 
and  the  addressee,  the  company  will  only  be  liable  for  nominal 
damages,  or,  at  least,  the  price  paid  for  its  transmission,  where  it 
is  negligently  transmitted  or  delivered.  Some  courts  hold  differ- 
ently with  respect  to  this  subject, *''''  but  the  greater  weight  of  au- 
thority, both  English  and  American,  considers  it  as  first  stated. 
As  was  said  in  discussing  the  general  rule  on  this  subject,  when 

West.  U.  Tel.  Co.  v.  Landis,  21  Wkly.  Notes  Cas.  (Pa.)  38 ;  Dauiel  v.  West.  U. 
Tel.  Co.,  61  Tex.  452,  48  Am.  Rep.  305 ;  Candee  v.  West.  U.  Tel.  Co.,  34  Wis. 
471,  17  Am.  Rep.  452;  West.  U.  Tel.  Co.  v.  Mellor,  33  Tex.  Civ.  App.  264,  76 
S.  W.  449 ;  Houston,  etc.,  Tel.  Co.  v.  Davidson,  15  Tex.  Civ.  App.  334,  39  S.  W. 
€05 ;  Harrison  v.  West.  U.  Tel.  Co.,  3  Willson,  Civ.  Cas.  Ct.  App.  §  43 ;  Prim- 
rose V.  West.  U.  Tel.  Co.,  154  U.  S.  1,  14  Sup.  Ct.  1098,  38  L.  Ed.  883 ;  Sanders 
V.  Stuart,  1  C.  P.  D.  326,  45  L.  J.  C.  P.  682,  35  L.  T.  Rep.  N.  S.  370,  24  Wkly, 
Rep.  949 ;  West.  U.  Tel.  Co.  v.  McKinney,  2  Willson,  Civ.  Cas.  Ct.  App.  §  644 ; 
Erb  V.  Telephone  Co.,  162  111.  App.  494. 

Action  hy  sender. — In  tbe  following  cases  it  was  held  that  the  sender  of  an 
unintelligible  or  cipher  message  could  only  recover  nominal  damages  for  fail- 
ure to  correctly  deliver  where  the  company  had  no  notice  of  the  meaning  of 
the  telegram:  Primrose  v.  West.  U.  Tel.  Co.,  supra;  West.  U.  Tel.  Co.  v. 
Eubanks,  100  Ky.  591,  38  S.  W.  1068.  66  Am.  St.  Rep.  361,  36  L.  R.  A.  711 ; 
Pacific  Postal  Tel.  Cable  Co.  v.  Fleischner,  66  Fed.  899,  14  C,  C.  A.  168 ;  Hart 
V.  West.  U.  Tel.  Co.,  supra ;  White  v.  West.  U.  Tel.  Co.  (C.  C.)  14  Fed.  710 ; 
West.  U.  Tel.  Co.  v.  Coggin,  68  Fed.  137,  15  C.  C.  A.  231 ;  West.  U.  Tel.  Co.  v. 
Martin,  supra ;  Shields  v.  Washington  Tel.  Co.  (La.)  9  We.st.  Law  J.  283 ; 
Shaw  V.  Postal  Tel.  Cable  Co.,  79  Miss.  670,  31  South.  222,  89  Am.  St.  Rep. 
666,  56  L.  R.  A.  486 ;  Postal  Tel.  Cable  Co.  v.  Wells,  82  Miss.  733,  35  South. 
190;  Newsome  v.  West.  U.  Tel.  Co.,  137  N.  C.  513,  50  S.  E.  279;  Hart  v. 
Direct  U.  S.  Cable  Co.,  86  N.  T.  633 ;  Fererro  v.  West,  U.  Tel.  Co.,  9  App. 
D.  C.  455,  35  L.  R.  A.  548;  Postal  Tel.  Cable  Co.  v.  Lathrop,  131  111.  575, 
23  N,  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ;  West.  U.  Tel.  Co.  v.  Hall, 
124  U.  S.  244,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  United  States  Tel.  Co.  v.  Gilder- 
sieve,  29  Md,  232,  96  Am.  Dec.  519 ;  Wheelock  v.  Postal  Tel.  Cable  Co.,  supra ; 
Smith  V.  West.  U.  Tel.  Co.,  80  Neb.  395,  114  N.  W.  288 ;  Frazier  v.  West.  U. 
Tel.  Co.,  45  Or.  414,  78  Pac.  330,  67  L.  R.  A.  319,  2  Ann.  Cas.  396 ;  West.  U. 
Tel.  Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A. 
844;   West.  U.  Tel.  Co.  v.  McKinney,  2  Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  §  644. 

6  5  United  States  Tel.  Co.  v.  Gildersleve,  29  Md,  232,  96  Am.  Dec.  519;  West. 
U.  Tel.  Co.  v,  Cornwell,  2  Colo.  App.  491,  31  Pac.  393 ;  Jacobs  v.  Postal  Tel. 
Cable  Co.,  76  INIdss.  278,  24  South.  535 ;  West.  U.  Tel.  Co.  v.  Clifton,  68  Miss. 
307,  8  South.  746;  West.  U.  Tel.  Co.  v.  Pearce,  82  Miss.  487,  34  South.  152; 
Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  6  Am.  Rep.  165 ;  Melson  v. 
West.  U.  Tel.  Co.,  72  Mo.  App,  111;  McColl  v.  West.  U.  Tel.  Co.,  44  N.  Y. 
Super.  Ct.  487;  West.  U.  Tel.  Co.  v.  True,  101  Tex,  236,  106  S,  W.  315,  re- 
versing (Civ.  App.)  103  S.  W,  1180;  West,  U,  Tel.  Co.  v.  Pratt,  18  Okl.  274, 
S9  Pac.  237 ;  Elliott  v.  West.  U.  Tel.  Co.,  75  Tex.  IS,  12  S.  W.  954,  16  Am. 
St.  Rep.  872;  Primrose  v.  West.  U,  Tel,  Co,,  154  U.  S.  1,  14  Sup.  Ct.  1098, 
38  L,  Ed.  883;  West.  U,  Tel.  Co.  v,  Coggin,  68  Fed,  137,  15  C.  C.  A,  231; 
Behm  v.  West,  U.  Tel.  Co.,  Fed.  Cas.  No.  1,234 ;  Telephone  Co.  v.  Farrington 
(Tex.  Civ.  App.)  131  S.  W.  609 ;  Telephone  v.  Barkley,  62  Tex.  Civ.  App.  573, 
131  S.  W.  849 ;  Stone  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46 
L.  R.  A.  (N.  S.)  ISO. 

6  6  See  §  538. 


69G  TELEGRAPH  AND  TELEPHOXE  COMPANIES         (§  537 

considering  special  circumstances  connected  with  the  contract  of 
sending  and  which  was  not  known  by  the  contracting  parties: 
"Had  the  special  circumstances  been  known,  the  parties  might 
have  specially  provided  for  the  breach  of  the  contract  by  special 
terms  as  to  the  damages  in  that  case  and  of  this  advantage  it  would 
be  very  unjust  to  deprive  them."  "  The  unintelligible  messages 
may  and  generally  do  relate  to  special  circumstances  not  known 
by  these  companies,  and  to  hold  them  liable  for  damages  resulting 
from  negligence  in  sending,  and  that  which  may  not  have  entered 
into  the  contemplation  of  their  minds  at  the  time  of  accepting  the 
message  as  being  the  natural  and  proximate  result  of  such  negli- 
gence, would  be  inconsistent  with  the  spirit  of  the  general  rule. 
Some  courts  have  held  that  this  rule  is  analogous  to,  and  derives 
its  support  from,  the  principle  of  the  law  of  common  carriers  which 
exempts  them  from  responsibility  Where  the  owner  conceals  his 
goods  so  that  the  nature,  quantity  and  price  of  them  are  unknown 
to  the  carrier.^s  This  is  doubtless  true,  in  a  sense,  but  we  think 
the  fundamental  principle  of  this  rule,  as  well  as  that  of  carriers, 
is  founded  upon  the  reasons  given  in  the  case  which  is  universally 
recognized  as  authority  on  this  subject.^ ^  The  only  difificulty  in 
these  cases  is  in  ascertaining  the  fact  as  to  whether  the  company 
was  informed  of  the  nature  and  purpose  of  the  message. 

§  537.  Same  continued — reason  of  rule. — A  reason  for  this  rule 
was  given  by  Chief  Justice  Dixon,  from  which  we  quote :  "It  can- 
not be  said  or  assumed  that  any  amount  of  damages  or  any  pe- 
cuniary loss  or  injury  will  naturally  ensue  or  be  suffered,  according 
to  the  usual  course  of  things,  from  the  failure  to  transmit  a  mes- 
sage, the  meaning  and  import  of  which  are  wholly  unknown  to  the 
operator.  The  operator  who  receives,  and  who  represents  the  com- 
pany, and  may  for  this  purpose  be  said  to  be  the  other  party  to  the 
contract,  cannot  be  supposed  to  look  upon  such  a  message  as  one 
pertaining  to  transactions  of  pecuniary  value  and  importance,  and 
in  respect  to  which  pecuniary  loss  or  damages  will  naturally  arise 
in  case  of  his  failure  or  omission  to  send  it.  It  may  be  a  mere 
item  of  news  or  some  other  communication  of  trifling  and  unim- 
portant character.  Ignorant  of  its  real  nature  and  importance,  it 
cannot  be  said  to  have  been  in  his  contemplation,  at  the  time  of 
making  the  contract,  that  any  particular  damage  or  injury  would 
be  the  probable  result  of  a  breach  of  the  contract  on  his  part."  ^^ 


C7  Hadley  v.  Baxendale,  9  Exch.  341. 

68  Candeev.  West.  U.  Tel.  Co.,  .34  Wis.  471,  17  Am.  Rep,  452. 

c  9  Hadley  V.  Baxendale,  9  Exch.  341. 

7  0  Candee  v.  West.  U.  Tel.  Co.,  34  Wis.  471,  17  Am.  Rep.  452. 


■ 


§    538)  MEASURE  OF  DAMAGES  697 

It  is  true  that  these  companies  must  exercise  as  much  care  and 
diligence  in  the  transmission  of  unintelligible  messages  as  those 
which  show  the  importance  and  urgency  on  their  face,  although 
they  would  know  in  one  and  not  in  the  other  the  result  of  their 
dereliction  and  carelessness.  It  is  one  of  the  duties  of  these  com- 
panies to  refrain  from  divulging  the  contents  of  messages  intrusted 
to  their  care;  this  is  provided  for  by  statutes  in  some  states,  and 
the  operator  who  violates  such  may  be  subjected  to  a  penalty/^ 
Therefore,  if  the  company  may  be  held  liable  for  all  damages  re- 
sulting proximately  and  naturally  from  its  negligence,  when  the 
message  shows  its  importance  and  purpose  on  its  face,  whereby 
the  company  is  informed  of  the  probable  results  of  its  negligence, 
and  if  the  secrecy  of  one  is  as  safe  as  the  other,  it  should  be  the 
duty  of  the  sender  to  inform  the  company,  in  some  way,  of  the 
importance  of  the  message  in  order  to  hold  it  liable  for  damages  to 
which  it  would  not  otherwise  be  subjected  in  case  the  message  w^as 
unintelligible. 

§  538.  Contrary  view. — There  are  some  very  plausible  reasons 
given  by  some  courts  for  holding  a  contrary  view  on  this  subject. 
These  courts  hold  that  the  company  is  liable  for  all  damages  re- 
sulting proximately  and  directly  from  the  company's  failure  to 
transmit  correctly  or  deliver  promptly  all  messages  delivered  to  it, 
whether  they  be  intelligible  or  unintelligible  to  the  company  at 
the  time  they  are  accepted.'^"    The  ground  on  which  they  base  their 

71  See  §  311  et  seq. 

•7  2  West.  U.  Tel.  Co.  v.  Way,  S3  Ala.  542,  4  South.  844;  Daugherty  v.  Amer- 
ican-Union Tel.  Co.,  75  Ala.  168,  51  Am.  Rep.  435 ;  Dodd  Gro.  Co.  v.  Postal 
Tel.  Cable  Co.,  112  Ga.  GS5,  37  S.  E.  981;  West.  U.  Tel.  Co.  v.  Fatman,  73 
Ga.  285,  54  Am.  Rep.  877 ;  West.  U.  Tel.  Co,  v.  Reynolds,  77  Va.  173,  46  Am. 
Rep.  715;  Alexander  v.  West.  U.  Tel.  Co.,  66  Miss.  161,  5  South.  397,  14 
Am.  St.  Rep.  556,  3  L.  R.  A.  71;  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522, 
76  Atl.  736,  43  L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas.  895. 

Action  hy  receiver. — In  some  cases  it  is  held  that  the  receiver  of  a  message 
may  recover  all  damages  caused  by  the  negligent  transmission  or  delivery 
of  a  cipher  telegram  where  the  agent  should  have  known  the  importance  of 
accuracy  and  dispatch.  Bailey  v.  West.  U.  Tel.  Co.,  supra ;  West.  U.  Tel. 
Co.  V.  Landis,  9  Sadler  (Pa.)  357,  12  Atl.  467 ;  West.  U.  Tel.  Co.  v.  Griswold, 
37  Ohio  St.  301,  41  Am.  Rep.  500;  Postal  Tel.  Cable  Co.  v.  Wells,  82  Miss. 
733,  35  South.  190;  Pinckney  Bros.  v.  We.st.  U.  Tel.  Co.,  19  S.  C.  71,  45  Am. 
Rep.  765 ;  Hill  v.  West.  U.  Tel.  Co.,  42  S.  C.  367,  20  S.  E.  135,  46  Am.  St.  Rep. 
734;  Heath  v.  Postal  Tel.  Cable  Co.,  87  S.  C.  219,  69  S.  E.  283;  Anuiston 
Cordage  Co.  v.  West.  U.  Tel.  Co.,  161  Ala.  216,  49  South.  770,  30  L.  R.  A. 
(N.  S.)  1116,  135  Am.  St.  Rep.  124;  Hughes  v.  West.  U.  Tel.  Co.,  114  X.  C. 
70,  19  S.  E.  100,  41  Am.  St.  Rep.  782.  And  so  if  the  receiver  had  the  same 
information  from  other  sources  and  where  he  was  not  damaged.  West.  U. 
Tel.  Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  1068,  66  Am.  St.  Rep.  361,  36 
L.  R.  A.  711.    See  West.  U.  Tel.  Co.  v.  James,  162  U.  S.  650,  16  Sup.  Ct.  934, 


698  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  539' 

views  is  that  it  is  the  duty  of  these  companies  to  exercise  as  much 
care  and  diligence  in  the  transmission  of  these  kinds  of  messages 
as  one  whose  importance  is  shown  on  its  face,  or  where  the  in- 
formation of  this  fact  is  otherwise  given  to  them.  Another  reason 
entertained  is  that  most  messages  of  great  importance  are  written 
in  cipher  or  otherwise  unintelligible  language.  In  other  words,  a 
large  part  of  all  messages  of  a  commercial  or  business  nature  are 
sent  in  cipher,  known  only  to  the  sender  and  addressee;  and  this 
fact  suggests  to  the  company  that  the  damages  resulting  from  its 
negligence  will  be  usually  great,  and  that  all  these  are  supposed  to 
have  entered  into  the  contemplation  of  the  company's  mind  at  the 
time  the  message  was  accepted,  as  would  most  probably  be  the 
natural  and  direct  result  of  its  carelessness  or  negligence.  While 
these  reasons  appear  at  first  sight  as  unanswerable,  yet  we  think 
that  they  are  unsound. 

§  539,  When  message  discloses  its  importance. — Although  a 
message  may  be  couched  in  unusual  or  trade  language,  if  it  is  suffi- 
ciently plain  to  indicate  that  it  relates  to  business  transaction  of 

40  L.  Ed.  1105,  where  the  statute  provides  that  the  receiver  may  receive  a 
penalty  for  failure  to  transmit  correctly ;  Reynolds  v.  West.  U.  Tel.  Co.,  81 
Mo.  App.  223,  no  cause  of  action  where  the  message  is  to  be  delivered  out- 
side of  free  delivery  limit. 

Action  hy  sender. — In  the  following  cases  it  was  held  that  the  sender  was 
entitled  to  recover  all  damages  caused  by  the  failure  to  deliver  the  message, 
some  basing  the  action  upon  the  ground  that  the  message  on  its  face  furnishes 
notice  of  its  importance.  Others  deny  that  the  telegraph  company  can  exempt 
itself  by  contract  from  gross  negligence.  American-Union  Tel.  Co.  v.  Daugh- 
erty,  89  Ala.  191,  7  South.  660 ;  West.  U.  Tel.  Co.  v.  Way,  supra ;  Dodd  Gro. 
Co.  V.  Postal  Tel.  Cable  Co.,  supra;  Beggs  v.  Postal  Tel.  Cable  Co.,  159  111. 
App.  247 ;  Postal  Tel.  Cable  Co.  v.  Louisville  Cotton  Oil  Co.,  136  Ky.  843,  122 
S.  W.  852,  125  S.  W.  266;  Carland  v.  West.  U.  Tel.  Co.,  118  Mich.  369,  76 
X.  W.  762,  74  Am.  St.  Rep.  394,  43  L.  R.  A.  280;  Postal  Tel.  Cable  Co.  v. 
Robertson,  36  Misc.  Rep.  785,  74  N.  Y.  Supp.  876;  United  States  Tel.  Co.  v. 
Wenger,  55  Pa.  262,  93  Am.  Dec.  751 ;  West.  U.  Tel.  Co.  v.  Nagle,  11  Tex.  Civ. 
App.  539,  32  S.  W.  707;  West.  U.  Tel.  Co.  v.  Bell,  24  Tex.  Civ.  App.  573,  59 
S.  W.  918;  West.  U.  Tel.  Co.  v.  Birge-Forbes  Co.,  29  Tex.  Civ.  App.  526,  69 
S.  W.  181;  West.  U.  Tel.  Co.  a'.  Reynold  Bros.,  supra;  West.  U.  Tel.  Co.  v. 
Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  St.  Rep.  169;  Tyler  v.  West. 
U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38;  Postal  Tel.  Cable  Co.  v.  Lathrop, 
131  111.  575,  23  N.  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ;  West.  U.  Tel. 
Co.  V.  Harris,  19  111.  App.  347;  West.  U.  Tel.  Co.  v.  Crall,  38  Kan.  679,  17 
Pac.  309,  5  Am.  St.  Rep.  795 ;  Rittenhouse  v.  Independant,  etc.,  Tel.,  44  N.  T. 
263,  4  Am.  Rep.  673 ;  Candee  v.  West.  U.  Tel.  Co.,  34  Wis.  471,  17  Am.  Rep. 
452;  Kirby  v.  West.  U.  Tel.  Co.,  4  S.  D.  105,  55  N.  W.  759,  46  Am.  St.  Rep. 
765,  30  L.  R.  A.  612 ;  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783, 
10  Am.  St.  Rep.  699,  4  L.  R.  A.  060 ;  West.  U.  Tel.  Co.  v.  Edsall,  74  Tex.  329, 
12  S.  W.  41,  15  Am.  St.  Rep.  835;  Wertz  v.  West.  U.  Tel.  Co.,  7  Utah,  440, 
27  Pac.  172,  13  L.  R.  A.  510;  Postal  Tel.  Cable  Co.  v.  Wells,  82  Miss.  733, 
35  South.  190.  See  Shingleur  v.  West.  U.  Tel.  Co.,  72  Miss.  1030,  IS  South. 
425,  48  Am.  St.  Rep.  604,  30  L.  R.  A.  447. 


§    539)  MEASURE   OF   DAMAGES  699 

much  importance,  and  that  loss  will  probably  result  unless  it  is 
promptly  transmitted  and  delivered,  recovery  will  not  be  limited 
to  nominal  damages. '^^  Thus  it  has  been  held  that  the  following 
messages  contain  sufficient  information  on  their  face  to  indicate 
their  importance :  ^*  "Cover  two  hundred  September,  one  hundred 
August."  ^^  This  meant  sell  two  hundred  bales  of  cotton  delivered 
in  September  and  one  hundred  delivered  in  August.  "Ten  cars 
new  two  white  August  shipment,  fifty-six  half."  '"''  This  was  an 
offer  to  sell  two  cars  of  No.  2  white  oats,  to  be  shipped  in  August, 
at  fifty-six  and  one  half  cents  per  bushel.  "Sell  one  hundred  West- 
ern Union.  Answer  price."  "  "Want  your  cattle  in  the  morning; 
meet  me  at  pasture."  ''^  It  was  held  that  this  was  sufficient  to 
authorize  the  inference  that  a  delay  until  the  day  following  would 
result  in  confusion,  and  loss.  "Ship  your  hogs  at  once."  The 
■court  said :  "The  obvious  reason  of  this  is  evident  on  its  face.  It 
clearly  imports  that  to  meet  a  good  market  for  hogs  there  must  be 
shipment  at  once,  and  that  by  a  delay  a  good  market  will  be  lost. 
It  is  equivalent  to  saying,  if  you  ship  at  once  you  will  obtain  gains 
of  the  purchase  and  sale  of  your  hogs.  If  you  delay,  these  gains 
will  be  lost  by  the  market  price  declining.  It  is  most  obvious, 
therefore,  that  the  parties  contemplated  this  very  thing."  '^®  "Ship 
cargo  named  at  90,  if  you  can  secure  freight  at  10."  This  was  suffi- 
cient to  inform  the  operator  that  this  was  an  acceptance  of  an 
offer  to  sell  a  cargo  at  the  price  named,  if  freight  could  be  procured 
at  ten  cents. ^'^  "If  we  have  any  Old  Sutherland  on  hand,  sell  same 
before  board.  Buy  five  Hudson  at  board."  ^^  "Will  take  two  cars 
sixteens.  Ship  soon  as  convenient  via  West  Shore."  This  was 
sent  after  the  sender  had  received  on  the  same  day,  through  the 
same  office  a  dispatch  from  Armour  &  Co.,  Chicago,  containing 
these  words :  "Pickled  hams,  sixteens,  nine  and  a  half."  In  deliv- 
ering the  opinion  the  court,  said:  "We  think  the  contents  of  this 
message  were  such  as  to  indicate  clearly  to  defendant  that  it  was 
important,  that  a  contract  for  the  purchase  of  two  carloads  of  hams 

7  3  Postal  Tel.  Cable  Co.  v.  Latbrop,  33  111.  App.  400,  affirmed  in  131  111. 
575,  23  N.  E.  5S3,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474;  West.  U.  Tel.  Co.  v. 
Nagle,  11  Tex.  Civ.  App.  539,  32  S.  W.  707.  See  otber  cases  in  note  72,  supra. 
See,  also,  §§  540,  542,  and  543,  and  cases  cited  thereunder. 

7  4  See  §  540. 

"  West.  U.  Tel.  Co.  v.  Blancbard,  68  Ga.  299,  45  Am.  Rep.  4S0. 

76  Wes*.  U.  Tel.  Co.  v.  Harris,  19  111.  App.  347. 

7  7  Tyler  v.  West.  U.  Tel.  Co.,  GO  111.  421,  14  Am.  Rep.  38. 

78  nadley  v.  West.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845. 

70  Manville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214, 'l8  Am.  Rep.  8. 

80  True  v.  International  Tel.  Co.,  CO  Me.  9,  11  Am.  Rep.  156. 

81  Rittenbouse  v.  Independent  Line  of  Tel.,  44  N.  Y.  263,  4  Am.  Rep.  673. 


700  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  540 

was  being  made  by  the  parties,  and  that  a  failure  to  send  the  mes- 
sage must  result  in  such  loss  to  the  parties  as  would  naturally  fol- 
low from  a  failure  to  complete  such  contract."  ^^  "Buy  fifty  North 
Western — fifty  Prairie  du  Chein,  limit  forty-five."  This  contained 
sufficient  information  on  its  face.^^  "Car  cribs  six  sixty,  c.  a.  f., 
prompt."  This  was  sent  in  reply  to  the  following:  "Quote  cribs 
loose,  and  strips  packed."  In  the  meat  trade,  "cribs,"  means  clear 
ribs,  and  "c.  a.  f."  means  cost  and  freight.®*  "You  had  better  come 
and  attend  to  your  claim  at  once."  ®^  "Send  a  bay  horse  to-day. 
Mack  loads  to-night."  Mack  was  a  well-known  horse  buyer  who 
was  in  the  habit  of  shipping  horses  from  the  vicinity  of  the  place 
from  which  the  message  was  sent.®^  The  following  was  held 
against  the  great  weight  of  modern  authority  as  being  insufficient: 
"Will  take  two  hundred  extra  mess,  price  named."  This  was  in 
reply  to  a  message  containing  the  following:    "Extra  mess,  $28.- 

§  540.     Same  continued — need  not  be  informed  of  all  facts. — It  is 

not  necessary  that  the  company  be  informed  of  all  the  facts  and 
circumstances  pertaining  to  the  business  transaction  about  which 
the  message  is  sent,  in  order  for  this  rule  to  hold  good.  It  is  enough 
if  there  are  sufficient  facts  disclosed  by  the  face  of  the  message  to 
indicate  its  importance,  and  the  probable  consequences  of  its  fail- 
ure in  not  being  received  by  the  addressee  as  delivered  to  the 
company. ®®     A  message  containing  these  words,  "Fifty-five  cents, 

82  Mowry  v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  Y.  Supp.  666. 

83  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751. 

84  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  4  L.  R.  A.  660,  10 
Am.  St.  Rep.  699. 

8  5  West.  U.  Tel.  Co.  v.  Sheffield,  71  Tex.  570,  10  S.  W.  752,  10  Am.  St.  Rep. 
790. 

86  Thompson  v.  West.  U.  Tel.  Co.,  64  Wis.  531,  25  N.  W.  789,  .54  Am.  Rep. 
644. 

87  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155. 

88  Evans  v.  West.  U.  Tel.  Co.,  102  Iowa,  219.  71  N.  W.  219 ;  Harkness  v.  West. 
U.  Tel.  Co.,  73  Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  Pepper  v.  West. 
U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep.  699,  4  L.  R.  A.  660 ; 
Gulf,  etc.,  R.  Co.  V.  Loonie,  82  Tex.  323,  18  S.  W.  221,  27  Am.  St.  Rep.  891; 
Manville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214,  IS  Am.  Rep.  8 ;  Garrett  v.  West. 
U.  Tel.  Co.,  83  Iowa,  257,  49  N.  W.  88 ;  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa, 
356,  78  X.  W.  63,  70  Am.  St.  Rep.  205.  43  L.  R.  A.  214 ;  Veitch  v.  West.  U.  Tel. 
Co.,  6  Ala.  App.  328,  59  South.  352 ;  McMillan  v.  West.  U.  Tel.  Co.,  60  Fla.  131. 
53  South.  329,  29  L.  R.  A.  (N.  S.)  891 ;  West.  U.  Tel.  Co.  v.  Hines,  96  Ga.  688, 
23  S.  E.  845,  51  Am.  St.  Rep.  159 :  Providence- Washington  Ins.  Co.  v.  West.  U. 
Tel.  Co.,  247  HI.  84,  93  N.  E.  131,  1.39  Am.  St.  Rep.  314,  30  L.  R.  A.  (N.  S.) 
1170 ;  West.  U.  Tel.  Co.  v.  True,  105  Tex.  344,  148  S.  W.  561,  41  L.  R.  A.  (N.  S.) 
1188 ;  Hadley  v.  West.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845  ;  West.  U.  Tel. 
Co.  V.  Henley,  157  Ind.  90,  60  N.  E.  682 ;  Bierhaus  v.  West.  U.  Tel.  Co.,  8  Ind. 
App.  246,  34  N.  E.  581 ;  McNeil  v.  Postal  Tel.  Cable  Co.,  154  Iowa,  241,  134 


i. 


§    540)  MEASURE  OF  DAMAGES  701 

usual  terms,  quick  acceptance,"  indicates  that  it  relates  to  a  busi- 
ness transaction  and  to  a  contemplated  trade  and  puts  the  company 
on  notice  that  it  is  of  importance.^'*  Some  courts  have  held  that  a 
message  is  sufficiently  plain  if  its  language  is  such  as  to  put  the 
company  on  inquiry. ^°    We  hardly  think  that  it  is  the  duty  of  these 

N.  W.  611,  38  L.  R.  A.  (N.  S.)  727,  Ann.  Cas.  1914A.  1294 ;  Manville  v.  West.  U. 
Tel.  Co.,  37  Iowa,  214,  18  Am.  Rep.  8 ;  Evans  v.  West.  U.  Tel.  Co.,  102  Iowa, 
219,  71  N.  W.  219 ;  Hendershott  v.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W. 
828,  68  Am.  St.  Rep.  313 ;  McNeil  v.  Postal  Tel.  Cable  Co.,  154  Iowa,  241,  134 
N.  W.  611,  38  L.  R.  A.  (N.  S.)  727,  Ann.  Cas.  1914A,  727 ;  Rich  Grain  Dist.  Co. 
V.  West.  U.  Tel.  Co.,  13  Ky.  Law  Rep.  256;  True  v.  International  Tel.  Co.,  60 
Me.  9,  11  Am.  Rep.  156 ;  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec. 
157;  Marriott  v.  West.  U.  Tel.  Co.,  84  Neb.  443,  121  N.  W.  241,  133  Am.  St. 
Rep.  633;  Pearsall  v.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am. 
St.  Rep.  662;  Mowry  v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  Y.  Supp.  666; 
United  States  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751 ;  Wallingford 
V.  West.  U.  Tel.  Co.,  60  S.  C.  201,  38  S.  E.  443,  629 ;  Latham  v.  West.  U.  Tel. 
Co.,  75  S.  C.  129,  55  S.  E.  1.34 ;  West.  U.  Tel.  Co.  v.  Sheffield,  71  Tex.  570,  10 
S.  W.  752,  10  Am.  St.  Rep.  790 ;  West.  U.  Tel.  Co.  v.  Turner,  94  Tex.  304,  60 
S.  W.  432 ;  Martin  v.  West.  U.  Tel.  Co.,  1  Tex.  Civ.  App.  143,  20  S.  W.  860 ; 
West.  U.  Tel.  Co.  v.  Williford,  2  Tex.  Civ.  App.  574,  22  S.  W.  244 ;  Id.  (Civ. 
App.)  27  S.  W.  700 ;  West.  U.  Tel.  Co.  v.  Snow,  31  Tex.  Civ.  App.  275,  72  S.  W. 
250 ;  West.  U.  Tel.  Co.  v.  Federolf  (Tex.  Civ.  App.)  145  S.  W.  314 ;  West.  U. 
Tel.  Co,  V.  Williams,  57  Tex.  Civ.  App.  267,  122  S.  W.  280 ;  Brooks  v.  West.  U. 
Tel.  Co.,  26  Utah,  147,  72  Pac.  499 ;  Beatty  v.  West.  U.  Tel.  Co.,  52  W.  Va.  410, 
44  S.  E.  309.     See  §§  534,  540,  543,  and  other  cases  cited  thereunder. 

Notice  insufficient. — It  has  been  held  in  the  following  cases  that  the  tele- 
gram itself  did  not  give  sufficient  notice  to  the  company  to  hold  the  company 
liable:  West.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  491,  31  Pac.  393 ;  111.  Smelt- 
ing, etc.,  Co.  V.  West.  U.  Tel.  Co.,  146  111.  App.  163 ;  West.  U.  Tel.  Co.  v.  Scott, 
27  Ky.  Law  Rep.  975,  87  S.  W.  289;.  United  States  Tel.  Co.  v.  Gildersleve,  29 
Md.  232,  96  Am.  Dec.  519 ;  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155 ;  Ja- 
cobs V.  Postal  Tel.  Cable  Co.,  76  Miss.  278,  24  South.  535 ;  Melson  v.  West.  U. 
Tel.  Co.,  72  Mo.  App.  Ill ;  Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  6 
Am.  Rep.  165  ;  Landsberger  v.  Magnetic  Tel.  Co.,  32  Barb.  (N.  Y.)  530  ;  McColl  v. 
West.  U.  Tel.  Co.,  7  Abb.  N.  C.  (N.  Y.)  151 ;  Clark  Mfg.  Co.  v.  West.  U.  Tel.  Co., 
152  N.  C.  157,  67  S.  E.  329,  27  L.  R.  A.  (N.  S.)  643 ;  West.  U.  Tel.  Co.  v.  Sulli- 
van, 82  Ohio  St.  14,  91  N.  E.  867,  137  Am.  St.  Rep.  754;  Frazier  v.  West.  U. 
Tel.  Co.,  45  Or.  414,  78  Pac.  330,  2  Ann.  Cas.  396,  67  L.  R.  A.  319 ;  Capers  v. 
West.  U.  Tel.  Co.,  71  S.  C.  29,  50  S.  E.  537  ;  Clio  Gin  Co.  v.  West.  U.  Tel.  Co.,  82  S. 
C.  405,  64  S.  E.  426  ;  West.  U.  Tel.  Co.  v.  Thomas,  7  Tex.  Civ.  App.  105,  20  S.  W. 
117 ;  West.  U.  Tel.  Co.  v.  Kemp  Gro.  Co.  (Tex.  Civ.  App.)  28  S.  W.  905 ;  West. 
U.  Tel.  Co.  v.  Twaddell,  47  Tex.  Civ.  App.  51,  103  S.  W.  1120 ;  West,  U.  Tel, 
Co,  V.  Farrington  (Tex.  Civ.  App.)  131  S.  W.  609 ;  West.  U.  Tel.  Co.  v.  Barkley, 
62  Tex.  Civ.  App.  573,  131  S.  W.  849 ;  Stevenson  v.  Montreal  Tel.  Co.,  16  U.  C. 
Q.  B.  530 ;  Elliott  v.  West.  U.  Tel.  Co.,  75  Tex.  18,  12  S.  W.  954,  16  Am.  St. 
Rep.  872 ;  Kolliuer  v.  West,  U.  Tel.  Co.,  126  Minn.  122,  147  N.  W.  961,  52  L. 
R.  A.  (N.  S.)  IISO. 

89  Fererro  v.  West.  U.  Tel.  Co.,  9  App.  D.  C.  455,  35  L.  R.  A,  548;  West.  U. 
Tel.  Co.  v.  Nagle,  11  Tex,  Civ,  App.  539,  32  S.  W,  707,  But  see  Houston,  etc., 
Tel.  Co.  V.  Davidson,  15  Tex.  Civ.  App.  334,  39  S.  W.  605. 

0  0  West.  U.  Tel.  Co,  v.  Carter  (Tex.  Civ.  App.)  20  S.  W.  834;  Thompson  on 
Elect.  §  365 ;  West.  U.  Tel.  Co.  v.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St 
Rep.  835 ;  West.  U,  Tel.  Co.  v,  Nagle,  11  Tex.  Civ,  App.  539,  32  S.  W.  707. 


702  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  541 

companies  to  exert  themselves  to  make  any  extensive  inquiry  of 
the  nature  and  purpose  of  a  message,  when  the  language  of  such 
puts  them  on  inquiry.  However,  if  the  facts  could  be  ascertained 
by  a  little  inconvenience  on  their  part,  it  would  be,  in  our  opinion, 
their  duty  to  make  such  inquiry.  The  nature  of  the  business  of 
these  companies  is  to  expedite  matters  in  the  greatest  possible 
haste;  so,  to  require  them  to  ascertain  facts  concerning  the  nature 
and  purposes  of  messages  delivered,  would  necessarily  destroy  the 
effects  of  such  a  business. 

§  541.  Question  for  jury. — There  can  be  no  fixed  rule  laid  down 
by  which  a  court  may  be  guided  in  determining  whether  a  message 
contains  such  words  as  will  be  sufficiently  plain  to  indicate  its  im- 
portance. As  was  said,  some  courts  hold  that  the  company  will  not 
be  limited  to  nominal  damages  for  negligently  transmitting  or  de- 
livering a  message,  and  that,  too,  whether  the  company  did  or  did 
not  know  the  purpose  of  the  message ;  but  the  weight  of  authority 
is  undoubtedly  to  the  contrary.  Where  there  is  doubt  as  to  wheth- 
er the  words  contained  in  the  message  were  sufficient  to  indicate 
its  importance,  and  whether  this  is  true  with  respect  to  the  op- 
erator, or  whether  the  latter  was  made  more  certain  of  its  im- 
portance by  extrinsic  facts,  are  questions  for  the  jury.''^  The  ques- 
tion as  to  the  operator's  having  transmitted  similar  messages  of 
whose  importance  he  was  informed,  or  the  frequency  with  which 
familiar  words  are  used,  their  familiarity  in  trade  circles,  and 
whether  the  same  have  been  communicated  to  the  company,  are 
matters  to  be  considered  in  determining  their  sufficiency.  As  said, 
no  rule  can  be  laid  down  for  determining  this  question,  but  all  facts 
and  circumstances  connected  with  the  particular  message  should  be 
considered.^^  If  the  message  is  a  summons  for  a  physician,  and  the 
operator  knows  him  to  be  such,  it  would  not  be  a  question  for  the 
jury,  whether  it  is  sufficiently  plain  on  its  face  to  indicate  its  im- 
portance.^^ When  the  message  announced  the  illness  of  some  one, 
where  the  operator  knew  that  the  addressee  was  related  to  the 
person    announced    as   ill,^*    or    where    the    message    directed    the 

91  Cannon  v.  West.  U.  Tel.  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St.  Rep. 
590 ;  Ciuidee  v.  West.  U.  Tel.  Co.,  34  Wis.  471,  17  Am.  Rep.  452 ;  Landsberger 
V.  JNIagnetic  Tel.  Co.,  32  Barb.  (N.  Y.)  530 ;  Postal  Tel.  Cable,  etc.,  Co.  v.  Lath- 
rop,  131  111.  575,  23  N.  E.  583,  7  L.  R.  A.  474,  19  Am.  St.  Rep.  55.  See,  also,  § 
520. 

9  2  See  §  542. 

93  West.  U.  Tel.  Co.  v.  Church,  3  Neb.  (Unof.)  22,  90  N.  W.  878,  57  L.  R.  A. 
905. 

94  West.  U.  Tel.  Co.  v.  Eskridge,  7  Tnd.  App.  208,  33  N.  E.  238;  West.  U. 
Tel.  Co.  V.  Pearce,  82  Miss.  487,  34  South.  152 ;  Meadows  v.  West.  U.  Tel.  Co., 


§    542)  MEASURE   OF   DAMAGES  703 

sender's  attorney  to  attach  property  of  a  failing  debtor,^'  or  advis- 
ing the  plaintiff  of  the  fact  that  a  debtor  is  about  to  fail  or  some 
similar  facts,^®  the  message,  in  either  case,  will  be  sufficiently  plain 
to  indicate  its  importance,  and  the  company  will  not  be  limited  to 
nominal  damages  for  its  failure  to  transmit  or  deliver  correctly 
and  promptly.  All  damages  which  would  ordinarily  result  from 
the  lack  of  medical  attention,  or  from  mental  suffering,  or  for  the 
loss  of  a  debt,  may  be  recovered. 

§  542.  Same  continued — extrinsic  facts  of  importance. — Where 
the  message  does  not  contain  words  sufficiently  plain  to  indicate 
its  importance,  but  there  are  extrinsic  facts  acquired  by  the  com- 
pany at  the  time  the  contract  of  sending  is  made  which  apprises  it 
of  the  importance  of  the  message,  the  company  will  be  liable  for 
a  failure  to  send  or  deliver  the  message  accurately  and  promptly, 
just  the  same  as  if  it  showed  this  fact  on  its  face.^'^  It  is  claimed 
by  some  authority  that  the  extrinsic  facts  must  have  been  acquired 
from  the  sender  at  the  time  the  contract  was  made  or  prior  there- 

132  N.  C.  40,  43  S.  E.  512 ;    West.  U.  Tel.  Co.  v.  Wilson  (Tex.  Civ.  App.)  51  S. 
W.  521 ;  West.  U.  Tel.  Co.  v.  Linn,  87  Tex.  7,  26  S.  W.  490,  47  Am.  St.  Rep.  58. 
9  5  Parks  V.  Alta  California  Tel.  Co.,  13  Cal.  422,  73  Am.  Dec.  5S9. 

96  Pacific  Postal  Tel.  Cable  Co.  v.  Fleiscbner,  66  Fed.  899,  14  C.  O.  A.  166 ; 
Id.  (C.  C.)  55  Fed.  738 ;  Bierhaus  v.  West.  U.  Tel.  Co.,  8  Ind.  App.  246,  34  N.  E. 
581;  Martin  v.  West.  U.  Tel.  Co.,  1  Tex.  Civ.  App.  143,  20  S.  W.  800. 

97  McPeek  v.  West.  IJ.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  43  L.  R.  A.  214, 
70  Am.  St.  Rep.  205 ;  West.  U.  Tel.  Co.  v.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15 
Am.  St.  Rep.  835 ;  West.  U.  Tel.  Co.  v.  Williford  (Tex.  Civ.  App.)  27  S.  W.  700 ; 
West.  U.  Tel.  Co.  v.  Jobe,  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  1036 ;  Herron  v. 
West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  976 ;  Sprague  v.  West.  U.  Tel.  Co.,  6 
Daly  (N.  Y.)  200 ;  Rittenhouse  v.  Independent  Line  of  Tel.,  44  N.  Y.  263,  4  Am. 
Rep.  673 ;  Fleischner  v.  Pacific  Postal  Tel.  Cable  Co.  (C.  C.)  55  Fed.  738 ;  Postal 
Tel.  Cable  Co.  v.  Nichols,  159  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870, 
14  Ann.  Cas.  369 ;  Stiles  v.  West.  U.  Tel.  Co.,  2  Ariz.  308,  15  Pac.  712 ;  West. 
U.  Tel.  Co.  V.  Fatman,  73  Ga.  285,  54  Am.  Rep.  877 ;  Garrett  v.  West.  U.  Tel. 
Co.,  83  Iowa,  257,  49  N.  W.  88 ;  West.  U.  Tel.  Co.  v.  Lehman,  105  Md.  442,  66 
Atl.  266 ;  West.  U.  Tel.  Co.  v.  Lowrey,  32  Neb.  732,  49  N.  W.  707 ;  Baker  v. 
West.  U.  Tel.  Co.,  84  S.  C.  477,  66  S.  E.  182,  137  Am.  St.  Rep.  848 ;  West.  U. 
Tel,  Co.  v.  Bowen,  84  Tex.  476,  19  S.  W.  554 ;  West.  U.  Tel.  Co.  v.  Haman,  2 
Tex.  Civ.  App.  100,  20  S.  W.  1133 ;  West.  U.  Tel.  Co.  v.  Carver,  15  Tex.  Civ. 
App.  547,  39  S.  W.  1021 ;  West.  U.  Tel.  Co.  v.  Nagle,  11  Tex.  Civ.  App.  539,  32 
S.  W.  707 ;  West.  U.  Tel.  Co.  v.  Birge-Forbes  Co.,  29  Tex.  Civ.  App.  526,  69  S. 
W,  181;  Texas,  etc.,  Tel.  Co.  v.  Mackenzie,  36  Tex.  Civ.  App.  178,  81 
S.  W.  581 ;  West.  U.  Tel.  Co.  v.  Houston  Rice  Mill  Co.  (Tex.  Civ.  App.)  93  S.  W. 
1084;  West.  U.  Tel.  Co.  v.  Woods  (Tex.  Civ.  App.)  133  S.  W.  440;  Postal  Tel. 
Cable  Co.  v.  Talerico  (Tex.  Civ.  App.)  136  S.  W.  575 ;  West.  U.  Tel.  Co.  v.  Wil- 
liams (Tex.  Civ.  App.)  137  S.  W.  148 ;  Thompson  v.  West.  U.  Tel.  Co.,  64  Wis. 
531,  25  N.  W.  789,  54  Am.  Rep.  644.  But  see  Fitch  v.  West.  U.  Tel.  Co.,  150 
Mo.  App.  149,  130  S.  W.  44 ;  West.  U.  Tel.  Co.  v.  Coggin,  68  Fed.  137,  15  C.  C. 
A.  231.  See  §§  534,  542,  and  cases  cited  thereunder ;  AVest.  U.  Tel.  Co.  v.  Mil- 
ton, 53  Fla.  484,  43  South.  495,  11  L,  R.  A.  (N.  S.)  561,  125  Am.  St.  Rep.  1077. 
See  §  543. 


704  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  542 

to;  if  they  were  acquired  after  the  making  of  the  contract,  they 
could  not  be  considered  as  part  of  the  contract.  We  are  inclined  to 
think  it  is  necessary  that  they  be  known  at  the  time  of  making  the 
contract,  else  the  company  could  not  have  contemplated  the  result 
of  a  failure  to  properly  discharge  its  duty  with  respect  to  the  mes- 
sage. The  rule  is  that  the  resulting  damages  of  the  company's  neg- 
ligence must  have  entered  into  the  contemplation  of  the  parties' 
minds  at  the  time  the  contract  was  made.  We  do  not,  however, 
think  that  the  company  is  precluded  from  deriving  the  information 
from  sources  other  than  from  the  sender,  but  in  determining  the 
question,  the  court  and  the  jury  may  ascertain  whether  the  com- 
pany was  informed  from  other  sources.  In  other  words,  all  the 
facts  and  circumstances  which  have  any  reference  to  the  acceptance 
of  the  particular  message,  should  be  considered  in  determining  this 
question.  When  notice  of  the  main  facts  is  given,  the  company  is 
chargeable  with  notice  of  every  incidental  fact  that  would  attend 
the  transaction,  and  such  as  could  have  then  been  ascertained  by 
the  most  minute  inquiry .^^  If  the  operator  was  in  the  habit  of 
transmitting  other  messages  for  similar  purposes,  of  the  importance 
of  which  he  had  been  informed,  or  if  the  sender  was  carrying  on  a 
certain  kind  of  business  and  was  accustomed  to  send  similar  mes- 
sages in  regard  to  such  business  over  the  company's  lines,  the  lat- 
ter is  chargeable  with  notice  of  its  importance,  and  any  circum- 
stances which  tend  to  sustain  these  facts  may  be  shown.®®  It  has 
been  held  that  the  same  rule  will  apply  when  the  message  is  in 
cipher  as  if  written  in  the  English  language. ^^"^ 

9  8  West.  U.  Tel.  Co.  v.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835. 
See  §  587. 

9  9  Postal  Tel.  Cable  Co.  v.  Latlirop,  131  111.  575,  23  N.  E.  583,  7  L.  R.  A.  474, 
19  Am.  St.  Rep.  55 ;  Mackay  v.  West.  U.  Tel.  Co.,  16  Nev.  227 ;  West.  U.  Tel. 
Co.  V.  Williford  (Tex.  Civ.  App.)  27  S.  W.  700 ;  Erie  Tel.,  etc.,  Co.  v.  Grimes,  82 
Tex.  89,  17  S.  W.  831 ;  Roach  v.  Jones,  18  Tex.  Civ.  App.  231,  44  S.  W.  677 ; 
West.  U.  Tel.  Co.  v.  Nagle,  11  Tex.  Civ.  App.  539,  32  S.  W.  707.     See  §  587. 

Evidence  as  to  notice,  admissilnlity. — Evidence  is  admissible  to  show  that 
the  company's  agent  was  informed  as  to  the  importance  or  urgency  of  the 
messjlge,  Pope  v.  West.  U.  Tel.  Co.,  14  111.  App.  531 ;  Ward  v.  West.  U.  Tel.  Co. 
(Tex.  Civ.  App.)  51  S.  W.  259 ;  Christmon  v.  Telegraph  Co.,  159  N.  C.  195,  74 
S.  E.  325 ;  Telephone  Co.  v.  Henderson,  62  Tex.  Civ.  App.  457,  131  S.  W.  1153 ; 
Telephone  Co.  v.  Jenkins  (Tex.  Civ.  App.)  152  S.  W.  198 ;  West.  U.  Tel.  Co.  v. 
Daniels  (Tex.  Civ.  App.)  152  S.  W.  1116 ;  but  separate  transactions  inadmis- 
sible. Pope  V.  West.  U.  Tel.  Co.,  supra ;  Wiggs  v.  Southwestern  Tel.,  etc.,  Co. 
(Tex.  Civ.  App.)  110  S.  W.  179 ;  Telephone  Co.  v.  White  (Tex.  Civ.  App.)  149  S. 
W.  790 ;  evidence  that  the  company  was  otherwise  informed  or  chargeable 
with  such  notice,  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  402,  46  South.  1024,  127 
Am.  St.  Rep.  109 ;  Smith  v.  West.  U.  Tel.  Co.,  80  Neb.  395,  114  N.  W.  288.  See 
Telephone  Co.  v.  Woods  (Tex.  Civ.  App.)  133  S.  W.  440.  . 

10  0  West  U.  Tel.  Co.  v.  Hyer,  22  Fla.  637,  1  South.  129,  1  Am.  St.  Rep.  222. 


§    543)  MEASURE   OF  DAMAGES  705 

§  543.  Messages  relating  to  business  transactions. — It  is  not 
necessary  for  a  telegraph  company  to  be  informed  of  all  the  details 
of  a  business  transaction  concerning  which  a  message  relates  in 
order  to  hold  it  liable  for  more  than  nominal  damages  as  a  result 
of  its  negligent  transmission  or  delivery.^°^  If  the  company  has 
information  derived  either  from  the  fact  of  the  message  itself  or 
from  any  extrinsic  evidence  of  its  general  purpose  and  character, 
it  will  be  liable  for  all  the  damages  naturally  arising  in  conse- 
quence of  such  negligence. ^°^  A  message  is  not  necessarily  a  cipher 
message  by  the  fact  that  trade  terms  and  abbreviations  are  used.^"^ 
It  may  be  considered  a  general  rule  that  the  actual  loss  resulting 
proximately  from  the  negligence  of  a  telegraph  company  in  fail- 
ing to  transmit  correctly  or  to  deliver  promptly  a  message  relat- 
ing to  a  business  transaction  may  be  recovered,  if  the  message 
contains  sufficient  information  on  its  face  to  inform  the  company 
that  it  is  an  order  to  buy,  sell,  or  close  a  pending  trade  or  option, 
or  that  it  is  a  definite  offer  or  acceptance  of  a  contract.^"*    If,  how- 

101  Postal  Tel.  Cable  Co.  v.  Lathrop,  33  111.  App.  400,  affirmed  in  131  111.  575, 
23  N.  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ;  Texas,  etc.,  Tel.  Co.  v.  Mack- 
enzie, 36  Tex.  Civ.  App.  178,  81  S.  W.  581 ;  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla. 
462,  46  South.  1024,  127  Am.  St.  Rep.  169 ;  West.  U.  Tel.  Co.  v.  Xagle,  11  Tex. 
Civ.  App.  539,  32  S.  W.  707 ;  Kerns  v.  Telephone  Co.,  170  Mo.  App.  642,  157  S. 
W.  106 ;  Levy  v.  Telephone  Co.,  39  Old.  416,  135  Pac.  423 ;  West.  U.  Tel.  Co.  v. 
Blanchard,  68  Ga.  299,  45  Am.  Rep.  480. 

102  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep. 
699,  4  L.  R.  A.  660 ;  Postal  Tel.  Cable  Co.  v.  Lathrop,  33  111.  App.  400,  affirmed 
in  131  111.  575,  23  N.  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ;  West.  U.  Tel. 
Co.  V.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835  ;  Texas,  etc.,  Tel. 
Co.  v.  Mackenzie,  36  Tex.  Civ.  App.  178,  81  S.  W.  581 ;  West.  U.  Tel.  Co.  v. 
Nagle,  11  Tex.  Civ.  App.  539,  32  S.  W.  707 ;  Providence-Washington  Ins.  Co.  v. 
West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E.  134,  30  L.  R.  A.  (N.  S.)  1170,  139  Am.  St. 
Rep.  314 :  McMillan  v.  West.  U.  Tel.  Co.,  60  Fla.  131,  53  South.  329,  29  L.  R. 
A.  (N.  S.)  891. 

los  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep. 
C99,  4  L.  R.  A.  660 ;  Bailey  v.  West.  U.  Tel.  Co.,  227  Pa.  522,  76  Atl.  736,  43 
L.  R.  A.  (N.  S.)  502,  19  Ann.  Cas.  895. 

104  West.  U.  Tel.  Co.  v.  Merritt,  55  Fla.  462,  46  South.  1024,  127  Am.  St.  Rep. 
169 ;  West.  U.  Tel.  Co.  v.  Blanchard,  68  Ga.  299,  45  Am.  Rep.  480,  "Cover  two 
hundred  September  and  one  hundred  August" ;  Fererro  v.  West.  U.  Tel.  Co.,  9 
App.  D.  C.  455,  35  Ij.  R.  A.  548,  "Fifty-five  cents,  usual  terms,  quick  accept- 
ance" ;  Postal  Tel.  Cable  Co.  v.  Lathrop,  33  111.  App.  400,  affirmed  in  131  111. 
575,  23  N.  E.  583,  19  Am.  St.  Rep.  55,  7  L.  R.  A.  474 ;  Garrett  v.  West.  U.  Tel. 
Co.,  S3  Iowa,  2.57,  49  N.  W.  88 ;  Herron  v.  West.  U.  Tel.  Co.,  90  Iowa,  129.  57 
N.  W.  696 ;  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157,  "Will 
take  your  hogs  at  your  offer"  ;  West.  U.  Tel.  Co.  v.  Lehman,  105  Md.  442,  66 
Atl.  266,  "Shipped  cattle  today" ;  Smith  v.  West.  U.  Tel.  Co.,  80  Neb.  395,  114 
N.  W.  288 ;  Mowry  v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  Y.  Supp.  666,  "Will 
take  two  cars  Sixteens" ;  Rittenhouse  v.  Independent  Tel.  Line,  44  N.  Y.  263, 
4  Am.  Rep.  673,  "If  we  have  any  Old  Southern  on  hand,  sell  same  before  board. 
Jones  Tel.(2d  Ed.) — 15 


706  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  544 

ever,  the  damages  claimed  in  these  cases  are  special  or  of  a  re- 
mote, uncertain  or  speculative  character,  or  such  as  were  not  in 
the  contemplation  of  the  parties  at  the  making  of  the  contract  as 
would  be  the  result  of  its  breach,  they  will  be  denied.^"^  It  is  a 
general  rule  that  the  expenses  of  an  unnecessary  or  fruitless  trip 
or  loss  of  time  may  be  recovered  from  a  telegraph  company  whose 
negligence  in  the  transmission  or  delivery  of  a  message  was  re- 
sponsible for  the  trip,  if  sufficient  notice  was  given  to  authorize 
recovery  of  such  damages.^ ""^ 

§  544.  Rule  in  "mental  anguish  cases." — The  rule  just  discussed 
is  not  changed  by  the  fact  that  the  nature  and  purpose  of  the  nies- 

Buy  5  Hudson  at  board" ;  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W. 
783,  10  Am.  St.  Eep.  699,  4  L.  R.  A.  660,  "Car  cribs  six-sixty  caf.,  prompt,"  it 
appearing  that  "cribs"  and  "caf"  meant  costs  and  freight.  But  see  West.  U. 
Tel.  Co.  V.  Bowen,  84  Tex.  476,  19  S.  W.  554,  "Will  ship  machinery  at  once" : 
Postal  Tel.  Co.  v.  Levy  (Tex.  Civ.  App.)  102  S.  W.  134,  "Counter  proposition  not 
unfavorable.  Imperative  you  come  on.  Answer" ;  West.  U.  Tel.  Co.  v.  Birge- 
Forbes  Co.,  29  Tex.  Civ.  App.  526,  69  S.  W.  181,  "All  right.  See  bluffing  each 
described  amply" ;  West.  U.  Tel.  Co.  v.  Carver,  15  Tex.  Civ.  App.  547,  39  S.  W. 
1021 ;  West.  U.  Tel.  Co.  v.  Nagle,  11  Tex.  Civ.  App.  539,  32  S.  W.  707,  "Kam- 
merer  renews  orders" ;  with  remainder  message  in  cipher.  Brooks  v.  West.  U. 
Tel.  Co.,  26  L'tah,  147,  72  Pac.  499.  See  Providence-Washington  Ins.  Co.  v. 
West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E.  134,  30  L.  R.  A.  (N.  S.)  1170,  139  Am. 
St.  Rep.  314.    See,  also,  note  50,  supra,  for  other  cases. 

105  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  96  Am.  Dec.  519,  "Sell 
fifty  gold"  ;  Smith  v.  West.  U.  Tel.  Co.,  83  Ky.  104,  4  Am.  St.  Rep.  126 ;  Beau- 
pre  V.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  155,  "Will  take  two  hundred  extra  mess, 
price  named"  ;  Hord  v.  West.  U.  Tel.  Co.,  5  Ohio  Dec.  (Reprint)  555,  "Sold 
100,000  clear  rib,  buyer  March — Seven — can  sell  more" ;  McCoU  v.  West.  U. 
Tel.  Co.,  44  N.  Y.  Super.  Ct.  487,  "Can  close  Valkyria  and  Othere  twenty -two 
net  Montreal.  Ans.  immediately" ;  Cahn  v.  West.  U.  Tel.  Co.,  48  Fed.  810,  1 
C.  C.  A.  107,  "Sell  200  Tennessee  coal  and  iron" ;  Telephone  v.  Barkley,  62 
Tex.  Civ.  App.  573,  131  S.  W.  849.  See  Fitch  v.  Telephone  Co.,  150  Mo.  App. 
149,  130  S.  W.  44.  See,  also.  Stone  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87 
Atl.  319,  46  L.  R.  A.  (N.  S.)  180 ;  Anniston  Cordage  Co.  v.  West.  U.  Tel.  Co.,  161 
Ala.  216,  49  South.  770,  30  L.  R.  A.  (N.  S.)  1116,  135  Am.  St.  Rep.  124 ;  West. 
U.  Tel.  Co.  V.  Sights,  34  Okl.  461,  126  Pac.  234,  42  L.  R.  A.  (N.  S.)  419,  Ann. 
Cas.  1914C,  204. 

106  Kolliner  v.  West.  U.  Tel.  Co.,  126  Minn.  122,  147  N.  W.  961,  52  L.  R.  A. 
(N.  S.)  1180 ;  West.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  W.  649,  9  L.  R.  A. 
744 ;  West.  U.  Tel.  Co.  v.  Henley,  157  Ind.  90,  60  N.  E.  682 ;  Lee  v.  West.  U. 
Tel.  Co.,  51  Mo.  App.  375 ;  Sprague  v.  West.  U.  Tel.  Co.,  6  Daly  (N.  Y.)  200,  af- 
firmed in  67  N.  Y.  590 ;  Hall  v.  West.  U.  Tel.  Co.,  139  N.  C.  369,  52  S.  E.  50 ; 
Lothian  v.  West.  U.  Tel.  Co.,  25  S.  D.  319,  126  N.  W.  621 ;  West.  U.  Tel.  Co.  v. 
Shumate,  2  Tex.  Civ.  App.  429,  21  S.  W.  109 ;  West.  U.  Tel.  Co.  v.  Hines,  22 
Tex.  Civ.  App.  315,  54  S.  W.  627.  Other  cases  holding  the  telegraph  company 
liable  do  not  discuss  the  question  of  notice.  Harkness  v.  West.  U.  Tel.  Co.,  73 
Iowa,  190,  34  N.  W.  811,  5  Am.  St.  Rep.  672 ;  Salinger  v.  West.  U.  Tel.  Co.,  147 
Iowa,  484, 126  N.  W.  362,  Id.  (Iowa)  111  N.  W.  820  ;  Mclnturf  v.  West.  U.  Tel.  Co., 
81  Kan.  476,  106  Pac.  282  ;  West.  U.  Tel.  Co.  v.  Jump,  8  Ky.  Law  Rep.  531 ;  West. 
U.  Tel.  Co.  V.  Cleaver,  13  Ky.  Law  Rep.  .301;  West.  U.  Tel.  Co.  v.  McCormick 
(Miss.)  27  South.  G06 ;  Duncan  v.  West.  U.  Tel.  Co.,  93  Miss.  500,  47  South.  552 ; 


1 


§    544)  MEASURE   OF   DAMAGES  707 

sage  relates  to  some  object  which,  if  not  properly  accomplished, 
will  result  in  injury  to  the  feelings  of  some  one  interested  in  the 
message. ^^'^  It  is  generally  held  that  where  a  telegraph  company 
fails  to  correctly  and  promptly  transmit  and  deliver  a  message  re- 
lating to  the  serious  illness,  death  or  burial  of  some  one  in  whom 
the  sender  or  addressee  is  interested,  or  a  beneficiary  whose  inter- 
est in  the  delivery  of  the  message  appears  in  the  message  itself  or 
has  been  sufficiently  made  known  to  the  company,  it  will  be  liable 
in  damages  for  the  mental  anguish  suffered  by  either  of  these  par- 
ties,^°^  if  the  company  had  information  of  the  nature  and  purpose 

Bliss  V.  Baltimore,  etc.,  Tel.  Co.,  30  Mo.  App.  103 ;  Tobin  v-  West.  U.  Tel.  Co., 
146  Pa.  375,  23  Atl.  324,  28  Am.  St.  Rep.  802 ;  West.  U.  Tel.  Co.  v.  Murray,  29 
Tex.  Civ.  App.  207,  68  S.  W.  .549 ;  Kopperl  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.) 
85  S.  W.  1018 ;  Laue  v.  Montreal  Tel.  Co.,  7  U.  C.  C.  P.  23 ;  West  U.  Tel.  Co.  v. 
Bates,  93  Ga.  352,  20  S.  E.  639 ;  Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky. 
788,  112  S.  W.  897,  19  L.  R.  A.  (N.  S.)  575.  But  in  the  following  cases  tele- 
graph company  was  held  liable  :  West.  U.  Tel.  Co.  v.  Reed,  3  Ala.  App.  253, 
57  South.  83;  Fitch  v.  West.  U.  Tel.  Co.,  150  Mo.  App.  149,  130  S.  W.  44; 
Alexander  v.  West.  U.  Tel.  Co.  (C.  C.)  126  Fed.  445 ;  West.  U.  Tel.  Co.  v.  Cain, 
14  Ind.  App.  115,  42  N.  E.  655 ;  Hunter  v.  West.  U.  Tel.  Co.,  135  N.  C.  458,  47 
S.  E.  745 ;  Hilley  v.  West.  U.  Tel.  Co.,  85  Miss.  67,  37  South.  556 ;  Lee  v.  West. 
U.  Tel.  Co.,  51  Mo.  App.  375 ;  West.  U.  Tel.  Co.  v.  Patton  (Tex.  Civ.  App.)  55 
S.  W.  973 ;  West.  U.  Tel.  Co.  v.  Smith,  76  Tex.  253,  13  S.  W.  169.  See,  Bowyer 
v.  West.  U.  Tel.  Co.,  130  Iowa,  324,  106  N.  W.  748,  5  L.  R.  A.  (N.  S.)  984. 

107  See  Kagy  v.  West.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117  Am.  St. 
Rep.  278 ;  Postal  Tel.  Cable  Co.  v.  Real,  159  Ala.  249,  48  South.  676 ;  West.  U. 
Tel.  Co.  V.  Toms,  99  Ark.  117,  137  S.  W.  559 ;  West.  U.  Tel.  Co.  v.  Benson,  159 
Ala.  2.54,  48  South.  712 ;  West.  U.  Tel.  Co.  v.  Garlington,  101  Ai'k.  487,  142  S. 
W.  854,  49  L.  R.  A.  (N.  S.)  300 ;  Hildreth  v.  West.  U.  Tel.  Co.,  56  Fla.  387,  47 
South.  820 ;  Suttle  v.  West.  U.  Tel.  Co.,  148  N.  C.  480,  62  S.  E.  593,  128  Am. 
St.  Rep.  631 ;  Seddon  v.  West.  U.  Tel.  Co.,  146  Iowa,  743,  126  N.  W.  969 ;  Cor- 
dell  v.  West.  U.  Tel.  Co.,  149  N.  C.  402,  63  S.  E.  71,  22  D.  R.  A.  (N.  S.)  540 ; 
Carswell  v.  West.  U.  Tel.  Co.,  1.54  N.  C.  112,  69  S.  E.  782,  .32  D.  R.  A.  (N.  S.) 
611 ;  Pierson  v.  West.  U.  Tel.  Co.,  150  N.  C.  559,  64  S.  E.  577 ;  Fass  v.  West.  U. 
Tel.  Co.,  82  S.  C.  461,  64  S.  E.  235  ;  Talbert  v.  West.  U.  Tel.  Co.,  83  S.  C.  68,  64 
S.  E.  862,  rehearing  denied  in  83  S.  C.  77,  64  S.  E.  916 ;  Cameron  v.  West.  U. 
Tel.  Co.,  90  S.  C.  503,  74  S.  E.  929 ;  West.  U.  Tel.  Co.  v.  Cilliland  (Tex.  Civ. 
App.)  130  S.  W.  212 ;  West.  U.  Tel.  Co.  v.  Kibble,  .53  Tex.  Civ.  App.  222,  115 
S.  W.  043 ;  Johnson  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  132  S.  W.  814 ;  West. 
U.  Tel.  Co.  V.  Harris  (Tex.  Civ.  App.)  132  S.  W.  876;  Smith  v.  Postal  Tel. 
Cable  Co.,  104  Tex.  171,  133  S.  W.  1041,  135  S.  W.  1147 ;  West.  U.  Tel.  Co.  v. 
Olivarri,  104  Tex.  203,  135  S.  W.  1158,  confirming  judgment  in  (Civ.  App.)  110 
S.  W.  9.30 ;  Id.,  126  S.  W.  688 ;  West.  U.  Tel.  Co.  v.  Edmonds  (Tex.  Civ.  App.) 
146  S.  W.  322 ;  Penn  v.  West.  U.  Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A. 
(N.  S.)  223 ;  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113  S.  W.  789,  127  Am. 
St.  Rep.  991,  19  L.  R-.  A.  (N.  S.)  479 ;  Bolton  v.  West.  U.  Tel.  Co.,  84  S.  C.  67, 
65  S.  E.  937. 

108  Heathcoat  v.  West.  U.  Tel.  Co.,  1-56  Ala.  339,  47  South.  1.39;  West.  U.  Tel. 
Co.  V.  Jackson,  163  Ala.  9,  50  South.  316 ;  Louisiana,  etc.,  R.  Co.  v.  Reeves,  95 
Ark.  214,  128  S.  W.  1051 ;  Lavelle  v.  West.  U.  Tel.  Co.,  102  Ark.  607,  145  S.  W. 
205 ;  Penn  v.  West.  U.  Tel.  Co.,  1.59  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.) 
223 ;  West.  U.  Tel.  Co.  v.  Olivarri,  104  Tex.  203,  135  S.  W.  1158,  atlii-ming  (Civ. 


708  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  544 

of  such  messag'e.^''^  If  the  message  does  not  contain  words  suffi- 
ciently plain  on  its  face  to  apprise  the  company  of  such  fact,  and 
there  is  no  extrinsic  evidence  imparted  to  the  latter  at  the  time 
of  accepting-  the  message  to  sustain  such  fact,  the  company  will  be 
liable  only  for  nominal  damages. ^^°  But,  on  the  other  hand,  if 
the  company  is  informed,  either  by  the  face  of  the  message  or  by 
extrinsic  evidence,  that  it  relates  to  the  dangerous  illness,  death  or 
the  time  of  the  burial  of  a  relative,  or  where  it  requests  the  ad- 
dressee to  come  at  once  or  some  request  of  like  import,  the  com- 

App.)  110  S.  W.  930 ;  Id.,  126  S.  W.  6SS ;  West.  U.  Tel.  Co.  v.  Gilliland  (Tex. 
Civ.  App.)  130  S.  W.  212 ;  Curd  v.  Cumberland  Tel.,  etc.,  Co.  (Ky.)  119  S.  W. 
746. 

Persons  not  party  to  or  not  mentioned'  in  telegram. — As  to  the  right  of  a 
person  whose  name  or  interest  does  not  appear  on  the  face  of  the  telegram  to 
recover  for  mental  anguish  due  to  its  nondelivery,  see  West.  U.  Tel.  Co.  v. 
Potts,  120  Temi.  37,  113  S.  W.  7S9,  127  Am.  St.  Rep.  991,  19  L.  R.  A.  (N.  S.) 
479 ;  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St. 
Rep.  38 ;  Holler  v.  West.  U.  Tel.  Co.,  149  N.  C.  336,  63  S.  E.  92,  19  L.  R.  A. 
(N.  S.)  475 ;  Harrelson  v.  West.  U.  Tel.  Co.,  90  S.  C.  132,  72  S.  B.  882 ;  Max- 
ville  V.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  140  S.  W.  464 ;  West.  U.  Tel.  Co.  v. 
Herring  (Tex.  Civ.  App.)  146  S.  W.  699. 

109  Reese  v.  West.  U.  Tel.  Co.,  123  Ind.  294,  21  N.  E.  163,  7  L.  R.  A.  5S.3n; 
Lyne  v.  West.  U.  Tel.  Co.,  123  N.  C.  129,  31  S.  E.  350 ;  Cashion  v.  West.  U.  Tel. 
Co.,  123  N.  C.  267,  31  S.  E.  493 ;  Id.,  124  N.  C.  4.59,  32  S.  E.  746,  45  L.  R.  A. 
160 ;  Bennett  v.  West.  U.  Tel.  Co.,  128  N.  C.  103,  38  S.  E.  294 ;  West.  U.  Tel. 
Co.  V.  May,  8  Tex.  Civ.  App.  176,  27  S.  W.  760;  West.  U.  Tel.  Co.  v.  Randies 
(Tex.  Civ.  App.)  34  S.  W.  447 ;  Postal  Tel.  Cable  Co.  v.  Real,  159  Ala.  249,  48 
South.  676 ;  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South.  73 ;  Postal  Tel. 
Cable  Co.  v.  Pratt,  85  S.  W.  225,  27  Ky.  Law  Rep.  430;  West.  U.  Tel.  Co.  v. 
Jloxley,  SO  Ark.  554,  98  S.  W.  112 ;  Dayvis  v.  West.  U.  Tel.  Co.,  139  N.  C.  79, 
51  S.  E.  898 ;  Fass  v.  West.  U.  Tel.  Co.,  82  S.  C.  461,  64  S.  E.  235 ;  Lyles  v. 
West.  U.  Tel.  Co.,  77  S.  C.  174,  57  S.  E.  725,  12  L.  R.  A.  (N.  S.)  534 ;  West.  U. 
Tel.  Co.  V.  Olivarri  (Tex.  Civ.  App.)  110  S.  W.  930;  West.  U.  Tel.  Co.  v.  Bell 
(Tex.  Civ.  App.)  90  S.  W.  714;  West.  U.  Tel.  Co.  v.  West,  165  Ala.  399,  51 
South.  740 ;  West.  U.  Tel.  Co.  v.  Russell,  4  Ala.  App.  485,  58  South.  938 ;  West. 
U.  Tel.  Co.  V.  Toms,  99  Ark.  117,  137  S.  W.  559 ;  West.  U.  Tel.  Co.  v.  Gilliland 
(Tex.  Civ.  App.)  130  S.  W.  212 ;  Smith  v.  Postal  Tel.  Cable  Co.,  104  Tex.  171, 
133  S.  W.  1041,  135  S.  W.  1147 ;  West.  U.  Tel.  Co.  v.  Olivarri,  104  Tex.  203,  135 
S.  W.  1158 ;  Middleton  v.  Telephone  Co.,  183  Ala.  213,  62  South.  744,  49  L.  R. 
A.  (N.  S.)  305 ;  Lyles  v.  West.  U.  Tel.  Co.,  84  S.  C,  1,  65  S.  E.  832,  137  Am.  St. 
Rep.  829.     See  §§  547,  587. 

110  West.  U.  Tel,  Co.  v.  Todd,  22  Ind.  App.  701,  54  N.  E.  446;  West.  U.  Tel. 
Co.  V.  Pearce,  82  Miss.  487,  34  South.  152 ;  Sherrill  v.  West.  U.  Tel.  Co.,  116 
N.  C.  655,  21  S.  E.  429 ;  Cashion  v.  West.  U.  Tel.  Co.,  123  N.  C.  267,  31  S.  E. 
493 ;  Darlington  v.  West.  U.  Tel.  Co.,  127  N.  C.  448,  37  S.  E.  479 ;  Sparkman  v. 
West.  U.  Tel.  Co.,  130  N.  C.  447,  41  S.  E.  SSI ;  Kennon  v.  West.  U.  Tel.  Co.,  126 
N.  C.  232,  35  S.  E.  468 ;  Ikard  v.  West  U.  Tel.  Co.  (Tex.  Civ.  App.)  22  S.  W. 
534 ;  West.  U.  Tel.  Co.  v.  Womack,  9  Tex.  Civ.  App.  007,  29  S.  W.  932 ;  West. 
U.  Tel.  Co.  V.  Murray,  29  Tex.  Civ.  App.  207,  68  S.  W.  549 ;  West.  U.  Tel.  Co.  v. 
May,  S  Tex.  Civ.  App.  176,  27  S.  W.  760 ;  West.  U.  Tel.  Co.  v.  Kerr,  4  Tex.  Civ. 
Aiip.  280,  23  S.  W.  564 ;  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W. 
216 ;  Davis  v.  West.  U.  Tel.  Co.,  46  W.  A^a.  48,  32  S.  E.  1026. 


§    645)  MEASURE  OF   DAMAGES  709 

pany  will  be  liable  for  all  mental  suffering  resulting  proximately 
and  directly  from  the  failure  to  properly  transmit  or  deliver  the 
message. ^^^ 

§  545.  Same  continued — relationship  of  person  aflfected. — The 
above  rule  is  considered  further,  in  this,  that  the  company  must  not 
only  be  informed  that  the  message  relates  to  the  serious  illness, 
death  or  the  time  set  for  burial  of  some  one  in  whom  the  plaintiff 
is  interested,  but  it  must  further  be  informed  that  the  party  about 
whom  the  message  concerns  is  a  near  relative  of  his.^^-  This  may 
either  be  imparted  to  the  company  by  the  face  of  the  message, 
where  the  wording  is  sufficiently  plain  to  indicate  this  important 

111  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  4S9,  49  S.  E.  165,  103  Am.  St.  Rep. 
955,  67  L.  R.  A.  985,  1  Ann.  Cas.  349;  West.  U.  Tel.  Co.  v.  Womack,  9  Tex. 
Civ.  App.  607,  29  S.  W.  932 ;  West.  U.  Tel.  Co.  v.  Burgess  (Tex.  Civ.  App.)  56 
S.  W.  237 ;  Lyles  v.  West.  U.  Tel.  Co.,  84  S.  C.  1,  65  S.  E.  832,  137  Am.  St.  Rep. 
829.  See  §  587.  See.  also,  West.  U.  Tel.  Co.  v.  Luck,  91  Tex.  178.  41  S.  W.  469, 
66  Am.  St.  Rep.  869,  overruling  West.  U.  Tel.  Co.  v.  Nations,  82  Tex.  539,  18 
S.  W.  709,  27  Am.  St.  Rep.  914 ;  West.  U.  Tel.  Co.  v.  Potts,  120  Tenn.  37,  113 
S.  W.  789,  127  Am.  St.  Rep.  991,  19  L.  R.  A.  (N.  S.)  479 ;  West.  U.  Tel.  Co.  v. 
Shofner,  87  Ark.  303,  112  S.  W.  751;  Casbion  v.  West.  U,  Tel.  Co.,  124  N. 
C.  459,  32  S.  E.  746,  45  L.  R.  A.  160 ;  Harrison  v.  West.  U.  Tel.  Co.,  136  N.  C. 
381,  48  S.  E.  772 ;  Pierson  v.  West.  U.  Tel.  Co.,  150  X.  C.  559,  64  S.  E.  577 ;  Da- 
vis V.  West.  U.  Tel.  Co.,  107  Ky.  527,  54  S.  W.  849,  92  Am.  St.  Rep.  371 ;  West. 
U.  Tel.  Co.  V.  Griffin,  92  Ark.  219,  122  S.  W.  489 ;  West.  U.  Tel.  Co.  v.  Carter 
(Tex.  Civ.  App.)  20  S.  W.  834 ;  West.  U.  Tel.  Co.  v.  Toms,  99  Ark.  117,  137  S. 
W.  559 ;  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep. 
23;  Harrison  v.  West.  U.  Tel.  Co.,  143  N.  C.  147,  55  S.  E.  435,  10  Ann.  Cas. 
476 ;  West.  U.  Tel.  Co.  v.  Bell,  42  Tex.  Civ.  App.  462,  92  S.  W.  1036 ;  West.  U. 
Tel.  Co.  V.  Rosentreter,  80  Tex.  406,  16  S.  W.  25;  Louisiana,  etc.,  R.  Co.  v. 
Reeves,  95  Ark.  214,  128  S.  W.  1051 ;  Reese  v.  West.  U.  Tel.  Co.,  123  Ind.  294, 
24  N.  E.  163,  7  L.  R.  A.  583 ;  West.  U.  Tel.  Co.  v.  Eskridge,  7  Ind.  App.  208,  33 
N.  E.  238 ;  Graham  v.  West.  U.  Tel.  Co.,  93  S.  C.  173,  76  S.  E.  200 ;  Gulf,  etc., 
Tel.  Co.  V.  Richardson,  79  Tex.  649,  15  S.  W.  689 ;  West.  U.  Tel.  Co.  v.  May,  8 
Tex.  Civ.  App.  176,  27  S.  W.  760 ;  West.  U.  Tel.  Co.  v.  Gulledge.  84  Ark.  501, 
106  S.  W.  957 ;  Shaw  v.  West.  U.  Tel.  Co.,  151  N.  C.  638,  06  S.  E.  668 ;  Gerock 
V.  West.  U.  Tel.  Co.,  142  N.  C.  22,  54  S.  E.  782 ;  Loper  v.  West.  U.  Tel.  Co.,  70 
Tex.  689,  8  S.  W.  600 ;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South. 
419,  18  Am.  St.  Rep.  148 ;  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W. 
734,  13  Am.  St.  Rep.  843 ;  Carter  v.  West.  U.  Tel.  Co.,  73  S.  C.  4.30,  53  S.  E. 
539.    But  see'  West.  U.  Tel.  Co.  v.  Kuykendall,  99  Tex.  323,  89  S.  W.  9U5. 

Telegram  trot  relating  to  serious  illness  or  death. — Damages  not  recoverable. 
West.  U.  Tel.  Co.  v.  Kibble,  53  Tex.  Civ.  App.  222,  115  S.  W.  643 ;  Sparkman  v. 
West.  U.  Tel.  Co.,  130  N.  C.  447,  41  S.  E.  881 ;  West.  U.  Tel.  Co.  v.  Raines,  78 
Ark.  545,  94  S.  W.  700 ;  Williams  v.  West.  U.  Tel.  Co.,  136  N.  C.  82,  48  S.  El 
559,  1  Ann.  Cas.  359;  West.  U.  Tel.  Co.  v.  Hogue,  79  Ark.  33,  94  S.  W.  924; 
West.  U.  Tel.  Co.  v.  Oastler,  90  Ark.  268,  119  S.  W.  285,  49  L.  R.  A.  (N.  S.) 
325 ;  Christmon  v.  Postal  Tel.  Cable  Co.,  159  N.  C.  195,  74  S.  E.  325 ;  West.  U. 
Tel.  Co.  V.  McFadden,  32  Tex.  Civ.  App.  582,  75  S.  W.  352 ;  Sledge  v.  We.st.  U. 
Tel.  Co.,  163  Ala.  4,  50  South.  886 ;  West.  U.  Tel.  Co.  v.  Westmoreland,  151  Ala. 
319,  44  South.  382. 

112  Butner  v.  West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087;  West.  U.  Tel.  Co. 
V.  Benson,  159  Ala.  254,  48  South,  712 ;  West.  U.  Tel.  Co.  v.  Steele  (Tex.  Civ. 


f 


710  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  545 

fact,  or  it  may  derive  this  information  from  extrinsic  evidence 
alone,  or  in  connection  with  the  facts  on  the  face  of  the  message. ^^^ 
It  seems  that  it  is  not  as  necessary  for  the  face  of  the  message  to 
be  plain  and  clear,  with  respect  to  a  message  of  this  character,  and 
one  of  a  business  nature  when  written  unintelligibly;  but  if  there 
is  any  notice  or  information  of  its  purpose,  it  becomes  the  duty  of 
the  company  to  make  further  inquiry. ^^*  While  these  companies 
must  have  some  information  of  the  relationship  of  the  parties,  yet 
it  is  not  necessary  that  the  exact  relationship  of  the  parties,  or  that 
the  family  pedigree,  should  be  set  out  in  the  message,  or  even  given 
to  the  company  by  outside  information. ^^^  The  reason  for  the 
later  view,  is  the  same  as  that  given  above  in  regard  to  the  brevity 
in  which  messages  should  be  prepared.  The  only  apparent  effect 
this  would  have,  as  said  in  regard  to  "repeating"  a  message,  would 
be  "to  increase  the  revenue  of  these  companies."  ^^^  In  some  states 
the  rule  seems  to  be  that  the  company  is  charged  with  knowledge 
of  the  relationship  of  the  parties  by  the  mere  fact  of  the  nature  of 
the  message,  where  it  is  one  relating  to  the  serious  illness,  death  or 

App.)  110  S.  W.  546 ;  West.  IT.  Tel.  Co.  v.  Russell,  4  Ala.  App.  4S5,  58  South. 
938 ;  West.  U.  Tel.  Co.  v.  Peagler,  163  Ala.  .38,  50  South.  912. 

Many  cases  hold  that  the  relationship  of  the  parties  to  a  message  need  not 
be  disclosed  to  the  company,  but  in  most  of  these  cases  the  relationship  did, 
in  fact,  exist,  and  it  might  be  said  that  the  company  presumed  relationship ; 
West.  U.  Tel.  Co.  v.  Bennett,  3  Ala.  App.  275,  57  South.  87 ;  West.  U.  Tel.  Co. 
V.  Moxley,  80  Ark.  554,  98  S.  W.  112 ;  Foreman  v.  West.  U.  Tel.  Co.,  141  Iowa, 
32,  116  X.  W.  724,  19  L.  R.  A.  (N.  S.)  374;  Davis  v.  West.  U.  Tel.  Co.,  107 
Ky.  527,  54  S.  W.  849,  92  Am.  St.  Rep.  371 ;  Lyne  v.  West.  U.  Tel.  Co.,  123  N. 
C.  129.  31  S.  E.  350;  Bennett  v.  West.  U.  Tel.  Co.,  128  N.  C.  103,  38  S.  E. 
294 ;  Meado^YS  v.  West.  U.  Tel.  Co.,  132  N.  C.  40,  43  S.  E.  512 ;  Bright  v.  West. 
U.  Tel.  Co.,  1.32  N.  C.  317,  43  S.  E.  841 ;  Hunter  v.  West.  U.  Tel.  Co.,  135  N.  C. 
458.  47  S.  E.  745 ;  Ellison  v.  West.  U.  Tel.  Co.,  163  N.  C.  5,  79  S.  E.  277 ;  Harri- 
son V.  West.  U.  Tel.  Co.,  163  N.  C.  18,  79  S.  E.  281 ;  Potts  v.  West.  U.  Tel.  Co., 
82  Tex.  545,  18  S.  W.  604 ;  West.  U.  Tel.  Co.  v.  Carter,  85  Tex.  580,  22  S.  W. 
961,  34  Am.  St.  Rep.  826 ;  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94,  30  S.  W.  896 ; 
West.  U.  Tel.  Co.  v.  Sweetman,  19  Tex.  Civ.  App.  435,  47  S.  W.  676 ;  West.  U. 
Tel.  Co.  V.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A. 
844 ;  Seddon  v.  West.  U.  Tel.  Co.,  146  Iowa,  743,  126  N.  W.  969. 

113  Davis  v.  West.  U.  Tel.  Co.,  107  Ky.  527,  54  S.  W.  849,  92  Am.  St.  Rep. 
371 ;  Bennett  v.  West.  U.  Tel.  Co.,  128  N.  C.  103,  38  S.  E.  294 ;  Meadows  v. 
West.  U.  Tel.  Co.,  132  N.  C.  40,  43  S.  E.  512 ;  West.  U.  Tel.  Co.  v.  Broesche,  72 
Tex.  654,  10  S.  W.  734,  13  Am.  St.  Rep.  843 ;  West.  U.  Tel.  Co.  v.  Adams,  75 
Tex.  531,  12  S.  W.  857,  6  L.  R.  A.  844,  16  Am.  St.  Rep.  920 ;  West.  U.  Tel.  Co. 
V.  Feegles,  75  Tex.  537,  12  S.  W.  860 ;  West.  U.  Tel.  Co.  v.  Moore,  76  Tex.  66, 
12  S.  W.  949,  18  Am.  St.  Rep.  25;  West.  U.  Tel.  Co.  v.  Rosentreter,  80  Tex. 
406,  16  S.  W.  25 ;  Potts  v.  West.  U.  Tel.  Co.,  82  Tex.  545,  18  S.  W.  604 ;  West. 
V.  Tel.  Co.  V.  Carter  (Tex.  Civ.  App.)  20  S.  W.  834. 

114  West.  U.  Tel.  Co.  v.  Moore,  76  Tex.  66,  12  S.  W.  949,  18  Am,  St.  Rep.  25. 

115  See  §  605  et  seq. 

116  West.  U.  Tel.  Co.  v.  Tyler,  74  111.  168,  24  Am.  Rep.  279. 


§   546)  MEASURE   OF   DAMAGES  711 

time  of  funeral,  or  the  like.^^'  When  such  communication  relates 
to  sickness  and  death,  there  accompanies  them  a  common  sense 
suggestion  that  they  are  of  importance,  and  that  the  persons  ad- 
dressed have  in  them  a  serious  interest.^^®  If  the  relationship  is 
remote,  the  company  should  have  notice  of  such  fact.^^^ 

§  546.  Same  continued — reason  of  rule — nearness  of  relation- 
ship.— The  reason  of  the  rule  that  the  relationship  of  the  parties 
must  be  known  by  the  company  at  the  time  the  message  is  ac- 
cepted, in  order  to  recover  damages  for  mental  suffering,  as  the 
natural  and  direct  result  of  its  failure  to  discharge  its  duty,  is  ob- 
vious. No  one  can  recover  damages,  as  was  said  in  the  beginning 
of  this  chapter,  unless  his  rights  have  been  infringed  upon,  and 
then  they  are  only  given  as  a  compensation  for  such  infringement. 

117  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94.  30  S.  W.  896;  West.  U.  Tel. 
Co.  V.  Luck,  91  Tex.  178,  41  S.  W.  469,  66  Am.  St.  Rep.  869;  West.  U.  Tel. 
Co.  V.  Smith  (Tex.  Civ.  App.)  S3  S.  W.  742 ;  West.  U.  Tel.  Co.  v.  Adams,  75 
Tex.  531,  12  S.  W.  857,  6  L.  R.  A.  844,  16  Am.  St.  Rep.  920 ;  Postal  Tel.  Cable 
Co.  V.  Real,  159  Ala.  249,  48  South.  676;  Foreman  v.  West.  U.  Tel.  Co.,  141 
Iowa,  32,  116  N.  W.  724,  19  L.  R.  A.  (N.  S.)  374 ;  West.  U.  Tel.  Co.  v.  Moxley, 
80  Ark.  554,  98  S.  W.  112;  Postal  Tel.  Cable  Co.  v.  Pratt,  85  S.  W.  225,  27 
Ky.  Law  Rep.  430 ;  Davis  v.  West.  U.  Tel.  Co.,  107  Ky.  527,  54  S.  W.  849,  21 
Ky.  Law  Rep.  1251,  92  Am.  St.  Rep.  371;  Bright  v.  West.  U.  Tel.  Co.,  132 
N.  C.  317,  43  S.  E.  841 ;  Hunter  v.  West.  U.  Tel.  Co.,  135  N.  C.  458,  47  S.  E. 
745;  Meadows  v.  West.  U.  Tel.  Co.,  132  N.  C.  40,  43  S.  E.  512;  Bennett  v. 
West.  U.  Tel.  Co.,  128  N.  C.  103,  38  S.  E.  294 ;  Lyne  v.  West.  U.  Tel.  Co., 
123  N.  C.  129,  31  S.  E.  350 ;  Lyles  v.  West.  U.  Tel.  Co.,  77  S.  C.  174,  57  S.  B. 
725,  12  L.  R.  A.  (N.  S.)  534 ;  Potts  v.  West.  U.  Tel.  Co.,  82  Tex.  545,  18  S.  W. 
004 ;  West.  U.  Tel.  Co.  v.  Rosentretter,  SO  Tex.  406,  16  S.  W.  25 ;  Seddon  v. 
Telephone  Co.,  146  Iowa,  743,  126  N.  W.  969. 

Whether  action  'brought  hy  sender  or  sendee — distinction. — A  distinction 
has  been  made  according  to  whether  the  action  is  brought  by  the  sender  or 
the  receiver  of  a  message.  See  West.  U.  Tel.  Co.  v.  Luck,  91  Tex.  178,  41 
S.  W.  469,  66  Am.  St.  Rep.  869,  overruling  West.  U.  Tel.  Co.  v.  Nations,  82 
Tex.  539,  18  S.  W.  709,  27  Am.  St.  Rep.  914.  But  see  Potts  v.  West.  U.  Tel. 
Co.,  supra ;   contra,  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841. 

118  Foreman  v.  West.  U.  Tel.  Co.,  141  Iowa,  32,  116  N.  W.  724,  19  L.  R.  A, 
(N.  S.)  374;  West.  U.  Tel.  Co.  v.  Moxley,  80  Ark.  554,  98  S.  W.  112;  Meadows 
V.  West.  U.  Tel.  Co.,  132  N.  C.  40,  43  S.  E.  512 ;  Lyles  v.  West.  U.  Tel.  Co., 
77  S.  C.  174,  57  S.  E.  725,  12  L.  R.  A.  (N.  S.)  534 ;  Lyne  v.  West.  U.  Tel.  Co . 
123  N.  C.  129,  31  S.  E.  350 ;  Potts  v.  West.  U.  Tel.  Co.,  82  Tex.  545,  18  S.  W. 
604;  nor  would  result  to  the  particular  person  appearing  as  plaintiff.  West. 
U.  Tel.  Co.  V.  Luck,  91  Tex.  178,  41  S.  W.  469,  66  Am.  St.  Rep.  869,  over- 
ruling West.  U.  Tel.  Co.  v.  Nations,  82  Tex.  539,  IS  S.  W.  709.  27  Am.  St. 
Rep.  914;  West.  U.  Tel.  Co.  v.  Potts,  120  Teun.  37,  113  S.  W.  789,  127  Am! 
St.  Rep.  991,  19  L.  R.  A.  (N.  S.)  479. 

119  Butler  V.  West.  U.  Tel.  Co.,  77  S.  C.  148,  57  S.  E.  757;  Amos  v.  West. 
U.  Tel.  Co.,  79  S.  C.  259,  60  S.  E.  660,  128  Am.  St.  Rep.  845 ;  West.  U.  Tel. 
Co.  V.  Wilson,  97  Tex.  22,  75  S.  W.  482 ;  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex. 
94,  30  S.  W.  896 ;  West.  U.  Tel.  Co.  v.  Gibson  (Tex.  Civ.  App.)  39  S.  W.  198 ; 
West.  U.  Tel.  Co.  v.  Garrett  (Tex.  Civ.  App.)  34  S.  W.  649;  West.  U.  Tel. 
Co.  V.  McMillan  (Tex.  Civ.  App.)  30  S.  W.  298. 


712  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  546 

It  is  true  that  we  grieve  to  hear  of  the  serious  illness  or  death  of 
close  friends,  but  it  would  be  wholly  and  entirely  foreign  to  sound 
reason  to  say  that  we  would  suffer  the  same  pangs  and  untold  grief 
at  the  death  of  a  friend  as  we  would  to  hear  of  the  death  of  a  mem- 
ber of  one's  family  or  closely  of  kin.  It  is  only  when  this  relation- 
ship exists,  or  is  presumed  to  exist — which  is  a  presumption  all  rel- 
atives in  consanguinity  bear — that  the  mind  can  become  so  impair- 
ed by  suffering  as  to  entitle  the  person  to  damages  for  such/-''  In 
other  words,  there  must  be  such  an  injury  to  the  feelings  or  suffer- 
ings of  mind  as  can  be,  in  a  sense,  measured  by  a  pecuniary  com- 
pensation, before  the  party  can  recover ;  and  this  is  never  presum- 
ed, except  where  the  parties  are  closely  related  by  blood.^^^  There- 
fore, if  the  message  concerns  some  one  who  does  not  stand  in  this 
relation,  the  company  will  not  be  liable  for  damages  caused  by 
mental  suffering,  although  it  may  be  informed  of  its  purpose. ^^^ 
However,  if  the  message  concerns  the  dangerous  illness,  death  or 
time  of  burial  of  some  one  related  to  plaintiff,  and  it  is  affirma- 
tively shown  that  there  was  a  peculiar  tenderness  of  relation  ex- 
isting between  the  parties,  and  the  company  is  informed  of  this 

120  Immediate  members  of  family. — West.  U.  Tel.  Co.  v.  McMorris,  1.58  Ala. 
563,  48  South.  349,  132  Am.  St.  Rep.  46 ;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala. 
254,  48  South.  712;  West.  U.  Tel.  Co.  v.  Heathcoat,  149  Ala.  623,  43  South. 
117 ;   West.  U.  Tel.  Co.  v.  De  Andrea,  45  Tex.  Civ.  App.  395,  100  S.  W.  977. 

Grandmother  and  ffrandchild.—Boster  v.  West.  U.  Tel.  Co.,  77  S.  C.  56,  57 
S.  E.  671 ;  West.  U.  Tel.  Co.  v.  Prevatt,  149  Ala.  617,  43  South.  106 ;  West. 
U.  Tel.  Co.  V.  Porterfield  (Tex.  Civ.  App.)  84  S.  W.  850. 

So  there  can  be  no  recovery  where  the  relationship  is  merely  by  marriage 
or  a  remote  blood  relationship,  Lee  v.  West.  U.  Tel.  Co.,  130  Ky.  202,  113 
S.  W.  55 ;  West.  U.  Tel.  Co.  v.  Ayers,  131  Ala.  391,  31  South.  78,  90  Am.  St. 
Rep.  92 ;  West.  U.  Tel.  Co.  v.  Steenbergen,  107  Ky.  409,  54  S.  W.  829,  21  Ky. 
Law  Rep.  1289;  Denham  v.  West.  U.  Tel.  Co.,  87  S.  W.  788,  27  Ky.  Law 
Rep.  999 ;  Davidson  v.  West.  U.  Tel.  Co.,  54  S.  W.  830,  21  Ky.  Law  Rep.  1292 ; 
West.  U.  Tel.  Co.  v.  Wilson,  97  Tex.  22,  75  S.  W.  482;  West.  U.  Tel.  Co.  v. 
Kanause  (Tex.  Civ.  App.)  143  S.  W.  189 ;  or  the  parties  are  merely  engaged 
to  be  married,  Randall  v.  West.  U.  Tel.  Co.,  107  S.  W.  235,  32  Ky.  Law  Rep. 
859,  15  L.  R.  A.  (N.  S.)  .277. 

121  West.  U.  Tel.  Co.  v.  Blair,  51  Tex.  Civ.  App.  427,  113  S.  W.  164;  West. 
U.  Tel.  Co.  V.  Thompson,  18  Tex.  Civ.  App.  609,  45  S.  W.  429. 

122  See  Butler  v.  West.  U.  Tel.  Co.,  77  S.  C.  148,  57  S.  E.  757;  West.  U. 
Tel.  Co.  V.  Coffin,  88  Tex.  94,  30  S.  W^  896 ;  Rich  v.  West.  U.  Tel.  Co.  (Tex. 
Civ.  App.)  110  S.  W.  93;  West.  U.  Tel.  Co.  v.  Gibson  (Tex.  Civ.  App.)  39 
S.  W.  198 ;  West.  U.  Tel.  Co.  v.  GaiTett  (Tex.  Civ.  App.)  34  S.  W.  649 ;  West. 
U.  Tel.  Co.  v.  McMillan  (Tex.  Civ.  App.)  30  S.  W.  298.  But  see  West.  U.  Tel. 
Co.  V.  Ayers,  131  Ala.  391,  31  South.  78,  90  Am.  St.  Rep.  92 ;  West.  U,  Tel. 
Co.  V.  Steenbergen.  107  Ky.  469,  54  S.  W.  829,  21  Ky.  Law  Rep.  1289;  Lee 
V.  West.  U.  Tel.  Co.,  1.30  Ky.  202,  113  S.  W^  55;  Randall  v.  West.  U.  Tel, 
Co.,  107  S.  W.  235,  32  Ky.  Law  Rep.  859,  15  L.  R.  A.  (N.  S.)  277. 


I 


§    548)  MEASURE   OP  DAMAGES  713 

fact,  it  would  be  liable  for  mental  suffering  for  negligently  trans- 
mitting or  delivering  the  message. ^-^ 

§  547.  Same  continued — interest  of  the  party  in  the  transaction. 
When  the  person  is  not  a  party  to  the  message,  but  is  greatly  in- 
terested in  the  results,  the  company  must  be  informed  of  his  inter- 
est at  the  acceptance  of  the  message  in  order  to  be  held  liable.^-* 
He  is  not  a  party  to  the  contract,  and  only  such  damages  can  be 
recovered  as  result  from  the  company's  negligence  in  transmitting 
or  delivering  the  message,  and  such  as  might  have  been  presumed 
to  have  entered  into  the  contemplation  of  the  minds  of  the  ccn- 
tracting  parties  at  the  time  the  contract  was  made.  It  is  the  result 
of  the  breach  supposed  to  have  been  contemplated  by  the  contract- 
ing parties,  and  not  those  entertained  by  some  other,  of  whose 
existence  the  company  would  not  likely  be  aware.  If,  however,  the 
company  is  informed  that  the  message  concerns  some  person  who 
is  not  a  party  to  the  message,  it  would  be  liable  to  him  for  the  re- 
sulting damages  just  as  if  he  were  a  party  to  the  message;  and  it 
matters  not  in  what  way  it  may  derive  this  information.^-^  It 
seems  that  the  damages  due  a  wife  or  husband  for  mental  suffer- 
ing are  regarded  as  joint  and  either  may  maintain  a  suit  for  the 
recovery  of  same.^^*'  Thus  it  was  held  that  the  wife  may  recover 
for  mental  suffering  caused  by  the  failure  of  her  relatives  to  meet 
her  at  a  station  and  assist  in  caring  for  the  body  of  her  dead  child, 
although  the  message  was  sent  by  her  husband,  and  the  company 
was  not  notified  of  her  interest  in  the  message. 

§  548.  Same  continued — deprived  of  the  addressee's  consolation. 
This  brings  us  to  a  question  with  peculiar  features,  that  is,  whether 
or  not  damages  may  be  recovered  for  mental  suffering  caused  by 
one  being  deprived  of  the  presence  and  consolation  of  some  close 
relative,  as  the  direct  result  of  the  company's  dereliction  of  duty. 
In  other  words,  can  a  person  recover  damages  for  mental  suffering 

123  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94,  30  S.  W.  SOC ;  West.  U.  Tel.  Co. 
V.  Mcilillan  (Tex.  Civ.  App.)  30  S.  W.  298 ;  West.  U.  Tel.  Co.  v.  Garrett  (Tex. 
Civ.  App.)  34  S.  W.  649.  See  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C.  317,  43- 
S.  B.  841 ;    Hunter  v.  West.  U.  Tel.  Co.,  135  N.  C.  458,  47  S.  E.  745. 

124  Morrow  v.  West.  U.  Tel.  Co.,  107  Ky.  517,  54  S.  W.  853;  Davidson  v. 
West.  U.  Tel.  Co.,  54  S.  W.  830,  21  Ky.  Law  Rep.  1292;  Suutliwesteru  Tel., 
etc.,  Co.  v.  Gotcher,  93  Tex.  114,  53  S.  W.  686;  West.  U.  Tel.  Co.  v.  Motley 
(Tex.  Civ.  App.)  27  S.  W.  51 ;  West.  U.  Tel.  Co.  v.  Grigsby  (Tex.  Civ.  App.)  29 
S.  W.  406.  Compare  Laudie  v.  West.  U.  Tel.  Co.,  124  N.  C.  528,  32  S.  E.  886; 
West.  U.  Tel.  Co.  v.  Carter  (Tex.  Civ.  App.)  20  S.  W.  834 ;  West.  U.  Tel.  Co' 
V,  Russell  (Tex.  Civ.  App.)  31  S.  W.  698.     See  §  544. 

125  West.  U.  Tel.  Co.  v.  Evans,  5  Tex.  Civ.  App.  55,  23  S.  W.  998. 

126  Loper  V.  West.  U.  Tel.  Co.,  70  Tex.  689,  8  S.  W.  600.  See,  also,  South- 
western U.  Tel.  Co.  V.  Dale  (Tex.  Civ.  App.)  27  S.  W.  1059. 


714  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  549 

caused  by  the  absence  of  some  one  who  was  deprived  of  being 
present  with  the  former  while  in  deep  grief,  the  loss  of  whose  con- 
solation was  the  result  of  the  company's  negligence?  It  seems  that 
if  the  company  was  informed  that  the  person  would  suffer,  or  that 
the  consolation  of  the  addressee  was  the  main  purpose  of  the  mes- 
sage, and  without  which  great  suffering  would  be  endured,  it 
would  be  liable  for  failing  to  discharge  its  duty ;  ^-''  otherwise  it 
would  not  be  liable.^-®  Thus,  where  the  wife,  who  was  at  the 
deathbed  of  her  husband,  sent  a  telegram  to  her  daughter,  request- 
ing the  latter  to  come  to  her,  the  company  would  be  liable  to  the 
daughter  for  damages  caused  by  the  mental  suffering,  where  the 
message  was  delayed  and  she  otherwise  would  have  reached  her 
father  in  time  to  have  seen  him  before  his  death.  But  it  would 
not  be  liable  in  damages  to  the  mother  for  mental  suft"ering  caused 
by  the  want  of  the  daughter's  consolation,  unless  the  company 
had  knowledge  that  this  would  be  the  natural  and  direct  result  of 
its  negligence. ^^^ 

§  549.  Damages  which  might  have  been  prevented. — When  a 
person  whose  legal  rights  have  been  impaired  as  a  result  of  a  tele- 

12  7  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  12.5,  32  N.  E.  871;  West. 
U.  Tel.  Co.  v.  Crocker,  135  Ala.  492.  33  South.  45,  59  L.  R.  A.  398;  Postal 
Tel.,  etc.,  Co.  v.  Beal,  1.59  Ala.  249,  48  South.  676;  West.  U.  Tel.  Co.  v.  Ben- 
son, 159  Ala.  254,  48  South,  712;  Foreman  v.  West.  U.  Tel.  Co.,  141  Iowa, 
32,  116  N.  W.  724,  19  L.  R.  A.  (N.  S.)  374 ;  Cordell  v.  West.  U.  Tel.  Co.,  149 
N.  C.  402,  63  S.  E.  71,  22  L.  -R.  A.  (N.  S.)  540;  Thurman  v.  West.  U.  Tel. 
Co.,  127  Ky.  137,  105  S.  W.  155,  32  Ky.  Law  Rep.  26,  14  L.  R.  A.  (N.  S.)  499 ; 
Bright  V.  West.  U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841 ;  Potts  v.  West.  U. 
Tel.  Co.,  82  Tex.  545,  18  S.  W.  604 ;  Bolton,  v.  West.  U.  Tel.  Co.,  76  S.  C.  529, 
57  S.  E.  543;  West,  U.  Tel.  Co.  v.  Olivarri  (Tex.  Civ.  App.)  110  S.  W.  930; 
West.  U.  Tel.  Co.  v.  Steele  (Tex.  Civ.  App.)  110  S.  W.  546 ;  West.  U.  Tel.  Co. 
V.  Hankins  (Tex.  Civ.  App.)  110  S.  W.  543;  West.  U.  Tel.  Co.  v.  Bell  (Tex. 
Civ.  App.)  90  S.  W.  714 ;  Telephone  Co.  v,  Snell,  3  Ala.  App.  263,  56  South. 
854 ;  West.  U.  Tel.  Co.  v.  Garlington,  101  Ark.  487,  142  S.  W.  8.54,  49  L.  R.  A. 
(N.  S.)  300;  West.  U.  Tel.  Co.  v.  Bennett,  3  Ala.  App.  275,  57  South  87.  See 
West.  U.  Tel.  Co.  v.  Saunders,  164  Ala.  234,  51  South.  176,  137  Am.  St.  Rep.  35. 

i^sWest.  U.  Tel.  Co.  v.  Luck,  91  Tex.  178,  41  S.  W.  469,  66  Am.  St.  Rep. 
869,  overruling  West.  U.  Tel.  Co.  v.  Nations,  82  Tex.  539,  18  S.  W.  1^9,  27 
Am.  St.  Rep.  914.  See,  also,  Weatherford,  etc.,  R.  v.  Seals  (Tex.  Civ.  App.) 
41  S.  W.  841 ;  Telephone  Co.  v.  Garlington,  101  Ark.  487,  142  S.  W.  8.54,  49 
L.  R.  A.  (N.  S.)  300 ;  contra.  Foreman  v.  West.  U.  Tel.  Co.,  141  Iowa,  32,  110 
N.  W.  724,  19  L.  R.  A.  (N.  S.)  374 ;  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C.  317, 
43  S.  E.  841.  A  recovery  has  been  denied  in  such  cases  on  account  of  the 
remoteness  of  the  relationship.  West.  U.  Tel.  Co.  v.  Luck,  supra.  And  the 
negligence  of  the  company  must  be  the  proximate  cause  of  the  damage. 
Landry  v.  West.  U,  Tel.  Co.,  102  Tex.  67,  113  S.  W.  10,  reversing  (Civ.  App.) 
108  S.  W,  461;  West,  U,  Tel,  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553, 
132  Am.  St.  Rep.  38 ;  West.  U,  Tel,  Co,  v,  McIMullin,  98  Ark,  347,  135  S,  W, 
909 ;    Howard  v.  Telephone  Co.,  106  Ark.  559,  153  S.  W.  803. 

12  9  West.  U,  Tel.  Co.  v.  Luck,  91  Tex.  178,  41  S.  W.  469,  66  Am.  St.  Rep,  869. 


§    549)  MEASURE  OF   DAMAGES  715 

graph  company's  negligence  in  the  transmission  or  delivery  of  a 
message,  he  should  make  reasonable  efforts  on  ascertaining  such 
fact  to  minimize  the  loss  as  much  as  possible. ^^^  So,  if  he  could 
have  avoided  the  damages  complained  of  by  the  exercise  of  care 
and  diligence,  but  failed  to  do  so,  recovery  w^ill  be  disallowed. ^^^ 
It  is  not  meant  by  this,  however,  that  he  must  go  to  great  trouble 
and  expense  to  avoid  the  loss  or  injury,  but  if  he  has  exercised  a 

130  Postal  Tel.  Cable  Co.  v.  Schaefer,  110  Ky.  907,  62  S.  W.  1119,  23  Ky. 
Law  Rep.  344 ;  West.  U.  Tel.  Co.  v.  Reid,  83  Ga.  401,  10  S.  E.  919 ;  Jones  v. 
West.  U.  Tel.  Co.,  75  S.  C.  208,  55  S.  E.  318;  West.  U.  Tel.  Co.  v.  Jeanes, 
88  Tex.  230,  31  S.  W.  186;  Weld  v.  Postal  Tel.  Cable  Co.,  199  X.  Y.  88,  92 
N.  E.  415 ;    Heath  v.  West.  U.  Tel.  Co.,  87  S.  C.  219,  69  S.  E.  283. 

131  Alahama. — Daugberty  v.  American-Union  Tel.  Co.,  75  Ala.  168,  51  Am. 
Rep.  435 ;   West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844. 

ArAaHsas.— West.  U.  Tel.  Co.  v.  Ivy,  102  Ark.  246,  143  S.  W.  1078;  Brewster 
V.  West.  U,  Tel.  Co.,  65  Ark.  537,  47  S.  W.  560. 

Ca7?7om?a.,— Germain  Fruit  Co.  v.  West.  U.  Tel.  Co.,  137  Cal.  598,  70  Pac. 
658,  59  L.  R.  A.  575. 

District  of  Columltia.—Fererio  v.  West.  U.  Tel.  Co.,  9  App.  D.  C.  455,  35 
L.  R.  A.  548. 

F?on(/a.— McMillan  v.  Telephone  Co.,  60  Fla.  131,  53  South.  329,  29  L.  R.  A. 
(N.  S.)  891. 

Geor(/ta.— West.  U.  Tel.  Co.  v.  Bailey,  115  Ga.  725,  42  S.  E.  89,  61  L.  R.  A. 
9.33;  West.  U.  Tel.  Co.  v.  Reid.  83  Ga.  401,  10  S.  E.  919;  Haber,  etc.,  Hat 
Co.  V.  Southern  Bell,  etc.,  Tel.  Co.,  118  Ga.  874,  45  S.  E.  696. 

Illinois.— Smith  v.  West.  U.  Tel.  Co.,  154  111.  App.  499;  West.  U.  Tel.  Co. 
v.  North  Packing,  etc.,  Co.,  188  111.  366,  58  N.  E.  958,  52  L.  R.  A.  274 ;  West. 
U.  Tel.  Co.  V.  Hart,  62  111.  App.  120. 

Indimui. — West.  U.  Tel.  Co.  v.  Briscoe,  38  Ind.  App.  22,  47  N.  E.  473. 

Zotca.— Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  10."!J,  70 
Am.  St.  Rep.  181. 

Kentucky.— VoBt&l  Tel.  Cable  Co.  v.  Schaefer,  110  Ky.  907,  62  S.  W.  1119, 
23  Ky.  Law  Rep.  344 ;  West.  U.  Tel.  Co.  v.  Matthews,  113  Ky.  188,  67  S.  W. 
849,  24  Ky.  Law  Rep.  3. 

J/tssissippi.— Shiugleur  v.  West.  U.  Tel.  Co.,  72  Miss.  1030,  18  South.  425, 
48  Am.  St.  Rep.  604,  30  L.  R.  A.  444. 

If  issowri.— Reynolds  v.  West.  U.  Tel.  Co.,  81  Mo.  App.  223 ;  Miller  v.  West. 
U.  Tel.  Co.,  157  Mo.  App.  5S0,  138  S.  W.  887. 

Isiew  York. — Rittenhouse  v.  Independent  Tel.  Line,  44  N.  Y.  263,  4  Am.  Rep. 
673 ;  Leonard  v.  New  York,  etc.,  Elec.  Mag.  Tel.  Co.,  41  N.  Y.  544,  1  Am  Rep 
446. 

Xorth  Carolina.— Cvanfoi-a  v.  West.  U.  Tel.  Co.,  138  N,  C.  162,  50  S.  E.  585 ; 
Hocutt  V.  We.st.  U.  Tel.  Co.,  147  N.  C.  ISO,  60  S.  E.  980. 

O/iio.— Postal  Tel.  Cable  Co.  v.  Akron  Cereal  Co.,  23  Ohio  Cir.  Ct.  R.  516. 

South  Carolina.— Key  v.  West.  U.  Tel.  Co.,  76  S.  C.  301,  56  S.  E.  962;  Ca- 
son  V.  West.  U.  Tel.  Co.,  77  S.  C.  157,  57  S.  E.  722;  Jones  v.  West.  U.  Tel. 
Co.,  75  S.  C.  208,  55  S.  E.  318;  Mitchiner  v.  West.  U.  Tel.  Co.,  75  S.  C.  182, 
55  S.  E.  222 ;  Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531,  48  S.  E.  538,  104  Am. 
St.  Rep.  828,  2  Ann.  Cas.  52. 

Tennessee. — Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496. 

Tcros.— Womack  v.  West.  U.  Tel.  Co.,  58  Tex.  176,  44  Am.  Rep.  614 ;  West. 
U.  Tel.  Co.  V.  Jeanes,  88  Tex.  230,  31  S.  W.  186;    Mitchell  v.  West.  U.  Tel. 


716  TELEGRArH  AND  TELEPHONE  COMPANIES         (§  550 

reasonable  amount  thereof,  and  such  as  a  prudent  man  would  do 
under  similar  circumstances,  he  will  have  discharged  his  duty/^^ 
He  does  not  have  to  resort  to  a  suit  in  court  to  protect  his  rights 
thus  impaired  or  about  to  be  impaired ;  only  reasonable  trouble  and 
expense  is  required. ^^^ 

§  550.  Same — damages  which  could  not  have  been  prevented — 
contributory  negligence. — It  sometimes  becomes  difficult  in  deter- 
mining when  damages  are  the  proximate  result  of  the  company's 
negligence ;  but  it  is  a  settled  question  that  if  the  loss  would  have 
occurred  or  the  damages  could  not  have  been  prevented,  even 
though  the  company  had  discharged  its  duty,  a  recovery  is  not  al- 
lowed.^^^  So  if,  under  the  circumstances  the  happening  or  prevent- 
ing of  the  loss  or  injury  depended  upon  a  speculative  or  contingent 
future  event, ^^^  or  on  the  voluntary,  and  not  the  involuntary,  action 
or  inaction  of  another  party  to  the  message,^^®  or  of  the  plaintiff 

Co.,  23  Tex.  Civ.  App.  445,  56  S.  W.  439 ;  West.  U.  Tel.  Co.  v.  Hearne,  7  Tex. 
Civ.  App.  67,  26  S.  W.  478.  See.  also,  West.  U.  Tel.  Co.  v.  Salter  (Civ.  App.) 
95  S.  W.  549. 

Virgi)iia.. — Washington,  etc.,  Tel.  Co.  v.  Hobson,  15  Grat.  122. 

United  States.— Vilest.  U.  Tel.  Co.  v.  Baker,  140  Fed.  315,  72  C.  C.  A.  87. 

13  2  West.  U.  Tel.  Co.  v.  Witt,  110  S.  W.  SS9,  33  Ky.  Law  Rep.  685. 

13  3  Reed  V.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  AY.  904,  58  Am.  St.  Rep. 
609,  34  L.  R.  A.  492 ;  Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W. 
1034,  70  Am.  St.  Rep.  181. 

134  Cherokee  Tanning  Extract  Co.  v.  West.  U.  Tel.  Co.,  143  N.  C.  376,  55 
S.  E.  777,  lis  Am.  St.  Rep.  806;  Bashinsky  v.  AVest.  U.  Tel.  Co.,  1  Ga.  App. 
7-61,  58  S.  E.  91 ;  Clio  Gin  Co.  v.  West.  U.  Tel.  Co.,  82  S.  C.  405,  64  S.  E.  426 ; 
Bird  Y.  West.  U.  Tel.  Co.,  76  S.  C.  345,  56  S.  E  973 ;  Beatty  Lbr.  Co.  v.  West. 
U.  Tel.  Co.,  52  W.  Va.  410,  44  S.  E.  309 ;  Cronheim  v.  Postal  Tel.  Cable  Co., 
10  Ga.  App.  716,  74  S.  E.  78 ;  Clark  Mfg.  Co.  v.  West.  U.  Tel.  Co.,  152  N.  C. 
157,  67  S.  E.  329,  27  L.  R.  A.  (N.  S.)  643 ;  Newsome  v.  West.  U.  Tel.  Co.,  153 
N.  C.  153,  69  S.  E.  10.  See  AVest.  U.  Tel.  Co.  v.  Sights,  34  Okl.  461,  126  Pac. 
234,  42  L.  R.  A.  (N.  S.)  419,  Ann.  Cas.  1914C,  204,  evidence  that  contract 
would  have  been  accepted. 

13  5  West.  U,  Tel.  Co.  v.  Crall,  89  Kan.  580,  18  Pac.  719;  Chapman  v.  West. 
U.  Tel.  Co.,  90  Ky.  265,  13  S.  W.  880,  12  Ky.  Law  Rep.  265;  Rice  Grain 
Dist.  Co.  V.  West.  U.  Tel.  Co.,  13  Ky.  Law  Rep.  256;  Barnesville  First  Natl. 
Bank  v.  West.  U.  Tel.  Co.,  30  Ohio  St.  555,  27  Am.  Rep.  4S5 ;  Martin  v.  Sun- 
set Tel.,  etc.,  Co.,  18  Wash.  260,  51  Pac.  376 ;  Cronheim  v.  Postal  Tel.  Cable  Co., 
10  Ga.  App.  716,  74  S.  E.  78 ;  AA^est.  U.  Tel.  Co.  v.  Ivy,  177  Fed.  63,  100  C.  C. 
A.  481.     See,  also,  §  575. 

136  Kiley  V.  West.  U.  Tel.  Co.,  39  Hun  (N.  T.)  158,  affirmed  in  109  N.  Y. 
231,  16  N.  E.  75 ;  Newsome  v.  West.  U.  Tel.  Co.,  137  N.  C.  513,  50  S.  E.  279 ; 
Taliferro  v.  West.  U.  Tel.  Co.,  54  S.  W.  825,  21  Ky.  Law  Rep.  1290 ;  Capers 
V.  West.  U.  Tel.  Co.,  71  S.  C.  29,  50  S.  E.  537 ;  West.  L.  Tel.  Co.  v.  Hall,  124 
U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  Cronheim  v.  Postal  Tel.  Cable  Co., 
10  Ga.  App.  716,  74  S.  E.  78 ;  Clark  Mfg.  Co.  v.  W^est.  U.  TeL  Co.,  152  N.  C. 
157,  69  S.  E.  329,  27  L.  R.  A.  (N.  S.)  643. 


§    550)  MEASURE   OP   DAMAGES  717 

himself/^'^  or  of  a  third  person/^^  recovery  cannot  be  had.^'°  So 
also,  if  the  damages  complained  of  have  been  incurred  by  the  plain- 
tiff's contributory  negligence,  they  cannot  be  recovered. ^■*°  Thus, 
if  a  message  is  incorrectly  transmitted  so  as  to  be  unintelligible 
and  the  plaintiff  attempts  to  interpret  and  act  upon  such  mes- 
sage,^'*^  or  acts  thereon  without  attempting  to  verify  its  correctness 
when  he  has  reasons  to  believe  that  an  error  has  been  made,^*-  or 
makes  no  effort  to  correct  the  mistake  after  ascertaining  such  fact 
which  has  been  obtained  sufficiently  long  before  the  loss  is  sus- 
tained,^'*^ he  cannot  recover.  However,  these  are  ordinarily  ques- 
tions for  the  jury.^** 

i37Frazer  v.  West.  U.  Tel.  Co..  84  Ala.  487.  4  South.  831;  Smith  v.  West. 
U.  Tel.  Co.,  S3  Ky.  104.  4  Am.  St.  Eep.  126 ;  Haber.  etc..  Hat  Co.  v.  Southern 
Bell  Tel.,  etc.,  Co.,  118  Ga.  874,  45  S.  E.  696;  Baldwin  v.  United  States  Tele- 
graph Co.,  45  X.  Y.  744,  6  Am.  Rep.  165;  McColl  v.  West.  U.  Tel.  Co.,  44 
N.  T.  Super.  Ct.  487;  Alexander  v.  West.  U.  Tel.  Co.  (C.  C.)  126  Fed.  445; 
West.  U.  Tel.  Co.  t.  Ivy,  177  Fed.  63,  100  C.  C.  A.  481 ;  Cronheim  v.  Postal 
Tel.  Cable  Co.,  10  Ga.  App.  716,  74  S.  E.  78. 

13  8  Postal  Tel.  Cable  Co.  v.  Barwise,  11  Colo.  App.  328,  53  Pac.  252; 
Kenyon  v.  West.  U.  Tel.  Co.,  100  Cal.  454,  35  Pac.  75;  Walser  v.  West.  U. 
Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366. 

139  Cronheim  v.  Postal  Tel.  Cable  Co.,  10  Ga.  App.  716,  74  S.  E.  78;  Walser 
V.  West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366 ;  West.  U.  Tel.  Co.  v.  Con- 
nelly, 2  Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  §  113. 

140  Manly  Mfg.  Co.  v.  West.  U.  Tel.  Co.,  105  Ga.  235,  31  S.  E.  156;  West. 
U.  Tel.  Co.  V.  Gulledge,  84  Ark.  501,  106  S.  W.  957;  West.  U.  Tel.  Co.  v. 
Wright,  18  111.  App.  337;  Bowyer  v.  West.  U.  Tel.  Co.,  130  Iowa,  324,  106 
N.  W.  748,  5  L.  R.  A.  (N.  S.)  984 ;  Hart  v.  Direct  U.  S.  Cable  Co.,  86  N.  Y. 
633;  Nusbaum  v.  West.  U.  Tel.  Co.,  17  Phila.  (Pa.)  340;  Hocutt  v.  West.  U. 
Tel.  Co.,  147  N.  C.  186,  60  S.  E.  980;  West.  U.  Tel.  Co.  v.  Harper,  15  Tex. 
Civ.  App.  37,  39  S.  W.  599;  Barnes  v.  Postal  Tel.  Cable  Co.,  156  N.  C.  150, 
72  S.  E.  78. 

141  Hart  v.  Direct  U.  S.  Cable  Co.,  86  N.  Y.  633;  Manly  Mfg.  Co.  v.  West. 
U.  Tel.  Co.,  105  Ga.  235,  31  S.  E.  156 ;  Nusbaum  v.  West.  U.  Tel.  Co.,  17  PMla. 
(Pa.)  340. 

142  West.  U.  Tel.  Co.  v.  Wright,  18  111.  App.  337. 

143  West.  U.  Tel.  Co.  v.  Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599. 

14-4  Manly  Mfg.  Co.  v.  West.  U.  Tel.  Co.,  105  Ga.  235,  31  S.  E.  156;  West. 
U.  Tel.  Co.  V.  Powell,  54  Tex.  Civ.  App.  466,  118  S.  W.  226 ;  Jackson  v.  Tele- 
phone Co.,  174  Mo.  App.  70,  156  S.  W.  801. 


718  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  551 


CHAPTER  XXI 

MEASURE  OF  DAMAGES— CONTINUED— LOSS  OF  EXPECTED  PROFITS 
ON  SALES  BY  ERROR  OR  NEGLIGENCE  IN  TRANSMISSION 

§  551.  Loss  of  profits — in  general. 

552.  Sales  prevented — plaintiff  vendor — in  general — legal  sales. 

553.  Same  continued — measure  of  damages. 

554.  Loss  must  be  actual  and  substantial. 

555.  Orders  for  goods  not  delivered — in  general. 

556.  Same  continued — measure  of  damages. 

557.  Orders  for  goods  erroneously  transmitted — purchaser's  duty, 

558.  Same  continued — goods  shipped  to  wrong  place. 

559.  Same  continued — stock,  bonds,  etc. 

560.  Messages  directing  agent  to  sell  or  purchase. 

561.  Same  continued — order  to  close  option  to  purchase. 

562.  Loss  of  an  exchange. 

563.  Negligence  of  company  inducing  shipment. 

564.  Deterioration. 

565.  Announcement  of  prices  or  state  of  market. 

566.  Contemplating  shipping — delay  in  message — loss. 

§  551.  Loss  of  profits — in  general. — It  is  our  purpose  to  discuss 
in  this  chapter  the  loss  of  expected  profits  in  transactions  or  sales, 
caused  by  the  negligence  of  telegraph  companies  in  transmitting 
or  delivering  messages,  and  the  means  by  which  the  amount  of 
damage  or  loss  sustained  thereby  may  be  ascertained.  The  negli- 
gence of  telegraph  companies  may  be  the  proximate  cause  of  pre- 
venting contracts  of  sale  from  being  consummated,  or  it  may  pre- 
vent a  contract  from  being  made  at  all  whereby  great  substantial 
losses  may  be  suft"ered ;  in  either  case,  the  company  would  be  liable 
for  all  direct  and  proximate  losses  in  the  way  of  actual  and  sub- 
stantial gains  and  profits  which  would  be  the  natural  result  of  same. 
The  company  is  the  agency  or  means  by  which  the  contracting 
parties  are  brought  together,  and  its  negligent  act  in  transmitting 
or  delivering  the  message  containing  an  acceptance  of  a  contract, 
would  have  the  same  efi'ect  as  if  it  were  a  direct  breach  of  the  con- 
tract. A  leading  American  authority,  with  respect  to  the  measure 
of  damages  for  a  breach  of  a  contract,  holds:  "The  party  injured 
by  a  breach  of  a  contract  is  entitled  to  recover  all  his  damages,  in- 
cluding gains  prevented,  as  well  as  losses  sustained,  provided  they 
are  certain  and  such  as  might  naturally  be  expected  to  follow  from 
the  breach.  It  is  only  uncertain  and  contingent  profits,  therefore, 
which  the  law  excludes;  not  such  as  are  the  immediate  and  neces- 
sary result  of  the  breach  of  the  contract,  which  may  be  fairly  sup- 


§    552)  MEASURE   OF  DAMAGES  719 

posed  to  have  entered  into  the  contemplation  of  the  parties  when 
they  made  it,  and  are  capable  of  being  definitely  ascertained  by 
reference  to  the  established  market  rates."  ^  This  rule  may  be  con- 
sidered as  the  basis  of  the  measure  of  damages  which  may  have 
been  incurred  by  reason  of  the  company's  negligence.^ 

§  552.  Sales  prevented — plaintiff  vendor — in  general — legal 
sales. — It  is  often  the  case  that  parties  who  are  at  a  distant  place 
consummate  certain  sales  by  means  of  telegraph  companies,  and 
the  subject-matter  of  the  sale  may  be  either  at  or  near  the  place  of 
the  purchaser,  and  there  to  be  delivered;  or  it  may  be  where  the 
vendor  is  and  to  be  delivered  to  the  former  at  some  other  place. 
Much  depends  in  the  sale  on  the  accuracy  and  promptness  of  the 
company,  since  one  small  error  on  its  part  might  be  of  serious  in- 
jury to  one  of  the  contracting  parties.  It  is  always  their  duty  to 
send  the  message  in  its  exact  language  and  as  prepared  by  the 
sender,  and  deliver  it  as  speedily  as  possible.''  More  especially  is 
this  the  case  where  the  message  concerns  sales  or  commercial  trans- 

1  Griffin  v.  Colver,  16  N.  T.  4S9,  69  Am.  Dec.  718. 

2  McNeil  V.  Postal  Tel.  Cable  Co.,  154  Io\Ya.  241,  134  N.  W.  611,  Ann.  Cas. 
1914A,  1294,  38  L.  R.  A.  (X.  S.)  727,  profit  which  could  have  been  made  by 
sale  of  cement ;  Purdom  Naval  Stores  Co.  v.  West.  U.  Tel.  Co.  (C.  C.)  3  53  Fed. 
327,  chance  to  purchase  business ;  Postal  Tel.  Cable  Co.  v.  Nichols,  159  Fed. 
643,  89  C.  C.  A.  585,  14  Ann.  Cas.  369.  16  L.  R.  A.  (N.  S.)  870,  bid  on  building 
contract;  West.  U.  Tel.  Co.  v.  I.ove  Banks  Co.,  73  Ark.  205,  S3  S.  W.  949,  3 
Ann.  Cas.  712,  loss  of  sale ;  Hoyt  v.  West.  U.  Tel.  Co.,  85  Ark.  473,  108  S.  W. 
1056,  reaffirmed  in  89  Ark.  118,  115  S.  W.  941,  sale  of  horse ;  Hadley  v.  West. 
U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845,  cattle  decreasing  in  weight ;  Manville  v. 
West.  U.  Tel.  Co.,  37  Iowa,  214,  IS  Am.  Rep.  8,  delayed  sale  of  goods ;  Ilerron 
V.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696,  sale  of  horse ;  Hise  v.  West. 
U.  Tel.  Co.,  137  Iowa.  329,  113  N.  W.  819,  commission ;  West.  U.  Tel.  Co.  v.  Eu- 
banks,  100  Ky.  591,  38  S.  W.  1068,  IS  Ky.  Law  Rep.  995,  60  Am.  St.  Rep.  361, 
36  L.  R.  A.  711,  later  sale ;  West.  U.  Tel.  Co.  v.  Scott,  87  S.  W.  289,  27  Ky. 
Law  Rep.  975,  shutting  down  plant ;  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232, 
93  Am.  Dec.  157,  to  buy  in  order  to  cover  contracts  previously  made  to  sell ; 
Postal  Tel.  Co.  v.  Rhett  (Miss.)  33  South.  412,  rehearing  denied  in  35  South. 
829,  re-sale ;  West.  U.  Tel.  Co.  v.  RIcLaurin,  70  Miss.  26,  13  South.  36,  fee  by 
attorney ;  Ilarper  v.  West.  U.  Tel.  Co.,  92  Mo.  App.  304,  reaffirmed  in  111  Mo. 
App.  269,  86  S.  W.  904,  commission  on  sale ;  West.  U.  Tel.  Co.  v.  Lowrey,  32 
Neb.  732,  49  N.  W.  707,  loss  of  favorable  market ;  Kerns  v.  West.  U.  Tel.  Co., 
170  ]Mo.  App.  642,  157  S.  W.  106,  delayed  sale;  West.  U.  Tel.  Co.  v.  Nye  & 
Schneider  Grain  Co.,  70  Neb.  251,  97  N.  W.  305,  63  L.  R.  A.  803,  loss  of  higher 
price ;  Walliugford  v.  West.  U.  Tel.  Co.,  53  S.  C.  410,  31  S.  E.  275,  rehearing 
denied  in  60  S.  C.  201,  38  S.  E.  443,  629,  delayed  sale;  West.  U.  Tel.  Co.  v. 
Snow,  31  Tex.  Civ.  App.  275,  72  S.  W.  250,  loss  of  purchase ;  Texas,  etc.,  Tel. 
Co.  v.  Mackenzie,  36  Tex.  Civ.  App.  178,  81  S.  W.  581,  building  contract ;  West. 
U.  Tel.  Co.  V.  Auslet,  53  Tex.  Civ.  App.  264,  115  S.  W.  625,  failure  to  hold  the- 
atrical performance ;  West.  U.  Tel.  Co.  v.  Hirsch  (Tex.  Civ.  App.)  84  S.  W.  394, 
option  to  purchase ;  Thompson  v.  West.  U.  Tel.  Co.,  64  Wis.  531,  25  N.  W.  7S9, 
54  Am.  Rep.  646,  sale  of  horse. 

3  See  chapter  XH. 


720  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  553 

actions,  which  fact  is  often  more  or  less  made  known  to  them  by 
the  character  of  the  message.*  It  is  not  meant,  however,  that  the 
rule  applies  to  sales  or  commercial  transactions  of  all  kinds ;  it  only 
applies  to  legal  sales  or  transactions.  As  said  in  a  former  part  of 
this  work,  telegraph  companies  were  not  incorporated  to  perpetrate 
crimes,  or  to  carry  on  illegal  transactions;  their  purposes  are  law- 
ful, and  only  such  can  they  be  under  any  duty  to  perform.  The  ob- 
ject of  the  law  is  to  prevent  evildoers  from  carrying  on  their  nefari- 
ous acts  and  misdoings ;  to  be  sure,  the  law  would  not  create  any 
being  or  institution  whose  object  would  be  in  direct  conflict,  and 
inconsistent  with  the  principles  of  the  law  itself.  So  it  follows  that 
these  companies  would  be  under  no  obligation  to  discharge  any  act 
which  was  in  itself  illegal  or  immoral.  No  sale  or  transaction 
which  showed  on  its  face  the  illegality  or  immorality  of  the  affair, 
or  which  was  otherwise  made  known  to  the  company,  shall  be  con- 
sidered within  the  scope  of  this  chapter,  but  only  such  as  are  legal 
and  moral  in  effect.^ 

§  553.  Same  continued — measure  of  damages. — The  measure  of 
damages  which  may  be  recovered  from  a  telegraph  company  for 

4  See  §  543. 

s  Augusta  Nat.  Bank  v.  Cunningham,  75  Ga.  366 ;  Smith  v.  West.  U.  Tel.  Co., 
84  Ky.  664,  2  S.  W.  483,  8  Ky.  Law  Rep.  672 ;  Cothran  v.  West.  U.  Tel.  Co.,  83 
Ga.  25,  9  S.  E.  836,  disapproving  West.  U.  Tel.  Co.  v.  Blauchard,  68  Ga.  299, 
45  Am.  Rep.  480 ;  Morris  v.  West.  U.  Tel.  Co.,  94  Me.  423,  47  Atl.  926 ;  West.  U. 
Tel.  Co.  v.  Ivittlejohn,  72  Miss.  1025,  18  South.  418 ;  Carland  v.  West.  U.  Tel. 
Co.,  118  Mich.  369,  76  N.  W.  762,  74  Am.  St.  Rep.  394,  43  L.  R.  A.  280 ;  Gist  v. 
West.  U.  Tel.  Co.,  45  S.  C.  344,  23  S.  E.  143,  55  Am.  St.  Rep.  763 ;  West.  U. 
Tel.  Co.  V.  Harper,  15  Tex.  Civ.  App.  37,  39  S.  W.  599 ;  Melchert  v.  American 
Union  Tel.  Co.  (C.  C.)  11  Fed.  193 ;  Weld  v.  Postal  Tel.  Cable  Co.,  199  N.  Y. 
SS,  92  N.  E.  415 ;  Schnitzer  v.  West.  U.  Tel.  Co.,  84  N.  J.  Law,  63,  85  Atl.  1021. 

Presumed  parties  contemplated  legal  transaction.  Hocker  v.  West.  U.  Tel. 
Co.,  45  Fla.  363,  34  South.  901,  futures  not  necessarily  illegal ;  West.  U.  Tel. 
Co.  V.  Chamblee,  122  Ala.  428,  25  South.  232,  82  Am.  St.  Rep.  89,  future  deliv- 
ery presumed  an  actual  purchase;  West.  U.  Tel.  Co.  v.  Hill  (Tex.  Civ.  App.) 
65  S.  W.  1123. 

Sunday  contracts.— See  Willingham  v.  West.  TJ.  Tel.  Co.,  91  Ga.  449,  18  S.  E. 
298 ;  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844 ;  West.  U.  Tel.  Co.  v. 
Yopst,  lis  Ind.  248,  20  N'.  B.  222,  3  L.  R.  A.  224 ;  Rogers  v.  West.  U.  Tel.  Co., 
78  Ind.  169,  41  Am.  Rep.  558 ;  West.  U.  Tel.  Co.  v.  Henley,  23  Ind.  App.  14,  54 
N.  E.  775 ;  Thompson  v.  West.  U.  Tel.  Co.,  32  Mo.  App.  191 ;  Bassett  v.  West. 
U.  Tel.  Co.,  48  Mo.  App.  556,  distiuguishhig  Thompson  v.  West.  U.  Tel.  Co., 
supra ;  Arkansas,  etc.,  R.  Co.  v.  Lee,  79  Ark.  448,  96  S.  W.  148 ;  West.  U.  Tel. 
Co.  V.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St.  Rep.  23 ;  West.  U.  Tel.  Co.  v. 
Eskridge,  7  Ind.  App.  208,  33  N.  E.  238;  West.  U.  Tel.  Co.  v.  Griffin,  1  Ind. 
App.  46,  27  N.  E.  113;  West.  U.  Tel.  Co.  v.  McLaurin,  70  Miss.  26,  13  South. 
36 ;  Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599 ;  Gulf,  etc.,  R.  Co.  v.  Levy, 
59  Tex.  542,  46  Am.  Rep.  269 ;  Jones  v.  Roach,  21  Tex.  Civ.  App.  301,  51  S.  W. 
549;  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219,  21  Pac.  9SS.  See  Taylor  v. 
West.  U.  Tel.  Co.,  95  Iowa,  740,  64  N.  W.  660. 


§    553)  MEASURE   OF  DAMAGES  721 

negligently  transmitting  or  delivering  a  message,  whereby  a  sale 
has  been  prevented,  is  the  difference  between  the  price  of  the  sub- 
ject-matter of  sale  at  the  time  it  would  have  been  sold,  had  it  not 
been  for  such  negligence,  and  the  price  the  plaintiff  is  thereafter 
enabled  to  obt:iin  therefor,  after  exercising  reasonable  diligence 
to  make  such  latter  sale,^  together  with  expenses  necessarily  in- 
curred in  consequence  of  the  delay  or  failure.^  In  other  words,  if 
the  plaintiff  could  have  gotten  a  certain  price  for  the  thing  to  be 
sold  at  the  time  the  message  was  delivered  to  the  company,  but 
was,  after  the  negligence  of  the  company  in  transmitting  or  deliver- 
ing the  message,  only  able  to  sell  at  a  less  price,  and  that  by  reason- 
able diligence,  the  measure  of  damages  would  be  the  difference 
between  the  two  prices,  together  with  the  necessary  expenses  in- 
curred in  making  the  latter  sale.*  The  object  of  the  law  in  such 
cases  is  to  compensate  the  injured  party  as  near  as  possible  for  the 
loss  incurred.  Thus,  in  a  case  where  the  words  contained  in  the 
message  were,  "Ship  your  hogs  at  once,"  the  message  was  delayed 

6  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  11  L.  R.  A.  (N.  S.> 
560,  125  Am.  St.  Rep.  1077 ;  West.  U.  Tel.  Co.  v.  Love  Banks  Co.,  73  Ark.  205, 
83  S.  W.  949,  3  Ann.  Cas.  712 ;  West.  U.  Tel.  Co.  v.  James,  90  Ga.  254,  16  S.  E. 
S3 ;  Herron  v.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696 ;  West  U.  Tel.  Co. 
V.  Reid,  83  Ga.  401,  10  S.  E.  919 ;  Blackburn  v.  Kentucky  Central  R.  Co.,  15 
Ky.  Law  Rep.  303  ;  Smith  v.  West.  U.  Tel.  Co.,  80  Neb.  395,  114  N.  W.  288 ; 
Thorp  V.  West.  U.  Tel.  Co.,  118  Mo.  App.  398,  94  S.  W.  554 ;  West.  U.  Tel.  Co. 
V.  Nye  &  Schneider  Grain  Co.,  70  Neb.  251,  97  N.  W.  305,  63  L.  R.  A.  803; 
Houston,  etc.,  R.  Co.  v.  Davidson,  15  Tex.  Civ.  App.  334,  39  S.  W.  005 ;  Wal- 
lingford  v.  West.  U.  Tel.  Co.,  53  S.  C.  410,  31  S.  E.  275 ;  We.st.  U.  Tel.  Co.  v. 
Haman,  2  Tex.  Civ.  App.  100,  20  S.  W.  1133 ;  Beatty  Lumber  Co.  v.  West.  U. 
Tel.  Co.,  52  W.  Ya.  410,  44  S.  E.  309 ;  Thompson  v.  West.  U.  Tel.  Co.,  64  Wis. 
531,  25  N.  W.  789,  54  Am.  Rep.  644 ;  West.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444, 
8  Sup.  Ct.  577,  31  L.  Ed.  479.  Where  by  the  terms  of  the  contract  of  sale  de- 
livery is  to  be  made  at  another  time  and  place,  the  measure  of  damages  is  the 
difference  between  the  contract  price  and  the  market  value  of  the  property  at 
the  time  and  place  of  delivery.  See  Beatty  Lumber  Co.  v.  West.  U.  Tel.  Co.. 
supra  ;  Evans  v.  West.  U.  Tel.  Co.,  102  Iowa,  219,  71  N.  W.  219,  measure  of 
damages  is  the  difference  between  the  contract  price  and  the  value  of  goods 
at  the  point  of  shipment  less  cost  of  transportation  to  place  of  delivery.  See, 
also.  West.  U.  Tel.  Co.  v.  Federolf  (Tex.  Civ.  App.)  145  S.  W.  314,  value  at 
time  and  place  of  delivery,  with  interest,  less  transportation.  See  Maddux  v.. 
West.  U.  Tel.  Co.,  92  Kan.  619,  141  Pac.  585. 

7  West.  U.  Tel.  Co.  v.  Collins,  45  Kan.  88,  25  Pac.  187,  10  L.  R.  A.  515,  note ; 
West.  U.  Tel.  Co.  v.  Shumate,  2  Tex.  Civ.  App.  429,  21  S.  W.  109;  Lane  v. 
Montreal  Tel.  Co.,  7  U.  C.  C.  P.  23. 

8  West.  U.  Tel.  Co.  v.  James,  90  Ga.  254,  16  S.  E.  83 ;  Hoyt  v.  West.  U.  Tel. 
Co.,  85  Ark.  473,  108  S.  W.  1056 ;  Herron  v.  West,  U.  Tel.  Co.,  90  Iowa,  129.  57 
N.  W.  696 ;  Wallingford  v.  West.  U.  Tel.  Co.,  53  S.  C.  410,  31  S.  E.  275 ;  Black- 
burn v.  Kentucky  Central  R.  Co.,  15  Ky.  Law  Rep.  303 ;  Brooks  v.  West.  U. 
Tel.  Co.,  26  Utah,  147,  72  Pac.  499. 

Jones  Tel.(2d  Ed.) — 46 


722  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  554: 

four  days,  and  in  consequence  thereof  the  plaintiff  had  to  keep  his 
hogs  four  days  longer  than  he  would  have  done,  thus  incurring 
expenses  for  feeding,  etc.,  and  having  to  sell  at  a  decreased  price. 
It  was  held  that  he  might  recover  the  difference,  at  the  place  of 
delivery,  between  the  market  value  of  the  hogs  on  the  day  when 
they  would  have  been  delivered  had  the  message  been  delivered 
promptly  and  the  market  value  on  the  day  when  the  plaintiff  was 
able  to  deliver  them  after  the  receipt  of  the  message,  together  with 
the  extra  expense  to  which  he  was  subjected.®  If  there  was  any 
extra  expense  incurred  in  drayage,  storage  or  transportation,  or  if 
he  was  out  transportation  or  message  fares  or  charges  in  consum- 
mating the  last  sale,  this  may  be  recovered.  In  other  words,  to 
brief  the  rule  in  one  sentence,  the  plaintiff  may  recover  the  profits 
he  would  have  reaped  from  the  bargain  had  it  been  perfected.  So, 
where  the  message  concerns  the  sale  and  shipment  of  a  carload  of 
mules,  and  on  account  of  the  delay  in  the  delivery  of  a  message  to 
the  owner  of  the  mules  they  were  shipped  on  a  subsequent  day  and 
sold  at  a  reduction,  he  was  allowed  to  recover  the  profit  he  would 
have  made  had  the  message  not  been  delayed.^''  It  is  not  necessary 
that  the  profit  should  have  been  made  out  of  the  person  first  oft'er- 
ing  to  buy,  but  if,  on  account  of  the  company's  negligence,  the  plain- 
tiff" was  prevented  from  realizing  it  out  of  some  other  offering  to 
buy  at  the  same  time  for  the  same  price,  he  may  recover.  Thus,  if 
the  plaintiff  had  been  offered  the  same  price  for  a  certain  number  of 
bales  of  cotton  by  another  cotton  buyer,  at  the  same  time  the  mes- 
sage was  delivered  to  the  company  offering  the  acceptance  of  the 
sale  to  a  former  bidder,  but  is  prevented  from  consummating  the 
last  on  the  account  of  the  negligent  delay  of  the  message,  he  may 
recover  on  account  of  the  second  sale.^^  If  the  expense  in  any  in- 
stance incurred  in  the  second  sale  could  have  been  avoided,  it  can- 
not be  recovered,^-  as  only  necessary  expenses  can  be  recovered. 

§  554.  Loss  must  be  actual  and  substantial. — We  are  again  re- 
minded of  the  recognized  rule  in  the  noted  English  case,^^  when 
we  come  to  consider  the  nature  of  the  loss  sustained  in  cases  about 
I,  which  we  are  discussing  in  this  chapter.  That  is  that  a  loss  sus- 
tained in  a  sale  by  reason  of  the  negligence  of  a  telegraph  company 
in  transmitting  a  message,  respecting  such  sale,  must  be  actual  and 
substantial  in  order  to  be  recovered.    Not  only  is  this  fact  sufficient, 

9  Manville  v.  West.  U.  Tel.  Co.,  37  Iowa,  214,  18  Am.  Rep.  8. 

10  West.  U.  Tel.  Co.  v.  Eubanks,  100  Ky,  591,  38  S.  W.  1068,  66  Am.  St.  Rep. 
S61,  36  L.  R.  A.  711. 

11  Postal  Tel.  Co.  v.  Rhett  (Miss.)  33  South.  412 ;  Id.,  35  South.  829. 

12  See  note  3.  i3  Hadley  v.  Baxendale,  9  Exch.  341. 


§    654)  MEASURE   OF  DAMAGES  723 

but  a  loss  must  be  proven  by  competent  evidence,  because,  while 
it  may  be  presumed  in  certain  cases  that  a  telegraph  company  has 
been  guilty  of  negligence,  a  loss  w^ill  never  be  presumed  by  the  mere 
fact  of  negligence  on  the  part  of  the  company.^*  Thus,  if  the  quan- 
tity of  the  goods  to  be  sold  is  uncertain,^ ^  or  depends  upon  other 
contingencies,  there  can  be  no  recovery  of  profits;  ^®  or,  if  there  is 
no  evidence  that  the  goods  could  or  would  have  been  shipped  to 
him,  if  the  message  had  been  promptly  sent  and  delivered,  there  can 
be  no  recovery. ^^  The  profits,  in  order  to  be  recovered,  must  not 
be  such  as  are  classed  with  those  which  are  purely  speculative  or 
conjectural;  ^^  and  more  especially  is  this  true  when  they  relate  to 
gambling  transactions,  since  in  no  breach  of  a  contract  can  any 
damages  be  recovered  which  are  speculative  or  such  as  depend  on 
the  happening  of  some  event  which  may  never  come  to  pass.  They 
must  be  such  as  most  reasonably  would  have  been  realized  had  the 
message  been  promptly  transmitted  and  delivered,  and  not  such  as 
depended  upon  the  hazards  or  chances  of  business. ^^     Thus,  if  the 

14  Pennington  v.  West.  U.  Tel.  Co.,  67  Iowa,  631,  24  N.  W.  45,  25  N.  W.  838, 
56  Am.  Rep.  367;  Mickelwait  v.  West.  U.  Tel.  Co.,  113  Iowa,  177,  84  N.  W. 
1038.    Compare  Alexander  v.  West.  U.  Tel.  Co.,  67  Miss.  386,  7  South.  280. 

15  Must  have  ascertained  market  value,  such  as  grain.  West.  U.  Tel.  Co.  v. 
Nye  &  Schneider  Grain  Co.,  70  Neb.  251,  97  N.  W.  305,  63  L.  R.  A.  803 ;  Smith 
V.  West.  U.  Tel.  Co.,  80  Neb.  395,  114  N.  W.  288 ;  cotton,  West.  U.  Tel.  Co.  v. 
Milton,  53  Fla.  484,  43  South.  495,  11  L..  R.  A.  (N.  S.)  560,  125  Am.  St.  Rep. 
1077 ;  West.  U.  Tel.  Co.  v.  Love  Banks  Co.,  73  Ark.  205,  S3  S.  W.  949,  3  Ann. 
Cas.  712 ;  Houston,  etc.,  R.  Co.  v.  Davidson,  15  Tex.  Civ.  App.  334,  39  S.  W. 
605 ;  lumher,  Beatty  Lumber  Co.  v.  West.  U.  Tel.  Co.,  52  W.  Va.  410,  44  S.  E. 
309 ;  or  wool,  West.  tJ.  Tel.  Co.  v.  Haman,  2  Tex.  Civ.  App.  100,  20  S.  W.  1133. 

16  Kingborne  v.  Montreal  Tel.  Co.,  IS  U.  C.  Q.  B.  60.  See  Bass  v.  Postal  Tel. 
Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  4S9 ;  West.  U.  Tel.  Co. 
V.  Lewis,  203  Fed.  832,  122  C.  C.  A.  150,  49  L.  R.  A.  (N.  S.)  927. 

Telegram  ordering  cancellation  of  insurance  policy. — Damages  is  the  amount 
which  the  insurer  is  compelled  to  pay  for  the  loss,  and  not  merely  the  differ- 
ence between  the  reasonable  value  of  carrying  the  risk  for  the  additional  time 
and  the  amount  of  unearned  premium  on  a  policy.  Providence,  etc.,  Ins.  Co. 
V.  West.  U.  Tel.  Co.,  247  111.  84,  93  N.  E.  134,  30  L.  R.  A.  (N.  S.)  1170,  139  Am. 
St.  Rep.  314. 

17  Meggett  V.  West.  U.  Tel.  Co.,  69  Miss.  198,  13  South.  815;  Cahn  v.  West. 
U.  Tel.  Co.  (C.  C.)  46  Fed.  40. 

18  West.  U.  Tel.  Co.,  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479.  at- 
tempted purchase  of  oil ;  Cahn  v.  West.  U.  Tel.  Co.,  48  Fed.  810,  1  C.  C.  A. 
107,  attempted  sale  of  stock  to  be  bought  and  delivered  at  later  date ;  Cannon 
V.  West.  U.  Tel.  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St.  Rep.  590,  attempted 
purchase  of  cotton  futures. 

19  West.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479; 
Cahn  V.  West.  U.  Tel.  Co.  (C.  C.)  46  Fed.  40,  affirmed  48  Fed.  810,  1  C.  C.  A. 
107;  Beaupr^  v.  Pac,  etc.,  Tel.  Co.,  21  Minn.  155;  Reynolds  v.  West.  U.  Tel. 
Co.,  81  Mo.  App.  223 ;  Kiley  v.  West.  U.  Tel.  Co.,  39  Hun  (N.  Y.)  158 ;  Cannon 
v.  West.  U.  Tel.  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St.  Rep.  590 ;  Reliance 
Lumber  Co.  v.  West.  U.  Tel.  Co.,  58  Tex.  395,  44  Am.  Rep.  620 ;  Hall  v.  West. 


724  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  555 

profits  to  be  realized  depend  on  another  sale  which  may  or  may  not 
be  made,2°  or  on  the  vendee's  acceptance,  or  on  another's  judgment, 
or  when  the  profits  are  conjectural  or  speculative,  they  cannot  be 
recovered. ^^ 

§  555.  Orders  for  goods  not  delivered — in  general. — Not  only 
can  there  be  a  recovery  of  all  losses  sustained  in  a  sale  by  reason  of 
the  negligence  of  the  company  in  failing  to  properly  transmit  a 
message  pertaining  thereto,  but  all  gains  in  the  purchase  of  goods, 
which  may  have  been  prevented  for  the  same  reason,  may  be 
equally  recoverable.^^  As  was  said,  many  sales  are  consummated 
by  means  of  telegraphic  communication,  and  there  cannot,  of 
course,  be  a  sale  without  a  purchase.  While  in  a  sale  of  goods  both 
parties,  as  a  general  rule,  are  equally  benefited,  one  parts  with  his 
goods  without  injuring  his  trade  and  receives  in  lieu  thereof  their 
money's  worth,  while  the  purchasing  party  could  hardly  carry  on 
his  business  without  the  particular  goods.  So  they  are  both  about 
equally  benefited,  so  long  as  the  price  of  the  commodities  do  not 
change ;  and  it  is  this  fact — the  fluctuating  prices — which  causes 
the  one  to  gain  and  the  other  to  lose.  In  other  words,  if  the  owner 
of  the  goods  is  prevented,  by  any  cause,  from  selling  on  one  day, 

U.  Tel.  Co.,  50  Fla.  275,  51  South.  819,  27  L.  R.  A.  (N.  S.)  639 ;  McNeil  v.  Postal 
Tel.  Cable  Co.,  154  Iowa,  241,  134  N.  W.  611,  Ann.  Cas.  1914A,  1294,  38  L.  R. 
A.  (N.  S.)  727 ;  West.  U.  Tel.  Co.  v.  Sights,  34  Okl.  461,  126  Pac.  234,  42  L.  R. 
A.  (N.  S.)  419,  Ann.  Cas.  1914C,  204;  West.  U.  Tel.  Co.  v.  Allen,. 30  Okl.  229, 
119  Pac.  981,  38  L.  R.  A.  (N.  S.)  348 ;  West.  U.  Tel.  Co,  v.  Lewis,  203  Fed.  832, 
122  C.  O.  A.  150,  49  L.  R.  A.  (N.  S.)  927 ;  Hall  v.  West.  TJ.  Tel.  Co.,  59  Fla.  275, 
51  South.  819,  27  L.  R.  A.  (N.  S.)  639. 

2  0  West.  U.  Tel.  Co.  v.  Lewis,  203  Fed.  832,  122  C.  C.  A.  150,  49  L.  R.  A. 
(N.  S.)  927. 

21  Brewster  v.  West.  U.  Tel.  Co.,  65  Ark.  537,  47  S.  W.  560;  Postal  Tel.  Ca- 
ble Co.  V.  Barwise,  11  Colo.  App.  328,  53  Pac.  252 ;  Clay  v.  West.  U.  Tel.  Co., 
81  Ga.  285,  6  S.  E.  813,  12  Am.  St.  Rep.  316 ;  West.  U.  Tel.  Co.  v.  Watson,  94 
Ga.  202,  21  S.  E.  457,  47  Am.  St.  Rep.  151 ;  Bennett  v.  West.  U.  Tel.  Co.,  129 
Iowa,  007,  106  N.  W.  13;  Postal  Tel.  Cable  Co.  v.  Crook,  106  Miss.  175,  63 
South.  350 ;  Bird  v.  West.  U.  Tel.  Co.,  76  S.  C.  345,  56  S.  E.  973,  distinguishing 
Wallingford  v.  West.  U.  Tel.  Co.,  53  S.  C.  410,  31  S.  E.  275 ;  Id.,  60  S.  C.  212, 
38  S.  E.  443,  629 ;  Fisher  v.  West.  U.  Tel.  Co.,  119  Wis.  146,  96  N.  W.  545 ;  Bass 
V.  Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  489. 

Damages  could  not  be  recovered  against  the  company  in  the  following  cases, 
because  the  latter  had  no  notice  of  the  contents  of  the  message:  Beaupre  v. 
Pacific,  etc.,  Tel.  Co.,  21  Minn.  155 ;  West.  U.  Tel.  Co.  v.  Clifton,  68  Miss.  307, 
8  South.  746;  McColl  v.  West.  U.  Tel.  Co.,  7  Abb.  N.  C.  (N.  Y.)  151;  Clark 
Mfg.  Co.  V.  West.  U.  Tel.  Co.,  152  N.  C.  157,  67  S.  E.  329,  27  L.  R.  A.  (N.  S.) 
643 ;  Stone  v.  Postal  Tel.  Cable  Co.,  35  R.  I.  498,  87  Atl.  319,  46  L.  R.  A.  (N. 
S.)  180;  Clio  Gin  Co.  v.  West.  U.  Tel.  Co.,  82  S.  C.  405,  64  S.  E.  426;  West.  U. 
Tel.  Co.  V.  True,  101  Tex.  236,  106  S.  W.  315 ;  West.  U.  Tel.  Co.  v.  Woods  (Tex. 
Civ.  App.)  133  S.  W.  440. 

22  Alexander  v.  West.  U.  Tel.  Co.,  67  Miss.  386,  7  South.  280;  West.  U.  Tel. 
V.  Robertson  (Tex.  Civ.  App.)  133  S.  W.  454. 


I 


§    556)  MEASURE   OF  DAMAGES  725 

and  the  price  of  the  goods  goes  up  the  next,  when  he  does  sell, 
there  is  a  gain  on  his  part,  but  a  loss  on  the  part  of  the  purchaser. 
So,  if  there  is  an  order  made  by  means  of  a  telegram  but  the  same 
is,  through  the  company's  negligence,  not  sent  or  is  delayed  in  de- 
livery an  unusually  long  time,  during  which  the  price  of  goods  goes 
up,  the  purchaser  would  most  certainly  be  damaged.  In  other 
words,  he  would  have  gained  in  the  purchase  of  the  goods  had  it  not 
been  for  the  negligence  of  the  company ;  but  the  question  in  this 
instance  is.  By  what  method  or  means  can  the  amount  of  damages 
be  ascertained? 

§  556.  Same  continued — measure  of  damages. — The  measure 
of  damages  in  cases  where  the  purchaser  of  goods  or  property  fails 
to  obtain  them  at  the  price  he  otherwise  would  have  done  had  the 
message  been  properly  and  promptly  delivered  to  the  vendor  is  simi- 
lar to  that  in  ascertaining  the  amount  to  be  recovered  in  those  cases 
where  a  loss  has  been  sustained  by  the  failure  of  a  sale  being  con- 
summated, except  it  is,  in  form,  reversed.  To  be  more  explicit,  the 
measure  of  damages  to  be  recovered  for  a  loss  sustained  by  the 
failure  of  the  company  to  promptly  transmit  and  deliver  a  message, 
which  contains  an  order  for  goods,  is  the  difference  between  the 
price  of  the  goods  at  the  time  and  place  the  message  should  have 
been  delivered  and  the  market  price  or  the  price  which  was  paid 
for  the  same  goods,  at  the  same  place,  by  another  order,  presented 
within  a  reasonable  time  after  it  has  been  learned,  through  due  dili- 
gence, that  the  first  was  not  delivered. ^^  The  same  rule  will  apply 
if  the  order  was  delayed  in  the  delivery  an  unreasonable  time.-* 
That  is,  the  measure  of  damages  would  be  the  difference  between 
the  price  of  goods  at  the  time  the  order  should  have  been  delivered 
by  reasonable  diligence  on  the  part  of  the  company,  and  the  price 

23  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157 ;  True  v.  Inter- 
national Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156 ;  Alexander  v.  West.  U.  Tel.  Co., 
66  JMiss.  161,  5  South.  397,  14  Am.  St.  Hep.  556,  3  L.  R.  A.  71 ;  Purdom  Naval 
Stores  Co.  v.  West.  U.  Tel.  Co.  (C.  C.)  153  Fed.  327 ;  West.  U.  Tel.  Co.  v.  Hall, 
121  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479 ;  West.  U.  Tel.  Co.  v.  Wa.v,  83  Ala. 
542,  4  South.  844 ;  West.  U.  Tel.  Co.  v.  Graham,  1  Colo.  230,  9  Am.  Rep.  136 ; 
West.  U.  Tel.  Co.  v.  Harris,  19  111.  App.  .347 ;  Dodd  Gro.  Co.  v.  Postal  Tel.  Cable 
Co.,  112  Ga.  685,  37  S.  E.  981 ;  Turner  v.  Ilawkeye,  etc.,  Tel.  Co.,  41  Iowa,  458, 
20  Am.  Rep.  605 ;  Mowry  v.  West.  U.  Tel.  Co.,  51  Hun,  126,  4  N.  Y.  Supp.  666 ; 
United  States  Tel.  Co.  v.  Wen,i?er,  .55  Pa.  262,  93  Am.  Dec.  751 ;  Gulf,  etc.,  R. 
Co.  V.  Loonie,  82  Tex.  323,  18  S.  W.  221,  27  Am.  St.  Rep.  891 ;  Carver  v.  West. 
U.  Tel.  Co.  (Tex.  Civ.  App.)  31  S.  W.  432.  See,  also.  West.  U.  Tel.  Co.  v.  Pells, 
2  Willson,  Civ.  Cas.  Ct.  Ai)p.  §  41 ;  West.  U.  Tel.  Co.  v.  Hirsch  (Tex.  Civ.  App.) 
84  S.  W.  394. 

2  4  West.  U.  Tel.  Co.  v.  Carver,  15  Tex.  Civ,  App.  547,  39  S.  W.  1021;  Pear- 
sail  V.  West.  U.  Tel.  Co.,  124  N.  Y.  256,  26  N.  E.  534,  21  Am.  St.  Rep.  062,  af- 
firming 44  Hun  (N.  Y.)  532. 


726  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  556 

of  the  same  goods  at  the  time  the  order  was  delivered. ^^  It  must  be 
understood,  however,  that  if  the  delay  was  the  result  of  some  un- 
controllable power,  such  as  atmospheric  hindrances  "®  or  the  act 
of  the  public  enemy,-'^  and  not  that  of  the  company's  negligence,  it 
would  not  be  liable  for  these  losses.  It  is,  nevertheless,  the  pre- 
sumption that  the  negligence  of  the  company  was  the  cause  of  the 
loss,^^  and  the  burden  rests  upon  the  latter  to  overcome  this  pre- 
sumption.-® It  has  been  attempted  to  be  shown  that  not  only 
should  the  difference  in  these  two  prices  be  recovered,  but,  in  addi- 
tion to  this,  the  profits  which  would  have  been  more  than  probably 
realized  in  a  resale  of  the  goods  should  also  be  recovered.  It  is  general- 
ly held,  however,  that  this  loss  is  entirely  too  remote  and  specula- 
tive ;  ^°  but  if  there  has  been  a  resale  of  the  goods  effected  or  agreed 
upon,  whereby  a  profit  would  have  been  realized,  then  this  also  can  be 
recovered,  as  this  is  not  depending  upon  any  unreasonable  condi- 
tions.^^ In  connection  with  this  statement,  it  has  been  held  that,  if 
the  order  contained  both  an  order  to  buy  and  sell,  the  losses  which 
would  have  been  sustained  on  the  purchase  order  must  be  deduced 
from  the  profits  he  would  have  made  on  the  sale  order,  in  determin- 
ing the  measure  of  damages.  So  the  latter  rule  applies  where  the 
party  on  whom  the  order  is  made  does  both  the  buying  and  selling 
by  the  authority  given  in  the  message,^-  and  not  where  the  sender, 
as  in  the  first  rule  stated  above,  accomplishes  the  resale.     To  re- 

2  5  Swan  V.  West.  U.  Tel.  Co..  129  Fed.  318,  63  C.  C.  A.  550,  67  L.  R.  A.  153 ; 
Gulf,  etc.,  R.  Co.  V,  Loonie,  82  Tex.  323,  18  S.  W.  221,  27  Am.  St.  Rep.  S91 ; 
West.  U.  Tel.  Co.  v.  Woods  (Tex.  Civ.  App.)  133  S.  W.  440 ;  Postal  Tel.  Cable 
Co.  V.  Talerico  (Tex.  Civ.  App.)  136  S.  W.  575. 

2  6  See  chapter  XII. 

2  7  See  chapter  XV. 

28  See  chapter  XIII.     See,  also,  §  .509. 

2  9  See  §  320  et  seq.    See,  also,  §  509  et  seq. 

3  0  West.  r.  Tel.  Co.  v.  Fellner,  58  Ark.  29,  22  S.  W.  917,  41  Am.  St.  Rep.  Sir 
West.  U.  Tel.  Co.  v.  Graham,  1  Colo.  230,  9  Am.  Rep.  136 ;  Squire  v.  West.  U. 
Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157 ;  Hibbard  v.  West.  U.  Tel.  Co.,  33  Wis. 
558,  14  Am.  Rep.  775 ;  West.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577, 
31  L.  Ed.  479. 

31  West.  U.  Tel.  Co.  v.  Brown,  84  Tex.  54,  19  S.  W.  336;  Walden  v.  West. 
U.  Tel.  Co.,  105  Ga.  275,  31  S.  E.  172 ;  West.  U.  Tel.  Co.  v.  Landls  (Pa.)  12 
Atl.  467;  Postal  Tel.  Co.  v.  Rhett  (Miss.)  33  South.  412;  Id.,  35  South.  829; 
West.  U.  Tel.  Co.  v.  J.  A.  Kemp  Grocer  Co.  (Tex.  Civ.  App.)  28  S.  W.  905 ;  West. 
U.  Tel.  Co.  V.  Thomas,  7  Tex.  Civ.  App.  105,  26  S.  W.  117. 

3  2  See  West.  U.  Tel.  Co.  v.  North  Packing,  etc.,  Co.,  89  111.  App.  301,  affirmed 
in  188  111.  366,  58  X.  E.  958,  52  L.  R.  A.  274 ;  Dodd  Gro.  Co.  v.  Postal  Tel.  Ca- 
ble Co.,  112  Ga.  685,  37  S.  E.  981 ;  Pearsall  v.  West.  U.  Tel.  Co.,  124  X.  Y.  256, 
26  X.  E.  534,  21  Am.  St.  Rep.  662 ;  Rittenhouse  v.  Independent  Tel.  Line,  44 
X.  T.  263,  4  Am.  Rep.  673 ;  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  262,  93 
Am.  Dec.  751 ;  West.  U.  Tel.  Co.  v.  Carver,  15  Tex.  Civ.  App.  547,  39  S.  W. 
1021 ;  West.  U.  Tel.  Co.  v.  Woods  (Tex.  Civ.  App.)  133  S.  W.  440. 


§    557)  MEASURE  OF   DAMAGES  727 

cover  in  any  instance,  the  plaintiff  must  prove  that  the  addressee  of 
the  delayed  or  unsent  message,  containing  the  order,  would  have 
filled  it,  since  if  there  w^as  a  doubt  of  this  fact  which  had  not  been 
overcome  by  evidence,  he  could  only  recover  nominal  damages.^^ 
All  necessary  expenses  incurred  in  the  transaction  can  be  recovered 
in  these  cases  the  same  as  where  a  sale  was  prevented  from  being 
made  by  the  negligence  of  the  company, 

§  557.  Orders  for  goods  erroneously  transmitted — purchaser's 
duty. — Very  often  orders  for  goods,  sent  by  means  of  telegrams, 
are  erroneously  transmitted,  and  when  received  by  the  addressee 
show  items  which  call  for  a  greater  or  less  quantity  than  ordered, 
or  misstate  the  terms,  conditions  or  other  details  of  the  transaction, 
thereby  causing  injury  or  loss  to  the  plaintiff.^*  In  consequence 
of  which,  the  actual,  direct,  and  proximate  damages  m.ay  be  recov- 
ered;^^ and,  in  the  determination  of  the  amount  to  be  so  recov- 
ered, the  nature  and  circumstances  of  each  particular  case  must 
be  considered.^®     There  must  be,  however,  an  actual  loss  or  injury 

33Meggett  V.  West.  U.  Tel.  Co.,  G9  Miss.  198,  13  South.  815;  West.  U.  Tel. 
Co.  V.  Burns  (Tex.  Civ.  App.)  70  S.  W.  784. 

The  same  rule  applies  where  there  is  no  positive  direction  to  the  agent  to 
purchase,  or  where  the  agent  does  not  purchase  after  receipt  of  message.  Hib- 
bard  v.  West.  U.  Tel.  Co.,  3.3  Wis.  558,  14  Am.  Rep.  775 ;  West.  U.  Tel.  Co.  v. 
Fellner,  58  Ark.  29,  22  S.  W.  917,  41  Am.  St.  Rep.  81 ;  West.  U.  Tel.  Co.  v. 
Hall,  124  U.  S.  444,  8  Sup.  Ct.  577,  31  L.  Ed.  479.  See,  also,  Brewster  v. 
West.  U.  Tel.  Co.,  65  Ark.  537,  47  S.  W.  560. 

3  4  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  125  Am.  St.  Rep. 
1077,  11  L.  R.  A.  (N.  S.)  560;  Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160, 
77  N.  W.  1034,  70  Am.  St.  Rep.  181 ;  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14 
Am.  Rep.  38 ;  West.  U.  Tel.  Co.  v.  Chamblee,  122  Ala.  428,  25  South.  232,  82  Am. 
St.  Rep.  89 ;  Fisher  v.  West.  U.  Tel.  Co.,  119  Ky.  885,  84  S.  W.  1170,  27  Ky.  Law 
Rep.  340 ;  Elsey  v.  Postal  Tel.  Co.,  15  Daly,  58,  3  N.  Y.  Supp.  117 ;  Reed  v. 
West.  U.  Tel.  Co.,  135  Mo.  661,  31  S.  W.  904,  58  Am.  St.  Rep.  609,  34  L.  R.  A. 
492 ;  Hays  v.  West.  U.  Tel.  Co.,  70  S.  C.  16,  48  S.  E.  60S,  106  Am.  St.  Rep.  731, 
67  L.  R.  A.  481,  3  Ann.  Cas.  424;  Washington,  etc.,  Tel.  Co.  v.  Hobson,  15 
Orat.  (Va.)  122. 

35  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109; 
Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609,  34 
L.  R.  A.  492 ;  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South.  495,  125  Am. 
St.  Rep.  1077,  11  L.  R.  A.  (N.  S.)  560;  Postal  Tel.  Cab.  Co.  v.  Schaefer,  110 
Ky.  907,  62  S.  W.  1119,  23  Ky.  Law  Rep.  344 ;  Rittenhouse  v.  Ind.  Line,  44  N. 
Y.  263,  4  Am.  Rep.  673,  affirming  1  Daly  (N.  Y.)  474 ;  Hays  v.  West.  U.  Tel. 
Co.,  70  S.  C.  16,  48  S.  E.  608,  106  Am.  St.  Rep.  731,  67  L.  R.  A.  481,  3  Ann.  Cas. 
424 ;  West.  U.  Tel.  Co.  v.  Spivey,  98  Tex.  308,  83  S.  W.  364 ;  Bowie  v.  West.  U. 
Tel.  Co.,  78  S.  C.  424,  59  S.  E.  65 ;  Mills  v.  West.  U.  Tel.  Co.,  88  S.  C.  498,  70 
S.  E.  1040,  Ann.  Cas.  1912C,  1273. 

3  6  Bowie  V.  West.  U.  Tel.  Co.,  78  S.  C.  424,  59  S.  E.  65.  See  Henry  v. 
West.  U.  Tel.  Co.,  73  Wash.  260,  131  Pac.  812,  46  L.  R.  A.  (N.  S.)  412 ;  Pegram 
V.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557 ;  Mills  v. 
West.  U.  Tel.  Co.,  88  S.  C.  498,  70  S.  E.  1040,  Ann.  Cas.  1912C,  1273 ;  West.  U. 


728  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  558 

suffered  ^^  by  the  party  complaining  before  actual  damages  can  be 
recovered.^ '^  The  plaintiff  should  not  carry  out  the  transaction,  if 
he  is  not  under  obligations  to  do  so,  and  has  discovered  the  error 
in  time,'^''  but  in  any  instance  he  should  make  the  damages  as  light 
as  possible. *°  Very  often  the  transaction  is  carried  out  before  the 
error  is  discovered,*^  or  the  circumstances  are  such  that  it  must 
be  carried  out  in  order  to  avoid  further  loss.*^  Under  such  cir- 
cumstances, the  first  rule  stated  would  not  apply.  Where  a  differ- 
ent quantity  of  goods  or  articles  are  sold  than  that  intended,'*^ 
or  for  a  less  price  than  that  offered,  and  the  same  being  the  re- 
sult of  the  company's  negligence,  the  loss  actually  sustained  there- 
by may  be  recovered.**  So  also  the  same  rule  applies  where  by 
reason  of  the  said  error  the  name  of  the  addressee  is  changed,  re- 
sulting in  the  message  not  being  delivered,*^  or  in  its  being  de- 
livered to  the  wrong  person.**^ 

§  558.  Same  continued — goods  shipped  to  wrong  place. — Errors 
of  message,  in  not  correctly  transmitting  the  amount  as  ordered, 
is  not  necessarily  the  only  manner  in  which  loss  may  occur,  but 
a  loss  may  be  sustained  by  the  message  misstating  the  place  to 
which  such  goods  are  to  be  shipped.  The  measure  of  damages,  in 
such  cases,  is  the  difference  between  the  price  of  the  goods  which 

Tel.  Co.  V.  Milton,  53  Fla.  484,  43  South.  495,  125  Am.  St.  Rep.  1077,  11  L.  R. 
A.  (N.  S.)  560 ;  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458,  20  Am.  Rep.  605. 

3  7  See  §§  525,  526. 

3s  Mickelwait  v.  West.  U.  Tel.  Co.,  113  Iowa,  177,  84  N.  W.  1038;  Hughes  v. 
West.  U.  Tel.  Co.,  114  N.  C.  70,  19  S.  E.  100,  41  Am.  St.  Rep.  782 ;  James  v. 
West.  U.  Tel.  Co.,  86  Ark.  339,  111  S.  W.  276. 

3  0  Shingleur  v.  West.  U.  Tel.  Co.,  72  Aliss.  1030,  18  South.  425,  48  Am.  St. 
Rep.  004,  30  L.  R.  A.  444 ;  Postal  Tel.  Cable  Co.  v.  Schaefer,  110  Ky.  907,  62  S. 
W.  1119.  23  Ky.  Law  Rep.  344 ;  Joynes  v.  Postal  Tel.  Cab.  Co.,  37  Pa.  Super. 
Ct.  63 ;  McKee  v.  West.  U.  Tel.  Co.,  158  Ky.  143,  164  S.  W.  348,  51  L.  R.  A. 
(X.  S.)  439. 

40  Postal  Tel.  Cab.  Co.  v.  Schaefer,  110  Ky.  907,  62  S.  W.  1119,  23  Ky.  Law 
Rep.  344 ;  West.  U.  Tel.  Co.  v.  Truitt,  5  Ga.  App.  809,  63  S.  E.  934.  But  see 
West.  U.  Tel.  Co.  v.  Crawford,  110  Ala.  4G0,  20  South.  111. 

41  See  Fisher  v.  West.  U.  Tel.  Co.,  119  Ky.  885,  84  S.  W.  1179,  27  Ky.  Law 
Rep.  340 ;  Hasbrouck  v.  West.  U.  Tel.  Co.,  107  Iowa,  160,  77  N.  W.  1034,  70 
Am.  St.  Rep.  ISl;  Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58 
Am.  St.  Rep.  609,  34  L.  R.  A.  492. 

4  2  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109. 

43  Tyler  v.  West.  U.  Tel.  Co.,  60  111.  421,  14  Am.  Rep.  38. 

44  Fisher  v.  West.  U.  Tel.  Co.,  119  Ky.  885,  84  S.  W.  1179,  27  Ky.  Law  Rep. 
340;  West.  U.  Tel.  Co.  v.  Crawford,  110  Ala.  460,  20  South.  Ill;  Reed  v. 
West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609,  34  L.  R.  A. 
492 ;   West.  U.  Tel.  Co.  v.  Landis,  9  Sadler  (Pa.)  357,  12  Atl.  467. 

4  5  Postal  Tel.  Cab.  Co.  v.  Sunset  Constr.  Co.,  102  Tex.  148,  114  S.  W.  98, 
reversing  (Civ.  App.)  109  S.  W.  265. 

46  Elsey  V.  Postal  Tel.  Co.,  15  Daly,  53,  3  N.  Y.  Supp.  117. 


§    559)  MEASURE   OF   DAMAGES  729 

could  have  been  obtained  at  the  place  to  which  they  would  have 
been  shipped,  had  it  not  been  for  the  error  made  in  the  telegram,  and 
the  market  value  or  best  obtainable  price  at  the  place  to  which 
they  were  actually  sent.*'^  He  should  also  be  allowed  to  recover 
any  necessary  extra  expenses  incurred  in  the  way  of  accomplishing 
a  sale  at  the  latter  place.  And  if  the  transportation  charges  to  this 
place  were  greater  than  those  to  the  place  they  were  ordered  to 
be  sent,  the  difference  between  the  two  should  be  recovered; 
but  if,  on  the  other  hand,  they  were  less,  then  this  difference  should 
be  deducted  from  the  total  amount  sustained  in  the  loss.  It  will  be 
seen  by  this  that  the  purpose  of  the  law,  where  the  company  only 
negligently  discharged  its  duty,  is  to  only  compensate  the  injured 
party  for  his  loss;  where  the  act  was  maliciously  done  to  injure 
his  trade  or  business,  the  rule  is  different. 

§  559.  Same  continued — stock,  bonds,  etc. — We  have  been, 
heretofore,  discussing  the  means  of  ascertaining  the  amount  of  re- 
coverable damages  sustained  in  losses  caused  by  telegraph  com- 
panies erroneously  transmitting  orders  for  goods.  Where  the  or- 
der is  not  for  commodities,  but  for  stocks,  bonds  and  other  like 
securities,  the  measure  of  damages  is  different,  yet  the  principle  on 
which  they  are  founded  is  the  same.  The  cause  of  this  is  that 
the  nature  of  the  property  and  the  uses  to  which  it  may  be  put  are 
dift'erent.  If  an  order  for  stocks,  bonds  or  other  like  securities  has 
been  erroneously  transmitted,  the  measure  of  damages  is  the  loss, 
if  any,  sustained  by  the  purchaser  in  consequence  of  the  error  in 
transmission.*^  In  other  words,  if  the  order  is  changed  so  as  to 
call  for  a  kind  of  stock  other  than  that  ordered,  the  injured  party 
may  recover  the  difference  in  the  price  of  stock  it  was  desired  to 
purchase,  at  the  time  the  order  was  made,  and  the  price  to  which 
it  had  advanced  at  the  time  the  error  was  made,  also  the  amount 
of  the  loss  on  the  other  stock.'*"  Where  there  is  a  profit  which 
would  have  been  larger  had  the  message  been  correctly  transmit- 
ted, the  decrease  in  the  profits  realized  may  be  recovered.     Thus, 

4  7  West.  U.  Tel.  Co.  v.  Roid,  S3  Ga.  401,  10  S.  E.  919;  West.  U.  Tel.  Co.  v. 
Stevens  (Tex.)  16  S.  W.  1095.  See  West.  U.  Tel.  Co.  v.  Collins,  45  Kan.  SS, 
25  Pac.  187,  10  L.  R.  A.  515;  West.  U.  Tel.  Co.  v.  Woods.  56  Kan.  737,  44 
Pac.  989 ;  Leonard  v.  N.  Y.,  etc.,  Elec.  Mag.  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep. 
446 ;    West.  U.  Tel.  Co.  v.  Linney  (Tex.  Civ.  *App.)  28  S.  W.  234. 

4s  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Kep.  109; 
Strong  v.  West.  U.  Tel.  Co.,  18  Idabo,  389,  109  Pac.  910,  31  L.  R.  A.  (N.  S.) 
400,  Ann.  Cas.  1912A,  55. 

4  3  Rittenhouse  v.  Independent  Line  of  Tel.,  44  N.  Y.  263,  4  Am.  Rep.  673; 
Strong  V.  West.  U.  Tel.  Co.,  18  Idaho,  389,  109  Pac.  910,  30  L.  R.  A.  (N.  S.) 
409,  Ann.  Cas.  1912A,  55. 


730  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  560 

where  an  order  for  1,000  shares  of  certain  stock  was  changed  in 
the  transmission  so  as  to  read  100  shares,  and  before  the  error 
was  discovered  the  stock  had  advanced,  it  was  held  that  the  plain- 
tiff could  recover  the  amount  of  the  advance  in  the  price  of  900 
shares  up  to  the  time  he  became  aware  of  the  error,  but  not  for 
advances  occurring  thereafter.'^^ 

§  560.  Messages  directing  agent  to  sell  or  purchase. — Where  a 
person  directs  or  orders  his  agent,  by  means  of  a  telegram,  to  sell 
certain  property,  but  on  account  of  an  inexcusable  delay  in  the 
delivery  of  the  message  the  person  loses  by  a  decline  in  the  price 
of  the  property,  the  measure  of  damages  is  the  difference  between 
the  price  at  which  the  same  was  sold  and  that  which  he  would 
have  received  had  it  not  been  for  the  delay. ^^  In  such  cases,  how- 
ever, the  injured  party  must  exercise  reasonable  diligence  to  make 
the  loss  as  light  as  possible,  which  may  be  done  by  the  sending  of 
another  order  for  the  sale  as  soon  as  possible  after  he  learns  of  the 
delay.^^  One  difficulty  which  arises  under  cases  of  this  kind  is 
whether  the  property  ordered  to  be  sold  was  ever  in  the  actual  or 
constructive  possession  of  the  sender  or  the  injured  party.  Many 
transactions  for  the  sale  or  purchase  of  property  are  carried  on  un- 
der what  is  known  as  "future"  sales  or  purchases ;  and  where  the 
contract  of  sale  made  by  telegram  is  for  the  sale  or  purchase  of 
"futures,"  loss  sustained  by  a  message  in  respect  to  same,  being 
either  negligently  transmitted  or  delayed  in  delivery,  cannot  be 
recovered  because  the  law  decrees  such  contracts  illegal. "^^  Be- 
fore a  legal  sale  can  be  made  there  must  be  in  one  party  to  the 
contract  ownership  of  some  respect  of  the  thing  to  be  sold,  and  to 
complete  same  the  party  must  be  able  to  deliver  the  same.  There 
cannot  be  a  sale  of  something  of  which  the  intended  seller  has 
no  salable  interest,  and  of  course,  if  he  cannot  deliver  that  which 
he  did  not  either  sell  or  have  to  sell,  there  cannot  be  a  sale.  Thus, 
where  it  appears  that  the  plaintiff's  agent  had  neither  money  nor 
stock  in  his  hands  belonging  to  the  former,  no  sale  or  purchase  was 
made,  although  the  agent  testified  that  he  would  have  loaned  plain- 
tiff the  money  if  the  message  had  been  received  in  time,  and  al- 
though the  agent  of  the  company  was  familiar  with  the  nature  of 

5  0  Marr  v.  West.  U.  Tel.  Co.,  85  Tenn.  529,  3  S.  W.  496. 

51  Daugberty  v.  American  U.  Tel.  Co.,  75  Ala.  1G8,  51  Am.  Rep.  435;  Hocker 
V.  West.  U.  Tel.  Co.,  45  Fla.  363,  34  South.  901 ;  Hadley  v.  West.  U.  Tel.  Co., 
115  Ind.  191,  15  N.  E.  845;  West.  U.  Tel.  Co.  v.  Littlejohn,  72  Miss.  1025, 
18  South.  418 ;   West.  U.  Tel.  Co.  v.  Stevens  (Tex.)  16,  S.  W.  1095. 

6  2  Daugherty  v.  American  U.  Tel.  Co.,  75  Ala.  168,  51  Am.  Rep.  435. 
5  3  See  §  429. 


563)  MEASURE   OF   DAMAGES 


731 


such  transactions,  the  damages  sustained  by  a  decline  in  the  price 
of  the  stock  during  the  delay  of  the  message  are  too  remote  and 
speculative.^*  If  possession  is  once  had  by  the  party  selling  stock, 
it  matters  not  how  rapidly  and  often  made,  if  delivery  is  con- 
templated, is  not  dealing  in  "futures,"  within  the  prohibition  of 
the  statutes. ^^ 

§  561.  Same  continued — order  to  close  option  to  purchase. — 
Where  a  person  has  an  option  to  purchase  certain  property,  and 
a  message,  which  is  delivered  to  a  company,  containing  an  order  to 
his  agent  to  close  such  option,  is  delayed  through  the  negligence  of 
the  company  until  after  the  expiration  of  the  time  within  which  the 
purchase  was  to  have  been  made,  the  measure  of  damages,  where 
there  is  a  loss,  is  the  difference  between  the  price  fixed  by  the  op- 
tion and  the  market  price  at  the  same  place  on  that  day.^**  If,  how- 
ever, the  market  is  less  than  that  fixed  in  the  option,  and  this  is 
greater  than  the  amount  forfeited  by  the  failure  in  not  closing  the 
option,  there  can  be  no  recovery,  as  there  is  no  loss.  In  order  to 
hold  the  company  liable,  in  either  instance,  the  message  must  have 
been  delivered  to  the  company  within  a  reasonable  time  before 
the  closing  of  the  option,  to  have  given  ample  time  for  its  deliv- 
ery to  the  agent,  and  to  have  accomplished  its  purpose. 

§  562.  Loss  of  an  exchange. — Where  a  party  makes  a  proposi- 
tion to  exchange  some  particular  property  for  other,  and  such  of- 
fer or  proposition  is  attempted  to  be  made  by  means  of  a  telegram, 
which  is  turned  over  to  a  telegraph  company  for  transmission  and 
delivery,  but  the  company  has  negligently  failed  to  discharge  its 
duty  in  the  transaction,  and  as  a  result  of  which  the  party  has 
suffered  a  loss,  the  same  may  be  recovered;  and  the  measure  of 
damages  therein  is  the  difference  between  the  value  of  the  prop- 
erty he  offered  to  exchange  and  the  value  of  the  property  he  would 
have  received  therefor.^'' 

§  563.  Negligence  of  company  inducing  shipment. — Where  a 
telegraph  company  has  negligently  performed  its  duty,  and  as  a 
result  of  which  goods  are  shipped  to  one  market  and  there  sold  for 
a  certain  price,  when,  if  such  negligence  had  not  occurred,  or  if  the 
company    had    performed    its    duty    in   transmitting    correctly    the 

54  Cahn  Y.  West.  U.  Tel.  Co.,  48  Fed.  810,  1  C.  C.  A.  107,  affirmiug  (C.  C.) 
46  Fed.  40. 

5  5  West.  U.  Tel.  Co.  v.  Llttlejohn,  72  Miss.  1025,  18  South.  418. 

56  Brewster  v.  West.  U.  Tel.  Co.,  65  Ark.  537,  47  S.  W.  560;  West.  U.  Tel. 
Co.  V.  Bell,  24  Tex.  Civ.  App.  572,  59  S.  W.  918. 

5  7  West.  U.  Tel.  Co.  v.  Wilhelm,  48  Neb.  910,  67  N.  W.  870.  See,  also,  Lucas 
V.  West.  U.  Tel.  Co.,  131  Iowa,  669,  109  N.  W.  191,  6  L.  R.  A.  (N.  S.)  1016. 


732  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  564 

message  in  reference  to  such  transaction,  the  goods  would  have 
been  shipped  to  another  and  better  market,  a  recovery  may  be 
had  for  the  difference  between  the  markets,  phis  or  minus,  as 
the  case  may  be,  the  difference  in  expense  of  transportation  and 
handling.^^  So  also,  if  the  goods  would  not  have  been  shipped  at 
all  but  for  such  negligence,  the  measure  of  damages  therefor  would 
be  the  difference  between  the  price  realized  by  the  sale  at  such 
place,  plus  the  cost  of  handling  and  freight.^® 

§  564.  Deterioration. — The  question  could  hardly  occur  where 
real  property  was  under  consideration,  but  personal  property  and 
such  as  may  be  perishable  may  be  caused  to  deteriorate  in  value 
as  a  result  of  the  negligence  of  a  telegraph  company  in  failing  to 
transmit  correctly  or  promptly  a  message  relating  thereto.  Where 
such  an  instance  happens,  the  amount  of  such  deterioration  may  be 
recovered. ®°  Thus,  where  there  is  a  delay  in  the  shipments  of  such 
property, °^  or  where  important  information  is  not  communicated 
to  the  owner  thereof,  whereby  threatened  danger  could  have  been 
averted,  as  a  result  of  the  company's  negligence,^^  such  damages 
may  be  recovered. 

§  565.  Announcement  of  prices  or  state  of  market. — It  is  the 
general  rule,  as  stated  elsewhere,  that  where  the  owner  of  certain 
property  makes  an  offer,  in  response  to  the  announcement  of  the 
market  price  by  means  of  a  telegram,  to  sell  at  a  certain  price,  and 
the  message  has  been  changed  in  its  transmission  so  as  to  make 
the  price  less  than  that  offered,  the  sender  is  bound  to  the  receiver, 
who  purchases  the  property,  for  the  price  as  shown  in  the  message 
received.  The  owner  of  the  property  may,  however,  where  he  re- 
lies on  the  announcement  of  the  price  or  the  state  of  maiket,  as 
received  from  his  agent,  hold  the  company  liable  for  the  loss  he 
has  sustained  by  reason  of  the  misquoted  prices.*'^    In  other  words, 

5  8  West.  U.  Tel.  Co.  v.  Collins,  45  Kan.  88,  25  Pac.  187,  10  L.  R.  A.  515; 
Marriott  v.  West.  U.  Tel.  Co.,  84  Neb.  443,  121  N.  W.  241,  133  Am.  St.  Rep. 
633 ;    West.  U.  Tel.  Co.  v.  Eeid,  83  Ga.  401,  10  S.  E.  919. 

5  9  Leonard  v.  N.  Y.,  etc.,  Elec.  Mag.  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Rep.  44G; 
West.  U.  Tel.  Co.  v.  Woods,  56  Kan.  737,  44  Pac.  9S9;  West.  U.  Tel.  Co.  v. 
Stevens  (Tex.)  16  S.  W.  1095 ;  West.  U.  Tel.  Co.  v.  Linney  (Tex.  Civ.  App.)  28 
S.  W.  234. 

6  0  Mitchell  v.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016. 

61  West.  U.  Tel.  Co.  v.  Corso,  121  Ky.  322,  89  S.  W.  212,  28  Ky.  Law  Rep. 
290,  11  Ann.  Cas.  10G5 ;  West.  U.  Tel.  Co.  v.  Simpson,  10  Kan.  App.  473,  62 
Pac.  901. 

6  2  Mitchell  V.  West.  U.  Tel.  Co.,  12  Tex.  Civ.  App.  262,  33  S.  W.  1016. 

6  3  Eureka  Cot.  Mills  v.  West.  U.  Tel.  Co.,  88  S.  C.  498,  70  S.  E.  1040,  Ann. 
Cas.  1912C,  1273;  Henry  v.  West.  U.  Tel.  Co.,  73  Wash.  260,  131  Pac.  812, 
46  L.  R.  A.  (N.  S.)  412;  West.  U.  Tel.  Co.  v.  Spivey,  98  Tex.  308,  83  S.  W. 
364;    Jackson  v.  West.  U.   Tel.   Co.,  174  Mo.  App.  70,   156   S.  W.   801.     See 


§    565)  MEASURE   OF  DAMAGES  735 

if  he  receives  a  message  from  his  agent  stating  the  price  at  which 
the  property  can  be  sold,  but  the  price  as  delivered  to  the  company 
is  really  less  than  that  quoted  in  the  received  message,  and  he  sells 
on  the  strength  of  the  latter  price,  believing  it  to  be  the  state  of  the 
market,  he  may  recover  for  the  loss ;  and  the  measure  of  damages 
is  the  difference  between  the  price  the  property  actually  sold  for 
and  that  which  he  thought  he  was  getting  for  it,  or,  as  stated 
in  another  way,  the  amount  of  his  actual  loss  caused  by  the  de- 
crease in  the  price  he  obtained.^*  It  is  held  in  these  cases  that 
the  announcement  must  have  been  made  in  contemplation  of  a 
trade,  and  by  some  one  acting  with  authority  to  make  such  an- 

West.  U.  Tel.  Co.  v.  Waxelbanm,  113  Ga.  1017,  39  S.  E.  443,  56  L.  R.  A.  741 ; 
Stewart  v.  Postal  Tel.  Cab.  Co.,  131  Ga.  31,  61  S.  E.  1045,  127  Am.  St.  Rep. 
205.  18  L.  R.  A.  (N.  S.)  692 ;  De  Riitte  v.  N.  Y.,  etc.,  Elec.  Mag.  Tel.  Co.,  1 
Daly  (N.  Y.)  547 ;  Wolf  v.  West.  U.  Tel.  Co.,  24  Pa.  Super.  Ct.  129 ;  West.  U. 
Tel.  Co.  V.  McCants  (Miss.)  46  South.  535;  West.  U.  Tel.  Co.  v.  Dubois,  128 
111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109;  Turner  v.  Hawkeye  Tel.  Co.,  41 
Iowa.  458,  20  Am.  Rep.  605 ;  West.  U.  Tel.  Co.  v.  Bradford.  52  Tex.  Civ.  App. 
392,  114  S.  W.  686 ;  Hays  v.  West.  U.  Tel.  Co.,  70  S.  C.  16,  48  S.  E.  608,  106 
Am.  St.  Rep.  731,  67  L.  R.  A,  481,  3  Ann.  Cas.  424. 

Where  price  is  changed  to  a  larger  amount,  the  measure  of  damages  is  the 
difference  between  the  price  as  stated  in  the  original  message  and  the  price 
paid  by  plaintiff :  West.  U.  Tel.  Co.  v.  Dubois,  supra ;  Hays  v.  West.  U.  Tel. 
Co.,  supra.  It  has  been  held,  however,  that  he  could  not  recover  this  amount : 
West.  U.  Tel.  Co.  v.  Spivey,  98  Tex.  308,  83  S.  W.  364;  West.  U.  Tel.  Co.  v. 
Bell,  24  Tex.  Civ.  App.  572,  59  S.  W.  918. 

64  West.  U.  Tel.  Co.  v.  Crawford,  110  Ala.  460,  20  South.  Ill;  West.  U. 
Tel.  Co.  V.  Flint  River  Lumber  Co.,  114  Ga.  576,  40  S.  E.  81.5,  88  Am.  St.  Rep. 
36 ;  Postal  Tel.  Cable  Co.  v.  Schaefer,  62  S.  W.  1119,  23  Ky.  Law  Rep.  344 ; 
Reed  v.  West.  U.  Tel.  Co.,  135  Mo.  661,  37  S.  W.  904,  58  Am.  St.  Rep.  609, 
34  L.  R.  A.  492 ;  West.  U.  Tel.  Co.  v.  Richman  (Pa.)  8  Atl.  171 ;  Pepper  v. 
West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St.  Rep. 
699 ;  Hays  v.  West.  U.  Tel.  Co..  70  S.  C.  16,  48  S.  E.  60S,  67  L.  R.  A.  481,  106 
Am.  St.  Rep.  731,  3  Ann.  Cas.  424 ;  Eureka  Cotton  Mills  v.  West.  U.  Tel.  Co., 
88  S.  C.  498,  70  S.  E.  1040,  Ann.  Cas.  1912C,  1273 ;  Bowie  v.  West.  U.  Tel.  Co., 
78  S.  C.  424,  59  S.  E.  65 ;  Sims  v.  West.  U.  Tel.  Co.,  89  S.  C.  237,  71  S.  E.  783 ; 
McCarty  v.  W^est.  U.  Tel.  Co.,  116  Mo.  App.  441,  91  S.  W.  976;  West.  U.  Tel. 
Co.  V.  Hart,  62  111.  App.  120;  West.  U.  Tel.  Co.  v.  Lyon,  93  Miss.  590,  47 
South.  344;  Anniston  Cordage  Co.  v.  West.  U.  Tel.  Co.,  161  Ala.  219.  49 
South.  770,  135  Am.  St.  Rep.  124,  30  L.  R.  A.  (N.  S.)  1116 ;  Stewart  v.  Postal 
Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045,  127  Am.  St.  Rep.  205,  18  L.  R.  A. 
(N.  S.)  692,  overruling  Brooke  v.  West.  U.  Tel.  Co.,  119  Ga.  694,  46  S.  E.  826 ; 
Henry  v.  West.  U.  Tel.  Co.,  73  Wash.  260,  131  Pac.  812,  46  L.  R.  A.  (X.  S.)  412. 

Liability  to  sender. — The  foregoing  cases  have  reference  to  the  liability  to 
the  receiver  of  a  message.  In  some  jurisdictions  it  is  held  that  a  person 
selecting  the  telegraph  is  bound  by  any  errors  in  the  transmission.  Younker  v. 
West.  U.  Tel.  Co.,  146  Iowa,  499,  125  N.  W.  577 ;  West.  U.  Tel.  Co.  v.  Fischer, 
133  Ky.  768,  119  S.  W.  ISO ;  West.  U.  Tel.  Co.  v.  Milton,  53  Fla.  484,  43  South. 
495,  125  Am.  St.  Rep.  1077,  11  L.  R.  A.  (N.  S.)  560 ;  West.  U.  Tel.  Co.  v.  Rob- 
ertson, .59  Tex.  Civ.  App.  426,  126  S.  W.  629 ;  Pegram  v.  AVest.  U.  Tel.  Co.,  100 
N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557 ;    Bass  v.  Postal  Tel.  Cable  Co.,  127 


734  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  566 

nouncement.^^  If  the  party  to  whom  the  announcement  is  made 
should  be  the  purchaser,  the  measure  of  damages  would  be  the 
increase  in  the  price  he  was  obliged  to  pay  in  consequence  of  the 
error.®® 

§  566.  Contemplating  shipping — delay  in  message — loss. — 
There  are  so  very  many  cases  arising  from  the  negligence  of  tele- 
graph companies  in  delaying  the  delivery  of  a  message  that  it  is 
difficult  to  enumerate  them  all  and  to  give  the  measure  of  dam- 
ages in  each  case.  He  who  contemplates  bringing  suit  should  as- 
certain from  the  cases  already  cited  the  measure  .of  damages  to 
be  recovered  in  his  particular  case,  since  the  principle  in  all  is  the 
same,  but  only  differently  applied.  Thus,  if  a  party  who  contem- 
plates making  a  shipment  of  live  stock  to  a  certain  place  on  the 
announcement  of  the  price  at  that  place,  but  in  consequence  of  a 
delay  in  the  delivery  or  nondelivery  of  the  price  he  ships  to  an- 
other less  advantageous  point,  the  measure  of  damages  would  be 
similar  to  all  those  cases  heretofore  discussed.  In  these  particular 
cases  it  has  been  held  that  the  measure  of  damages  would  be  the 
difference  in  price  at  the  place  he  actually  shipped  and  that  to 
which  he  would  have  shipped  had  the  message  been  delivered  in 
time,  together  with  the  diiTerence,  if  any,  between  the  transporta- 
tion to  the  two  places."  If,  on  the  other  hand,  the  message  is  one 
advising  the  owner  of  the  stock  not  to  ship,  and,  through  the  de- 
lay in  the  message,  he  does  ship,  thereby  encountering  an  unfavor- 
able market,  the  measure  of  damages  is  the  difference  between 
the  price  of  the  stock  at  the  place  from  which  they  were  shipped 
and  the  price  at  the  place  to  which  they  were  shipped,  together 
with  expenses  in  transportation  and  that  accruing  in  the  sale.''^ 
In  all  cases  where  the  owner  suffers  a  loss  by  the  negligence  of 
these  companies,  he  must  exercise  reasonable  diligence  to  reduce 
his  loss  as  much  as  possible.®^     Thus,  in  the  last  rule  given  above, 

Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  4S9 ;  Thorp  v.  West.  U.  Tel.  Co.,  118 
Mo.  App.  398,  94  S.  W.  554. 

6  5  Frazer  v.  West.  U.  Tel.  Co.,  84  Ala.  487,  4  South.  831. 

6  0  West.  U.  Tel.  Co.  v.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109; 
Stewart  v.  Postal  Tel.  Cable  Co.,  131  Ga.  31,  61  S.  E.  1045,  18  L.  R.  A.  (N.  S.) 
692,  127  Am.  St.  Rep.  205 ;  Henry  v.  West.  U.  Tel.  Co.,  73  Wash.  260,  131  Pac. 
812,  46  L.  R.  A.  (N.  S.)  412. 

6  7  West.  U.  Tel.  Co.  v.  Collins,  45  Kan.  88,  25  Pac.  187,  10  L.  R.  A.  515; 
West.  U.  Tel.  Co.  v.  Stevens  (Tex.)  16  S.  W.  1095 ;  Turner  v.  Hawkeye  Tel. 
Co.,  41  Iowa,  458,  20  Am.  Rep.  605.     See,  also,  §  563. 

6  8  West.  U.  Tel.  Co.  v.  Linuey  (Tex.  Civ.  App.)  28  S.  W.  234;  West.  U.  Tel. 
Co.  T.  Woods,  56  Kan.  737,  44  Pac.  9S9.  See,  also,  West.  U.  Tel.  Co.  v.  Reid, 
83  Ga.  401,  10  S.  E.  919.     See,  also,  §  563. 

6  9  See  §  557. 


§    566)  MEASURE   OF   DAMAGES  735 

if  the  owner  of  the  stock  cannot  sell  at  the  place  he  has  shipped, 
it  is  his  duty,  if  practicable,  to  ship  to  the  nearest  good  market  in 
order  to  reduce  his  loss.''"  He  need  only  exercise  reasonable  dili- 
gence and  effort,  and  is  not  under  obligation  to  seriously  incom- 
mode himself  or  cause  injury  to  his  other  business  to  make  such 
reduction.  If  the  message  has  never  been  delivered,  and  the  ad- 
dressee, under  the  circumstances,  believes  that  there  is  no  change  in 
the  market  and  buys  accordingly  at  the  last  rates  communicated 
to  him,  he  may  recover  the  difference  betw^een  the  excessive  price 
he  pays  for  the  property  and  the  price  he  would  have  paid  had  the 
message  been  delivered  in  time.'^^  But  if  he  should  get  the  same 
information  the  delayed  message  would  have  given  from  other 
sources  and  before  he  buys,  he  cannot  recover  anything.''^ 

70  West.  U.  Tel.  Co.  v.  Woods,  56  Kan.  737,  44  Pac.  989.     Compare  Leonard 
V.  New  York.  etc..  Tel.  Co.,  41  N.  Y.  544,  1  Am.  Eep.  446. 

71  Garrett  v.  West.  U.  Tel.  Co.,  92  Iowa,  449,  58  N.  W.  1064,  60  N.  W.  644. 
7  2  Reynolds  v.  West.  U.  Tel.  Co.,  81  Mo.  App.  223. 


736  TELEGRAPH   AND  TELEPHONE   COMPANIES  (§    567 

CHAPTER  XXII 
MEASURE  OF  DAMAGES— CONTINUED— LOSS  OF  EMPLOYMENT,  ETC. 

§  567.  In  general. 

568.  Loss  of  situation  or  employment. 

569.  Same  continued — actual  damages. 

570.  Same  continued — circumstances  tending  to  reduce  loss. 

571.  Loss  of  professional  fees. 

572.  Same  continued — losses  of  otherwise  professional  nature. 

573.  Same  continued — such  as  not  recoverable. 

574.  Losses  which  might  have  been  prevented. 

575.  Same  continued — must  show  same  would  have  been  prevented. 

576.  Failing  debtors — messages  from  creditors  regarding  same. 

577.  Failure  to  transmit  money, 

578.  Messages  summoning  physicians  or  veterinaries. 

579.  Messages  requesting  addressee  to  meet  sender. 

§  567.  In  general. — The  failure  on  the  part  of  a  telegraph  com- 
pany to  properly  discharge  its  duty  towards  the  public,  subjects  it 
to  as  many  and  almost  the  same  kind  of  actions  as  may  be  main- 
tained against  individuals  for  their  wrongful  acts.  In  fact,  they  are 
nothing  more  than  persons  in  law,  so  considered  by  all  the  courts, 
and,  with  certain  peculiar  exceptions,  their  duties  and  liabilities 
toward  the  public  are  the  same.  One  of  the  inalienable  rights  of 
every  citizen  is  to  own  property  and  to  make  and  enter  into  con- 
tracts in  respect  thereto.  Any  interference  by  another,  except  by 
due  process  of  law,  whereby  he  is  prevented  from  exercising  his 
authority  over  such,  will  subject  the  wrongdoer  to  damages.  These 
companies  may  also  own  all  property  necessary  for  them  to  carry 
on  and  perform  those  objects  for  which  they  were  incorporated. 
They  may  make  and  perform  contracts,  both  with  other  corpora- 
tions, and  with  individuals  with  respect  to  such  property,  so  far  as 
it  may  be  necessary  to  accomplish  their  corporate  objects,  and  any 
interference  in  these  contractual  rights  may  be  remedied  by  proper 
actions.  We  propose  to  discuss  in  this  chapter  the  interference 
with  contracts  made  or  in  contem'plation  of  being  made  by  individ- 
uals, or  such  as  may  have  been  prevented  from  being  made  by  the 
negligence  of  telegraph  companies.  And  first  we  shall  speak  of  the 
loss  of  a  situation  or  employment,  which  is  the  result  of  the  com- 
pany's negligence  in  delaying  a  message. 

§  568.  Loss  of  situation  or  employment. — When  a  telegraph 
company,  through  its  negligence,  delays  a  message  resulting  in  a 
loss  of  a  situation  or  employment,  it  is  not  such  an  interference 


8    569)  MEASURE   OF   DAMAGES  737 

with  the  making  of  a  contract  as  is  meant  when  some  third  person 
intentionally  interferes  with  the  contracting  parties  in  the  making 
of  a  contract,  and  for  which  an  action  in  tort  may  be  maintained. 
In  the  latter  cases  the  gist  of  the  action  is  the  wrongful  or  malicious 
intent  on  the  part  of  the  wrongdoer;  in  the  former  it  is  not  the 
intent  which  the  company  may  have  that  makes  out  the  case,  but  it 
is  a  failure  to  discharge  its  duties  toward  the  public  and  the  con- 
tracting parties.  It  is  true  that  this  negligence  of  the  company 
may  become  so  gross  as  to  place  them  under  the  same  class  of  cases 
—that  is,  a  malicious  interference.  We  shall  not  speak  here  of  the 
wrongful  or  malicious  intent  which  may  have  been  entertained  by 
the  company  when  such  negligence  is  perpetrated,  but  only  of  its 
negligence  in  the  delay  of  the  message  and  the  results  thereof. 
When  a  contract  of  employment  or  for  a  situation  has  been  lost  by 
the  delay  of  a  message,  the  injured  party  is  surely  entitled  to  dam- 
ages.^ 

§  569.  Same  continued — actual  damages. — In  cases  where  the 
plaintiff  loses  an  employment  in  consequence  of  the  company's  neg- 
ligent delay  in  delivering  a  message,  the  amount  of  damages  to  be 
recovered  should  be  such  as  he  has  actually  sustained.^  It  is  not 
an  easy  matter  to  always  ascertain  what  are  the  actual  damages, 
but  the  general  rule  is  the  amount  the  employer  would  have  been 
legally  obliged  to  pay  the  employe  under  the  contract  less  what  the 
latter  made  or  could  in  the  exercise  of  reasonable  diligence  have 
made  in  similar  employment  during  the  corresponding  time  is  re- 
coverable.^    In  viewing  this  subject,  the  circumstances  involved 

1  But  see  §  573.  See,  also,  Postal  Tel.  Cable  Co.  v.  Nichols,  1.59  Fed.  643.  80 
C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870,  14  Ann.  Cas.  369,  loss  of  bid  for  public 
vrorli. 

2  Baldwin  v.  West.  U.  Tel.  Co.,  93  Ga.  692,  21  S.  E.  212,  44  Am.  St.  Rep.  194  ; 
West.  U.  Tel.  Co.  v.  Valentine,  18  111.  App.  57 ;  Mondon  v.  West.  U.  Tel.  Co.,  96 
Ga.  499,  23  S.  E.  853 ;  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E. 
894 ;  Merrill  v.  West.  U.  Tel.  Co.,  78  Me.  97,  2  Atl.  847 ;  West.  U.  Tel.  Co.  v. 
Fenton,  52  Ind.  1 ;  West.  U.  Tel.  Co.  v.  Longwill,  5  N.  M.  308,  21  Pac.  339 ; 
West.  U.  Tel.  Co.  v.  Partlow,  30  Tex.  Civ.  App.  599,  71  S.  W.  584 ;  Barker  v. 
West.  U.  Tel.  Co.,  134  Wis.  147,  114  N.  W.  439,  126  Am.  St.  Rep.  1017,  14  L.  R. 
A.  (N.  S.)  533;  West.  U.  Tel.  Co.  v.  Biggerstaff,  177  Ind.  168,  97  N.  E.  531; 
Rtumm  V.  West.  U.  Tel.  Co.,  140  Wis.  528,  122  N.  W.  1032 ;  Postal  Tel.  Cable 
Co.  v.  Nichols,  159  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N.  S.)  870,  14  Ann. 
Cas.  369 ;  Fulkerson  v.  West.  U.  Tel.  Co.,  110  Ark.  144,  161  S.  W.  168,  Ann. 
Cas.  1915D,  221. 

3  INIcGregor  v.  West.  U.  Tel.  Co.,  85  Mo.  App.  308 ;  West.  U.  Tel.  Co.  v.  Valen- 
tine, 18  111.  App.  57 ;  West.  U.  Tel.  Co.  v.  Partlow,  30  Tex.  Civ.  App.  .599,  71 
S.  W.  584;  Stumm  v.  West.  U.  Tel.  Co.,  140  Wis.  .528,  122  N.  W.  10.32.  See 
Postal  Tel.  Cable  Co.  v.  Nichols,  159  Fed.  643,  89  C.  C.  A.  585,  16  L.  R.  A.  (N. 
S.)  870,  14  Ann.  Cas.  .369. 

Jones  Tel.(2d  Ed.) — 47 


738  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  569 

must  be  considered;  the  character  of  the  employment;  the  ability 
of  the  plaintiff  to  perform  such  work;  and  the  duration  of  the  time 
he  is  to  be  engaged  are  matters  to  be  considered.*  And  he  should 
prove  the  damages  he  has  actually  sustained  by  the  delay.  Thus, 
if  his  employment  is  for  a  certain  specified  time,  during  which  he 
is  to  obtain  a  certain  salary,  the  loss  of  this  is  the  amount  to  be 
recovered ;  ^  unless  there  are  circumstances  which  would  reduce 
this  amount.  In  other  words,  if  he  is  employed  for  one  month  at  a 
salary  of  $100,  and  his  board  for  that  time,  but  is  prevented  from 
making  this  through  the  negligence  of  the  company,  he  may  re- 
cover this  amount.  It  is  not  only  of  a  situation  or  an  employment 
where  he  may  have  a  right  to  recover;  but  if  he  has  been  prevented 
from  accepting  a  contract  to  build  a  certain  structure,  or  any  other 
similar  purpose,  he  may  recover  the  actual  loss  sustained  thereby.® 
In  these  latter  cases,  it  is  more  difficult  to  ascertain  the  exact  dam- 
age sustained.  It  is  the  general  rule  that  the  amount  to  be  recov- 
ered is  the  net  profit  he  would  have  made  by  performing  the  con- 

4  West.  U.  Tel.  Co.  v.  Hines,  96  Ga.  688,  23  S.  E.  845,  51  Am.  St.  Rep.  159 ; 
West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1 ;  Kemp  v.  West.  U.  Tel.  Co.,  28  Neb.  661, 
44  N.  W.  1064,  26  Am.  St.  Rep.  363 ;  Wolfskelil  v.  West.  U.  Tel.  Co.,  46  Hun, 
(N.  Y.)  542.  See,  also,  Baldwin  v.  West.  U.  Tel.  Co.,  93  Ga.  692,  21  S.  E.  212, 
44  Am.  St.  Rep.  194.  Compare  Jacobs  v.  Postal  Tel.  Co.,  76  Miss.  278,  24 
South.  535.  See,  also,  Fulkerson  v.  West.  U.  Tel.  Co.,  110  Ark.  144,  161  S.  W, 
168,  Ann.  Cas.  1915D,  221. 

5  Mondon  v.  West.  U.  Tel.  Co.,  96  Ga.  499,  23  S.  B.  853 ;  Merrill  v.  West.  U. 
Tel.  Co.,  78  Me.  97,  2  Atl.  847,  if  the  contract  is  only  for  a  certain  amount  per 
day  for  no  stipulated  period,  and  is  defeasible  at  the  will  of  either  party, 
only  nominal  damages  can  be  recovered.  But  see  West.  U.  Tel.  Co.  v.  McKib- 
ben,  114  Ind.  511,  14  N.  E.  894. 

Employment  from  month  to  month. — Where  employment  is  from  month  to 
month,  the  limit  of  recovery  is  one  month's  salary.  Baldwin  v.  West.  U.  Tel. 
Co.,  93  Ga.  692,  21  S.  E.  212,  44  Am.  St.  Rep.  194 ;  Mondon  v.  West.  U.  Tel. 
Co.,  supra. 

Employment  at  will. — Where  the  employment  may  be  terminated  at  the  will 
of  the  employer,  it  cannot  be  presumed  that  the  employment  would  continue 
for  any  given  length  of  time  so  as  to  entitle  to  the  recovery  for  employe's  loss 
during  that  period.  Pulkerson  v.  West.  U.  Tel.  Co.,  110  Ark.  144,  161  S.  W. 
168,  Ann.  Cas.  1915D,  221 ;  Merrill  v.  West.  U.  Tel.  Co.,  supra. 

G  West.  U.  Tel.  Co.  v.  Robinson  (Tex.  Civ.  App.)  29  S.  W.  71 ;  West.  U.  Tel. 
Co.  V.  Bowen,  84  Tex.  476,  19  S.  W.  554.  In  this  case  plaintiffs  were  thresh- 
ers and  their  agent  at  X.  wired  them,  "Have  30,000  bushels  for  you,  if  you  can 
come  at  once."  Plaintiffs  answered,  "Will  ship  machinery  at  once."  This 
latter  message  was  not  delivered,  and  the  parties  for  whom  the  threshing  was 
to  be  done,  not  knowing  that  the  offer  was  accepted,  employed  other  con- 
tractors. It  was  held  that  the  company  was  liable,  although  there  was  no  de- 
lay in  getting  the  machinery  to  V. ;  that,  complainant  being  able  to  show  the 
amount  of  grain  to  be  threshed  and  the  rate  of  toll  per  bushel  contracted  for, 
the  damages  claimed  could  not  be  considered  contingent,  uncertain,  or  specu- 
latire. 


§    570)  MEASURE   OF   DAMAGES  739 

tract  had  be  not  been  interfered  with  by  the  acts  of  the  company.'^ 
It  must  be  understood  that  the  gist  of  the  action,  in  such  cases,  is 
not  the  interference  with  the  contract  made  between  the  sender 
and  the  addressee  of  the  message  by  the  company's  negligence,  but 
it  is  the  company's  failure  to  carry  out  its  contract  made  with  one 
of  these  parties  in  respect  to  such  contract;  that  is,  to  act  as  agent 
in  bringing  the  minds  of  these  two  parties  together  with  reference 
to  the  contract  to  be  made  by  them  as  it  contracts  to  do  in  accept- 
ing compensation  for  the  delivery  of  the  message. 

§  570.  Same  continued — circumstances  tending  to  reduce  loss. 
It  is  the  general  rule,  where  a  person  is  prevented  from  performing 
or  carrying  out  a  contract,  and  where  he  has  not  been  guilty  of  any 
fault  on  his  part,  that  he  should  exercise  reasonable  diligence  to 
minimize  the  loss  as  much  as  possible;  this  may  be  done  by  per- 
forming other  similar  contracts.  Thus,  where  he  has  lost  a  situa- 
tion or  employment,  it  is  the  duty  of  the  plaintiff  to  seek  other  em- 
ployment, by  means  of  which  the  loss  would  naturally  be  reduced.^ 
But  if  he  has  a  certain  occupation  or  avocation,  he  need  not  seek 
employment  in  other  lines  of  business.^  In  other  words,  if  he  is  a 
contractor,  he  need  not  endeavor  to  reduce  the  loss  sustained  by 
the  acts  of  the  company  by  engaging  to  farm  or  clerk,  or  any  busi- 
ness outside  that  of  a  contractor.  It  is  not  necessary,  in  any  par- 
ticular, that  he  should  exercise  every  endeavor  to  obtain  other 
similar  employment,  but  it  is  only  his  duty  to  exert  reasonable  dili- 
gence. If  he  has  obtained  other  employment,  the  measure  of  dam- 
ages for  the  loss  sustained  by  a  failure  to  perform  the  first  is  the 
difference  between  what  he  would  have  made  had  the  message 
been  delivered  in  time  and  the  amount  received  in  the  latter  em- 
ployment. If,  on  the  other  hand,  he  has  been  unable  to  get  other 
employment,  he  should  recover  all  the  loss  actually  sustained  by  a 

7  Texas,  etc.,  Tel.  Co.  v.  Mackenzie,  36  Tex.  Civ.  App.  ITS,  81  S.  W.  581,  hold- 
ing that,  where  a  building  contract  is  lost  by  the  nondelivery  of  a  message 
containing  plaintiff's  bid  for  the  worlv,  the  measure  of  damages  is  the  differ- 
ence between  the  amount  of  the  bid  and  what  it  would  have  cost  plaintiff  to 
erect  the  building  according  to  the  plans  and  speciflcations  upon  which  the 
bid  was  based. 

8  Moody  V.  Leverich,  14  Abb.  Prac.  N.  S.  (N.  T.)  145 ;  Worth  v.  Edmonds,  52 
Barb.  (N.  T.)  42 ;  Gillis  v.  Space,  63  Barb.  (N.  Y.)  182. 

3  Perry  v.  Dickerson,  7  Abb.  N.  C.  (N.  Y.)  471 ;  Strauss  v.  Meertief,  64  Ala. 
308,  38  Am.  Rep.  8 ;  Taylor  v.  Bradley,  4  Abb.  Dec.  (N.  Y.)  377,  100  Am.  Dec. 
415 ;  Id.,  39  N.  Y.  141 ;  Tufts  v.  Plymouth  Gold  M.  Co.,  14  Allen  (Mass.)  413 ; 
Costigan  v.  Mohawk  &  II.  R.  R.  Co.,  2  Donio  (N.  Y.)  609,  43  Am.  Dec.  758; 
West.  U.  Tel.  Co.  v.  Bowman,  141  Ala.  175,  37  South.  493.  The  burden  is  on 
the  company  to  show  that  the  plaintiff  could  obtain  other  employment.  It  is 
a  question  for  the  .inry  as  to  whether  a  contract  had  l>een  made.    Id. 


740  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  571 

failure  to  perform  caused  by  the  delay  of  the  message.  That  is,  all 
that  would  have  been  made  from  the  time  the  contract  was  made 
and  the  time  it  would  have  expired ;  and  he  should  not  be  allowed 
to  recover  such  claim  as  might  likely  accrue  after  the  filing  of  the 
suit.^° 

§  571.  Loss  of  professional  fees. — The  same  rule  which  has  just 
been  discussed  applies  to  cases  where  a  professional  fee  has  been 
lost  by  a  negligent  delay  in  a  message.  Thus  where  a  message 
summoning  a  physician  to  visit  a  member  of  the  family  who  is  sick, 
or  where  it  is  a  request  for  an  attorney  to  attend  a  case,  and  the 
message  is  negligently  delayed  whereby  the  fees  for  such  services 
are  lost,  the  actual  damages  sustained  thereby  should  be  recovered. 
It  is  very  often  the  case  that  professional  men  have  been  deprived 
of  fees  they  otherwise  would  have  obtained  had  it  not  been  for  the 
company's  negligence ;  and  the  measure  of  damages,  in  such  cases, 
is  the  amount  of  fees  they  would  have  received,  less  the  amount  of 
fees  made  while  not  fulfilling  such  engagement,  and  also  the  extra 
expenses  which  necessarily  would  have  been  incurred  had  the  serv- 
ices been  rendered. ^^  Thus,  in  a  case  where  a  message  was  delayed 
summoning  a  physician  to  make  a  visit,  it  was  shown  that  he  would 
have  made  $500  had  the  message  been  delivered  in  time  and  the 
visit  made.  The  court  held  that  this  amount  was  recoverable,  less 
other  fees  made  during  the  time  he  would  have  been  gone.  We 
think  that  railroad  and  other  similar  expenses  incurred  in  making 
the  trip  should  also  be  deducted  from  the  amount  of  fees  which 
would  have  been  made.^^  In  any  of  these  cases,  the  company  must 
have  had  some  information  of  the  character  and  purpose  of  the 
message,  in  order  to  have  been  liable.  In  these,  as  in  all  other  cases 
heretofore  discussed,  all  the  damages  may  be  recovered  which  en- 
tered into  the  contemplation  of  the  parties'  minds,  at  the  time  the 
contract  of  sending  was  made,  as  would  be  the  natural  and  probable 
results  of  a  breach  of  such  contract;  and,  unless  the  company 
should  have  had  some  information  of  the  purpose  of  the  message, 
such  contemplation  could  not  have  been  entertained  by  it.^^ 

10  uiine  V.  New  York  Cent,  etc.,  R.  Co.,  101  N.  Y.  98,  4  N.  E.  536,  54  Am; 
Rep.  661 ;  West.  U.  Tel.  Co.  v.  McKibben,  114  Ind.  511,  14  N.  E.  894. 

11  West.  U.  Tel.  Co.  v.  McLaurin,  70  Miss.  26,  13  South.  36,  attorney's  fee; 
Falrley  v.  West.  U.  Tel.  Co.,  73  Miss.  6,  18  Soutb.  796,  loss  of  fee  to  physician. 
See,  also,  Mood  v.  West.  U.  Tel.  Co.,  40  S.  C.  524,  19  S.  E.  67 ;  West.  U.  Tel. 
Co.  V.  Longwill,  5  N.  M.  308,  21  Pac.  339 ;  Barker  v.  West.  U.  Tel.  Co.,  134 
Wis.  147,  114  N.  W.  439,  14  L.  R.  A.  (N.  S.)  533,  126  Am.  St.  Rep.  1017,  physi- 
cian. 

12  West.  U.  Tel.  Co.  v.  Longwill,  5  N.  M.  308,  21  Pac.  339. 

13  West.  U.  Tel.  Co.  v.  Clifton,  68  Miss.  307,  8  South.  746.     In  this  case  a 


§   572)  MEASURE   OF  DAMAGES  741 

§  572.     Same  continued — losses  of  otherwise  professional  nature. 

While  people  carrying  on  a  business  of  a  special  and  particular 
nature  do  not,  strictly  speaking,  fall  in  the  class  of  professional 
men,  yet,  their  business  being  somewhat  similar,  the  above  rule 
may,  however,  be  applied  to  them.  Thus,  where  a  person  is  acting 
in  the  capacity  of  a  detective,  and  is  trying  to  capture  a  criminal  for 
whose  capture  there  is  a  reward,  he  may  recover  of  the  company 
an  amount  of  damages  equal  to  the  reward  offered,  when  he  has 
been  prevented  from  making  such  capture  by  the  company's  neg- 
ligence in  delaying  a  message  containing  facts  of  his  where- 
abouts.^* Where  a  real  estate  agent  has  failed  to  make  his  com- 
mission in  a  sale  of  real  estate  by  reason  of  the  message  being  neg- 
ligently delayed,  the  commission  may  be  recovered.^ ^  It  was  held 
in  one  case  that  the  fact  of  the  nondelivery  of  a  message  in  time 
to  enable  the  party  to  whom  it  was  sent  to  meet  a  train  and  comply 
with  the  directions  of  the  sender  does  not  cause  the  former  party 
to  suffer  any  damage,  but  simply  to  lose  a  mere  opportunity  or 
possibility  to  make  some  money,  and  the  company  therefore  is  not 
liable  to  him  in  damages  for  such  nondelivery.^®  This  opinion  is 
contrary  to  the  general  rule  under  such  cases.  In  this  case  the 
telegram  was  a  request  to  an  undertaker  to  meet  the  remains  of 

party  at  W.  telegraphed  to  liis  attorney  to  meet  him  there  to  arrange  an  as- 
signment. The  attorney-  replied  that  he  would  come  at  once,  but  this  latter 
message  was  not  delivered,  and  the  party  secured  a  local  attorney,  and  plain- 
tiff lost  the  expected  fee.  The  only  information  the  company  had  of  the  cir- 
cumstances was  from  the  message  which  read:  "Sent  Eckford  on  first  train. 
Am  here.  Answer" — and  a  reply  to  the  effect  that  E.  would  come  at  once.  It 
was  held  that  only  nominal  damages  could  be  recovered.  See  Melson  v.  West. 
U.  Tel.  Co.,  72  Mo.  App.  111.  Extrinsic  evidence  is  admissible  to  show  that 
the  company  had  notice  of  the  importance:  McPeek  v.  West.  U.  Tel.  Co.,  107 
Iowa,  850,  78  N.  W.  63,  70  Am.  St.  Rep.  205,  4.3  L..  R.  A.  214. 

3  i  McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St.  Rep. 
205,  43  L.  R.  A.  214. 

15  West.  U.  Tel.  Co.  v.  Fatman,  73  Ga.  285,  54  Am.  Rep.  877;  Hise  v.  West. 
U.  Tel.  Co.,  137  Iowa,  329,  113  N.  W.  810 ;  West.  U.  Tel.  Co.  v.  Cook,  54  Neb. 
109,  74  N.  W.  395 ;  Harper  v.  West.  U.  Tel.  Co.,  92  Mo.  App.  304 ;  Id.,  Ill  Mo. 
App.  269,  86  S.  W.  904 ;  Levy  v.  West.  U.  Tel.  Co.,  39  Okl.  416,  135  Pac.  423. 

Subsequent  sale,  effect  of. — The  commission  may  be  recovered,  although  at 
the  time  of  the  trial  it  appears  that  the  plaintiff  subsequently  negotiated  a 
sale  of  the  same  property  to  another  party  and  earned  a  larger  commission. 
Hise  V.  West.  U.  Tel.  Co.,  supra.  See  West.  U.  Tel.  Co.  v.  Allen,  30  Okl.  229, 
119  Pac.  981,  38  L.  R.  A.  (N.  S.)  348.  But  see  Postal  Tel.  Cable  Co.  v.  Barwise, 
11  Colo.  App.  328,  53  Pac.  252,  merely  asking  a  quotation  of  best  prices  and 
stating  those  quoted  by  a  rival  concern  does  not  convey  such  notice  as  to 
make  the  loss  of  commissions  within  the  contemplation  of  the  parties;  West. 
U.  Tel.  Co.  V.  Twaddell,  47  Tex.  Civ.  App.  51,  103  S.  W.  1120,  message  reading, 
"You  can  make  big  money  next  month — come  at  once,"  does  not  advise  the 
company. 

10  Clay  v.  West.  U.  Tel.  Co.,  81  Ga.  285,  6  S.  E.  813,  12  Am.  St.  Rep.  316. 


742  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  573 

a  certain  person  at  the  depot  and  convey  same  to  another  place. 
As  said  by  the  court,  in  this  case :  "It  is  contended  that  if  he  had 
received  the  telegram,  he  would  have  made  a  considerable  amount 
of  money  as  profits  from  services  rendered.  He  might  have  made 
it,  or  he  might  have  not."  In  other  words,  it  was  claimed  that 
the  sender  of  the  message  might  have  "declined  the  services"  on 
arrival  with  the  remains,  and  for  this  reason  the  damages  were  too 
remote. ^^  With  all  due  respect  to  this  learned  court,  we  do  not 
agree  with  it  in  this  holding.  The  fact  of  the  sender's  not  accept- 
ing the  services  of  the  addressee  does  not  enter  into  the  contempla- 
tion of  the  interested  parties  to  the  contract  at  the  time  it  was 
made;  that  is,  it  does  not  enter  into  the  contemplation  of  the  ad- 
dressee's mind,  for  whose  benefit  the  contract  was  made,  that  there 
would  be  an  acceptance  or  nonacceptance  of  his  services;  neither 
was  this  entertained  by  the  sender.  That  which  does  enter  into 
his  contemplation — and  presumed  to  have  been  entertained  at  the 
same  time  by  the  company — is  the  loss  of  charges  for  such  serv- 
ices, in  case  there  is  a  delay ;   and  this  may  be  recovered. 

§  573.  Same  continued — such  as  not  recoverable. — There  may 
be  a  number  of  instances,  however,  when  the  damages  claimed 
may  be  too  remote  or  speculative,  or,  rather,  such  as  would  give 
them  the  same  effect. ^^  Thus,  if  the  employment  is  conjectural 
or  contingent,  so  that  the  delivery  of  the  message  might  or  might  not 
have  secured  the  employment  or  services  for  the  plaintiff,  he  can- 
not recover.^''  So  it  has  been  held  that  the  failure  to  secure  a  posi- 
tion as  deputy  assessor  is  not  a  ground  for  the  recovery  of  more 
than  nominal  damages,  where  it  appears  that  the  deputy  holds  only 
at  the  pleasure  of  the  officer  appointing  him.-°  If  the  plaintiff 
could  not  have  rendered  his  assistance  by  reason  of  being  emplo3'ed 
in  other  services,  he  cannot  recover  on  the  first,  although  the  mes- 
sage was  negligently  delayed;  ~^  or,  if  the  services  could  not  have 
been  rendered  on  account  of  other  circumstances,  had  it  been  de- 
livered in  due  time,  he  cannot  recover,-^  Thus,  if  his  services  are 
required  some  distance  from  his  home,  which  necessitates  him  to 
go  by  railroad,  and  no  train  leaves  for  that  place  so  that  he  can 

17  Id.  18  See  cases  in  note  15,  supra. 

19  Walser  v.  West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366;  Wilson  v.  West. 
U.  Tel.  Co.,  124  Ga.  131,  52  S.  E.  153 ;  Johnson  v.  West.  U.  Tel.  Co.,  79  Miss. 
58,  29  South.  787,  89  Am.  St.  Rep.  584 ;  West.  U.  Tel.  Co.  v.  Connelly,  2  Will- 
son,  Civ.  Cas.  Ct.  App.  §  113. 

2  0  Kenyon  v.  West.  U.  Tel.  Co.,  100  Cal.  454,  35  Pac.  75,  plaintiff  might  have 
been  discharged  either  with  or  without  cause  on  the  day  he  was  appointed. 

21  Freeman  v.  West.  U.  Tel.  Co.,  93  Ga.  230,  18  S.  E.  647. 

22  Id. 


§    575)  MEASURE   OF   DAMAGES  743 

reach  this  place  in  time  for  his  services  to  be  rendered,  he  can- 
not recover,  if  the  message  was  delayed,  vv^hen  the  same  would 
have  been  the  result  had  it  not  been  delayed. 

§  574.  Losses  which  might  have  been  prevented. — The  statutes 
in  many  states  have  classed  telegraph  companies  under  the  head 
of  common  carriers,  and  yet,  irrespective  of  this  fact,  their  duties 
and  obligations  toward  the  public  are  somewhat  similar  to  the 
former.^^  It  is  only  the  nature  of  their  employment  that  makes 
them  different.  One  engages  itself  to  transmit  news,  and  the  oth- 
er to  transport  property.  The  one  has  under  its  control  property 
which  is  invisible,  while  the  other  is  intrusted  with  visible  and 
tangible  property.  For  this  reason  it  is  more  difficult  for  one  to 
safely  accomplish  its  duties  than  the  other.  It  is  for  this  that  one 
is  considered  under  the  common  law  as  being  an  insurer,  while 
the  other  is  acting  in  a  quasi-insuring  capacity,  but  with  respect 
to  their  negligence  they  are  equally  liable.  A  common  carrier  en- 
gages to  transport  property  in  its  tangible  state  from  one  place  to 
another,  and  on  a  failure,  through  its  negligence,  so  to  do,  it  will  be 
liable  for  all  the  natural  and  proximate  results  which  could  have 
been  prevented.  In  other  words,  if  a  loss  in  the  transportation 
of  goods  has  been  sustained,  which  could  have  been  prevented  by 
the  injured  party  had  the  carrier  properly  discharged  its  duty,  it 
will  be  liable.  The  same  rule  will  apply  to  telegraph  companies. 
For  instance,  if  a  loss  has  been  sustained  by  reason  of  a  message 
being  negligently  sent  or  delivered,  and  the  same  could  have  been 
prevented  by  the  plaintiff,  or  injured  party,  had  the  company  prop- 
erly discharged  its  duty  with  respect  to  such  message,  it  will  be 
liable  for  all  the  natural  and  direct  consequences  arising  from  such 
failure  of  duty.^*  Thus,  where  the  company's  negligence  prevents 
plaintiff  from  stopping  a  sale  of  his  property  under  foreclosure,  he 
is  not  bound,  in  order  to  recover  damages,  to  show  that  he  has 
been  ejected  from  the  property;  the  loss  of  his  title  is  enough. 
But  he  must  be  able  to  show  that,  had  the  message  been  duly  de- 
livered, he  would  have  been  able  to  command  the  money  necessary 
to  stop  the  sale.^^ 

§  575.  Same  continued — must  show  sam.e  would  have  been  pre- 
vented.— In   order  to  recover  under  the   above   rule,   it   must   be 

2  3  See  chapter  11. 

2  4  Bodkin  v.  West.  U.  Tel.  Co.  (C.  C.)  31  Fed.  134;  West.  U.  Tel.  Co.  v.  Mc- 
Cormick  (Miss.)  27  South.  60G ;  Wolfskehl  v.  West.  U.  Tel.  Co.,  46  Hun  (N.  Y.) 
542 ;  Wallingford  v.  West.  U.  Tel.  Co.,  60  S.  C.  201,  38  S.  E.  443,  629 ;  West. 
U.  Tel.  Co.  V.  Shumate,  2  Tex.  Civ.  App.  429,  21  S.  W.  109.    See,  also,  §  549. 

2  5  West.  U.  Tel.  Co.  v.  Hearne,  7  Tex.  Civ.  App.  67,  26  S.  W.  478. 


744  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  576 

shown,  in  every  case,  that  there  has  been  a  loss  sustained  by  the 
company's  negligence,  and  that  the  same  could  and  would  have 
been  prevented.^®  Thus,  where  the  action  is  for  a  failure  to  de- 
liver a  message  summoning  a  physician  to  visit  plaintiff's  wife, 
damages  cannot  be  recovered  for  the  loss  of  her  services,  unless  it 
is  shown  that  a  prompt  delivery  of  the  message  and  the  arrival  of 
the  physician  would  have  saved  her  life.^^  In  such  cases,  it  is  a 
question  for  the  jury  to  say  as  to  whether  or  not  the  patient,  to 
whom  he  was  summoned,  was  injured  by  the  delay,  and  whether 
the  result  would  have  been  different  had  the  dispatch  been  de- 
livered.^^ A  case  somewhat  similar  to  this  is,  where  the  father 
was  unable,  by  a  negligent  delay  of  a  message,  to  prevent  the  mar- 
riage of  his  minor  child.  In  this  case  he  was  allowed  to  recover 
the  amount  of  the  child's  services  from  the  time  of  the  marriage 
until  it  should  have  reached  its  majority. ^^  The  gist  of  the  action, 
in  these  cases,  is  the  loss  of  services,  and  it  must  be  shown  that 
there  was  a  loss  in  this  respect,  and  that  the  same  not  only  could 
but  would  have  been  prevented,  had  the  company  not  been  guilty 
of  negligence.  So,  if  the  plaintiff  is  deprived  of  the  services  of  the 
person  for  whom  he  sues,  no  recovery  can  be  had  so  long  as  that 
state  of  affairs  exists.  Where  there  is  a  loss  of  any  nature,  sus- 
tained by  the  negligent  act  of  the  company,  the  injured  person  may 
recover  for  same  if  he  can  show  that  it  would  have  been  prevent- 
ed in  the  absence  of  such  negligence.  For  instance,  where  a  mes- 
sage from  a  sister  to  a  brother  reading :  "Mother  started  to-night," 
was  changed  in  its  transmission  so  as  to  read,  "Mother  died  to- 
night." It  was  held  that  the  brother  could  recover  for  all  the  ex- 
pense he  was  put  to  in  preparing  for  the  funeral,  including  flowers 
bought  for  said  occasion. ^'^ 

§  576.  Failing  debtors — messages  from  creditors  regarding  same. 
Cases  similar  to  those  discussed  in  the  preceding  section  have  been 
instituted  where  messages  have  been  sent  by  creditors  to  their  agents 
in  regard  to  failing  debtors,  but  for  the  reason  that  they  were  negli- 
gently delayed  by  the  company,  they  failed  to  accomplish  their  de- 
sired purposes.    In  these  the  creditors  were  allowed  to  recover  the 

2  6  West.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  491,  31  Pac.  393;  West.  U. 
Tel.  Co.  V.  Norton  (Tex.  Civ.  App.)  62  S.  W.  1081 ;  West.  U.  Tel.  Co.  v.  Patton 
(Tex.  Civ.  App.)  55  S.  W.  973 ;  Cutts  v.  West.  U.  Tel.  Co.,  71  Wis.  46,  36  N.  W. 
627 ;  Giddens  v.  West.  U.  Tel.  Co.,  Ill  Ga.  824,  3.j  S.  E.  638.     See,  also,  §  550. 

2  7  Slaughter  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  112  S.  W.  688;  West.  U. 
Tel.  Co.  V.  Haley,  143  Ala.  586,  39  South.  386. 

2  8  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219,  21  Pac.  988. 

2  9  West.  U.  Tel.  Co.  v.  Procter,  6  Tex.  Civ.  App.  300,  25  S.  W.  811. 

30  West.  U.  Tel.  Co.  v.  Hines,  22  Tex.  Civ.  App.  315,  54  S.  W.  627. 


§    576)  MEASURE   OF  DAMAGES  745 

loss  which  could  and  would  have  been  prevented  but  for  the  com- 
pany's neg-ligence.^^  Thus,  where  a  creditor  telegraphed  his  attor- 
ney of  the  failing  circumstances  of  his  debtor,  with  the  instruction 
to  attach  his  property,  but  on  account  of  the  delay  in  the  delivery 
of  the  message  to  the  attorney  he  failed  to  attach  until  four  days 
after  the  time  the  message  should  have  been  delivered,  and,  in  the 
meantime,  the  debtor's  property  was  fully  covered  by  other  attach- 
ments, the  company  will  be  liable  for  the  loss  of  the  debt.^^  If  the 
message  was  delivered  on  time,  but  was  altered  in  its  transmission 
so  as  to  show  that  the  claim  was  less  than  it  really  was,  the  differ- 
ence in  the  actual  debt  and  that  as  shown  in  the  message  may  be 
recovered,  if  this  amount  has  been  lost  by  other  creditors  having 
attached  all  of  his  other  property. ^^  In  either  case,  it  must  be 
shown  that  the  loss  was  the  result  of  the  company's  negligence, 
and  but  for  this  the  loss  could  and  would  have  been  prevented.^* 
For  instance,  an  attorney,  who  was  representing  the  plaintiff  in  a 
certiorari  proceeding,  sent  a  message  containing  notice  of  hearing. 
On  account  of  the  message  not  being  delivered  in  time,  the  pro- 
ceedings were  dismissed  for  want  of  notice,  and  the  attorney  there- 
upon paid  his  client  the  amount  involved  in  the  suit  and  instituted 
suit  to  recover  damages  of  the  company.  It  was  held  that  he  could 
not  recover  in  the  absence  of  proof  that  he  would  have  succeeded  ^^ 

31  Pacific  Tel.  Cable  Co.  v.  Fleisclmer,  C6  Fed.  899,  14  C.  C.  A.  16G;  Parks 
V.  Alta  California  Tel.  Co.,  13  Cal.  422,  73  Am.  Dec.  589;  Bierhaus  t.  West. 
U.  Tel.  Co.,  8  Ind.  App.  246,  34  N.  E.  581;  Bryant  v.  American  Tel.  Co.,  1 
Daly  (N.  Y.)  575 ;  West.  U.  Tel.  Co.  v.  Sheffield,  71  Tex.  570,  10  S.  W.  752,  10 
Am.  St.  Rep.  790 ;  West.  U.  Tel.  Co.  v.  Wofford  (Tex.  Civ.  App.)  42  S.  W.  119 ; 
West.  U.  Tel.  Co.  v.  Beals,  56  Neb.  415,  76  N.  W.  903,  71  Am.  St.  Rep.  682 ; 
Fleischner  v.  Pacific  Postal  Tel.  Cable  Co.  (C.  C.)  55  Fed.  738 ;  Baird  v.  West. 
U.  Tel.  Co.,  79  S.  C.  310,  60  S.  E.  695 ;  Hartstein  v.  West.  U.  Tel.  Co.,  89  Wis. 
531,  62  N.  W.  412. 

3  2  Hartstein  v.  West.  U.  Tel.  Co.,  89  Wis.  531,  62  N.  W.  412.  In  this  case  it 
was  held  that  the  loss  of  the  debt  was  too  remote  where  there  was  no  proof 
that  the  plaintiff  would  have  left  immediately  on  receipt  of  the  telegram  and 
the  debtor  would  have  secured  the  claim.  Parks  v.  Alta  California  Tel.  Co., 
13  Cal.  422,  73  Am.  Dec.  589;  Fleischner  v.  Pacific  Postal  Tel.  Cable  Co. 
(C.  C.)  55  Fed.  738. 

3  3  Bryant  v.  American  Tel.  Co.,  1  Daly  (N.  Y.)  575;  West.  U.  Tel.  Co.  v. 
Beals,  56  Neb.  415,  76  N.  W.  903,  71  Am.  St.  Rep.  682.  In  this  case  the  mes- 
sage as  delivered  to  the  company  read,  "Attach  property  of  A.  for  seven  hun- 
dred and  ninety  dollars,"  and  as  received  read,  "Attach  property  of  A.  for 
even  hundred  and  ninety  dollars." 

34  Hartstein  v.  West.  U.  Tel.  Co.,  89  Wis.  531,  62  N.  W.  412;  West.  U.  TeL 
Co.  V.  Bailey,  115  Ga.  725,  42  S.  E.  89,  61  L.  R.  A.  933;  Martin  v.  Sunset 
Tel.  Co.,  18  Wash.  260,  51  Pac.  376;  West.  U.  Tel.  Co.  v.  Gidcumb  (Tex. 
Civ.  App.)  28  S.  W.  699. 

3  5  Evidence  held  sufficient  to  show  that  plaintiff's  debt  would  have  been 
secured  if  the  message  had  been  promptly  delivered.  See  Hartstein  v.  West» 
U.  Tel.  Co.,  89  Wis.  531,  62  N.  W.  412. 


746  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  577 

in  the  proceeding  had  it  not  been  for  the  negligence  of  the  com- 
pany.^® In  another  case,  where  the  company's  agent,  in  order  to 
save  himself  and  others,  willfully  withholds  a  message  to  a  branch 
bank  announcing  the  failure  of  its  principal  until  some  time  after 
the  bank  has  opened,  the  company  is  liable  for  all  the  money  paid 
out  by  the  bank  between  the  time  when  the  message  should  have 
been  delivered  and  the  time  when  it  was  actually  delivered. ^^ 

§  577.  Failure  to  transmit  money. — It  has  become  a  very  com- 
mon thing  for  money  to  be  transmitted  by  telegraph  companies ; 
or,  rather,  means  are  furnished  by  which  the  same  results  are  ac- 
complished. When  such  undertakings  have  been  assumed,  it  is 
as  much  the  duty  to  make  speedy  transmission  of  the  money,  or 
accomplish  the  same  results,  as  it  is  to  transmit  messages  pertain- 
ing to  other  business.  So,  v/here  they  are  employed  to  transmit 
money,  and  there  is  a  failure  to  do  so,  or  there  is  an  unreasonable 
delay  in  delivery,  the  company  will  be  liable  to  the  party  to  whom 
the  money  was  sent  for  the  actual  damages  sustained  thereby. 
The  measure  of  damages  In  such  cases  is  the  interest  on  the  money 
from  the  time  it  should  have  been  delivered  to  the  time  it  was 
actually  delivered,  together  with  the  cost  of  the  message. ^^  Any 
loss  other  than  this  would  be  too  remote. ^^  Thus,  where  the  plain- 
tiff sues  for  being  put  out  of  his  house,*"  or  for  injury  to  his  repu- 
tation,*^ or  for  loss  of  credit  *^  on  account  of  the  delay  of  the  com- 
pany in  transmitting  money  sent  to  him  it  was  held  that  the  dam- 

Notice  to  company. — A  message  to  plaintiff  from  his  agent  reading:  "You 
had  better  come  and  attend  to  your  claim  at  once,"  is  sufficient  to  charge  the 
company  with  notice  of  its  pui-pose  and  the  necessity  of  prompt  delivery  so 
as  to  make  damages  due  to  the  loss  of  the  debt  by  reason  of  the  other  cred- 
itors obtaining  attachments  reasonably  within  the  contemplation  of  the  par- 
ties. West.  U.  Tel.  Co.  v.  Sheffield,  71  Tex.  570,  10  S.  W.  752,  10  Am.  St. 
Rep.  790. 

3  6  West.  U.  Tel.  Co.  v.  Bailey,  115  Ga.  725,  42  S.  E.  89,  01  L.  R.  A.  933. 

3  7  Stiles  V.  West.  U.  Tel.  Co.,  2  Ariz.  308,  15  Pac.  712;  Baird  v.  West.  U. 
Tel.  Co.,  79  S.  C.  810,  60  S.  E.  695,  holding  that,  where  plaintiff  was  in- 
structed to  draw  on  a  bank  for  the  amount  of  a  debt,  and  the  message  was 
not  delivered,  and  subsequently  the  funds  of  the  debtor  were  paid  out  on 
other  claims,  it  was  held  that  plaintiff  might  recover  for  the  loss  of  the  debt. 

3  8  Smith  V.  West.  U.  Tel.  Co.,  150  Pa.  561,  24  Atl.  1049;  Robinson  v.  West. 
U.  Tel.  Co.,  GS  S.  W.  656,  24  Ky.  Law  Rep.  452,  57  L.  R.  A.  611 ;  De  Voegler 
V.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  229,  30  S.  W.  1107 ;  Stansell  v.  West. 
U.  Tel.  Co.  (C.  C.)  107  Fed.  668 ;  Ricketts  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ. 
App.  226,  30  S.  W.  1105.  See,  also,  Gooch  v.  West.  U.  Tel.  Co.,  90  S.  W.  587, 
28  Ky.  Law  Rep.  828 ;  Cason  v.  West.  U.  Tel.  Co.,  77  S.  C.  157,  57  S.  E.  722. 

3  9  Stansell  v.  West.  U.  Tel.  Co.  (C.  C.)  107  Fed.  068. 

40  Id. 

41  Stansell  v.  West.  U.  Tel.  Co.  (C.  C.)  107  Fed.  668;  Capers  v.  West.  U. 
Tel.  Co.,  71  S.  C.  29,  50  S.  E.  537. 

4  2  Smith  V.  West.  U.  Tel.  Co.,  150  Pa.  561,  24  Atl.  1049. 


§    578)  .MEASURE   OP  DAMAGES  747 

ages  were  too  remote.  In  order  to  stop  the  running  of  interest,  the 
company  must  tender  to  the  injured  person  the  money  sent,  and 
not  merely  a  check  for  same.*^  The  company  may,  however,  have 
notice  of  facts  and  circumstances  such  as  to  render  it  Hablc  for 
special  damages.** 

§  578,  Messages  summoning  physicians  or  veterinaries. — 
Where  an  effort  is  made  by  means  of  a  telegram  to  summon  a 
physician  to  attend  a  sick  person,  but  such  telegram  is  delayed  as 
a  result  of  the  company's  negligence,  a  recovery  may  be  had  for 
any  increased  physical  or  mental  suffering  incident  thereto,*^  pro- 
vided the  company  had  information  at  the  time  that  such  suffering 
would  be  the  natural  and  proximate  result  of  such  delay.**'  But 
the  mere  fact  of  the  telegram  being  addressed  to  a  physician  would 
not  be  sufficient  notice  to  inform  the  company  of  such  consequenc- 
es,*'' unless  it  directed  him  to  come  at  once,*^  or  shows  in  some 
other  way  that  the  patient  is  suffering  physically  ***  or  mentally  and 
that  such  damages  will  be  the  result.^"  In  the  cases  arising  on  this 
question,  and  those  supporting  the  text,  it  was  apparently  conced- 
ed, if  not  affirmatively  shown,  that  the  physician  would  have  gone 
to  see  the  sick  person,  or  was  under  some  obligation  to  do  so.^^ 

43  Robinson  v.  West.  U.  Tel.  Co.,  68  S.  W.  656,  24  Ky.  Law  Rep.  452,  57 
L.  R.  A.  611. 

4  4  West.  U.  Tel.  Co.  v.  Wells,  50  Fla.  474,  39  South.  S3S,  111  Am.  St.  Rep. 
129,  2  L.  R.  A.  (N.  S.)  1072,  7  Ann.  Cas.  531. 

4  5  West.  U.  Tel.  Co.  v.  Church,  3  Neb.  (Unof.)  22,  90  N.  W.  878,  57  L.  R.  A. 
905;  West.  U.  Tel.  Co.  v.  McCall,  9  Kan.  App.  886,  58  Pac.  797;  Carter  v. 
West.  U.  Tel.  Co.,  141  N.  C.  374,  54  S.  E.  274;  West  U,  Tel.  Co.  v.  Cooper, 
71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep.  772,  1  L.  R.  A.  728 ;  West.  U.  TeL 
Co.  V.  Lavender  (Tex.  Civ.  App.)  40  S.  W.  1035 ;  Brown  v.  West.  U.  Tel.  Co., 
6  Utah,  219,  21  Pac.  988 ;  West.  U.  Tel.  Co.  v.  Morris,  83  Fed.  992,  28  C.  C.  A. 
56;  Glawson  v.  West.  U.  Tel.  Co.,  9  Ga.  App.  450,  71  S.  E.  747;  Cumberland 
Tel.  &  Tel.  Co.  v.  Carter,  1  Tenn.  Civ.  App.  750 ;  Alexander  v.  West.  U.  Tel. 
Co.,  158  N.  C.  473,  74  S.  E.  449,  42  L.  R.  A.  (N.  S.)  407.  But  see,  contra,  Sei- 
fert  V.  West.  U.  Tel.  Co.,  129  Ga.  181,  58  S.  E.  699,  121  Am.  St.  Rep.  211,  11 
L.  R.  A.  (N.  S.)  1149. 

46  Williams  v.  West.  U.  Tel.  Co.,  136  N.  C.  82,  48  S.  E.  559,  1  Ann.  Cas.  359. 

47  Id. 

4  8  West.  U.  Tel.  Co.  v.  Lavender  (Tex.  Civ.  App.)  40  S.  W.  1035;  West.  U. 
Tel.  Co.  v.  Church,  3  Neb.  (Unof.)  22,  90  N.  W.  878,  57  L.  R.  A.  905 ;  Carswell 
V.  West.  U.  Tel.  Co.,  154  N.  C.  112,  69  S.  E.  782,  32  L.  R.  A.  (N.  S.)  611. 

4  9  Brown  v.  West.  U.  Tel.  Co.,  6  Utah,  219,  21  Pac.  9SS. 

5  0  West.  U.  Tel.  Co.  v.  Church,  3  Neb.  (Unof.)  22,  90  N.  W.  878,  57  L.  R.  A, 
905 ;  Carter  v.  West.  U.  Tel.  Co.,  141  N.  C.  374,  54  S.  E.  274 ;  West.  U.  Tel. 
Co.  V.  McCall,  9  Kan.  App.  880,  58  Pac.  797 ;  Brown  v.  West.  U.  Tel.  Co.,  6 
Utah,  209,  21  Pac.  988 ;  Glawson  v.  West.  U.  Tel.  Co.,  9  Ga.  App.  450,  71  S.  E. 
747. 

51  Slaughter  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  112  S.  W.  688;  West.  U. 
Tel.  Co.  V.  Haley,  143  Ala.  586,  39  South.  386;  Southern  Bell  Tel.  Co.  v. 
Reynolds,  139  Ga.  385,  77  S.  E.  388. 


748  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  579 

So,  if  it  should  be  shown  that  he  could  or  would  not  have  gone 
or  could  not  have  arrived  in  time,  damages  could  not  be  recovered. 
Under  the  same  principle  as  that  herein  stated,  damages  for  the 
loss  of  an  animal  may  be  recovered  where  the  same  has  been 
incurred  by  the  failure  of  the  company  in  not  delivering  a  message 
summoning  a  veterinary.^^  The  delay  in  delivering  the  message 
or  the  nondelivery  of  same  must  be  the  proximate  cause  of  the 
loss,^*  which  need  not  be  proved  with  absolute  certainty,^*  but  with 
evidence  which  will  fairly  establish  the  fact  without  speculation  or 
conjecture. "^ 

§  579.  Messages  requesting  addressee  to  meet  sender. — Where 
the  sender  of  a  message  requests  the  addressee  thereof  to  meet 
him  at  a  railroad  station,  with  or  without  a  conveyance,  but  the 
telegraph  company  negligently  fails  to  deliver  the  message  or  to 
deliver  it  in  time,  no  damages  can  be  recovered  as  a  usual  rule,  un- 
less it  may  be  for  the  expense  in  hiring  a  public  conveyance  to 
take  him  to  the  place  he  expected  to  go.^''  The  action  in  such  cases 
is  usually  brought  to  recover  damages  for  mental  anguish  arising 
in  consequence  of  the  disappointment  or  inconvenience  thereby 
suffered,  but  such  disappointment  or  inconvenience  is  not  such 
"anguish"  as  is  contemplated  in  mental  anguish  cases. ^'^  The  com- 
pany would  have  no  reason,  in  such  instances,  to  presume  that  a 
person  who  is  thereby   disappointed  would  become  sick,^®  nerv- 

5  2  Hendershot  v.  West.  U.  Tel.  Co.,  lOG  Iowa,  529,  76  N.  W.  828,  68  Am. 
St.  Rep.  313.  See,  also,  Central  Union  Tel.  Co.  v.  Swoveland,  14  Ind.  App. 
341,  42  N.  E.  1035. 

5  3  See  Central  Union  Tel.  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E.  1035. 

5  4  Hendershot  v.  West.  U.  Tel.  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am. 
St.  Rep.  313. 

5  5  Central  Union  Tel.  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E.  1035; 
Duncan  v.  West.  U.  Tel.  Co.,  87  Wis.  173,  58  N.  W.  75. 

5  6  West.  U.  Tel.  Co.  v.  Hogue,  79  Ark.  33,  94  S.  W.  924;  West.  U.  Tel.  Co. 
v.  Westmoreland,  151  Ala.  319,  44  South.  382;  West.  U.  Tel.  Co.  v.  Henley, 
23  Ind.  App.  14,  54  N.  E.  775 ;  Yazoo,  etc.,  R.  Co.  v.  Foster  (Miss.)  23  South. 
581;  West.  U.  Tel.  Co.  v.  Bryant,  17  Ind.  App.  70,  46  N.  E.  358;  Todd  v. 
West.  U.  Tel.  Co.,  77  S.  C.  522,  58  S.  E.  433 ;  Williams  v.  West.  U.  Tel.  Co., 
136  N.  C.  82,  48  S.  E.  559,  1  Ann.  Cas.  359 ;  Kirby  v.  West.  U.  Tel.  Co.,  77 
S.  C.  404,  58  S.  E.  10,  122  Am.  St.  Rep.  580;  West.  U.  Tel.  Co.  v.  Smith,  76 
Tex.  253,  13  S.  W.  169;  Jones  v.  West.  U.  Tel.  Co.,  75  S.  C.  208,  55  S.  E. 
318;  West.  U.  Tel.  Co.  v.  Campbell,  36  Tex.  Civ.  App.  276,  81  S.  W.  580; 
West.  U.  Tel.  Co.  v.  Ragland  (Tex.  Civ.  App.)  61  S.  W.  421 ;  Stafford  v.  West. 
U.  Tel.  Co.  (C.  C.)  73  Fed.  273. 

5  7  See  chapter  XXIII. 

5  8  West.  U.  Tel.  Co.  v.  Campbell,  36  Tex.  Civ.  App.  276,  82  S.  W.  580;  West. 
U.  Tel.  Co.  V.  Smith,  76  Tex.  253,  13  S.  W.  169;  West.  U.  Tel.  Co.  v.  Rag- 
land  (Tex.  Civ.  App.)  61  S.  W.  421.  But  see  Dempsey  v.  West.  U.  Tel.  Co., 
77  S.  C.  399,  58  S.  E.  9. 


§    579)  MEASURE   OF   DAMAGES  749 

ous,^®  or  otherwise  subjected  to  any  physical  suffering  ®°  as  a  re- 
sult of  such  negligence.  However,  if  the  company  should  have 
any  notice  that  such  person  would  be  subjected  to  any  special  dam- 
ages as  a  result  of  its  negligence,  the  rule  would  be  otherwise. "^^ 

5  9  West.  U.  Tel.  Co.  v.  Henley,  23  Ind.  App.  14,  54  N.  E.  775. 

6  0  Kirby  V.  West.  U.  Tel.  Co.,  77  S.  C.  404,  58  S.  E.  10,  122  Am.  St.  Rep. 
580 ;  West.  U.  Tel.  Co.  v.  Bryant,  17  Ind.  App.  70,  46  N.  E.  358.  Bnt  see  West. 
U.  Tel.  Co.  V.  Karr,  5  Tex.  Civ.  App.  60,  24  S.  W.  302.  See  Hildreth  v.  West. 
U.  Tel.  Co.,  56  Fla.  387,  47  South.  820. 

61  West.  U.  Tel.  Co.  v.  Powell,  54  Tex.  Civ.  App.  466,  118  S.  W.  226;  Demp- 
sey  V.  West.  U.  Tel.  Co.,  77  S.  C.  399,  58  S.  E.  9 ;  West.  U.  Tel.  Co.  v.  Craw- 
ford, 29  Okl.  143,  116  Pac.  925,  35  L.  R.  A.  (N.  S.)  930 ;  Trigg  v.  West.  U.  Tel. 
Co.,  4  Ga.  App.  416,  61  S.  E.  855;  West.  U.  Tel.  Co.  v.  Bryant,  17  Ind.  App. 
70,  46  N.  E.  358 ;  West.  U.  Tel.  Co.  v.  Farrington  (Tex.  Civ.  App.)  131  S.  W. 
609;  Kirby  v.  West.  U.  Tel.  Co.,  77  S.  C.  404,  58  S.  E.  10,  122  Am.  St.  Rep. 
580 ;  Hildretb  v.  West.  U.  Tel.  Co.,  56  Fla.  387,  47  South.  820.  See  West.  U. 
Tel.  Co.  V.  Collins,  156  Ala.  333,  47  South.  61. 


750  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§    580 

CHAPTER  XXIII 
DAMAGES   CONTINUED— FOR  MENTAL  ANGUISH 

§  580.  In  general. 

581.  Same  continued — subject  divided. 

582.  Damages  for  mental  anguish  and  suffering. 

583.  Action  in  contract  or  tort — rule  the  same. 

584.  Rule  departed  from. 

585.  Same  continued— So  Relle  Case  overruled  and  reinstated. 

586.  Federal  court  view — how  held. 

587.  Ground  upon  which  these  cases  are  maintained— notice. 

588.  View  of  subject  in  Louisiana. 

589.  Instances  in  which  damages  are  allowed. 

590.  Limitation  of  rule — prolongation  of  mental  anguish. 

591.  Same  continued — suffering  must  be  real. 

592.  Same  continued — must  be  the  result  of  the  cause  of  complaint. 

593.  Same  continued — suffering  must  be  of  the  plaintiff. 

594.  Same  continued — anguish  from  independent  causes. 

595.  Unwarranted  apprehension. 

596.  Failure  to  meet  plaintiff. 

597.  Summoning  a  physician. 

598.  Same  continued — must  have  prevented  the  injury. 

599.  Same  continued — postponement  of  funeral  services. 

600.  Same  continued — failure  to  transmit  money — no  cause. 

601.  Evidence  of  mental  suffering. 

602.  Same  continued — aggravation  of  suffering. 

603.  Same  continued — sickness  as  a  result— admissible. 

604.  Same  continued — matters  of  defense — want  of  affection. 

605.  Relationship  material. 

606.  Nature  of  damages. 

607.  Actions  do  not  survive — limitation. 

608.  Burden  of  proof — presumption. 

609.  Damages  for  mental  suffering — doctrine  denied. 

610.  When  may  be  basis  of  action — malicious  or  willful  wrong. 

611.  Reasons  for  not  allowing  such  damages, 

612.  Same  continued — other  reasons — nominal  damages — incidental  to  oth- 

er injury. 

613.  Same  continued— mental  suffering  following  physical  pain. 

614.  Conflict  of  law — with  respect  to  mental  damages. 

615.  Under  statutes— constitutionality  of. 

§  580.  In  general. — There  is  no  subject  which  has  been  so  thor- 
oughly discussed,  and  upon  which  there  has  been  so  many  inequita- 
ble decisions  rendered,  as  in  cases  against  telegraph  companies 
brought  to  recover  damages  for  mental  injuries,  in  consequence  of 
their  negligence  in  transmitting  or  delivering  messages.  There  are 
innumerable  instances  in  which  these  companies  should  suffer  the 


§    582)  MEASURE   OP   DAMAGES  751 

results  of  their  negligent  acts;  however,  there  are  many  cases 
brought  against  them  in  which  they  are  unmercifully  and  unjustly 
dealt  with.  Among  these  are  most  often  to  be  found  suits  brought 
to  recover  damages  for  mental  anguish.  While  corporations  of  all 
kinds  are  very  grasping,  and  are  becoming  too  much  of  a  monopoly, 
yet  there  is  no  doubt  that  they  have  been  very  instrumental  in  the 
upbuilding  and  in  the  progress  of  our  country.  Where  works  of 
enterprise  were  too  great  or  too  hazardous  for  one  man  to  under- 
take, the  same  have  been  most  happily  carried  out  and  performed 
by  a  number  of  individuals,  incorporated  into  one  body  and  oper- 
ating under  the  powers  of  corporations.  Because  of  the  fact  that 
they  are  bodies  politic,  and  generally  representatives  of  wealth,  the 
majority  of  the  people  seem  prejudiced  against  them;  and  when- 
ever there  is  an  opportunity  given  it  seems  difhcult  to  do  them  the 
same  justice  as  is  done  to  individuals.  It  may  seem,  that  these 
remarks  are  unnecessary ;  but,  as  is  said  above,  these  companies 
are  often  unjustly  dealt  with,  not  by  the  courts  or  those  people 
learned  in  the  law,  but  by  those  who  sit  upon  the  juries  in  deciding 
cases,  and  there  is  no  time,  it  seems,  when  such  favorable  oppor- 
tunities present  themselves  as  in  those  cases  which  we  propose  to 
discuss  in  this  chapter. 

§  581.  Same  continued — subject  divided. — On  account  of  the 
importance  and  the  peculiar  nature  of  the  subject  of  mental  in- 
juries, and  the  manner  in  which  these  are  ascertained  and  compen- 
sated for,  the  closest  study  and  reasoning  are  required.  Therefore, 
because  of  its  importance,  we  shall  discuss  in  this  chapter  mental 
suffering  and  anguish  as  it  stands  alone,  disconnected  from  other 
injuries;  how  it  was  considered  under  the  common  law;  the 
changes  made  by  later  decisions  and  statutes.  Then  we  shall  dis- 
cuss it  when  connected  with  other  injuries, 

§  582.  Damages  for  mental  anguish  and  suffering. — Until  a 
comparatively  recent  date,  it  was  held,  both  by  the  English  and 
American  courts,  that  damages  could  not  be  recovered  for  men- 
tal anguish  and  suffering  alone,  unaccompanied  by  pecuniary  dam- 
ages or  physical  injury,  although  it  may  have  been  the  proximate 
result  of  negligence  on  the  part  of  the  wrongdoer.^     This  subject 

1  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  64,  60  N.  E.  674,  lOSO,  54  L.  R.  A. 
S46 ;  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901.  30  Am.  St.  -Rep. 
183,  17  L.  R.  A.  430 ;  Francis  v.  West.  U.  Tel.  Co.,  58  Minn.  259,  59  N.  W.  1078, 
49  Am.  St.  Rep.  507,  25  L.  R.  A.  406 ;  Connelly  v.  West.  U.  Tel.  Co.,  100  ^' a. 
51,  40  S.  E.  618,  93  Am.  St.  Rep.  919,  56  L.  R.  A.  663 ;  West.  U.  Tel.  Co.  v, 
Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St.  Rep.  300,  13  L.  R.  A.  859 ;  West 
U.  Tel.  Co.  V.  Sklar,  126  Fed.  295,  61  C.  C.  A.  281. 


752  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  583 

was  early  considered  by  the  English  authorities,  and  it  was  there 
unanimously  held  that  the  injuries  were  not  sufficient  to  sustain  a 
suit.^  "Mental  pain  and  anxiety,"  as  said  in  an  early  opinion  on 
this  subject,  "the  law  cannot  value,  and  does  not  pretend  to  redress, 
when  the  unlawful  act  complained  of  causes  that  alone ;  though 
where  material  damage  occurs,  and  is  connected  with  it,  it  is  im- 
possible that  a  jury,  in  estimating  it,  should  altogether  overlook  the 
feelings  of  the  party  interested."  ^  It  might  be  considered  in  some 
cases  as  an  aggravation  of  damages.  For  instance,  in  assault  and 
battery  and  seduction  cases,  damages  could  only  be  recovered  for 
the  loss  of  services,  but  it  was  held  that  the  mental  suffering  could 
be  considered  as  an  aggravation  of  damages  to  be  recovered.  These 
early  English  decisions  have  been,  and  are,  with  few  exceptions, 
followed  by  all  the  courts  of  our  country.  There  was  but  one  class 
of  cases — later  followed  by  another — where  damages  could  be  re- 
covered for  mental  suffering  unaccompanied  by  other  injuries,  and 
that  was  for  a  breach  of  contract  of  marriage.  In  these  latter  cases, 
the  jury  was  allowed  to  take  into  consideration  "the  injury  to  the 
plaintift"'s  feelings,  affections  and  wounded  pride,  and  the  pain  and 
mortification  resulting  from  the  breach  of  contract,"  and  award 
damages  therefor.*  In  cases  of  willful  wrong — especially  those 
affecting  the  liberty,  character,  reputation,  personal  security  or 
domestic  relations  of  the  injured  party — injuries  to  the  feelings 
were  sufficient  grounds  to  maintain  an  action  thereon.^ 

§  583.  Action  in  contract  or  tort — rule  the  same. — Where  the 
action  is  to  recover  damages  for  mental  suffering  in  consequence 
of  a  telegraph  company  not  properly  transmitting  or  delivering  a 
message,  it  is  immaterial  whether  the  action  be  brought  for  the 
breach  of  the  contract  for  sending  or  for  the  failure  to  perform  the 
duty  devolving  on  it  under  the  contract.  In  other  words,  the  rule 
that  such  damages  cannot  be  recovered  for  mental  anguish  and 
suffering  alone  is  the  same  whatever  be  the  form  of  the  action.  The 
nature  and  substance  of  the  default  and  the  consequent  injury  are 

2  Allsop  V.  Allsop,  5  Hurl.  &  N.  554. 

3  Allsop  V.  Allsop,  5  Hurl.  &  N.  554.  See,  also,  Lynch  v.  Knight,  9  H.  L. 
Cas.  592. 

4  See  extensive  note  to  Weaver  v.  Bachert,  44  Am.  Dec.  178.  See,  also,  Mil- 
lington  V.  Loriug,  L.  R.  6  Q.  B.  Div.  190,  50  L.  J.  Q.  B,  214,  43  L.  T.  659,  29 
Wkly.  Rep.  257 ;  King  v.  Kersey,  2  Ind.  402  ;  Haymond  v.  Saucer,  84  Ind.  3 ; 
Hill  v.  Maupin.  3  Mo.  323 ;  Roper  v.  Clay,  IS  Mo.  383,  59  Am.  Dec.  314 ;  Giese 
v.  Schultz.  53  Wis.  462,  10  N.  W.  598 ;  Grant  v.  Willey,  101  Mass.  356 ;  Tobin 
v.  Shaw,  45  Me.  331.  71  Am.  Dec.  .547;  Renihan  v.  Wright,  125  Ind.  536,  25  N. 
E.  822,  21  Am.  St.  Rep.  249,  9  L.  R.  A.  514. 

5  West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St.  Rep. 
300,  13  L.  R.  A.  859n. 


8    584)  MEASURE   OF   DAMAGES  753^ 

the  same  in  either  form.«  If,  however,  the  action  is  to  recover  dam- 
ages for  mental  suffering  where  it  accompanies  other  injuries  to 
the  person,  the  rule  is  dift'erent.  There  is  more  latitude  allowed  in 
the  recovery  of  damages  brought  in  tort,  since  in  this  form  of  action 
damages  for  mental  suffering  are  generally  a  subject  of  considera- 
tion for  the  jury.^ 

§  584.  Rule  departed  from. — The  first  instance  in  which  this 
long-recognized  rule  of  the  common  law  was  departed  from  was 
by  the  supreme  court  of  Texas  in  the  So  Relle  Case.«  In  this  case 
it  was  held  that  the  addressee  of  a  telegraph  message  might  recover 
from  the  company,  as  compensation,  damages  for  mental  suft'ering 
caused  by  its  failure  to  deliver  promptly  a  message  which  an- 
nounced the  death  of  his  mother,  by  reason  of  which  default  he 
failed  to  attend  her  funeral.  In  support  of  the  ruling  in  this  case, 
the  court  cited  three  cases.  One  was  an  action  for  assault  and  bat- 
tery; ^  another  was  a  case  in  which  a  serious  and  permanent  per- 
sonal injury  had  been  sustained  ;^°  and  the  last  case  cited  was 
where  the  wrongful  act  charged  was  the  seduction  of  the  plaintiff's 
daughter."  In  all  of  these,  as  a  matter  of  course,  and  in  accord- 
ance with  generally  admitted  rules,  damages  for  mental  suffering 
were  allowed. ^^  This  court  relied  mainly,  however,  on  the  fol- 
lowing passage  from  the  text  of  Shearman  &  Redfield  on  Negli- 
gence :   "In  case  of  a  delay  or  total  failure  of  delivery  of  a  message 

6  West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St.  Rep.  300, 
13  L.  R.  A.  859 ;  Young  v.  West.  U.  Tel.  Co.,  107  N.  C.  383,  11  S.  E.  1044,  22 
Am.  St.  Rep.  883,  9  L.  R.  A.  669 ;  West.  U.  Tel.  Co.  v.  Potts,  120  Tenu.  37,  113 
S.  W.  789,  127  Am.  St.  Rep.  997,  19  L.  R.  A.  (N.  S.)  479 ;  Harrison  v.  West.  U. 
Tel.  Co.,  143  N.  C.  147,  55  S.  E.  435,  10  Ann.  Cas.  476.  But  see  West.  U.  Tel. 
Co.  V.  Brown,  6  Ala.  App.  339,  59  South.  329 ;  West.  U.  Tel.  Co.  v.  Hill,  163 
Ala.  18,  50  South.  248,  19  Ann.  Cas.  1058,  23  L.  R.  A.  (N.  S.)  648 ;  West.  U.  Tel. 
Co.  V.  Adams,  154  xila.  657,  46  South.  228 ;  McGehee  v.  West.  U.  Tel.  Co.,  169 
Ala.  109,  53  South.  205,  Ann.  Cas.  1912B,  512;  AVest.  U.  Tel.  Co.  v. 
Haley,  143  Ala.  586,  39  South.  386;  West.  U.  Tel.  Co.  v.  Fuel,  165  Ala.  391, 
51  South.  571;  West.  U.  Tel.  Co.  v.  Krichbaum,  132  Ala.  535,  31  South.  607; 
West.  U.  Tel.  Co.  v.  Waters,  139  Ala.  652,  36  South.  773 ;  West.  U.  Tel.  Co.  v. 
Rowell,  153  Ala.  295,  45  South.  73 ;  Manker  v.  West.  U.  Tel.  Co.,  137  Ala.  292, 
34  South.  839 ;  West.  U.  Tel.  Co.  v.  Manker,  145  Ala.  418,  41  South.  850. 

7  Cowan  V.  West.  U.  Tel.  Co.,  122  Iowa,  379,  98  N.  W.  281,  101  Am.  St.  Rep. 
268,  64  L.  R.  A.  545. 

8  So  Relle  v.  West.  U.  Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  805.  See,  also. 
West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  64,  60  N.  E.  674,  1080,  54  U  R.  A. 
846 ;  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am.  St.  Rep. 
183,  17  L.  R.  A.  430 ;  Connelly  v.  West.  U.  Tel.  Co.,  100  Va.  51,  40  S.  E.  618, 
93  Am.  St.  Rep.  919,  56  L.  R.  A.  663. 

8  Hays  V.  Houston,  etc.,  R.  Co.,  46  Tex.  279. 

10  Houston,  etc.,  R.  Co.  v.  Randall,  50  Tex.  261. 

11  Phillips  V.  Hoyle,  4  Gray  (Mass.)  568.  12  See  note  3. 

Jones  Tel.(2d  Ed.) — 48 


754  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  585 

relating  to  matters  not  connected  with  business,  such  as  personal 
or  domestic  matters,  we  do  not  think  that  the  company  in  fault 
ought  to  escape  with  mere  nominal  damages  on  account  of  the 
want  of  strict  commercial  value  in  such  messages.  Delay  in  the 
announcement  of  a  death,  an  arrival,  the  straying  and  recovery  of 
a  child,  and  the  like,  may  often  be  productive  of  an  injury  to  the 
feelings  which  cannot  be  estimated  in  money,  but  for  which  a  jury 
should  be  at  liberty  to  award  fair  damages."  ^^ 

§  585.  Same  continued — So  Relle  Case  overruled  and  reinstated. 
In  a  later  case,  the  court  of  Texas  went  counter  to  the  view  taken 
in  the  So  Relle  Case,  and  held  that  if  the  plaintiff  is  not  entitled  to 
recover  even  nominal  damages,  as  for  a  breach  of  a  contract  and  has 
sustained  no  injury  to  his  reputation,  property  or  person,  he  can 
have  no  recovery  for  mental  suffering  alone. ^*  In  another  case  it 
was  held  that  damages  for  mental  distress  could  be  recovered  where 
nominal  damages  were  proved,  in  cases  where  there  was  such  gross 
negligence  or  willfulness  as  to  justify  exemplary  damages. ^^  But 
both  of  these  cases  have  since  been  overruled;^®  so  that  the  So 
Relle  Case  has  been  reinstated  as  the  law  of  Texas,  and  has  been 
followed  by  a  number  of  decisions  of  the  same  court.^'^     And  the 

13  Shearman  &  R.  Neg.  (4th  Ed.)  §  756.  See,  also,  West.  U.  Tel.  Co.  v.  Fer- 
guson, 157  Ind.  64,  60  N.  E.  674,  1080,  54  D.  R.  A.  846 ;  Chapman  v.  West.  U. 
Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am.  St.  Rep.  183,  17  L.  R.  A.  430. 

1 4  Gulf,  C.  &  Santa  Fe  R.  Co.  v.  Levy,  59  Tex.  563,  46  Am.  Rep.  278. 

15  Gulf,  C.  &  Santa  Fe  R.  Co.  v.  Levy.  59  Tex.  542,  46  Am.  Rep.  269. 

16  Stuart  V.  West.  U.  Tel.  Co.,  66  Tex.  580,  18  S.  W.  351,  59  Am.  Rep.  623. 

17  West.  U.  Tel.  Co.  v.  Erwin  (Tex.)  19  S.  W.  1002 ;  West.  U.  Tel.  Co.  v.  Linn, 
87  Tex.  7.  26  S.  W.  490.  47  Am.  St.  Rep.  58 ;  West.  U.  Tel.  Co.  v.  Beringer,  84 
Tex.  38,  19  S.  W.  336 ;  West.  U.  Tel.  Co.  v.  Rosentreter,  80  Tex.  406,  16  S.  W. 
25 :  West.  U.  Tel.  Co.  v.  Nations,  82  Tex.  539,  18  S.  W.  709,  27  Am.  St.  Rep. 
914 ;  West.  U.  Tel.  Co.  v.  Simpson,  73  Tex.  422,  11  S.  W.  385 ;  West.  U.  Tel. 
Co.  V.  Brown,  71  Tex.  723,  10  S.  W.  323,  2  L.  R.  A.  766 ;  West.  U.  Tel.  Co.  v. 
Eroesche,  72  Tex.  654.  10  S.  W.  734,  13  Am.  St.  Rep.  843 ;  West.  U.  Tel.  Co.  v. 
Cooper,  71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep.  772,  1  L.  R.  A.  728 ;  Stuart 
V.  West.  U.  Tel.  Co.,  66  Tex.  580,  18  S.  W.  351,  59  Am.  Rep.  623 ;  Loper  v.  West. 
U.  Tel.  Co.,  70  Tex.  689,  8  S.  W.  600 ;  West.  U.  Tel.  Co.  v.  Seftel,  31  Tex.  Civ. 
App.  134,  71  S.  W.  616 ;  West.  U.  Tel.  Co.  v.  Warren  (Tex.  Civ.  App.)  36  S.  W. 
314 ;  Roach  v.  Jones,  18  Tex.  Civ.  App.  231,  44  S.  W.  677 ;  West.  U.  Tel.  Co.  v. 
Smith  (Tex.  Civ.  App.)  33  S.  W.  742 ;  West.  U.  Tel.  Co.  v.  Kinsley,  8  Tex.  Civ. 
App.  527,  28  S.  W.  831 ;  West.  U.  Tel.  Co.  v.  O'Keefe  (Tex.  Civ.  App.)  29  S.  W. 
1137 ;  West  U.  Tel.  Co.  v.  May,  8  Tex.  Civ.  App.  176,  27  S.  W.  760 ;  West.  U. 
Tel.  Co.  V.  Neel  (Tex,  Civ.  App.)  25  S.  W.  661;  West.  U.  Tel.  Co.  v.  Jobe,  6 
Tex.  Civ.  App.  403,  25  S.  W.  168,  1036 ;  West.  U.  Tel.  Co.  v.  Carter,  2  Tex.  Civ. 
App.  624,  21  S.  W.  688;  West.  U.  Tel.  Co.  v.  Gilliland  (Tex.  Civ.  App.)  130  S. 
W.  212;  Southvi-estern  Tel.  Co.  v.  Pearson  (Tex.  Civ.  App.)  137  S.  W.  733; 
West.  U.  Tel.  Co.  v.  Moran,  52  Tex.  Civ.  App.  117,  113  S.  W.  625 ;  West.  U. 
Tel.  Co.  V.  Barrett,  55  Tex.  Civ.  App.  323,  118  S.  W.  1089 ;  West.  U.  Tel.  Co.  v. 
Cobb  (Tex.  Civ.  App.)  118  S.  W.  717 ;  West.  U.  Tel.  Co.  v.  McDavid  (Tex.  Civ. 
App.)  121  S.  W.  893 ;   West.  U.  Tel.  Co.  v.  Bennett,  58  Tex,  Civ.  App.  60,  124 


§    585)  MEASURE   OF   DAMAGES  755 

courts  of  a  few  of  the  other  states  to  a  greater  or  less  extent.^® 
The  decisions  in  the  Texas  courts  are  not  themselves  harmonious 
and  have  not  escaped  the  severe  criticism  of  text-writers  and  other 

S.  W.  151 ;  West.  U.  Tel.  Co.  v.  Rabon,  60  Tex.  Civ.  App.  88,  127  S.  W.  580 ; 
West.  U.  Tel.  Co.  v.  Mack,  60  Tex.  Civ.  App.  644,  128  S.  W.  921. 

18  AlaMma.— West.  U.  Tel.  Co.  v.  Crocker,  135  Ala.  492,  33  South.  45,  59  L. 
R.  A.  398 ;  West.  U.  Tel.  Co.  v.  McNair,  120  Ala.  99,  23  South.  801 ;  West.  U. 
Tel.  Co.  V.  Crumpton,  138  Ala.  632,  36  South.  517 ;  West.  U.  Tel.  Co.  v.  Adair, 
115  Ala.  441,  22  South.  73 ;  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South. 
414,  30  Am.  St.  Rep.  23;  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14 
South.  579 ;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am. 
St.  Rep.  148 ;  West.  U.  Tel.  Co.  v.  Jackson,  163  Ala.  9,  50  South.  316 ;  West.  U. 
Tel.  Co.  V.  Saunders,  164  Ala.  234,  51  South.  176,  137  Am.  St.  Rep.  35 ;  West.  U. 
Tel.  Co.  V.  McMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St.  Rep.  46 ;  West. 
U.  Tel.  Co.  V.  Fuel,  165  Ala.  391,  51  South.  571 ;  West.  U.  Tel.  Co.  v.  Cleveland, 
169  Ala.  131,  53  South.  SO,  Ann.  Cas.  1912B,  534 ;  Lay  v.  Postal  Tel.  Cable  Co., 
171  Ala.  172,  54  South.  529;  West.  U.  Tel.  Co.  v.  Snell,  3  Ala.  App.  263,  56 
South.  854 ;  West.  U.  Tel.  Co.  v.  North,  177  Ala.  319,  58  South.  299. 

Arkamas.— West.  U.  Tel.  Co.  v.  Rhine,  90  Ark.  57,  117  S.  W.  1069 ;  West.  U. 
Tel.  Co.  v.  Sockwell,  91  Ark.  475,  121  S.  W.  1046.  See  the  Act  of  1903,  Kirby's 
Dig.  §  7947. 

Iowa.— Maley  v.  West.  U.  Tel.  Co.,  151  Iowa,  228,  130  N.  W.  1086,  49  L.  R.  A. 
(N.  S.)  327 ;  Cowan  v.  West.  U.  Tel.  Co.,  122  Iowa,  379,  98  N.  W.  281,  101  Am. 
St.  Rep.  268,  64  L.  R.  A.  545 ;  Hurlburt  v.  West.  U.  Tel.  Co.,  123  Iowa,  295,  98 
N.  W.  794 ;  Meutzer  v.  West.  U.  Tel.  Co.,  93  Iowa,  752,  62  N.  W.  1,  57  Am.  St. 
Rep.  294,  28  L.  R.  A.  72. 

Kansas.— West.  U.  Tel.  Co.  v.  Bodkin,  79  Kan.  793,  101  Pac.  652. 

A'en^i/cfci/.— Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky.  788,  112  S.  W. 
897,  19  L.  R.  A.  (N.  S.)  575 ;  West.  U.  Tel.  Co.  v.  Teague,  134  Ky.  601,  121  S. 
W.  484 ;  West.  U.  Tel.  Co.  v.  Price,  137  Ky.  758,  126  S.  W.  1100,  29  L.  R.  A. 
^N.  S.)  836 ;  West.  U.  Tel.  Co.  v.  Mathews,  107  Ky.  663,  55  S.  W.  427,  21  Ky. 
Law  Rep.  1405 ;  West.  U.  Tel.  Co.  v.  Johnson,  107  Ky.  631,  55  S.  W.  427,  21 
Ky.  Law  Reo.  1391 ;  West.  U.  Tel  Co.  v.  Mcllvoy,  107  Ky.  633,  55  S.  W.  428,  21 
Ky.  Law  Rep.  1393 ;  West.  U.  Tel.  Co.  v.  Crider,  107  Ky.  600,  54  S.  W.  963,  21 
Ky.  Law  Rep.  1336 ;  West.  U.  Tel.  Co.  v.  Steenbergen,  107  Ky.  469,  54  S.  W. 

829,  21  Ky.  Law  Rep.  1289 ;  West.  U.  Tel.  Co.  v.  Fisher,  107  Ky.  513,  54  S.  W. 

830,  21  Ky.  Law  Rep.  1293 ;  West.  U.  Tel.  Co.  v.  Van  Cleave,  107  Ky.  404,  54 
S.  W.  827,  22  Ky.  Law  Rep.  53,  92  Am.  St.  Rep.  366;  Chapman  v.  West.  U. 
Tel.  Co.,  90  Ky.  265,  13  S.  W.  880,  12  Ky.  Law  Rep.  265 ;  Taliferro  v.  West.  U. 
Tel.  Co.,  54  S.  W.  825,  21  Ky.  Law  Rep.  1290. 

Nevada.— See  Barnes  v.  West.  U.  Tel.  Co.,  27  Nev.  438,  76  Pac.  931,  103  Am. 
St.  Rep.  776,  65  L.  R.  A.  666,  1  Ann.  Cas.  346. 

North  Carolina.— 'Raitovd  v.  West.  U.  Tel.  Co.,  160  N.  C.  489,  76  S.  E.  532 ; 
Bailey  v.  West.  U.  Tel.  Co.,  150  N.  C.  316,  63  S.  E.  1044 ;  Battle  v.  West.  U. 
Tel.  Co.,  151  N.  C.  629,  66  S.  B.  661 ;  Cates  v.  West.  U.  Tel.  Co.,  151  N.  C.  497, 
66  S.  E.  592,  24  L.  R.  A.  (N.  S.)  1286 ;  Shaw  v.  West.  U.  Tel.  Co.,  151  N.  C. 
638,  66  S.  E.  668 ;  Sherrill  v.  West.  U.  Tel.  Co.,  155  N.  C.  250,  71  S.  E.  330 ; 
Mullinax  v.  West.  U.  Tel.  Co.,  156  N.  C.  541,  72  S.  E.  583 ;  Penn  v.  West.  U. 
Tel.  Co.,  159  N.  C.  306,  75  S.  E.  16,  41  L.  R.  A.  (N.  S.)  223 ;  Green  v.  West.  U. 
Tel.  Co.,  136  N.  C.  489,  49  S.  E.  165,  103  Am.  St.  Rep.  955,  67  L.  R.  A.  985,  1 
Ann.  Cas.  349 ;  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E.  938 ;  Dar- 
lington V.  West.  U.  Tel.  Co.,  127  N.  C.  448,  37  S.  E.  479 ;  Meadows  v.  West.  U. 
Tel.  Co.,  132  N.  C.  40,  43  S.  E.  512 ;  Kennon  v.  West.  U.  Tel.  Co.,  126  N.  C.  232, 
35  S.  E.  468 ;  Landie  v.  West.  U.  Tel.  Co.,  124  N.  C.  528,  32  S.  E.  886 ;  Dowdy 
V.  West.  U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E.  802 ;  Lyne  v.  West.  U.  Tel.  Co.,  123 


'756  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  586 

courts.  In  fact,  the  earlier  decisions  have  been  criticized  by  later 
decisions  of  the  same  court. 

§  586.  Federal  court  view — how  held. — The  federal  court  has 
held  to  the  common-law  rule  on  this  subject,  and  no  court  before 

N.  C.  129,  31  S.  E.  350 ;  Cashion  v.  West.  U.  Tel.  Co.,  123  N.  C.  267,  31  S.  E. 
493;  Id.,  124  N.  C.  459,  32  S.  E.  746,  45  L.  R.  A.  160;  Havener  v.  West. 
U.  Tel.  Co.,  117  N.  C.  540,  23  S.  E.  457;  Sherrill  v.  West.  U.  Tel.  Co.,  116 
N.  C.  655,  21  S.  E.  429 ;  Id.,  117  N.  C.  352,  23  S.  E.  277 ;  Young  v.  West.  U.  Tel. 
Co.,  107  N.  C.  370,  11  S.  E.  1044,  22  Am.  St.  Rep.  883,  9  L.  R.  A.  669. 

Oklahoma.— iiee  West.  U.  Tel.  Co.  v.  Chouteau,  28  Okl.  604,  115  Pac.  879, 
Ann.  Cas.  1912D,  824,  49  L.  R.  A.  ('N.  S.)  206,  in  the  absence  of  statute  cannot 
recover. 

South  Carolma.—Ogilyie  v.  West.  U.  Tel.  Co.,  83  S.  C.  8,  &4  S.  E.  860,  137 
Am.  St.  Rep.  790 ;  Busbee  v.  West.  U.  Tel.  Co.,  89  S.  C.  567,  72  S.  E.  499. 

Tennessee.— West.  U.  Tel.  Co.  v.  Potts,  120  Teun.  37,  113  S.  W.  789,  127  Am. 
St.  Rep.  991,  19  L.  R.  A.  (N.  S.)  479;  West.  U.  Tel.  Co.  v.  Frith,  105  Teun.  167, 
58  S.  W.  118 ;  Gray  v.  West.  U.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1063,  91  Am. 
St.  Rep.  706,  56  L.  R.  A.  301 ;  West.  U.  Tel.  Co.  v.  Robinson,  97  Teun.  638,  37 
S.  W.  545,  34  L.  R.  A.  431 ;  West.  U.  Tel.  Co.  v.  Mellon,  96  Teun.  66,  33  S.  W. 
725 ;  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep. 
864. 

In  Cates  v.  West.  U.  Tel.  Co.,  supra,  the  court  said:  "I  do  not  wish  to  be 
understood  as  not  concurring  with  the  able  judges  who  took  part  in  deciding 
the  cases  of  Young  v.  West.  U.  Tel.  Co.,  107  N.  C.  370  [11  S.  E.  1044,  9  L.  R. 
A,  669,  22  Am.  St.  Rep.  883],  and  Thompson  v.  West.  U.  Tel.  Co.,  107  N.  C.  449 
[12  S.  E.  427],  for  the  principle  as  established  by  these  cases  receives  my  full 
assent.  I  believe  that  what  we  call  the  doctrine  of  mental  anguish  is  based 
upon  a  sound  principle  of  common  law,  which  is  elastic  enough  to  meet  new 
conditions  as  they  arise,  and  to  adjust  itself  and  its  well-settled  rules  to  the 
ever-changing  circumstances  of  a  progressive  civilization  and  the  onward 
march  of  reform  in  the  administration  of  justice.  It  would  be  a  reproach  to 
the  law  if  telegraph  companies  can  wantonly  neglect  their  duty  and  obligation 
to  their  patrons  with  impunity  and  without  any  responsibility  for  their  wrong, 
committed  sometimes  without  the  slightest  excuse  and  under  exasperating  cir- 
cumstances." 

It  is  not  mental  anguish  alone  that  entitles  the  plaintiff  to  recover.  This 
must  be  coupled  with  the  company's  negligence.  Barnes  v.  Postal  Tel.  Cable 
Co.,  156  N.  C.  150,  72  S.  E.  78 ;  West.  U.  Tel.  Co.  v.  Crenshaw,  93  Ark.  415,  125 
S.  W.  420. 

In  some  jurisdictions  the  right  to  recover  is  limited  to  cases  in  which  the 
plaintiff  has  some  other  cause  of  action  against  the  telegi'aph  company.  Blount 
V.  West.  U.  Tel.  Co.,  126  Ala.  105,  27  South.  779 ;  West.  U.  Tel.  Co.  v.  Howie, 
156  Ala.  331,  47  South.  341.  See,  also,  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18, 
50  South.  248,  19  Ann.  Cas.  1058,  23  L.  R.  A.  (N.  S.)  648 ;  West.  U.  Tel.  Co.  v. 
Jackson,  supra :  West.  U.  Tel.  Co.  v.  Wright,  169  Ala.  104,  53  South.  95 ;  West. 
U.  Tel.  Co.  V.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St.  Rep.  38; 
West.  U.  Tel.  Co.  v.  Young  (Tex.  Civ.  App.)  133  S.  W.  512 ;  West.  U.  Tel.  Co. 
V.  Saunders,  supra ;  West.  U.  Tel.  Co.  v.  Burns,  164  Ala.  252,  51  South.  373. 
On  the  other  hand,  this  view  was  expressly  repudiated  in  Shaw  v.  West.  U. 
Tel.  Co.,  supra.  In  this  case  the  court  said:  "It  would  be  reducing  the  law 
to  an  absurdity  should  it  be  held  that  if  a  person  recovers  one  dollar  for  an 
injury  to  his  person,  or  any  other  invasion  of  his  rights,  he  may  also  recover 
damages  for  mental  anguish  caused  by  the  wrong,  but  if  he  does  not  sustain 
any  loss,  great  or  small,  apart  from  that  caused  by  mental  anguish  resulting 


§    587)  MEASURE  OF   DAMAGES  757 

which  the  question  has  come  up  has  held  any  other  view  than  that 
damages  could  not  be  recovered  for  mental  suffering  alone. ^®  It 
was,  however,  conceded  in  one  case  that  if  there  had  been  such 
gross  negligence  on  the  part  of  the  company's  agent  as  to  indicate 
a  wanton  or  malicious  purpose  in  failing  to  transmit  or  deliver  the 
message,  the  mental  suffering  of  the  plaintiff  might  be  considered. 
The  state  in  which  the  case  arises  may  adhere  to  the  rule  in  the  So 
Relle  Case,  yet  this  fact  need  not  be  considered  by  the  federal  court, 
and  this  is  true  although  the  decisions  in  these  states  may  have 
been  largely  induced  by  the  provisions  of  the  statutes  in  those 
states.^" 

§  587.  Ground  upon  which  these  cases  are  maintained — notice. 
The  courts  in  those  states  which  hold  that  damages  may  be  recov- 
ered for  mental  suffering  alone  base  their  opinions  for  maintaining 
such  cases  on  different  theories.^!  Some  hold  that  when  the  com- 
pany has  been  guilty  of  a  breach  of  a  contract  of  sending,  in  which 

from  the  wrongful  act  of  another,  it  ds  damnum  absque  injuria,  however  much 
he  may  have  suffered.  This  would  be  refining  to  the  last  degree  and  should 
not  be  accepted  as  a  fair  and  equitable  rule  of  the  law ;  in  some  cases  a  per- 
son may  suffer  more — that  is,  in  the  sense  of  an  injury  to  his  rights — by  men- 
tal anguish  than  if  he  had  lost  many  dollars  by  the  negligent  act  of  the  de- 
fendant in  failing  to  deliver  telegram." 

19  West.  U.  Tel.  Co.  v.  Sklar,  126  Fed.  295,  61  C.  C.  A.  281;  Chase  v.  West. 
U.  Tel.  Co.  (C.  C.)  44  Fed.  554,  10  L.  R.  A.  464 ;  West.  U.  Tel.  Co.  v.  Wood,  57 
Fed.  471,  6  C.  C.  A.  432,  21  L.  R.  A.  706 ;  Crawson  v.  West.  U.  Tel.  Co.  (C.  C.) 
47  Fed.  544 ;  Tyler  v.  West.  U.  Tel.  Co.  (C.  C.)  54  Fed.  634 ;  Kester  v.  West.  U. 
Tel.  Co.  (C.  C.)  55  Fed.  603 ;  Gahan  v.  West.  U.  Tel.  Co.  (C.  C.)  59  Fed.  433 ; 
Stafford  v.  West.  U.  Tel.  Co.  (C.  C.)  73  Fed.  273 ;  McBride  v.  Sunset  Tel.  Co. 
(C.  C.)  96  Fed.  81 ;  Stansell  v.  West.  U.  Tel.  Co.  (C.  C.)  107  Fed.  668 ;  Alexan- 
der V.  West.  U.  Tel.  Co.  (C.  C.)  126  Fed.  445 ;  Rowan  v.  West.  U.  Tel.  Co.  (C. 
C.)  149  Fed.  550 ;  West.  U.  Tel.  Co.  v.  Burris,  179  Fed.  92,  102  C.  C.  A.  386. 

20  West.  U.  Tel.  Co.  v.  Sklar,  126  Fed.  295,  61  C.  C.  A.  281. 

21  Some  courts  hold  that,  if  a  recovery  was  denied  in  such  cases,  an  ad- 
mitted wrong  would  be  sanctioned  by  law.  Thus,  in  So  Relle  v.  West.  U. 
Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  805,  the  court  said:  "The  law  will  not 
permit  any  one  to  impose  with  impunity  upon  another,  by  his  willful  fault 
or  neglect,  such  injury  to  his  feelings  as  is  the  natural  result  from  the  dis- 
appointment shown  by  the  allegations  of  appellant's  petition,  and  then  pro- 
tect himself  under  the  plea  of  damnum  absque  injuria."  In  West.  U.  Tel. 
Co.  V.  Adair,  115  Ala.  441,  22  South.  73,  the  court  said:  "If  a  party,  for  a 
valuable  consideration  paid,  agrees  to  perform  a  duty  for  another,  and  he 
knows  that  his  failure  will  result  in  pecuniary  loss  or  inflict  great  mental 
distress,  and  he  willfully  or  negligently  fails  to  perform  his  contract,  why 
should  he  not  be  required  to  respond  for  the  consequences  of  his  misconduct? 
We  can  perceive  of  no  sound  rule  of  law  which  will  exonerate  him."  While 
in  Battle  v.  West.  U.  Tel.  Co.,  151  N.  C.  629,  66  S.  E.  661,  the  court  said:  "If 
the  telegraph  company  will  not  require  their  employes  to  act,  in  the  per- 
formance of  their  very  important  duties  to  the  public  and  their  patrons,  with 
common  intelligence  and  humanity,  they  must  suffer  the  consequences  of  their 
neglect,  and  not  complain  of  the  law,  when  they  are  made  to  indenuiify  those 


758  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  58T 

the  plaintiff  was  a  party  or  which  was  made  for  his  benefit,  the 
latter  then  has  a  cause  of  action.  Having  acquired  a  standing  in 
court,  he  is  then  entitled  to  recover  all  damages  which  were  the 
direct  and  proximate  result  of  said  breach. ^^    There  being  a  breach 

they  have  wronged.  There  is  no  use  to  cite  authorities  for  their  ruling,  al- 
though they  are  abundant,  for  common  sense  and  a  reasonable  regard  for 
the  rights  of  others  teach  us  that  it  must  be  the  correct  principle.  *  *  * 
What  right  in  law,  or  even  according  to  the  rule  which  ordinarily  obtains  in 
business  transactions  of  this  kind,  did  the  defendant  have  to  withhold  from 
the  plaintiff  information  as  to  his  child's  serious  illness,  which  it  had  been 
paid  to  impart  to  him?  The  answer  to  this  simple  question  is  too  plain  to 
require  any  further  discussion  as  to  its  legal  and  moral  duty  under  the  cir- 
cumstances. It  had  no  right,  and  its  operator  and  the  delivery  messenger 
should  have  known  it."  In  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  695,  8 
S.  W.  574,  6  Am.  St.  Rep.  864,  the  court  said:  "To  hold  that  the  defendant 
is  not  liable  in  this  case  for  the  wrong  and  injui-y  done  to  the  feelings  and 
affections  of  Mrs.  Wadsworth  by  its  default  would  be  to  disregard  the  pur- 
pose of  the  telegrams  altogether,  and  to  violate  the  rule  of  law  which  au- 
thorizes a  recovery  of  damages  appropriate  to  the  objects  of  the  contract 
broken,  and,  furthermore,  such  a  holding  would  justify  the  conclusion  that 
the  defendant  might,  with  impunity,  have  refused  to  receive  and  transmit 
such  messages  at  all,  and  that  it  has  the  right  in  the  future  to  do  as  it  has 
done  in  this  case,  or,  at  least,  that  it  cannot  be  required  to  respond  in  damages 
for  doing  so.  To  such  a  result,  we  think,  no  court  should  submit."  In  West. 
U.  Tel.  Co.  V.  Odom,  21  Tex.  Civ.  App.  5.37,  52  S.  W.  632,  the  court  said: 
•'There  is,  perhaps,  no  class  of  communications  sent  over  the  telegraph  wires 
which  is  estimated  of  greater  concern  by  the  general  public  than  those  mes- 
sages which  relate  to  sickness  and  death  of  one's  relatives,  and  they  consti- 
tute a  large  portion  of  the  business  of  telegraph  companies.  To  hold  that 
recovery  may  not  he  had  for  mental  suffering  occasioned  by  negligent  breaches 
of  contracts  for  the  transmission  of  such  messages  would  give  legal  sanction 
to  flagrant  WTongs,  and  put  the  public  at  the  mercy  of  such  corporations  in 
so  far  as  this  branch  of  telegraph  business  be  concerned.  That  our  courts 
fail  to  find  a  remedy  in  the  common  law,  the  legislature  doubtless  would  have 
furnished  it  through  statutory  enactments  for  the  principles  of  justice  and 
humanity  alike  demand  a  remedy  for  all  such  wrongs.  If  these  decisions  of 
our  courts  are  to  continue  to  be  recognized  as  sound  expositions  of  the  law, 
as  we  believe  they  should  be,  then  the  principle  announced  allowing  the  re- 
covery of  such  damages  must  not  be  arbitrarily  confined  to  cases  where  one 
is  prevented  from  going  to  the  sick  bed,  or  attending  the  funeral  of  a  dear 
one,  but  it  must  also  be  given  application  to  such  other  cases  of  mental  an- 
quish  as  the  rules  of  reason  and  logic  would  extend  it.  Otherwise  the  de- 
cisions would  and  should  be  regarded  as  arbitrary  and  not  resting  upon  sound 
principle."  Other  courts  advance  the  idea  that,  since  these  companies  receive 
benefits  and  privileges  from  the  public  and  such  as  cannot  be  enjoyed  as  of 
common  right,  they  should  be  held  liable  for  negligence  in  the  performance 
of  their  public  duties,  even  though  such  negligence  does  not  inflict  bodily  in- 
juries or  financial  loss.  Sherrill  v.  West.  U.  Tel.  Co.,  155  N.  C.  250,  71  S.  E.. 
330 ;  Cashion  v.  West.  U.  Tel.  Co.,  123  N.  C.  267,  31  S.  E.  493 ;  Green  v.  West. 
U.  Tel.  Co.,  136  N.  C.  489,  49  S.  E.  165,  103  Am.  St.  Rep.  955,  67  L.  R.  A.  985, 
1  Ann.  Cas.  349 ;  Gulf,  etc.,  R.  Co.  v.  Levy,  59  Tex.  542,  46  Am.  Rep.  269 ;  So- 
Relle  V.  West.  U.  Tel.  Co.,  supra.  But  see  Chapman  v.  West.  U.  Tel.  Co.,  88 
Ga.  763,  15  S.  E.  901,  30  Am.  St.  Rep.  183,  17  L.  R.  A.  430. 

2  2  West.  U.  Tel.  Go.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St.. 


§    587)  MEASURE   OF   DAMAGES  759 

of  the  contract— and  it  was  held  in  one  case  that  it  was  necessary 
for  the  action  to  be  in  contract  and  not  in  tort  -^—it  was  not  neces- 
sary to  prove  nominal  damages,  since  this  would  be  a  means  of 
avoiding  any  damages.  As  was  said :  "To  speak  of  the  right  to 
nominal  damages  as  a  condition  for  giving  substantial  damages,  is  a 
palpable  contradiction.  To  give  nominal  damages  necessarily  denies 
any  further  recovery.  *  *  *  It  is  manifest  that  to  allow  such  a 
recovery  is,  in  real  substance,  an  effort  to  protect  feelings  by  legal 
remedy."  -*  In  some  of  the  other  states,  the  courts  proceed  on  the 
theory  of  certain  statutes  therein  declaring  the  duties  and  liabilities 
of  these  companies."'  In  Tennessee,  for  instance,  there  is  one  stat- 
ute -^  which  requires  telegraph  companies  to  transmit  and  deliver 
all  proper  messages  "correctly  and  without  unreasonable  delay"; 
and  it  is  declared  by  another  statute  that,  on  a  failure  to  do  so,  the 
defaulting  company  shall  be  liable  in  damages  to  the  party  ag- 
grieved. In  a  case  brought  under  these  statutes  to  recover  dam- 
ages for  mental  anguish  and  suffering  in  consequence  of  a  message 
not  being  properly  delivered  and  which  related  to  the  serious  ill- 
ness and  death  of  plaintiff's  brother,  the  court  said :  "The  act  does 
not  discriminate  between  messages  appertaining  to  matters  pecun- 
iary merely  and  those  having  reference  to  matters  of  a  domestic 
nature,  as  are  those  now  before  us.  *  '  *  *  There  is  no  discrim- 
ination with  respect  to  the  nature  of  the  messages  to  be  conveyed 
nor  is  there  any  discrimination  with  respect  to  the  nature  of  the 
damages  to  be  recovered  for  the  company's  default.  One  section 
imposes  a  general  duty,  and  the  other  gives  a  universal  right  of  ac- 
tion for  the  breach  of  that  duty.    And  of  necessity  the  nature  and 

Rep.  148;  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  32  Am.  St. 
Rep.  23;  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am. 
St.  Rep.  183,  17  L.  R.  A.  430.     See,  also,  latter  part  of  note  IS,  supra. 

2  3  Blount  V.  West.  U.  Tel.  Co.,  126  Ala.  105,  27  South.  779.  See  §  5S3.  See, 
also,  other  cases  in  note  138. 

2  4  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am.  St.  Rep. 
183,  17  L.  R.  A.  430. 

2  6  West.  U.  Tel.  Co.  v.  Shenep,  S3  Ark.  476,  104  S.  W.  154,  12  L.  R.  A.  (N.  S.) 
886,  119  Am.  St.  Rep.  145;  West.  U.  Tel.  Co.  v.  HoUingsworth,  S3  Ark.  39, 
102  S.  W.  681,  11  L.  R.  A.  (N.  S.)  497,  119  Am.  St.  Rep.  105,  13  Ann.  Cas.  397 ; 
Simmons  v.  West.  U.  Tel.  Co.,  63  S.  C.  425,  41  S.  E.  521,  57  L.  R.  A.  607 ; 
Ark.,  etc.,  R.  Co.  v.  Stroude,  77  Ark.  109,  91  S.  W.  18,  113  Am.  St.  Rep.  130 ; 
West.  U.  Tel.  Co.  v.  Chouteau,  28  Okl.  664,  115  Pac.  879,  Ann.  Cas.  1912D,  824, 
49  L.  R.  A.  (N.  S.)  206 ;  West.  U.  Tel.  Co.  v.  IMcMullin,  98  Ark.  347,  135  S.  W. 
909 ;  Brown  v.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146,  137  Am.  St.  Rep. 
914;  Cameron  v.  West.  U.  Tel.  Co.,  90  S.  C.  503,  74  S.  E.  929;  Graham  v. 
West.  U.  Tel.  Co.,  93  S.  C.  173,  76  S.  E.  200. 

26  Code  Milliken  &  Vertrees,  §  1541.  See,  also,  Act  Feb.  20,  1901  (23  St.  at 
Large,  748) ;   Code  1902,  vol.  1,  §  2223,  South  Carolina. 


760  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  587 

amount  of  damages  recoverable  in  each  particular  case  are  to  be 
determined  by  the  character  of  the  message  and  the  extent  of  the 
injury  caused  by  the  defendant's  default."  ^^  But  in  order  to  re- 
cover damages  in  cases  where  the  courts  base  their  opinions  on 
either  theory,  it  is  necessary  that  the  company  be  informed,  eitlier 
by  the  face  of  the  message,  or  by  extrinsic  evidence,  of  the  nature 
and  character  of  the  message;  ^^   since,  if  it  does  not  enter  into  the 

2  7  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenu.  695,  8  S.  W.  574,  6  Am.  St. 
Rep.  872. 

2  8  AlaMma.—Miaaieton  v.  West.  U.  Tel.  Co.,  183  Ala.  213,  62  South.  744, 

49  L.  R.  A.  (N.  S.)  305 ;  West.  U.  Tel.  Co.  v.  West,  165  Ala.  399,  51  South.  740 ; 
West.  U.  Tel.  Co.  v.  Westmoreland,  151  Ala.  319,  44  South.  382;  West.  U. 
Tel.  Co.  V.  Russell,  4  Ala.  App.  485,  58  South.  938. 

Arkansas.— West.  U.  Tel.  Co.  v.  Shenep,  83  Ark.  476,  104  S.  W.  154,  12 
L.  R.  A.  (N.  S.)  886,  119  Am.  St.  Rep.  145;  West.  U.  Tel.  Co.  v.  Weniski,  84 
Ark.  457,  106  S.  W.  486;  West.  U.  Tel.  Co.  v.  Blackmer,  82  Ark.  526,  102 
S.  W.  366;  West.  U.  Tel.  Co.  v.  Raines,  78  Ark.  545,  94  S.  W.  700;  West.  U. 
Tel.  Co.  V.  Hogue,  79  Ark.  33,  94  S.  W.  924. 

Indiana.— West.  U.  Tel.  Co.  v.  Bryant,  17  Ind.  App.  70,  46  N.  E.  358 ;  West. 
U.  Tel.  Co.  V.  Henley,  23  Ind.  App.  14,  54  N.  E.  775. 

KentucJcy. —Fostal  Tel.  Cable  Co.  v.  Terrell,  124  Ky.  822,  100  S.  W.  292,  30 
Ky.  Law  Rep.  1023,  14  L.  R.  A.  (N.  S.)  927;  Thurman  v.  West.  U.  Tel.  Co., 
127  Ky.  137,  105  S.  W.  155,  32  Ky.  Law  Rep.  26,  14  L.  R.  A.  (N.  S.)  499 ;  West. 
U.  Tel.  Co.  V.  Reid,  120  Ky.  231,  85  S.  W.  1171,  70  L.  R.  A.  289 ;  West  U. 
Tel.  Co.  V.  Glover,  138  Ky.  500,  128  S.  W.  587,  49  L.  R.  A.  (N.  S.)  309 ;  Bagby 
V.  West.  U.  Tel.  Co.,  164  Ky.  15,  174  S.  W.  738. 

Mississippi.— West.  U.  Tel.  Co.  v.  Pearce,  82  Miss.  489,  34  South.  152. 

^'orth  Carolina.— Bowers  v.  West.  U.  Tel.  Co.,  135  N.  C.  504,  47  S.  E.  Z07 ; 
Williams  v.  West.  U.  Tel.  Co.,  136  N.  C.  82,  48  S.  E.  559,  1  Ann.  Cas.  .359; 
Sparkman  v.  West.  U.  Tel.  Co.,  130  N.  C.  447,  41  S.  E.  881;  Darlington  v. 
West.  U.  Tel.  Co.,  127  N.  C.  448,  37  S.  E.  479 ;  Kennon  v.  West.  U.  Tel.  Co., 
126  N.  C.  232,  35  S.  E.  4GS ;  Dayvis  v.  West.  U.  Tel.  Co.,  139  N,  C.  79,  51 
S.  E.  898. 

South  Carolina.— ToM  v.  West.  U.  Tel.  Co.,  77  S.  C.  522,  58  S.  E.  433; 
Cloy  V.  West.  U.  Tel.  Co.,  78  S.  C.  109,  58  S.  E.  972 ;  Cason  v.  West.  U.  Tel. 
Co.,  77  S.  C.  157,  57  S.  E.  722 ;  Mitchiner  v.  West.  U.  Tel.  Co.,  75  S.  C.  182, 
55  S.  E.  222 ;  Key  v.  West.  U.  Tel.  Co.,  76  S.  C.  301,  56  S.  E.  962 ;  Capers  v. 
West.  U.  Tel.  Co.,  71  S.  C.  29,  50  S.  E.  537;  Jones  v.  West.  U.  Tel.  Co.,  70 
S.  C.  539,  50  S.  E.  198 ;  Id.,  75  S.  C.  208,  55  S.  E.  318 ;  Mitchiner  v.  West.  U. 
Tel.  Co.,  70  S.  C.  522,  50  S.  E.  190;    Arial  v.  West.  U.  Tel.  Co.,  70  S.  C.  418, 

50  S.  E.  6;  Fass  t.  West.  U.  Tel.  Co.,  82  S.  C.  461,  64  S.  E.  235.  But  see 
Cameron  v.  West.  U.  Tel.  Co.,  90  S.  C.  503,  74  S.  E.  929 ;  Toale  v.  West.  U. 
Tel.  Co.,  76  S.  C.  248,  57  S.  E.  117;  Dempsey  v.  West.  U.  Tel.  Co.,  77  S.  C. 
399,  58  S.  E.  9. 

Texas.— West.  U.  Tel.  Co.  v.  Wilson,  97  Tex.  22,  75  S.  W.  482;  West.  U. 
Tel.  Co.  V.  Arnold,  96  Tex.  493,  73  S.  W.  1043 ;  West.  U.  Tel.  Co.  v.  Kuyken- 
dall,  99  Tex.  323,  89  S.  W.  965;  West.  U.  Tel.  Co.  v.  Luck,  91  Tex.  178,  41 
S.  W,  469,  66  Am.  St.  Rep.  869;  West.  U.  Tel.  Co.  v.  Edmoudsou,  91  Tex. 
200,  42  S.  W.  549;  West.  U.  Tel.  Co.  v.  Carter,  85  Tex.  580,  22  S.  W.  961, 
34  Am.  St.  Rep.  826 ;  West.  U.  Tel.  Co.  v.  Kibble,  53  Tex.  Civ.  App.  222,  115 
S.  W.  643 ;  McAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W.  715 ;  West.  U. 
Tel.  Co.  V.  Bell  (Tex.  Civ.  App.)  90  S.  W.  714 ;  West.  U.  Tel.  Co.  v.  McFadden, 
32  Tex.  Civ.  App.  582,  75  S.  W.  352 ;   Ricketts  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ. 


§    588)  MEASURE  OF   DAMAGES  761 

contemplation  of  the  parties  at  the  time  the  contract  was  made  that 
mental  injuries  would  be  the  result  of  the  breach  of  said  contract, 
damages  cannot  be  recovered  therefor.^^ 

§  588.  View  of  subject  in  Louisiana. — In  Louisiana  it  is  held 
that  damages  may  be  recovered  for  mental  anguish  or  sufifering 

App.  226,  30  S.  W.  1105;  De  Voegler  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App. 
229,  30  S.  W.  1107;  West.  U.  Tel.  Co.  v.  Gidcumb  (Tex.  Civ.  App.)  28  S.  W. 
699;  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W.  216;  Ikard  t. 
West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  22  S.  W.  534;  West.  U.  Tel.  Co.  v.  Han- 
kins  (Tex.  Civ.  App.)  110  S.  W.  543;  West.  U.  Tel.  Co.  v.  Kirkpatrick,  76 
Tex.  217,  13  S.  W.  70,  IS  Am.  St.  Rep.  37;  West.  U.  Tel.  Co.  v.  Arend,  62 
Tex.  Civ.  App.  576,  131  S.  W.  1190;  West.  U.  Tel.  Co.  v.  Olivarri  (Tex.  Civ. 
App.)  110  S.  W.  930;  Southwestern  Tel.,  etc.,  Co.  v.  Givens  (Tex.  Civ.  App.) 
139  S.  W.  676;  Southwestern  Tel.,  etc.,  Co.  v.  Wilcoxson  (Tex.  Civ.  App.)  129 
S.  W.  868;  West.  U.  Tel.  Co.  v.  Edmonds  (Tex.  Civ.  App.)  146  S.  W.  322; 
West.  U.  Tel.  Co.  v.  Horn  (Tex.  Civ.  App.)  149  S.  W.  557. 

See  Lyles  v.  West.  U.  Tel.  Co.,  77  S.  C.  174,  57  S.  E.  725,  12  L.  R.  A. 
(N.  S.)  534;  West.  U.  Tel.  Co.  v.  Hogue,  supra,  rule  not  affected  by  reason 
of  the  statute  adopting  the  doctrine ;  Cordell  v.  West.  U.  Tel.  Co.,  149  N.  C. 
402,  63  S.  E.  71,  22  L.  R.  A.  (N.  S.)  540,  where  action  is  founded  on  pure  tort 
the  rule  as  stated  in  the  text  does  not  apply. 

Sufficiency  of  notice  of  plaintiff's  interest  in  telegram. — See  West.  U.  Tel. 
Co.  V.  Jenkins  (Tex.  Civ.  App.)  152  S.  W.  198,  "Tom  Tucker's  baby  died  to- 
day. If  any  can  come,  answer" ;  West.  U.  Tel.  Co.  v.  Randies  (Tex.  Civ.  App.) 
34  S.  W.  447,  "Father  fatally  hurt.  Come  if  you  can",  and,  "Father  died  at 
5  this  morning.  Buried  at  4  this  evening" ;  West.  U.  Tel.  Co.  v.  Stubbs,  43 
Tex.  Civ.  App.  132,  94  S.  W.  1083;  West.  U.  Tel.  Co.  v.  Russell  (Tex.  Civ. 
App.)  31  S.  W.  698 ;  West.  U.  Tel.  Co.  v.  Grigsby  (Tex.  Civ.  App.)  29  S.  W. 
406;  West.  U.  Tel.  Co.  v.  Glover,  138  Ky.  500,  12S  S.  W.  587,  49  L.  R.  A. 
(N.  S.)  308.  But  see  West.  U.  Tel.  Co.  v.  Kirkpatrick,  supra;  Maxville  v. 
West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  140  S.  W.  464;  West.  U.  Tel.  Co.  v.  Her- 
ring (Tex.  Civ.  App.)  146  S.  W.  699;  Herring  v.  West.  U.  Tel.  Co.,  60  Tex. 
Civ.  App.  5,  127  S.  W.  882 ;  West.  U.  Tel.  Co.  v.  Reid,  supra ;  West.  U.  Tel. 
Co.  V.  Taylor  (Tex.  Civ.  App.)  162  S.  W.  999 ;  Poteet  v.  West.  U.  Tel.  Co.,  74 
S.  C.  491,  55  S.  E.  113. 

The  company  may  derive  notice  either  from  the  telegram  itself  or  "by  in- 
formation given  to  its  agent  at  the  time  the  message  teas  delivered  to  the 
company.— See  West.  U.  Tel.  Co.  v.  Toms,  99  Ark.  117,  137  S.  W.  559 ;  West. 
U.  Tel.  Co.  V.  Raines,  78  Ark.  545,  94  S.  W.  700 ;  West.  U.  Tel.  Co.  v.  Griffin, 
92  Ark.  219,  122  S.  W.  489 ;  Jones  v.  West.  U.  Tel.  Co.,  75  S.  C.  208,  55  S.  E. 
318 ;  West.  U.  Tel.  Co.  v.  Jobe.  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  1036 ;  Erie, 
etc.,  Tel.  Co.  v.  Grimes,  82  Tex.  89,  17  S.  W.  831 ;  Southwestern,  etc.,  Tel.  Co.  v. 
Taylor,  26  Tex.  Civ.  App.  79,  63  S.  W.  1076 ;  Lyles  v.  West.  U.  Tel.  Co.,  supra. 
See,  also,  §  544  et  seq.  But  see  West.  U.  Tel.  Co.  v.  Kirkpatrick,  supra ;  West. 
U.  Tel.  Co.  V.  Bell  (Tex.  Civ.  App.)  90  S.  W.  714. 

Social  conversation  toith  agent  on  the  streets  before  the  delivery  of  the 
message  not  notice  to  comp,any. — See  Darlington  v.  West.  U.  Tel.  Co.,  supra ; 
West.  U.  Tel.  Co.  v.  Moore,  76  Tex.  66,  12  S,  W.  949,  18  Am.  St.  Rep.  25. 
See,  also,  §  542. 

Notice  may  be  afforded  by  other  telegrams. — See  West.  U.  Tel.  Co.  v.  Frith, 

2  9  West.  U.  Tel.  Co.  v.  Henry,  87  Tex.  165.  27  S.  W.  03;  West.  U.  Tel.  Co. 
v.  Hogue,  79  Ark.  33,  94  S.  W.  924 ;  West.  U.  Tel.  Co.  v.  Vickei-y  (Tex.  Civ. 
App.)  158  S.  W.  792.     See  chapter  XX. 


762  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  589' 

disconnected  from  pecuniary  damages  or  physical  injuries.  The 
view  the  courts  in  that  state  entertain  on  this  subject  is  not  neces- 
sarily derived  from  the  opipion  in  the  So  Relle  Case,  or  by  virtue 
of  any  statutory  enactments.  It  must  be  remembered  that  the  laws 
in  that  state  are  not  founded  on  the  common-law  principles;  but, 
in  view  of  the  peculiar  provisions  of  the  civil  law,  which  is  the  basic 
law  of  Louisiana,  such  damages  have  been  allowed. ^^ 

§  589.  Instances  in  which  danaages  are  allowed. — The  cases  in 
which  damages  are  allowed  for  mental  suffering  and  anguish  are 
such  as  relate  to  the  serious  illness,  death  ^^  or  time  set  for  burial  ^- 
of  some  one  related  ^^  to  the  party  to  whom  the  message  is  sent. 
But  in  recent  cases  it  is  held  that  the  plaintiff  may  recover  compen- 
satory damages  for  mental  suffering  disconnected  from  any  physi- 
cal pain  or  attending  circumstances  of  sickness  or  death. ^* 

105  Tenn.  167,  58  S.  W.  118 ;  Thomas  v.  West.  U.  Tel.  Co.,  120  Ky.  194,  85 
S.  W.  760 ;  Jones  v.  West.  U.  Tel.  Co.,  supra.  But  see  West.  U.  Tel.  Co.  v. 
Weniski,  supra. 

Whether  telegraph  company  should  seek  information. — See  West.  U.  Tel. 
Co.  V.  Kibble,  53  Tex.  Civ.  App.  222,  115  S.  W.  643,  holding  that  it  need  not ; 
West.  U.  Tel.  Co.  v.  Porter  (Tex.  Civ.  App.)  26  S.  W.  866,  holding  that  it 
should.     See,  also,  §  542. 

A  person  cannot  recover  of  whose  connection  tvith  the  telegram  the  com- 
pany had  no  information. — See  West.  U.  Tel.  Co.  v.  Murray,  29  Tex.  Civ.  App. 
207,  68  S.  W.  549 ;  Blitchiner  v.  West.  U.  Tel.  Co.,  supra ;  Jones  v.  West.  U. 
Tel.  Co.,  supra ;  Weatherford,  etc.,  R.  Co.  v.  Seals  (Tex.  Civ.  App.)  41  S.  W. 
841 ;  Du  Bose  v.  West.  U.  Tel.  Co.,  73  S.  C.  218,  53  S.  E.  175 ;  West.  U.  Tel. 
Co.  V.  West,  supra ;  Landry  v.  West.  U.  Tel.  Co.,  102  Tex.  67,  113  S.  W.  10 ; 
West.  U.  Tel.  Co.  v.  Craven  (Tex.  Civ.  App.)  95  S.  W.  633.  See,  also,  §§  533, 
544. 

3  0  Graham  v.  West.  U.  Tel.  Co.,  109  La.  Ann.  1069,  34  South.  91. 

31  West.  U.  Tel.  Co.  v.  Westmoreland,  151  Ala.  319,  44  South.  382;  West. 
U.  Tel.  Co.  V.  Sledge,  153  Ala.  291,  45  South.  59 ;  West.  U.  Tel.  Co.  v.  McCaul, 
115  Tenn.  99,  90  S.  W.  856;  Sledge  v.  West.  U.  Tel.  Co.,  163  Ala.  4,  50  South. 
886.     See  other  eases  in  note  34. 

3  2  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W.  856;  West.  U.  Tel. 
Co.  V.  Reed,  37  Tex.  Civ.  App.  445,  84  S.  W.  296.     See  other  cases  in  note  34. 

33  West.  U.  Tel.  Co.  v,  Ayers,  131  Ala.  391,  31  South.  78,  90  Am.  St.  Rep.  92; 
Lee  V.  West.  U.  Tel.  Co.,  130  Ky.  202,  113  S.  W.  55.     See  §  605  et  seq. 

3  4  Thurman  v.  West.  U.  Tel.  Co.,  127  Ky.  137,  105  S.  W.  155,  32  Ky.  Law 
Rep.  26,  14  L.  R.  A.  (N.  S.)  499 ;  West.  U.  Tel.  Co.  v.  Hanley,  85  Ark.  203,  107 
S.  W.  1168 ;  Postal  Tel.  Cable  Co.  v.  Terrell,  124  Ky.  822,  100  S.  W.  292,  14  L. 
R.  A.  (N.  S.)  927 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  489,  49  S.  E.  165,  103 
Am.  St.  Rep.  955,  67  L.  R.  A.  985,  1  Ann.  Cas.  349 ;  Dayvis  v.  West.  U.  Tel. 
Co.,  139  N.  C.  79,  51  S.  B.  898 ;  West.  U.  Tel.  Co.  v.  Burgess  (Tex.  Civ.  App.) 
56  S.  W.  237. 

Damages  for  mental  anguish  have  been  allowed  as  result  of  being — First, 
absent  from  deathbed. — See  cases  in  note  31,  supra.  See,  also,  West.  U.  Tel. 
Co.  v.  Cleveland,  169  Ala.  131,  .53  South.  SO,  Ann.  Cas.  1912B,  534;  West.  U. 
Tel.  Co.  V.  De  Andrea,  45  Tex.  Civ.  App.  395,  100  S.  W.  977 ;  West.  U.  Tel.  Co. 
V.  Hughey,  55  Tex.  Civ.  App.  403,  118  S.  W.  1130 ;  Southwestern  Tel.,  etc.,  Co. 


§    590)  MEASURE   OF   DAMAGES  763 

§  590.  Limitation  of  rule — prolongation  of  mental  anguish. — 
There  has  been  no  case  where  the  liabilities  of  telegraph  companies 
were  concerned,  which  has  been  the  cause  of  so  much  litigation 
over  unreasonable  claims  as  the  So  Relle  Case.  It  is  the  peculiar 
nature  of  the  complaint  that  makes  the  damage  so  difficult  to  fix, 
and  thereby   handle   such  actions  with  justice.     No   one  but  the 

V.  Taylor,  26  Tex.  Civ.  App.  79,  62  S.  W.  1076 ;  West.  U.  Tel.  Co.  v.  Hale,  11 
Tex.  Civ.  App.  79,  32  S.  W.  814. 

Second,  absent  from  funeral. — See  cases  in  note  32,  supra.  See,  also.  West. 
IT.  Tel.  Co.  V.  Porterfield  (Tex.  Civ.  App.)  84  S.  W.  850 ;  West.  U.  Tel.  Co.  v. 
McMuUin,  98  Ark.  347,  135  S.  W.  909 ;  West.  U.  Tel.  Co.  v.  Erwin  (Tex.)  19  S. 
W.  1002 ;  West.  U.  Tel.  Co.  v.  Shaw,  40  Tex.  Civ.  App.  277,  90  S.  W.  58 ;  West. 
U.  Tel.  Co.  V.  Fuel,  165  Ala.  391,  51  South.  571.  But  see  Buchanan  v.  West. 
U.  Tel.  Co.  (Tex.  Civ.  App.)  100  S.  W.  974. 

Third,  being  unable  to  see  remains  before  decomposition  set  in. — See  Thomas 
V.  West.  U.  Tel.  Co.,  120  Ky.  194,  85  S.  W.  760 ;  West.  U.  Tel.  Co.  v.  Porterfield, 
supra ;  West.  U.  Tel.  Co.  v.  Hamilton,  36  Tex.  Civ.  App.  300,  81  S.  W.  10.52 ; 
West.  U.  Tel.  Co.  v.  DeJarles,  8  Tex.  Civ.  App.  109,  27  S.  W.  792 ;  West.  U. 
Tel.  Co.  V.  Jeanes  (Tex.  Civ.  App.)  29  S.  W.  1130.  But  see  Woods  v.  West.  U. 
Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128  Am.  St.  Rep.  581 ;  Kyles  v.  Southern  R. 
Co.,  147  N.  C.  394,  61  S.  E.  278,  16  L.  R.  A.  (X.  S.)  405. 

Fourth,  because  of  mistaken  belief  that  relative  xoas  dead. — See  Lay  v.  Post- 
al Tel.  Cable  Co.,  171  Ala.  172,  54  South.  529 ;  West.  U.  Tel.  Co.  v.  Odom,  21 
Tex.  Civ.  App.  537,  52  S.  W.  632 ;  West.  U.  Tel.  Co.  v.  Hines,  22  Tex.  Civ.  App. 
315,  .54  S.  W.  627 ;  Taylor  v.  West.  U.  Tel.  Co.,  31  Ky.  Law  Rep.  240,  101  S.  W. 
969 ;  West.  U.  Tel.  Co.  v.  Buchanan  (Tex.  Civ.  App.)  129  S.  W.  850. 

Fifth,  because  of  failure  to  meet  at  station  ivhen  traveling  with  corpse. — 
See  West.  U.  Tel.  Co,  v.  Crowley,  158  Ala.  583,  48  South.  381;  Cowan  v.  West. 
U.  Tel.  Co.,  122  Iowa,  379,  90  N.  W.  281,  101  Am.  St.  Rep.  268,  64  L.  R.  A.  545 ; 
West.  U.  Tel.  Co.  v.  Long,  148  Ala.  202,  41  South.  965;  West.  U.  Tel.  Co.  v. 
McMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St.  Rep.  46 ;  West.  U.  Tel.  Co. 
V.  Giffin,  27  Tex.  Civ.  App.  306,  65  S.  W.  661 ;  Lyles  v.  West.  U.  Tel.  Co.,  84 
S.  C.  1,  05  S.  E.  832,  137  Am.  St.  Rep.  829.  But  see  West.  U.  Tel.  Co.  v.  Tur- 
ner (Tex.  Civ.  App.)  78  S.  W.  362. 

Sixth,  because  of  a  delayed  burial,  or  being  made  in  an  unsuitable  place  or 
manner.— See  West.  U.  Tel.  Co.  v.  Arant,  88  Ark.  499,  115  S.  W.  136 ;  West.  U. 
Tel.  Co.  V.  McNairy,  34  Tex.  Civ.  App.  389,  78  S.  W.  969 ;  West.  U.  Tel.  Co.  v. 
Bowen,  97  Tex.  621,  81  S.  W.  27,  reversing  (Civ.  App.)  76  S.  W.  613 ;  Lyles  v. 
West.  U.  Tel.  Co.,  77  S.  C.  174,  57  S.  E.  725,  12  L.  R.  A.  (N.  S.)  534 ;  Id.,  84  S. 
C.  1,  65  S.  E.  832,  137  x\m.  St.  Rep.  829 ;  Cumberland  Tel.,  etc.,  Co.  v.  Quigley, 
129  Ky.  788,  112  S.  W.  897,  19  L.  R.  A.  (N.  S.)  575 ;  West.  U.  Tel.  Co.  v.  Carter, 
2  Tex.  Civ.  App.  624,  21  S.  W.  688.  But  see  West.  U.  Tel.  Co.  v.  Bangs,  94  Ark. 
44,  125  S.  W.  1012. 

Seventh,  because  of  being  absent  from  sick  bed. — See  cases  in  note  31,  supra. 
See,  also,  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South.  73 ;  Hamrick  v. 
West.  U.  Tel.  Co.,  140  N.  C.  151,  52  S.  E.  2.32 ;  Ogilvie  v.  West.  U.  Tel.  Co.,  83 
S.  C.  8,  64  S.  E.  860,  137  Am.  St.  Rep.  790 ;  Newport,  etc.,  R.  Co.  v.  Griffin,  92 
Tenn.  694,  22  S.  W.  737.  But  see  West.  U.  Tel.  Co.  v.  Johnson,  164  Ala.  229,  51 
South.  230. 

Eighth,  because  of  the  absence  of  minister  from  the  sick  bed. — West.  U.  Tel. 
Co.  V.  Robinson,  97  Temi.  638,  37  S.  W.  545,  34  L.  R.  A.  431.  But  see  West.  U. 
Tel.  Co.  V.  Arnold,  96  Tex.  493,  73  S.  W.  1043. 

Ninth,  because  of  being  exposed  to  disease. — See  Rich  v.  West.  U.  Tel.  Co. 
<Tex.  Civ.  App.)  110  S.  W.  93 ;  West.  U.  Tel.  Co.  v.  Rich,  59  Tex.  Civ.  App.  395, 


764  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  590 

plaintiff  knows  the  extent  of  his  mental  sufferings,  and,  for  this 
reason,  it  is  not  only  difficult  to  prove  the  extent  of  such  injuries, 
in  order  that  he  may  recover  a  sufficient  compensation  therefor, 
but  it  is  much  more  difficult  for  defendant  company  to  make  any 
defense  in  these  cases.  The  courts  have  long  since  realized  this  fact 
and  have  attempted  in  various  w^ays  to  put  a  limit  to  such  actions, 
which  have  been  an  object  of  much  criticism  and  discord  among 
their  own  courts.^^  For  instance,  a  distinction  seems  to  have  been 
drawn  between  the  negligence  in  failing  to  deliver  a  message,  which 

]26  S.  W.  686;  West.  U.  Tel.  Co.  v.  Murray,  29  Tex.  Civ.  App.  207,  68  S.  W. 
549;  Mitchiner  v.  West.  U.  Tel.  Co.,  75  S.  C.  182,  55  S.  E.  222. 

Tenth,  because  of  the  inability  to  attend  an  insane  brother. — See  West.  U. 
Tel.  Co.  V.  Mcllvoy,  107  Ky.  633,  55  S.  W.  428. 

Eleventh,  because  of  the  failure  to  prevent  an  unsuitable  marriage. — See 
West.  U.  Tel.  Co.  v.  Procter,  6  Tex.  Civ.  App.  300,  25  S.  W.  811. 

Some  hold  that  the  doctrine  should  be  restricted  to  matters  of  a  personal  and 
social  nature,  Robinson  v.  West.  U.  Tel.  Co.,  68  S.  W.  656,  24  Ky.  Law  Rep.  452, 

57  D.  R.  A.  611 ;  West.  U.  Tel.  Co.  v.  Shenep,  83  Ark.  476,  104  S.  W.  154,  12  L.  R. 
A.  (N.  S.)  886,  119  Am.  St.  Rep.  145 ;  Todd  v.  West.  U.  Tel.  Co.,  77  S.  C.  522, 

58  S.  E.  433 ;  Capers  v.  West.  U.  Tel.  Co.,  71  S.  C.  29,  50  S.  E.  537 ;  Lyles  v. 
West.  U.  Tel.  Co.,  supra ;  Cloy  v.  West.  U.  Tel.  Co.,  78  S.  C.  109,  58  S.  E.  972. 
See  Lay  v.  Postal  Tel.  Cable  Co.,  171  Ala.  172,  54  South.  529 ;  West.  U.  Tel. 
Co.  V.  Westmoreland,  151  Ala.  319,  44  South.  382 ;  West.  U.  Tel.  Co.  v.  Sledge, 
153  Ala.  291,  45  South.  59 ;  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W. 
856 ;  while  others  hold  that  it  extends  to  all  cases,  Thurman  v.  West.  U.  Tel. 
Co.,  127  Ky.  137,  ]05  S.  W.  155,  32  Ky.  Law  Rep.  26,  14  L.  R.  A.  (N.  S.)  499; 
Postal  Tel.  Cable  Co.  v.  Terrell,  124  Ky.  822,  100  S.  W.  292,  30  Ky.  Law  Rep. 
1023,  14  L.  R.  A.  (N.  S.)  927;  Gulf,  etc.,  R.  Co.  v.  Levy,  59  Tex.  542,  46  Am. 
Rep.  269 ;  West.  U.  Tel.  Co.  v.  Gossett,  15  Tex.  Civ.  App.  52,  38  S.  W.  536 ; 
West.  U.  Tel.  Co.  v.  Gidcumb  (Tex.  Civ.  App.)  28  S.  W.  699 ;  West.  U.  Tel.  Co.  v. 
Burgess  (Tex.  Civ.  App.)  56  S.  W.  237;  West.  U.  Tel.  Co.  v.  Richards  (Tex. 
Civ.  App.)  1.58  S.  W.  1187 ;  West.  U.  Tel.  Co.  v.  McFarlane  (Tex.  Civ.  App.)  161 
S.  W.  57 ;  Barnes  v.  West.  U.  Tel.  Co.,  27  Nev.  438,  76  Pac.  931,  103  Am.  St. 
Rep.  766,  1  Ann.  Cas.  346,  65  L.  R.  A.  666. 

3  5  Various  rules  and  limitations  have  been  adopted.  Thus  see  West.  U.  Tel. 
Co.  V.  Shenep,  83  Ark.  476,  104  S.  W.  154,  12  L.  R.  A.  (N.  S.)  886,  119  Am.  St. 
Rep.  145 ;  West.  U.  Tel.  Co.  v.  Ayers,  131  Ala.  391,  31  South.  78,  90  Am.  St. 
Rep.  92 ;  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E.  871 ;  Rob- 
inson V.  West.  U.  Tel.  Co.,  24  Ky.  Law  Rep.  452,  68  S.  W.  656,  57  L.  R.  A.  611 ; 
Lee  V.  West.  U.  Tel.  Co.,  130  Ky.  202,  113  S.  W.  55 ;  West.  U.  Tel.  Co.  v.  Mc- 
Caul, 115  Tenn.  99,  90  S.  W.  856 ;  Capers  v.  West.  U.  Tel.  Co.,  71  S.  C.  29,  50 
S.  E.  537 ;  West.  U.  Tel.  Co.  v.  Edmondson,  91  Tex.  206,  42  S.  W.  549 ;  West.  U. 
Tel.  Co.  V.  Arnold,  96  Tex.  493,  73  S.  W.  1043 ;  Rowell  v.  West.  U.  Tel.  Co.,  75 
Tex.  26,  12  S.  W.  534 ;  West.  U.  Tel.  Co.  v.  Reed,  37  Tex.  Civ.  App.  445,  84  S. 
W.  296.  The  cases  are  not  entirely  uniform  in  the  same  or  different  states. 
See:  West.  U.  Tel.  Co.  v.  Hollingsworth,  83  Ark.  39,  102  S.  W.  681,  11  L.  R. 
A.  (N.  S.)  497,  119  Am.  St.  Rep.  105,  13  Ann.  Cas.  397;  West.  U.  Tel.  Co.  v. 
Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St.  Rep.  148 ;  West.  U.  Tel.  Co. 
V.  Reid,  120  Ky.  231,  85  S.  W.  1171,  27  Ky.  Law  Rep.  659,  70  L.  R.  A.  289.  The 
rules  and  limitations  recognized  in  some  states  disapproved  in  others.  West. 
U.  Tel.  Co.  V.  Hollingsworth,  supra ;  West.  U.  Tel.  Co.  v.  Ayers,  supra ;  West. 
U.  Tel.  Co.  V.  Moxley,  SO  Ark.  554,  98  S.  W.  112 ;  West.  U.  Tel.  Co.  v.  Arnold, 
supra.    See  cases  under  note  147. 


§    590)  MEASURE  OF  DAMAGES  765 

causes  mental  pain  and  suffering  and  failing-  to  deliver  one  which, 
if  delivered,  would  relieve  such  suffering.^*'  In  a  case  ^'  which  held 
this  distinction,  it  seems  that  the  plaintiff  and  his  wife  had  received 
information  of  the  dangerous  illness  of  the  latter's  mother.  Subse- 
quently, a  message  was  sent  containing  information  of  the  mother's 
improved  condition.  "The  damage  here  complained  of  was  the 
mere  continued  anxiety  caused  by  the  failure  to  promptly  deliver 
the  message.  Some  kind  of  unpleasant  emotion  in  the  mind  of  the 
injured  party  is  probably  the  result  of  the  breach  of  the  contract 
in  most  cases.  But  the  cases  are  rare  in  which  such  emotions  can 
be  held  to  be  an  element  of  damages  resulting  from  the  breach. 
For  injuries  to  feelings  in  such  cases  the  courts  cannot  give  redress. 
Any  other  rule  would  result  in  intolerable  litigation."  ^^     As  will 

3  6  Sparkmaii  v.  West.  U.  Tel.  Co.,  130  N.  C.  447,  41  S.  E.  SSI;  West.  U.  Tel. 
Co.  V.  Leland,  156  Ala.  334,  47  South.  62 ;  West.  U.  Tel.  Co.  v.  Edmondsou,  91 
Tex.  206,  42  S.  W.  549 ;  West.  U.  Tel.  Co.  v.  Giffin,  93  Tex.  530,  56  S.  W.  744, 
77  Am.  St.  Rep.  896 ;  Rowell  v.  West.  U.  Tel.  Co.,  75  Tex.  26,  12  S.  W.  534 ; 
Koppeii  V.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  85  S.  W.  1018 ;  Morrison  v.  West. 
U.  Tel.  Co.,  24  Tex.  Civ.  App.  347,  59  S.  W.  1127 ;  West.  U.  Tel.  Co.  v.  Bass,  28 
Tex.  Civ.  App.  418,  67  S.  W.  515 ;  Akard  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.) 
44  S.  W.  538 ;  Johnson  v.  West.  U.  Tel.  Co.,  14  Tex.  Civ.  App.  536,  38  S.  W. 
64 ;  Rich  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  110  S.  W.  93.  See  Middleton  v. 
West.  U.  Tel.  Co.,  183  Ala.  213,  62  South.  744,  49  L.  R.  A.  (N.  S.)  305. 

3T  Rowell  V.  West.  U.  Tel.  Co.,  75  Tex.  26,  12  S.  W.  534. 

3  8  McCarthy  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  568;  Rowell  v. 
West.  U.  Tel.  Co.,  75  Tex.  26,  12  S.  W.  534 ;  Chapman  v.  West.  U.  Tel.  Co.,  88 
Ga.  763,  15  S.  E.  901.  30  Am.  St.  Rep.  183,  17  L.  R.  A.  430 ;  Francis  v.  West.  U. 
Tel.  Co.,  58  Minn.  252,  55  N.  W.  1078,  49  Am.  St.  Rep.  507,  25  L.  R.  A.  406 ; 
West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St.  Rep.  300,  13 
L.  R.  A.  859 ;  West.  U.  Tel.  Co.  v.  Chouteau,  28  Okl.  664,  115  Pac.  879,  Ann. 
Cas.  1912D,  824,  49  L.  R.  A.  (N.  S.)  208.  See,  also,  §  611.  The  same  rule  has 
been  applied  in  regard  to  a  message  inquiring  as  to  the  condition  of  a  sick 
relative,  West.  U.  Tel.  Co.  v.  Bass,  28  Tex.  Civ.  App.  418,  67  S.  W.  515 ;  West. 
U.  Tel.  Co.  V.  O'Callaghan,  32  Tex.  Civ.  App.  336,  74  S.  W.  798 ;  Akard  v.  West. 
U.  Tel.  Co.  (Tex.  Civ.  App.)  44  S.  W.  538 ;  or  one  in  reply  to  such,  Koppcrl  v. 
West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  85  S.  W.  1018.  But  in  other  cases  this  dis- 
tinction  has  been  expressly  disapproved.  West.  U.  Tel.  Co.  v.  Hollingsworth, 
83  Ark.  39,  102  S.  W.  681,  11  L.  R.  A.  (N.  S.)  497,  119  Am.  St.  Rep.  105,  13  Ann. 
Cas.  397 ;  Dayvis  v.  West.  U.  Tel.  Co.,  139  N.  C.  79,  51  S.  E.  S98 ;  Sparknian  v. 
West.  U.  Tel.  Co.,  130  N.  C.  447,  41  S.  E.  881 ;  Bush  v.  Telephone  Co.,  93  S.  C. 
176,  76  S.  E.  197 ;  Fass  v.  West.  U.  Tel.  Co.,  82  S.  C.  461,  64  S.  E.  235 ;  Willis 
v.  West.  U.  Tel.  Co.,  69  S.  C.  531,  48  S.  E.  538,  104  Am.  St.  Rep.  S28,  2  Ann. 
Cas.  52 ;  Middleton  v.  West.  U.  Tel.  Co.,  183  Ala.  213,  02  South.  744,  49  L.  R. 
A.  (N.  S.)  305 ;  Maley  v.  West.  U.  Tel.  Co.,  151  Iowa,  228,  130  N.  W.  10S6,  49 
L.  R.  A.  (N.  S.)  327 ;  Suttle  v.  \V^est.  U.  Tel.  Co.,  148  N.  C.  480,  62  S.  E.  593,  128 
Am.  St.  Rep.  631 ;  Alexander  v.  West.  U.  Tel.  Co.,  158  N.  C.  473,  74  S.  E.  449, 
42  L.  R.  A.  (N.  S.)  407 ;  Hamilton  v.  West.  U.  Tel.  Co.,  96  S.  C.  398,  80  S.  E. 
706.  But  see  West.  U.  Tel.  Co.  v.  Edmondsou,  91  Tex.  206,  42  S.  W.  549,  cited 
in  66  Am.  St.  Rep.  873,  note ;  West.  U.  Tel.  Co.  v.  Giffin,  93  Tex.  530,  56  S.  W. 
744,  77  Am.  St.  Rep.  896 ;  Goodhue  v.  West.  U.  Tel.  Co.,  57  Tex.  Civ.  App.  297,, 
122  S.  W.  41;  West.  U.  Tel.  Co.  v.  Steele  (Tex.  Civ.  App.)  110  S.  W.  546;  Akard 


766  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  591 

be  seen,  the  distinction  between  these  cases  was  so  unsubstantial 
that  it  was  evidently  resorted  to  for  the  express  purpose  of  ob- 
structing the  tide  of  "intolerable  litigation"  flowing  from  the  deci- 
sions following  the  So  Relle  Case. 

§  591.  Same  continued — suffering  must  be  real. — Another 
means  by  which  the  flow  of  this  "intolerable  litigation"  has  been 
attempted  to  be  obstructed  is  by  the  rule  laid  down  in  some  of  those 
cases,  and  closely  adhered  to,  that  in  order  for  damages  to  be  re- 
covered in  such  cases,  the  mental  suffering  must  be  real  and  not 
such  as  may  be  the  result  of  a  too  sensitive  or  excitable  mental  con- 
stitution or  a  distorted  imagination.^^     "If  grief  or  sorrow  can  be 

V.  West.  U.  Tel.  Co..  supra;  West.  U,  Tel.  Co.  v.  Young  (Tex.  Civ.  App.)  130 
S.  W.  257 ;  Rich  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  110  S.  W.  93 ;  Gaddis  v. 
West.  U.  Tel.  Co.,  33  Tex.  Civ.  App.  391,  77  S.  W.  37 ;  West.  U.  Tel.  Co.  v. 
Eeed,  37  Tex.  Civ.  App.  445,  84  S.  W.  296 ;  Kopperl  v.  West.  U.  Tel.  Co.,  supra. 
But  see  West.  U.  Tel.  Co.  v.  Cavin,  30  Tex.  Civ.  App.  152,  70  S.  W.  229.  Dam- 
ages have  beeen  allowed  as  a  result  of  a  delay  in  receiving  benefit  of  tele- 
gram. Willis  V.  West.  U.  Tel.  Co.,  supra ;  West.  U.  Tel.  Co.  v.  Northcutt,  158 
Ala.  539,  48  South.  553,  132  Am.  St.  Rep.  38 ;  West.  U.  Tel.  Co.  v.  Burgess  (Tex. 
Civ.  App.)  56  S.  W.  237 ;  West.  U.  Tel.  Co.  v.  Barrett,  55  Tex.  Civ.  App.  323, 
118  S.  W.  1089.  See  Ellison  v.  West.  U.  Tel.  Co.,  163  N.  C.  5,  79  S.  E.  277 ; 
Harrison  v.  West.  U.  Tel.  Co.,  163  N.  C.  IS,  79  S.  E.  281 ;  Howard  v.  West  U. 
Tel.  Co.,  106  Ark.  559,  153  S.  W.  803. 

3  9  McAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W.  715;  Morrison  v.  West. 
U.  Tel.  Co.,  24  Tex.  Civ.  App.  347,  59  S.  W.  1127 ;  Hancock  v.  West.  U.  Tel. 
Co.,  137  N.  C.  497,  49  S.  E.  952,  69  L.  R.  A.  403 ;  Rowell  v.  West.  U.  Tel.  Co., 
75  Tex.  26,  12  S.  W.  534 ;  West.  U.  Tel.  Co.  v.  Bell  (Tex.  Civ.  App.)  61  S.  W. 
942 ;  West.  U.  Tel.  Co.  v.  Archie,  92  Ark.  59,  121  S.  W.  1045 ;  West.  U.  Tel.  Co. 
V.  McKenzie,  96  Ark.  21S,  131  S.  W.  684,  49  L.  R.  A.  (N.  S.)  296 ;  West.  U.  Tel. 
Co.  V.  Garlingtou,  101  Ark.  487,  142  S.  W.  854,  49  L.  R.  A.  (N.  S.)  300 ;  West. 
U.  Tel.  Co.  V.  Oastler,  90  Ark.  268,  119  S.  W.  285,  49  L.  R.  A.  (N.  S.)  325 ;  Hart 
V.  West.  U.  Tel.  Co.,  53  Tex.  Civ.  App.  275,  115  S.  W.  638 ;  West.  U.  Tel.  Co.  v. 
Rich,  59  Tex.  Civ.  App.  395,  126  S.  W.  686;  West.  U.  Tel.  Co.  v.  Buchanan 
(Tex.  Civ.  App.)  129  S.  W.  850 ;  Maley  v.  West.  U.  Tel.  Co.,  151  Iowa,  228,  130 
N.  W.  1086,  49  L.  R.  A.  (N.  S.)  327 ;  West.  U.  Tel.  Co.  v.  Bangs,  94  Ark.  44,  125 
S.  W.  1012.  See  Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky.  788,  112  S.  W. 
897,  19  L.  R.  A.  (N.  S.)  575 ;  Lyles  v.  West.  U.  Tel.  Co.,  Si  S.  C.  1,  65  S.  E. 
832,  137  Am.  St.  Rep.  829 ;  West.  U.  Tel.  Co.  v.  McMullin,  98  Ark.  347,  135  S. 
W.  909;  West.  U.  Tel.  Co.  v.  Shenep,  83  Ark.  476,  114  S.  W.  154,  12  L.  R.  A. 
(N.  S.)  886,  119  Am.  St.  Rep.  145 ;  Howard  v.  West.  U.  Tel.  Co.,  100  Ark.  559, 
153  S.  W.  804 ;  Cashion  v.  West.  U.  Tel.  Co.,  123  N.  C.  267,  31  S.  E.  493 ;  Bowers 
v.  West.  U.  Tel.  Co.,  135  N.  C.  504,  47  S.  E.  597.  The  same  rule  prevails  in 
jurisdictions  in  wliich  there  is  a  statute  giving  a  right  of  action  for  mental 
anguish.  Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531,  48  S.  E.  538,  104  Am.  St. 
Rep.  828,  2  Ann.  Cas.  52.  The  mental  suffering  caused  by  the  negligence  of 
the  company  must  be  of  the  kind  properly  designated  as  anguish.  Day  vis  v. 
West.  U.  Tel.  Co.,  139  N.  C.  79,  51  S.  E.  898 ;  West.  U.  Tel.  Co.  v.  O'Callaghan, 
32  Tex.  Civ.  App.  336,  74  S.  W.  798 ;  Mackay  Tel.  Cable  Co.  v.  Vaughan,  111 
Ark.  504,  163  S.  W.  158,  51  L.  R.  A.  (N.  S.)  404 ;  Johnson  v.  West.  U.  Tel.  Co., 
14  Tex.  Civ.  App.  536,  38  S.  W.  64;  West.  U.  Tel.  Co.  v.  Vickery  (Tex.  Civ. 
App.)  158  S.  W.  792 ;  West.  U.  Tel.  Co.  v.  Long,  90  Ark.  203,  118  S.  W.  405 ; 
Ricketts  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  22,  30  S.  W.  1105 ;  DeVoegler 


§    592)  MEASURE   OF  DAMAGES  767 

produced  by  things  unreal,  mere  pigments  of  the  brain,  or  a  tort, 
an  individual  of  a  somber,  gloomy  imagination  would  often  be  en- 
titled to  large  damages  on  account  of  mental  suffering,  while  others 
of  a  buoyant  fancy,  for  the  same  breach  of  duty,  would  not  be  en- 
titled to  anything;  and  damages,  instead  of  being  measured  by  the 
rule  of  law  as  applied  to  the  rule  of  facts,  would  largely  depend 
upon  the  fertility  of  the  imagination  of  the  suitor."  *"  Thus  mere 
anxiety  resulting  from  plaintiff's  inability  to  learn  what  he  seeks 
to  know  of  his  relatives  is  no  ground  for  recovery  of  damages.*^ 
Neither  is  a  suit  maintainable  on  the  ground  of  mere  anger  or  re- 
sentment in  failing  to  deliver  a  message  in  regard  to  a  death ;  *^ 
nor  the  worry  over  the  loss  of  a  position  by  a  student,  although  the 
worry  seriously  interfered  with  his  studies ;  *^  nor  for  a  delay  of  a 
message  asking  for  money**  or  money  transfer  message;*^  nor 
for  the  nondelivery  or  delay  of  a  mere  business  message.**' 

§  592.  Same  continued — must  be  the  result  of  the  cause  of  com- 
plaint.— Juries  are  so  easily  misled  through  prejudice,  sympathy 
and  ignorance  from  the  main  cause  of  the  action,  in  such  cases,  to 

V,  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  229,  30  S.  W.  1107 ;  West.  U.  Tel.  Co.  v. 
Garlington,  101  Ark.  487,  142  S.  W.  854,  49  L.  R.  A.  (N.  S.)  300 ;  West.  U.  Tel. 
Co.  V.  Partlow,  30  Tex.  Civ.  App.  599,  71  S.  W.  584 ;  Smith  v.  Postal  Tel.  Cable 
Co.,  1(J7  N.  C.  248,  S3  S.  E.  475. 

4  0  McAllen  v.  W^est.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W.  715. 

4iAkard  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  44  S.  W.  538;  West.  U.  Tel. 
Co.  V.  Shenep,  S3  Ark.  476,  104  S.  W.  154,  12  L.  R.  A.  (N.  S.)  886,  119  Am.  St. 
Rep.  145 ;  Capers  v.  West.  U.  Tel.  Co.,  71  S.  C.  29,  50  S.  E.  537 ;  Hancock  v. 
West.  U.  Tel.  Co.,  137  N.  C.  497,  49  S.  E.  952,  69  L.  R.  A.  403,  holding  that  the 
term  "anguish"  means  intense  pain  of  body  or  mind  and  is  derived  from  an- 
Gtiis,  a  snake,  referring  to  the  writhing  or  twisting  of  the  animal  body,  and  al- 
so holding  that  the  term  "regret"  indicates  no  higher  degree  of  mental  suffer- 
ing than  disappointment,  and  does  not  constitute  mental  anguish. 

4  2  Yt/est.  U,  Tel.  Co.  v.  Bell  (Tex.  Civ.  App.)  61  S.  W.  942. 

4  3  West.  U.  Tel.  Co.  v.  Partlow,  30  Tex.  Civ.  App.  599,  71  S.  W.  584 ;  West.  U. 
Tel.  Co.  v.  Shenep,  83  Ark.  476,  104  S.  W.  154,  12  L.  R.  A.  (N.  S.)  886,  119  Am. 
St.  Rep.  145. 

4  4  Gooch  V.  West.  U.  Tel.  Co.,  90  S.  W.  587,  28  Ky.  Law  Rep.  828. 

45  De  Voegler  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  229,  30  S.  W.  1107; 
Ricketts  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  226,  30  S.  W.  1105 ;  Robinson 
v.  West.  U.  Tel.  Co.,  68  S.  W.  656,  24  Ky.  Law  Rep.  452,  57  L.  R.  A.  611.  But 
see  Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky.  788,  112  S.  W.  897,  19  L.  R. 
A.  (N.  S.)  575. 

4G  Gooch  V.  West.  U.  Tel.  Co.,  90  S.  W.  587,  28  Ky.  Law  Rep.  828;  Robinson 
v.  West.  U.  Tel.  Co.,  68  S.  W.  656,  24  Ky.  Law  Rep.  452,  57  L.  R.  A.  611 ;  West. 
U.  Tel.  Co.  V.  Shenep,  S3  Ark.  476,  104  S.  W.  154,  12  L.  R.  A.  (N.  S.)  886,  119 
Am.  St.  Rep.  145 ;  Todd  v.  West.  U.  Tel.  Co.,  77  S.  C.  522,  58  S.  E.  433 ;  Capers 
V.  West.  IJ.  Tel.  Co.  71  S.  C.  29,  50  S.  E.  537 ;  Cason  v.  West.  U.  Tel.  Co.,  77 
S.  C.  157,  57  S.  E.  722 ;  De  Voegler  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  229. 
30  S.  W.  1107 ;  West.  U.  Tel.  Co.  v,  Gidcumb  (Tex.  Civ.  App.)  28  S.  W.  699 : 
Ricketts  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  226,  30  S.  W.  1105. 


7GS  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  592 

sufferings  of  the  mind,  resulting  from  other  causes,  that  it  should 
always  be  the  duty  of  the  courts,  on  proper  request,  to  instruct 
them  that  a  recovery  could  only  be  had  for  the  injuries  resulting 
directly  and  proximately  from  the  cause  of  complaint,  and  that 
none  other  should  be  considered  in  their  deliberation. ^'^  As  said 
heretofore,  the  plaintiff  is  the  only  party  who  knows  the  extent  of 
his  suffering,  and  in  attempting  to  show  these  to  others  he  is  liable 
to  expose  the  injury  arising  from  other  kindred  causes.  His  in- 
juries may  be  the  result  of  several  causes;  so  it  would  be  difficult 
for  him  to  measure  out  and  divide  the  whole  so  as  to  give  the 
extent  of  suffering  resulting  from  the  cause  of  complaint.  This 
fact  was  not  lost  sight  of  by  Judge  Watts,  who  rendered  the  deci- 
sion in  the  So  Relle  Case.  In  closing  his  opinion,  he  said:  "It 
should  be  remarked  that  great  caution  ought  to  be  observed  in  the 
trial  of  cases  like  this ;  as  it  will  be  so  easy  and  natural  to  confound 
the  corroding  grief  occasioned  by  the  loss  of  the  parent  or  other 

4  7  Beasley  v.  West.  U.  Tel.  Co.  (C.  C.)  39  Fed.  1S7;  Rosser  v.  West.  U.  Tel. 
Co.,  130  N.  C.  2.51,  41  S.  E.  378 ;  Cashion  v.  West.  U.  Tel.  Co.,  123  X.  C.  267, 
31  S.  E.  493 ;  Id.,  124  N.  C.  459,  32  S.  E.  746,  45  L.  R.  A.  1€0 ;  Wadswortli  v. 
West.  U.  Tel.  Co.,  86  Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep.  8(>4 ;  So  Relle 
V.  West.  U.  Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  805 ;  Gulf,  etc.,  R.  Co.  v.  Levy, 
59  Tex.  543,  46  Am.  Rep.  269 ;  West.  U.  Tel.  Co.  v.  Wingate,  6  Tex.  Civ.  App. 
394,  25  S.  W.  439;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  59S,  1 
L.  R.  A.  728,  10  Am.  St.  Rep.  772 ;  Johnson  v.  West.  U.  Tel.  Co.,  14  Tex.  Civ. 
App.  536,  38  S.  W.  64;  West.  U.  Tel.  Co.  v.  Shumate,  2  Tex.  Civ.  App.  429, 
21  S.  W.  109;  West.  U.  Tel.  Co.  v.  Warren  (Tex.  Civ.  App.)  36  S.  W.  314; 
West.  U.  Tel.  Co.  v.  Stephens,  2  Tex.  Civ.  App.  129,  21  S.  W.  148;  West.  U. 
Tel.  Co.  v.  Edmondson,  91  Tex.  206,  42  S.  W.  549,  cited  in  66  Am.  St.  Rep. 
873,  note.  So  the  suffering  must  have  been  the  proximate  result  of  the  negli- 
gence or  default  complained  of.  West.  U.  Tel.  Co.  v.  Leland,  156  Ala.  334,  47 
South.  62 ;  Thurman  v.  West.  U.  Tel.  Co.,  127  Ky.  137,  105  S.  W.  157,  32  Ky. 
Law  Rep.  26.  14  L.  R.  A.  (N.  S.)  499 ;  West.  U.  Tel.  Co.  v.  Briscoe,  18  Ind. 
App.  22,  47  N.  E.  473 ;  Higdon  v.  West.  U.  Tel.  Co.,  132  N.  C.  726,  44  S.  E. 
558 ;  Smith  v.  West.  U.  Tel.  Co.,  72  S.  C.  116,  51  S.  E.  537 ;  Arial  v.  West. 
U.  Tel.  Co.,  70  S.  C.  418,  50  S.  E.  6;  Landry  v.  West.  U.  TeL  Co.,  102  Tex. 
67,  113  S.  W.  10,  reversing  (Civ.  App.)  108  S.  W.  461;  West.  U.  Tel.  Co.  v. 
Linn,  87  Tex.  7,  26  S.  W.  490,  47  Am.  St.  Rep.  58 ;  West.  U.  Tel.  Co.  v.  Taylor 
(Tex.  Civ.  App.)  81  S.  W.  69;  Taliferro  v.  West.  U.  Tel.  Co.,  54  S.  W.  825. 
21  Ky.  Law  Rep.  1290 ;  Mitchiner  v.  West.  U.  Tel.  Co.,  75  S.  C.  182,  55  S.  E. 
222; 'west.  U.  Tel.  Co.  v.  Gulick,  48  Tex.  Civ.  App.  78,  106  S.  W.  698.  See, 
also.  West  U,  Tel.  Co.  v.  Bickerstaff,  100  Ark.  1,  138  S.  W.  997,  Ann.  Cas. 
1913B,  242 ;  Beal  v.  West.  U.  Tel.  Co.,  153  N.  C.  331.  09  S.  E.  247 ;  Barnes  v. 
Postal  Tel.  Cable  Co.,  150  N.  C.  150,  72  S.  E.  78 ;  Kolb  v.  West.  U.  Tel.  Co. 
(Tex.  Civ.  App.)  138  S.  W.  1081;  Southern  Bell  Tel.,  etc.,  Co.  v.  Reynolds, 
139  Ga.  385,  77  S.  E.  388.  Any  evidence  which  will  aid  the  jury  in  this  re- 
spect should  be  admitted.  West.  U.  Tel.  Co.  v.  Crocker,  135  Ala.  492.  33 
South.  45,  59  L.  R.  A.  .398;  Hancock  v.  West.  U.  Tel.  Co.,  137  N.  C.  497,  49 
S.  E.  952.  69  L.  R.  A.  403;  West.  U.  Tel.  Co.  v.  Simmons.  32  Tex.  Civ.  App. 
578,  75  S.  W.  822.  See,  also.  Mackay  Tel.  Cable  Co.  v.  Vaughan,  111  Ark.  504, 
163  S.  W.  158,  51  L.  R.  A.  (N.  S.)  404. 


§    593)  MEASURE  OF  DAMAGES  769 

relative  with  the  disappointment  and  regret  occasioned  by  the  fault 
or  neglect  of  the  company,  for  it  is  only  the  latter  for  which  a  re- 
covery may  be  had ;  and  the  attention  of  the  juries  might  well  be 
called  to  that  fact."  *« 

§  593.  Same  continued — suffering  must  be  of  the  plaintiff. — 
There  is  no  doubt  that  the  mind  may  be  as  seriously  injured  as  any 
part  of  the  body ;  in  fact  there  is  such  a  close  union  between  the  two 
that  one  can  hardly  suffer  without  the  other  being  affected  more 
or  less.  So  it  is  not  that  we  intend  to  be  understood  in  saying  that 
the  mind  cannot  be  injured,  for  which  damages  may  be  recovered, 
but  that  the  difficulty  of  proving  the  injury  is  so  great  it  should  not 
— only  in  certain  cases — be  the  only  grounds  for  an  action.  There 
is  a  marked  resemblance  between  the  suft'erings  of  the  mind,  caused 
by  injuries  thereto,  and  the  sufferings  of  the  body,  and  yet  this  can 
only  be  appreciated  by  the  injured  person  himself.  If  we  could  dis- 
cern them  both,  the  results  with  respect  to  us  would  be  exactly  the 
same;  but,  while  one  can  be  seen  or  examined,  and  the  extent  of 
suffering  thereby,  to  a  proximate  degree,  measured,  yet  there  is  no 
way  that  the  injuries  to  the  mind  can  be  so  ascertained  or  deter- 
mined.*^ It  is  generally  held  that,  if  there  is  an  injury  to  the  body, 
damages  may  be  recovered  for  mental  suffering  which  is  the  direct 
result  of  the  same  cause  that  produced  the  bodily  injury,^**  but  in 
no  instance  can  the  same  damages  be  recovered  in  actions  for  physi- 
cal pain  resulting  from  a  different  cause  than  that  of  the  latter. 
Neither  can  the  physical  sufferings  of  another  be  considered  in  a 
case  brought  exclusively  by  the  plaintiff  for  his  own  bodily  hurts, 
as  he  is  the  only  person  affected  with  respect  to  that  action.  It  is 
generally  held,  therefore,  in  those  cases  where  damages  may  be  re- 
covered for  mental  anguish  alone  that  the  suffering  of  the  plaintiff's 

4  8  So  Relle  v.  West.  U.  Tel.  Co.,  55  Tex.  308,  40  Am.  Rep.  SOS. 

4  9  It  is  necessary  to  get  the  distinction  between  mental  anguish  caused  by 
the  sickness  or  death  and  that  caused  by  the  defendant's  negligence  and  call 
the  jury's  attention  thereto.  AVest.  U.  Tel.  Co.  v.  Cooper,  71  Tex,  507,  9  S.  W. 
598,  10  Am.  St.  Rep.  772,  1  L.  R.  A.  728 ;  Sherrill  v.  West.  U.  Tel.  Co.,  155 
N.  C.  250,  71  S.  E.  330 ;  Ellison  v.  West.  U.  Tel.  Co.,  163  N.  C.  5,  79  S.  E.  277. 
See  Hancock  v.  West.  U.  Tel.  Co.,  137  N.  C.  497,  49  S.  E.  952,  69  L.  R.  A.  403 ; 
West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712;  Hunter  v.  West. 
U.  Tel.  Co.,  135  N.  C.  4.58,  47  S.  E.  745;  So  Relle  v.  West.  U.  Tel.  Co.,  55 
Tex.  308,  40  Am.  Rep.  805;  West.  U.  Tel.  Co.  v.  Bowles  (Tex.  Civ.  App.)  76 
S.  W.  456 ;  West.  U.  Tel.  Co.  v.  Steele  (Tex.  Civ.  App.)  110  S.  W.  546 ;  West. 
U.  Tel.  Co.  V.  Smith  (Tex.  Civ.  App.)  30  S.  W.  937;  West.  U.  Tel.  Co.  v. 
Wingate,  0  Tex.  Civ.  App.  394,  25  S.  W.  439. 

5  0  See  §  612. 

Jones  Tel.(2d  Ed.)— 49 


770  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  694 

mind  ^^  and  not  that  of  others  ^-  who  may  be  affected  thereby,  can 
be  considered  by  a  jury.  Thus,  when  the  plaintiff's  relatives  endure 
suffering  and  distress  of  mind  on  account  of  his  absence,  this  fact 
cannot  be  considered  in  awarding  him  damages  for  his  mental 
anguish.  ^^ 

§  594.  Same  continued — anguish  from  independent  causes. — A 
distinction  has  been  drawn,  as  heretofore  noted,  in  those  states 
holding  that  mental  distress  alone  was  sufficient  grounds  for  an 
action  between  injuries  to  the  mind  caused  by  a  delay  or  non- 
delivery of  a  message  and  that  resulting  from  independent  causes.^* 
Thus,  in  an  action  on  a  delayed  message  sent  by  the  mother  to  her 
daughter  in  regard  to  the  serious  illness  of  the  latter's  father,  the 
company  will  not  be  liable  to  the  mother  in  damages  for  her  mental 
suft'ering  and  distress,  caused  by  the  want  of  the  consoling  presence 
of  her  daughter  at  the  burial,  where  she  could  and  would  have  been 
present,  but  could  not  have  been  present  at  the  death  if  the  message 
had  not  been  delayed.^"'"  Neither  is  mental  anguish  and  suspense 
caused  by  a  tardy  delivery  of  a  message  announcing  the  serious 
illness  of  plaintift''s  father,  and  which  delayed  her  twenty-four  hours 
in  starting  by  rail  to  see  him,  a  ground  to  be  considered,  where  the 
plaintiff  could  not  have  arrived  at  his  home  in  time  for  the  funeral 
had  the  message  been  delivered  promptly.^®  In  another  case,  a  son 
telegraphed  his  father  to  send  a  carriage  to  meet  him  at  a  certain 
place  and  to  wire  him  when  the  carriage  would  arrive.  He  waited 
several  days  for  a  reply  to  his  message,  and  on  account  of  failing  to 
get  one,  he  suft'ered  great  distress  of  mind.  It  was  held  that  this 
suffering  could  not  be  considered  in  an  action  to  recover  damages 

51  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E.  871;  Gulf, 
etc.,  R.  Co.  V.  Richardson,  79  Tex.  G49,  15  S.  W.  6S9. 

5  2  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind.  App.  125,  32  N.  E.  871;  Sabine 
Val.  Tel.  Co.  v.  Oliver,  46  Tex.  Civ.  App.  428,  102  S.  W.  925 ;  West.  U.  Tel. 
Co.  V.  Lovett,  24  Tex.  Civ.  App.  84,  58  S.  W.  204 ;  West.  U.  Tel.  Co.  v.  Procter, 
6  Tex.  Civ.  App.  300,  25  S.  W.  811.  But  the  mere  fact  that  others  are  caused 
to  suffer  will  not  prevent  the  plaintiff  from  recovering.  Gulf,  etc.,  Co.  v. 
Richardson,  79  Tex.  649,  15  S.  W.  689. 

"Gulf,  etc.,  Tel.  Co.  v.  Richardson,  79  Tex.  649,  15  S.  W,  689;  West.  U. 
Tel.  Co.  V.  Lovett,  24  Tex.  Civ.  App.  84,  58  S.  W.  204. 

n*  Sparlvman  v.  West.  U.  Tel.  Co.,  130  N.  C.  447,  41  S.  B.  881;  McCarthy 
V.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  568;  West.  U.  Tel.  Co.  v. 
Edmondson,  91  Tex.  206,  42  S.  W.  549,  cited  in  66  Am.  St.  Rep.  873,  note; 
West.  U.  Tel.  Co.  v.  Bass,  28  Tex.  Civ.  App.  418,  67  S.  W.  515 ;  West.  U.  Tel. 
Co.  V.  Parks  (Tex.  Civ.  App.)  25  S.  W.  813.  See  §§  591,  592.  See,  also,  other 
cases  cited  in  note  49,  supra. 

5  5  West.  U.  Tel.  Co.  v.  Luck,  91  Tex.  178,  41  S.  W.  469,  66  Am.  St.  Rep.  869. 
See,  also,  Rowell  v.  West.  U.  Tel.  Co.,  75  Tex.  26,  12  S.  W.  534.  See,  also,  § 
548. 

5  6  West.  U.  Tel.  Co.  v.  Luck,  91  Tex.  178,  41  S.  W.  469,  66  Am.  St.  Rep.  SG9. 


§    596)  MEASURE   OF   DAMAGES  771 

for  mental  worry  caused  by  the  message  not  being-  delivered."^  So 
also  where  plaintiff  and  his  wife  had  received  information  of  the 
dangerous  illness  of  the  latter's  mother,  and  subsequently  a  mes- 
sage was  sent  informing  them  of  her  improved  condition,  but  the 
company  failed  to  deliver  it.  It  was  held  that  there  could  be  re- 
covery for  the  mental  anguish  suffered  by  the  plaintiff  and  his  wife 
which  a  delivery  of  the  message  would  have  relieved. ^^ 

§  595.  Unwarranted  apprehension. — Where  there  is  an  unwar- 
ranted apprehension  on  the  part  of  plaintiff,  and  as  a  result  of  which 
mental  anguish  is  suffered,  a  recovery  cannot  be  had  therefor,"^ 
but  if  such  suffering  is  based  upon  circumstances  which  do  not 
actually  exist,  a  recovery  will  not  be  denied  therefor  because  of  this 
mere  fact  alone.''''  If  the  action  is  prosecuted  on  circumstances  of 
this  nature,  the  reasonableness  and  extent  of  the  plaintiff's  suffering 
will  be  facts  for  the  determination  of  the  jury;*'^  and  so,  if  as  a 
result  of  the  company's  negligence  or  default,  the  plaintiff'  is  rea- 
sonably caused  to  believe  in  the  existence  of  certain  facts  which  do 
not  actually  exist,  but  which,  if  true,  would  warrant  the  recovery 
of  mental  anguish,  a  recovery  may  be  had.^^ 

§  596.  Failure  to  meet  plaintiff. — Ordinarily  there  cannot  be  a 
recovery  for  mental  anguish  because  the  plaintiff  was  not  met  at 
a  railroad  station  or  similar  place,  as  a  result  of  the  negligence  or 
default  of  the  company,''^  unless  he  was  traveling  with  a  corpse,^* 

5  7  McAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W.  715. 

5  8  Rowell  V,  West.  U.  Tel.  Co.,  75  Tex.  26,  12  S.  W.  534.     See,  also,  §  590. 

5  9MeAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W.  715;  Hart  v.  West. 
U.  Tel.  Co.,  53  Tex.  Civ.  App.  275.  115  S.  W.  638 ;  Morrison  v.  West.  U.  Tel. 
Co.,  24  Tex.  Civ.  App.  347,  59  S.  W.  1127 ;  Ricketts  v.  West.  U.  Tel.  Co.,  10 
Tex.  Civ.  App.  226,  30  S.  W.  1105;  West.  U.  Tel.  Co.  v.  McKenzie.  90  Ark. 
218,  131  S.  W.  684,  49  L.  R.  A.  (N.  S.)  296;  West.  U.  Tel.  Co.  v.  Slienep,  83 
Ark.  476,  104  S.  W.  154,  119  Am.  St.  Rep.  145,  12  L.  R.  A.  (N.  S.)  886 ;  West. 
U.  Tel.  Co.  V.  Archie,  92  Ark.  59,  121  S.  W.  1045;  Casbion  v.  West.  U.  Tel. 
Co..  123  N.  C.  207,  31  S.  E.  493 ;  West.  U.  Tel.  Co.  v.  McMuUin,  98  Ark.  347, 
135  S.  W.  909 ;  Bowers  v.  West.  U.  Tel.  Co..  135  N.  C.  504,  47  S.  E.  597 ;  West. 
U.  Tel.  Co.  Y.  Oastler,  90  Ark.  268,  119  S.  W.  285,  49  L.  R.  A.  (N.  S.)  325. 

«o  West.  U.  Tel.  Co.  v.  Hines,  22  Tex.  Civ.  App.  315,  54  S.  W.  627. 

61  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  506,  49  S.  E.  171,  1  Ann.  Cas.  3.58. 

62  Taylor  v.  West.  U.  Tel.  Co.,  101  S.  W.  909,  31  Ky.  Law  Rep.  240;  Green 
V.  West.  U.  Tel.  Co.,  136  N.  C.  500,  49  S.  E.  171,  1  Ann.  Cas.  358 ;  Rich  v. 
West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  110  S.  W.  93 ;  West.  U.  Tel.  Co.  v.  Patton 
(Tex.  Civ.  App.)  55  S.  W.  973 ;  West.  U.  Tel.  Co.  v.  Hines,  22  Tex.  Civ.  App. 
315,  54  S.  W.  627;  West.  U.  Tel.  Co.  v.  Odom,  21  Tex.  Civ.  App.  537,  52 
S.  W.  632 ;    Lay  v.  Postal  Tel.  Cab.  Co.,  171  Ala.  172.  .54  South.  529. 

6  3  West.  U.  Tel.  Co.  v.  Hogiie,  79  Ark.  33,  94  S.  W.  924;  West.  U.  Tel.  Co. 
V.  Westmoreland,  151  Ala.  319.  44  South.  382:  West.  U.  Tel.  Co.  v.  Sledge, 
153  Ala.  291,  45   South.  .59;    West.   U.   Tel.  Co.   v.   Howie,  156  Ala.  331,   47 

61  See  note  64  on  following  page. 


772  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  697 

and  there  was  such  a  relationship  between  him  and  the  deceased  as 
to  warrant  a  recovery  on  this  ground. "^^  In  order  to  recover  in  such 
cases,  however,  the  company  must  be  informed  in  some  manner 
that  the  sender  is  accompanied  by  a  corpse,*'*'  that  the  message 
could  have  been  duly  delivered,*'^  and  that,  in  consequence  of 
which,  the  sender  would  have  been  met,  or  the  burial  arrangements 
made.*'^  A  recovery  has  been  allowed  where  the  question  of  sick- 
ness or  death  was  not  involved,^®  the  company  being  informed  that 
such  suffering  would  result  in  case  of  its  negligence/" 

§  597,  Summoning  a  physician. — Where,  through  the  default  or  i 
negligence  of  a  telegraph  company,  a  message  summoning  a  physi- 
cian is  delayed  or  not  delivered,  the  question  has  arisen  whether 
the  sender  could  recover  for  his  mental  anguish  due  to  the  absence 
of  the  physician  and  to  witnessing  the  suffering  of  his  sick  relative. 
The  authorities  do  not  agree  on  this  question,  even  in  the  same 
jurisdiction.''^     Some  expressly  deny  the  right  to  recover,^-  while 

South.  341 ;  West.  U.  Tel.  Co.  v.  Henley,  23  Ind.  App.  14,  54  N.  E.  775 ;  Todd 
V.  West.  U.  Tel.  Co.,  77  S.  C.  522,  58  S.  E.  433 ;  Williams  v.  West.  U.  Tel.  Co., 
136  N.  C.  82,  48  S.  E.  559,  1  Ann.  Cas.  359;  McAllen  v.  West.  U.  Tel.  Co., 
70  Tex.  243,  7  S.  W.  715. 

6  4  West.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46 ;  West.  U.  Tel.  Co.  v.  Crowley,  158  Ala.  583,  48  South.  381 ;  West.  U. 
Tel.  Co.  V.  Long,  148  Ala.  202,  41  South.  935;  West.  U.  Tel.  Co.  v.  Turner 
(Tex.  Civ.  App.)  78  S.  W.  362;  Lyles  v.  West.  U.  Tel.  Co.,  77  S.  C.  174,  57 
S.  E.  725,  12  L.  R.  A.  (N.  S.)  534;  West.  U.  Tel.  Co.  v.  Giffin,  27  Tex.  Civ. 
App.  306,  65  S.  W.  661.  But  see  West.  U.  Tel.  Co.  v.  Burch,  36  Tex.  Civ.  App. 
237,  81  S.  W.  552. 

6  5  West.  U.  Tel.  Co.  v.  IMcMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46. 

6  0  West.  U.  Tel.  Co.  v.  Kuykendall,  99  Tex.  323,  89  S.  W.  965. 

6  7  West.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46. 

6  8  Hancock  v.  West.  U.  Tel.  Co.,  137  N.  C.  497,  49  S.  E.  952,  69  L.  R.  A. 
403 ;  West.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46.  See  West.  U.  Tel.  Co.  v.  White  (Tex.  Civ.  App.)  149  S.  W.  790.  Com- 
pare West.  U.  Tel.  Co.  v.  Crowley,  158  Ala.  583,  48  South.  381. 

6  0  West.  U.  Tel.  Co.  v.  Hanley,  85  Ark.  263.  107  S.  W.  1168;  Postal  Tel. 
Cab.  Co.  v.  Terrell,  124  Ky.  822,  100  S.  W.  292,  30  Ky.  Law  Rep.  1023,  14 
L.  R.  A.  (N.  S.)  927 ;  Green  y.  West.  U.  Tel.  Co.,  136  N.  C.  480,  49  S.  E.  105, 
103  Am.  St.  Rep.  955,  67  L.  R.  A.  985,  1  Ann.  Cas.  349 ;  Toale  v.  West.  U.  Tel. 
Co.,  76  S.  C.  248,  57  S.  E.  117 ;  West.  U.  Tel.  Co.  v.  Siddall  (Tex.  Civ.  App.) 
86  S.  W.  343 ;   West.  U.  Tel.  Co.  v.  Norton  (Tex.  Civ.  App.)  62  S.  W.  1081. 

7  0  See  West.  U.  Tel.  Co.  v.  Siddall  (Tex.  Civ.  App.)  86  S.  W.  343;  Postal 
Tel.  Cab.  Co.  v.  Terrell,  124  Ky.  822,  100  S.  W.  292,  30  Ky.  Law  Rep.  1023, 
14  L.  R.  A.  (N.  S.)  927. 

71  See  West.  U.  Tel.  Co.  v.  Reid,  120  Ky.  231,  85  S.  W.  1171,  27  Ky.  Law 
Rep,  659,  70  L.  R.  A.  289;  AVest.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7 
South.  419,  18  Am.  St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Kendzora  (Tex.  Civ. 
App.)  26  S.  W.  245. 

7  2  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  10  Am.  St.  Rep. 


§   598)  MEASURE  OP  DAMAGES  773 

others  recognize  the  right/^  provided  the  negligence  or  default 
complained  of  was  the  proximate  cause  of  such  suffering."* 

§  598.  Same  continued — must  have  prevented  the  injury. — As 
has  been  heretofore  noted,  damages  cannot  be  recovered  from  a 
telegraph  company  for  pecuniary  loss  in  consequence  of  its  negli- 
gent transmission  or  delivery  of  a  message,  when  the  same  could 
not  have  been  prevented  had  the  message  been  properly  deliv- 
ered.'^^  The  same  rule  applies  to  cases  brought  to  recover  damages 
for  mental  suffering.  So,  if  the  suffering  to  the  mind  could  not 
have  been  prevented  had  the  message  been  promptly  delivered,  the 
plaintiff  cannot  recover,  although  the  company  negligently  delayed 
its  deliver}^''*'     In  cases  brought  to  recover  damages  for  distress  of 

772,  1  L.  R.  A.  728 ;  West.  U.  Tel.  Co.  v.  Reid,  120  Ky.  231,  85  S.  W.  1171, 
27  Ky.  Law  Rep.  659,  70  L.  R.  A.  289.  See  West.  U,  Tel.  Co.  v.  Williams,  129 
Ky.  515,  112  S.  W.  651,  39  L.  R.  A.  (N.  S.)  409. 

7  3  West.  U.  Tel.  Co.  v.  Henderson,  S9  Ala.  510,  7  South.  419,  IS  Am.  St. 
Rep.  148 ;  West.  U.  Tel.  Co.  v.  Haley,  14.3  Ala.  5S6,  39  South.  386 ;  Gulf,  etc., 
Tel.  Co.  V.  Richardson,  79  Tex.  649,  15  S.  W.  689 ;  West.  U.  Tel.  Co.  v.  Keud- 
zora  (Tex.  Civ.  App.)  26  S.  W.  245 ;  West.  U.  Tel.  Co.  v.  Caviu,  30  Tex.  Civ. 
App.  152,  70  S.  W.  229 ;  West.  U.  Tel.  Co.  v.  Stephens,  2  Tex.  Civ.  App.  129, 
21  S.  W.  148. 

74  West.  U.  Tel.  Co.  v.  Haley,  143  Ala.  586,  39  South.  386.  See,  also,  Slaugh- 
ter v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  112  S.  W.  688. 

7  5  See  §§  549,  550,  598. 

7  6  Where  the  plaintiff  is  kept  away  from  the  deathbed  of  a  relative.  Cum- 
berland Tel.  Co.  V.  Brown,  104  Tenn.  56,  55  S.  W.  155,  50  L.  R.  A.  277,  78  Am. 
St.  Rep.  906;  West.  U.  Tel.  Co.  v.  Smith,  88  Tex.  9,  28  S.  W.  931,  30  S.  W. 
540 ;  West.  U.  Tel.  Co.  v.  Housewright,  5  Tex.  Civ.  App.  1,  23  S.  W.  824.  See, 
also,  West.  U.  Tel.  Co.  v.  Eskridge,  7  Ind.  App.  208,  33  N.  E.  238 ;  West.  U.  Tel. 
Co.  V.  Smith  (Tex.  Civ.  App.)  30  S.  W.  937;  West.  U.  Tel.  Co.  v.  Drake,  14 
Tex.  Civ.  App.  601,  .38  S.  W.  632 ;  West.  U.  Tel.  Co.  v.  Johnson,  16  Tex.  Civ. 
App.  546,  41  S.  W.  367 ;  West.  U.  Tel.  Co.  v.  Waller  (Tex.  Civ.  App.)  47  S.  W. 
o9G;  West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App.  43,  GO  S.  W.  982.  Where 
plaintiff  is  kept  away  from  the  funeral  of  some  relative.  West.  U.  Tel.  Co.  v. 
Stone  (Tex.  Civ.  App.)  27  S.  W.  144 ;  West.  U.  Tel.  Co.  v.  Linn,  87  Tex.  7,  26 
S.  W.  490,  47  Am.  St.  Rep.  58 ;  West.  U.  Tel.  Co.  v.  Motley,  87  Tex.  38,  27  S.  W. 
52,  reversing  (Civ.  App.)  27  S.  W.  51.  It  is  also  essential  that  the  failure  of 
the  company  to  discharge  its  duty  promptly  be  the  proximate  cause  of  the 
distress  and  suffering  for  which  damages  are  sought :  West.  U.  Tel.  Co.  v.  An- 
drews, 78  Tex.  .305,  14  S.  W.  641;  West.  U.  Tel.  Co.  v.  Hendricks,  26  Tex.  Civ. 
App.  366,  63  S.  W.  341.  Compare  Phillips  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.) 
G9  S.  W.  997 ;  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  1  L.  R.  A. 
728,  10  Am.  St.  Rep.  772. 

Independent  act  of  third  person. — The  rule  has  been  announced  in  some 
oases  that  there  cannot  be  a  recovery  where  the  independent  act  of  a  third 
person  was  required  to  effect  a  delivery.  Taliferro  v.  West.  U.  Tel.  Co.,  21  Ky. 
Law  Rep.  1290,  54  S.  W.  825  ;  West.  U.  Tel.  Co.  v.  Motley,  87  Tex.  38,  27  S.  W.  52, 
reversing  (Civ.  App.)  27  S.  W.  51 ;  West.  U.  Tel.  Co.  v.  Linn,  87  Tex.  7,  26  S. 
W.  490,  47  Am.  St.  Rep.  58.  In  other  cases  the  mere  fact  that  the  independent 
act  was  required  is  held  insufficient,  if  it  be  shown  that  such  act  would  have 
been  performed.  West.  U.  Tel.  Co.  v.  Clark,  14  Tex.  Civ.  App.  563,  38  S.  W. 
225 ;  Cobb  v.  West.  U.  Tel.  Co.,  85  S.  C.  430,  67  S.  E.  549 ;  Doster  v.  West.  U. 


774  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  598 

mind,  it  is  incumbent  upon  the  plaintiff  to  show  that  he  not  only 
could,  but  would,  have  prevented  the  injury  complained  of,  if  the 
message  had  been  promptly  delivered  to  him.  So  there  can  be  no 
recovery  for  not  being  present  at  a  deathbed  or  funeral,  unless,  had 
the  message  been  duly  delivered,  plaintiff  not  only  could,  but  would, 
have  gone,''  and  arrived  in  time,^^  which  must  be  affirmatively 
shown  ;  ^^  or  where  his  failure  to  do  so  was  due  to  his  being  er- 
roneously informed  that  a  train  which  he  might  have  taken  had 
already  gone,^°  or  to  the  fact  that  the  train  which  he  did  take  and 

Tel.  Co.,  77  S.  C.  56,  57  S.  E.  671 ;  West.  U.  Tel.  Co.  v.  Caldwell,  126  Ky.  42, 
102  S.  W.  810,  12  L.  R.  A.  (X.  S.)  748;  West.  U.  Tel.  Co.  v.  Drake,  14  Tex.  Civ. 
App.  601,  38  S.  W.  632. 

77  West.  U.  Tel.  Co.  v.  Adams  (Tex.  Civ.  App.)  80  S.  W.  93;  Cumberland  Tel. 
Co.  V.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78  Am.  St.  Rep.  906,  50  L.  R.  A.  277 ; 
West.  U.  Tel.  Co.  v.  Xewnum  (Tex.  Civ.  App.)  78  S.  W.  700 ;  West.  U.  Tel.  Co. 
V.  Johnson,  16  Tex.  Civ.  App.  546,  41  S.  W.  367.  Compare  Harrison  v.  West., 
U.  Tel.  Co.,  71  S.  C.  386,  51  S.  E.  119 ;  West.  U.  Tel.  Co.  v.  Young  (Tex.  Civ.] 
App.)  130  S.  W.  257. 

7  8  Smith  V.  West.  U.  Tel.  Co.,  72  S.  C.  116,  51  S.  E.  537;  Cumberland  TeL| 
Co.  V.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78  Am.  St.  Rep.  906,  50  L.  R.  A.  277 ; 
Howard  v.  West.  U.  Tel.  Co.,  84  S.  W.  764.  27  Ky.  Law  Rep.  244 ;  West.  U.  Tel. 
Co.  V.  Motley,  87  Tex.  38,  27  S.  W.  52 ;  Sabine  Val.  Tel.  Co.  v.  Odom,  46  Tex. 
Civ.  App.  428,  102  S.  W.  925 ;  West.  U.  Tel.  Co.  v.  Linn,  87  Tex.  7,  26  S.  W. 
490,  47  Am.  St.  Rep.  58 ;  West.  U.  Tel.  Co.  v.  Ford,  40  Tex.  Civ.  App.  474,  90  S. 
W.  677;  West.  U.  Tel.  Co.  v.  Stone  (Tex.  Civ.  App.)  27  S.  W.  144;  West.  U. 
Tel.  Co.  V.  Hendricks,  26  Tex.  Civ.  App.  .366,  63  S.  W.  341 ;  West.  U.  Tel.  Co. 
V.  Wright,  169  Ala.  104,  53  South.  95 ;  Harrelson  v.  West.  U.  Tel.  Co.,  90  S.  C. 
132,  72  S.  E.  8S2.  But  see  Hughes  v.  West.  T.  Tel.  Co.,  72  S.  C.  516,  52  S.  E. 
107. 

7  9  Cumberland  Tel.  Co.  v.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78  Am.  St.  Rep. 
906,  50  L.  R.  A.  277 ;  Howard  v.  West.  U.  Tel.  Co.,  119  Ky.  625,  84  S.  W.  764. 
86  S.  W.  982,  27  Ky.  Law  Rep.  244,  858,  7  Ann.  Cas.  1065 ;  West.  U.  Tel.  Co. 
V.  Bell,  42  Tex.  Civ.  App.  462,  92  S.  W.  1036;  West.  U.  Tel.  Co.  v.  Adams 
(Tex.  Civ.  App.)  80  S.  W.  93.  But  see  Sutton  v.  West.  U.  Tel.  Co.,  129  Ky. 
166,  110  S.  W.  874,  33  Ky.  Law  Rep.  577. 

The  same  must  be  alleged  in  declaration. — West.  U.  Tel.  Co.  v.  Bell,  supra; 
West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  133  S.  W.  1062 ;  West.  U.  Tel.  Co. 
v.  Stracner  (Tex.  Civ.  App.)  152  S.  W.  845;  Capers  v.  West.  U.  Tel.  Co.,  71 
S.  C.  29,  50  S.  E.  537 ;  Southwestern  Tel.,  etc.,  Co.  v.  Givens  (Tex.  Civ.  App.) 
139  S.  W.  676 ;  West.  U.  Tel.  Co.  v.  Forest  (Tex.  Civ.  App.)  157  S.  W.  204 ;  Ben- 
nett V.  West.  r.  Tel.  Co.,  128  N.  C.  103,  38  S.  E.  294,  cured  by  a  failure  to  de- 
mur. But  see  West.  U.  Tel.  Co.  v.  Griffith,  161  Ala.  241,  50  South.  91 ;  West.  U. 
Tel.  Co.  V.  Rowe,  44  Tex.  Civ.  App.  84,  98  S.  W.  228 ;  Harrison  v.  West.  L'.  Tel. 
Co.,  71  S.  C.  386,  51  S.  E.  119.  As  to  sufficiency  of  such  allegation,  see  West. 
U.  Tel.  Co.  V.  Hughey,  55  Tex.  Civ.  App.  403,  118  S.  W.  1130;  West.  U.  Tel. 
Co.  V.  Cates  (Tex.  Civ.  App.)  132  S.  W.  93 ;  West.  U.  Tel.  Co.  v.  Eskridge,  7 
Ind.  App.  208,  33  N.  E.  238 ;  West.  U.  Tel.  Co.  v.  Stracner,  supra ;  West.  U.  Tel. 
Co.  V.  Lyman,  3  Tex.  Civ.  App.  460,  22  S.  W.  656 ;  West.  U.  Tel.  Co.  v.  Gahau, 
17  Tex.  Civ.  App.  657,  44  S.  W.  933. 

8  0  Higdon  v.  West.  U.  Tel.  Co.,  132  N.  C.  726,  44  S.  E.  558. 
Presumption  that  train  ran  on  the  schedule  time. — In  order  that  the  prompt 

delivery  of  a  telegram  may  accomplish  its  purpose,  it  is  frequently  necessary 
that  a  particular  train  be  taken ;  so  the  courts  in  a  few  cases  have  adopted  the 


§    598)  MEASURE   OF  DAMAGES  775 

which  should  have  arrived  in  time  was  late,^^  or  to  the  fact  that  he 
stopped  off  at  an  intermediate  point. ^-  Whether  he  could  and 
would  have  gone  had  he  received  the  message  promptly  is  a  ques- 
tion for  the  jury,  although  he  may  have  testified  that  he  could  and 
would  have  done  so.*^  In  order  to  show  the  existence  or  proximate 
character  of  damages  which  are  sought  to  be  recovered,  the  testi- 
mony of  the  other  party  to  the  message  or  of  some  third  person  as 
to  what  he  would  have  done  in  case  the  message  had  been  dul}^ 
transmitted  and  delivered  has  in  some  cases  been  admissible,''*  it 

rule  that  it  will  be  presumed  that  the  train  ran  upon  schedule  time.  West.  U. 
Tel.  Co.  V.  Harris  (Tex.  Civ.  App.)  1.32  S.  W.  876 ;  West.  U.  Tel.  Co.  v.  McDavid 
(Tex.  Civ.  App.)  121  S.  W.  893 ;  West.  U.  Tel.  Co.  v.  McDavid,  103  Tex.  601,  132 
S.  W.  115. 

81  West.  U.  Tel.  Co.  v.  Briscoe,  18  Ind.  App.  22,  47  N.  E.  473.  But  see  Sut- 
ton V.  West.  U.  Tel.  Co.,  110  S.  W.  874,  33  Ky.  Law  Rep.  577. 

8  2  West.  U.  Tel.  Co.  v.  Birchfield,  14  Tex.  Civ.  App.  664,  38  S.  W.  635. 

8  3  West.  U.  Tel.  Co.  v.  May,  8  Tex.  Civ.  App.  176,  27  S.  W.  760.  See,  also, 
Evans  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  56  S.  W.  609. 

84  Carter  v.  West.  U.  Tel.  Co.,  141  N.  C.  374,  54  S.  E.  274;  Doster  v.  West. 
U.  Tel.  Co.,  77  S.  C.  56,  57  S.  E.  671 ;  Wallingford  v.  West.  U.  Tel.  Co.,  60  S.  C. 
201,  38  S.  E.  443,  629 ;  Texas,  etc.,  Tel.  Co.  v.  Mackenzie,  36  Tex.  Civ.  App. 
178,  SI  S.  W.  581 ;  West.  U.  Tel.  Co.  v.  Karr,  5  Tex.  Civ.  App.  60,  24  S.  W.  302 ; 
:McPeek  v.  West.  U.  Tel.  Co.,  107  Iowa,  356,  78  N.  W.  63,  70  Am.  St.  Rep.  205, 
43  L.  R.  A.  214 ;  Bennett  v.  West.  U.  Tel.  Co.,  129  Iowa,  607,  106  N.  W.  13 ; 
Battle  V.  West.  U.  Tel.  Co.,  151  N.  C.  629,  66  S.  E.  661 ;  West.  U.  Tel.  Co.  v.  Mit- 
chell, 91  Tex.  454,  44  S.  W.  274,  66  Am.  St.  Rep.  906,  40  L.  R.  A.  209 ;  West.  U. 
Tel.  Co.  V.  Lawson,  182  Fed.  369,  105  C.  C.  A.  451 ;  Robinson  v.  West.  U.  Tel. 
Co.,  109  Mich.  503,  135  N.  W.  292 ;  Cain  v.  West.  U.  Tel.  Co.,  89  Kan.  797,  133 
Pac.  874.  See  Trevisani  v.  Postal  Tel.  Cable  Co.,  176  111.  App.  139 :  West.  U. 
Tel.  Co.  V.  Sights,  34  Okl.  461,  126  Pac.  234,  42  L.  R.  A.  (N.  S.)  419,  Ann.  Cas. 
1914C,  204;  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841 ;  Ellison  v. 
West.  U.  Tel.  Co.,  163  N.  C.  5,  79  S.  E.  277 ;  Harrison  v.  West.  U.  Tel.  Co.,  163 
X.  C.  IS,  79  S.  E.  281 ;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712 ; 
West.  U.  Tel.  Co.  v.  Harris  (Tex.  Civ.  App.)  132  S.  W.  876;  Kivett  v.  West.  U. 
Tel.  Co.,  156  N.  C.  296,  72  S.  E.  388 ;  Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531, 

48  S.  E.  538,  104  Am.  St.  Rep.  828,  2  Ann.  Cas.  52 ;  West.  U.  Tel.  Co.  v.  Powell, 
54  Tex.  Civ.  App.  466,  118  S.  W.  226 ;  West.  U.  Tel.  Co.  v.  Cooper,  29  Tex.  Civ. 
App.  591,  69  S.  W.  427 ;  West.  U.  Tel.  Co.  v.  W^aller  (Tex.  Civ.  App.)  47  S.  W. 
390 ;  Sutton  v.  West.  U.  Tel.  Co.,  129  Ky.  166,  110  S.  W.  874. 

In  an  action  by  the  sender,  the  addressee  may  testify  as  to  what  he  would 
have  done  had  the  message  been  duly  delivered.  West.  U.  Tel.  Co.  v.  Benson, 
supra ;  Carter  v.  West.  U.  Tel.  Co.,  supra ;  Bright  v.  West.  U.  Tel.  Co.,  supra ; 
West.  U.  Tel.  Co.  v.  Karr,  supra ;  Hancock  v.  West.  U.  Tel.  Co.,  137  N.  C.  497, 

49  S.  E.  952,  69  L.  R.  A.  403  ;  Beal  v.  West.  U.  Tel.  Co.,  153  N.  C.  331,  69  S.  E. 
247.  And  when  the  addressee  sues  he  may  testify  as  to  what  he  himself  would 
have  done.  West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App.  43.  60  S.  W.  982; 
West.  U.  Tel.  Co.  v.  Shofner,  87  Ark.  ;i03,  112  S.  W.  751 ;  Battle  v.  West.  U, 
Tel.  Co..  supra  ;  Willis  v.  West.  U.  Tel.  Co.,  supra ;  Bright  v.  West.  U.  Tel.  Co., 
supra ;  Hancock  v.  West.  U.  Tel.  Co.,  supra ;  Beal  v.  West  U.  Tel.  Co.,  supra ; 
and  may  show  by  the  sender's  testimony  of  the  original  message  what  the  latter 
would  have  done  in  response  to  the  plaintiff's  action.  West.  U.  Tel.  Co.  v.  Nor- 
ris, supra. 


776  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  599 

being  often  the  only  means  of  showing  such  fact/^  however,  except 
in  mental  anguish  cases  ^^  this  does  not  seem  to  be  the  general 
rule.®'^ 

§  599.  Same  continued — postponement  of  funeral  services. — It 
has  been  attempted  to  be  shown  in  some  cases  in  order  to  evade 
the  above  rule  that,  notwithstanding  the  fact  that  the  desired  object 
of  the  message  could  not  have  been  complied  with  had  it  been 
promptly  delivered,  yet  had  it  been  received  in  time,  other  arrange- 
ments could  have  been  made  by  which  the  injury  would  have  been 
prevented.^^  But  this  rule  cannot  be  evaded  by  showing  that,  if 
the  message  had  been  promptly  delivered,  the  plaintiff  might  have 
arranged  a  postponement  of  the  funeral  until  he  could  have  gotten 
there.^''  The  conditions  attached  to  such  a  state  of  affairs  are  too 
uncertain.    For  instance,  the  funeral  might  or  might  not  have  been 

S3  Doster  v.  West.  U.  Tel.  Co.,  77  S.  C.  56,  57  S.  E.  671. 

As  to  sufficiency  of  proof  in  such  cases,  see  West,  U.  Tel.  Co.  v.  Crowley,  158 
Ala.  583,  48  South.  381 ;  West.  U.  Tel.  Co.  v.  Zane,  6  Tex.  Civ.  App.  585,  25  S. 
W.  722 ;  Battle  v.  West.  U.  Tel.  Co.,  151  N.  C.  629,  66  S.  E.  661 ;  Gulf,  etc.,  Tel. 
Co.  V.  Richardson,  79  Tex.  649,  15  S.  W.  689 ;  West.  U.  Tel.  Co.  v.  Ridenour,  35 
Tex.  Civ.  App.  574,  80  S.  W.  1030 ;  Sherrill  v.  West.  U.  Tel.  Co.,  155  N.  C.  250, 
71  S.  E.  330 ;  West.  U.  Tel.  Co.  v.  Chambers,  34  Tex.  Civ.  App.  17,  77  S.  W. 
273 ;  West.  U.  Tel.  Co.  v.  Webb,  98  Ark.  87,  135  S.  W.  366 ;  Nitka  v.  West.  U. 
Tel.  Co.,  149  Wis.  106,  135  N.  W.  492,  Ann.  Cas.  1913C,  863,  49  L.  R.  A.  (N.  S.) 
S37 ;  Potter  v.  West.  U.  Tel.  Co.,  138  Iowa,  406,  116  N.  W.  130 ;  West.  U.  Tel. 
Co.  v.  Russell,  4  Ala.  App.  485,  58  South.  938 ;  West  U.  Tel.  Co.  v.  Robbins,  3 
Ala.  App.  234,  56  South.  879 ;  West.  U.  Tel.  Co.  v.  Young  (Tex.  Civ.  App.)  133 
S.  W.  512 ;  West.  U.  Tel.  Co.  v.  Moran,  52  Tex.  Civ.  App.  117,  113  S.  W.  625 ; 
Smith  V.  West.  U.  Tel.  Co.,  77  S.  C.  378,  58  S.  E.  6,  12  Ann.  Cas.  054 ;  West.  U. 
Tel.  Co.  V.  Crowley,  supra ;  West.  U.  Tel.  Co.  v.  Shofner,  87  Ark.  303,  112  S.  W. 
751 ;  West.  U.  Tel.  Co.  v.  Alford,  110  Ark.  379,  161  S.  W.  1027,  50  L.  R.  A.  (N. 
S.)  94.  See  West.  U.  Tel.  Co.  v.  Williams,  129  Ky.  515,  112  S.  W.  651,  19 
L.  R.  A.  (N.  S.)  409. 

8  6  See  §  601,  and  cases  cited  thereunder. 

8  7  West.  U.  Tel.  Co.  v.  Watson,  94  Ga.  202,  21  S.  E.  457,  47  Am.  St.  Rep.  151 ; 
West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  64,  60  N.  E.  674,  1080,  54  L.  R.  A.  846 ; 
Hall  V.  West.  U.  Tel.  Co.,  59  Fla.  275,  51  South.  819,  27  L.  R.  A.  (N.  S.)  639; 
Bass  V.  Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  489; 
Wilson  V.  West.  U.  Tel.  Co.,  124  Ga.  131,  52  S.  E.  153;  West  U.  Tel.  Co.  v. 
Adams  Machine  Co.,  92  JNIiss.  849,  47  South.  412 ;  West.  U.  Tel.  Co.  v.  Webb 
(Miss.)  48  South.  408.  And  compare  Richmond  Hosiery  Mills  v.  West.  U.  Tel. 
Co.,  123  Ga.  216,  51  S.  E.  290. 

8  8  West.  U.  Tel.  Co.  v.  Swearingin,  97  Tex.  293,  78  S.  W.  491,  104  Am.  St. 
Rep.  876 ;  West.  U.  Tel.  Co.  v.  Caldwell,  126  Ky.  42,  102  S.  W.  840,  31  Ky.  Law 
Rep.  497,  12  L.  R.  A.  (N.  S.)  748 ;  West.  U.  Tel.  Co.  v.  Simmons  (Tex.  Civ.  App.) 
93  S.  W.  686 ;  West.  U.  Tel.  Co.  v.  Chambers,  34  Tex.  Civ.  App.  17,  77  S.  W. 
273 ;  West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App.  43,  60  S.  W.  982 ;  West.  U. 
Tel.  Co.  V.  Vanway  (Tex.  Civ.  App.)  54  S.  W.  414;  Roach  v.  Jones,  IS  Tex. 
Civ.  App.  231,  44  S.  W.  677 ;  Sherrill  v.  West.  U.  Tel.  Co.,  155  N.  C.  250,  71 
S.  E.  330. 

8  9  West.  U.  Tel.  Co.  v.  Linn,  87  Tex.  7,  26  S.  W.  490,  47  Am.  St.  Rep.  58; 
West.  U.  Tel.  Co.  v.  Motley,  87  Tex.  38,  27  S.  W.  52;  West.  U.  Tel.  Co.  v. 


d 


8    600)  MEASURE   OF   DAMAGES  777 

postponed;  or,  the  reply  message  might  not  have  been  received  in 
time  to  arrange  for  such  postponement.  The  rule  that  such  injury 
could  and  would  have  been  prevented  had  the  message  been  de- 
livered in  time  cannot  be  evaded  by  such  uncertain  propositions. 
The  rule  might  be  different  if  it  appears  not  only  that  he  would  have 
requested  a  postponement,  but  also  that  the  request  would  have 
been  granted."" 

§  600.  Same  continued — failure  to  transmit  money — no  cause. — 
It  was  stated  in  another  place  that,  where  a  telegraph  company 
contracts  to  transmit  money,  but  fails  to  promptly  do  so,  the  meas- 
ure of  damages  for  such  breach  is  the  interest  on  the  money  from 
the  time  it  ought  to  have  been  transmitted  to  the  time  it  was  sent, 
together  with  the  price  of  the  message."^  It  follows,  therefore,  that 
a  failure  to  promptly  deliver  money  is  no  ground  upon  which  the 
addressee  may  recover  damages  for  mental  worry  and  anguish. "- 

Stone  (Tex.  Civ.  App.)  27  S.  W.  144;  West.  U.  Tel.  Co.  v.  White  (Tex.  Civ. 
App.)  149  S.  W.  790. 

0  0  West.  U.  Tel.  Co.  v.  Caldwell,  126  Ky.  42,  102  S.  W.  840,  31  Ky.  Law 
Rep.  497,  12  L.  R.  A.  (N.  S.)  748.  See,  also,  West.  U.  Tel.  Co.  v.  Swearingiu, 
97  Tex.  293,  78  S.  W.  491,  104  Am.  St.  Rep.  876;  West.  U.  Tel.  Co.  v.  Simmons 
(Tex.  Civ.  App.)  93  S.  W.  686;  West.  U.  Tel.  Co.  v.  Chambers,  34  Tex.  Civ. 
App.  17,  77  S.  W.  273 ;  West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App.  43,  60 
S.  W.  982 ;  West.  U.  Tel.  Co.  v.  Vanway  (Tex.  Civ.  App.)  54  S.  W.  414 ;  Roach 
V.  Jones,  18  Tex.  Civ.  App.  231,  44  S.  W.  677;  West.  U.  Tel.  Co.  v.  Carter 
(Tex.  Civ.  App.)  20  S.  W.  834;  West.  U.  Tel.  Co.  v.  Parsons,  72  S.  W.  800, 
24  Ky.  Law  Rep.  2008 ;  Sherrill  v.  West.  U.  Tel.  Co.,  155  N.  C.  250,  71  S.  E. 
330;    West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  33  S.  W.  742. 

Duty  to  seek  postponement. — Some  of  the  courts  hold  that  a  plaintiff  is 
under  no  obligation  to  attempt  to  have  the  funeral  postponed.  See  Postal 
Tel.  Cable  Co.  v.  Pratt,  27  Ky.  Law  Rep.  430,  85  S.  W.  225;  West.  U.  Tel. 
Co.  V.  .Johnsey,  49  Tex.  Civ.  App.  487,  109  S.  W.  251;  West.  U.  Tel.  Co.  v. 
Cook,  45  Tex.  Civ.  App.  87,  99  S.  W.  1131.  A  question  for  the  jury  as  held 
by  some.  See  .West.  U.  Tel.  Co.  v.  Hardison  (Tex.  Civ.  App.)  101  S.  W.  541; 
Cobb  V.  West.  U.  Tel.  Co.,  85  S.  C.  430,  67  S.  E.  549;  West.  U.  Tel.  Co.  v. 
Glass  (Tex.  Civ.  App.)  154  S.  W.  604.  Other  cases  seem  to  indicate  that  some 
effort  should  be  exercised.  See  West.  U.  Tel.  Co.  v.  Carter,  supra ;  West. 
U.  Tel.  Co.  v.  Anderson  (Tex.  Civ.  App.)  37  S.  W.  619;  West.  U.  Tel.  Co.  v 
Cook,  supra ;  West.  U.  Tel.  Co.  v.  Hill  (Tex.  Civ.  App.)  26  S.  W.  252.  If  the 
request  would  have  been  unavailing  the  failure  to  make  such  will  not  bar  a 
recovery.  See  West.  U.  Tel.  Co.  v.  Kinsley,  8  Tex.  Civ.  App.  527,  28  S.  W. 
831;  West.  U.  Tel.  Co.  v.  Witt,  33  Ky.  Law  Rep.  686,  110  S.  W.  SS9 ;  West. 
U.  Tel.  Co.  V.  Crawford  (Tex.  Civ.  App.)  75  S.  W.  843. 

Failure  of  those  in  charge  to  postpone  the  funeral  is  no  defense.  See  West. 
U.  Tel.  Co.  v.  McDonald,  57  Tex.  Civ.  App.  472,  122  S.  W.  OlS ;  Southwestern, 
etc.,  Tel.  Co.  v.  Givens  (Tex.  Civ.  App.)  139  S.  W.  676 ;  MuUiuax  v.  West.  U- 
Tel.  Co.,  156  N.  C.  541,  72  S.  E.  583;  West.  U.  Tel.  Co.  v.  Johnson,  16  Tex. 
Civ.  App.  546,  41  S.  W.  367 ;  West.  U.  Tel.  Co.  v.  Webb,  98  Ark.  87,  135  S.  W. 
366. 

»i  See  §  577. 

82  De  Voegler  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  229,  30  S.  W.  1107; 


778  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  601 

§  601.  Evidence  of  mental  suffering. — The  general  rule  of  evi- 
dence is  that,  where  the  state  of  a  person's  mind,  his  sentiment  or 
disposition  at  a  certain  time,  is  the  subject  of  inquiry,  his  state- 
ments and  declarations  at  that  period  are  admissible.®^  So  the  dec- 
larations of  a  testator  may  be  received  to  show  that  his  mind  was 
under  undue  influence  at  the  time  of  making  the  will ;  °*  and  so,  as 
to  the  extent  of  a  mental  disease,  the  declarations  of  the  person 
affected  are  admissible."^  It  has  been  held,  from  this  general  rule, 
as  a  basis,  that  where  the  action  is  brought  to  recover  damages  for 
distress  of  mind  or  for  mental  anguish  and  suffering  in  consequence 
of  a  negligent  transmission  or  delay  in  the  delivery  of  a  message, 
the  natural  condition  of  the  mind,  with  respect  to  such  suffering, 
may  be  shown  by  evidence  of  his  behavior  and  natural  expressions 
and  utterances  at  the  time  of  such.®^     Thus,  if  his  expression  of 

Robinson  v.  West.  F.  Tel.  Co.,  68  S.  W.  656,  24  Ky.  Law  Rep.  452,  .57  L.  R.  A. 
611 ;  Ricketts  v.  West.  U.  Tel.  Co.,  10  Tex.  Civ.  App.  226,  30  S.  W.  1105.  But 
see  Cumberland  Tel.,  etc.,  Co.  v.  Quigley,  129  Ky.  788,  112  S.  W.  897,  19 
L.  R.  A.  (N.  S.)  575 ;  West.  U.  Tel.  Co.  v.  Wells,  50  Fla.  474,  39  South.  838, 
111  Am.  St.  Rep.  129,  2  L.  R.  A.  (N.  S.)  1072.  7  Ann.  Cas.  531,  in  which  it 
was  held  that,  where  the  company  willfully  refused  to  pay  the  plaintiff  money 
sent  by  the  former,  thereby  causing  the  plaintiff  and  family  to  travel  twenty- 
four  hours  without  food  or  funds,  he  might  recover  damages  for  bodily  pain 
and  suffering  and  for  mental  pain  and  anguish  attendant  thereon.  Compare 
International  Ocean  Tel.  Co.  v.  Saunders,  32  Fla.  434,  14  South.  148.  21  L.  R.  A. 
810 ;  Gooch  v.  West.  U.  Tel.  Co.,  90  S.  W.  587,  28  Ky.  Law  Rep.  828,  message 
asking  for  money. 

93  Barthelemy  v.  People,  2  Bill  (N.  Y.)  248;  Hester  v.  Com.,  85  Pa.  1-39; 
Wetmore  v.  Mell,  1  Ohio  St.  26,  59  Am.  Dec.  607. 

94  Milton  V.  Hunter,  13  Bush  (Ky.)  163 ;  Lucas  v.  Cannon,  13  Bush  ,(Ky.) 
650 ;    Batton  v.  Watson,  13  Ga.  63,  58  Am.  Dec.  504. 

95  Rex  V.  Johnson,  3  Car.  &  K.  354;  Howe  v.  Howe,  99  Mass.  88;  State  v. 
Kring,  64  Mo.  591. 

"o  West.  U.  Tel.  Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep. 
920,  6  L.  R.  A.  844 ;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South. 
419,  IS  Am.  St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Campbell,  41  Tex.  Civ.  App. 
204,  91  S.  W.  312 ;  West.  U.  Tel.  Co.  v.  Davis,  24  Tex.  Civ.  App.  427,  59  S.  W. 
46;  West.  U.  Tel.  Co.  v.  Carter  (Tex.  Civ.  App.)  20  S.  W.  834;  Lay  v.  Postal 
Tel.  Cable  Co.,  171  Ala.  172,  54  South.  529;  West.  U.  Tel.  Co.  v.  Manker,  145 
Ala.  418,  41  South.  850,  testimony  that  witness  saw  plaintiff  crying  is  ad- 
missible as  tending  to  show  mental  anguish.     See,  also,  §  522. 

As  to  competency  and  sufficiency  of  evidence  in  general,  see  Markley  v. 
West.  U.  Tel.  Co.,  1.59  Iowa,  557,  141  N.  W.  443,  affection  of  mother  month 
prior  to  her  death  not  too  remote ;  Rosser  v.  West.  U.  Tel.  Co.,  130  N.  C.  251, 
41  S.  E.  378,  four  years  too  remote;  Battle  v.  West.  U.  Tel.  Co.,  151  N.  C. 
629,  66  S.  E.  661,  affection  for  a  boy  seventeen  months  old ;  Bowen  v.  West. 
U.  Tel.  Co.,  77  S.  C.  122,  57  S.  E.  674,  prevented  from,  reaching  daughter's 
bedside;  West.  U.  Tel.  Co.  v.  Blair,  51  Tex.  Civ.  App.  427,  113  S.  W.  164, 
mother  not  at  daughter's  funeral  not  conclusive  that  she  did  not  suffer  mental 
anguish  in  not  being  present  before  death ;  Cordell  v.  West.  U.  Tel.  Co.,  149 
N.  C.  402,  63  S.  E.  71,  22  L.  R.  A.  (X.  S.)  540 ;  Tinsley  v.  West.  U.  Tel.  Co., 
72  S.  C.  350,  51  S.  E.  913;    West.  U.  Tel.  Co.  v.  Crocker,  135  Ala.  492,  33 


601)  MEASURE   OF   DAMAGES 


779 


feelings  is  such  as  to  indicate  a  distress  of  mind,  or  if  his  behavior 
shows  that  his  feeHngs  are  greatly  injured  as  a  result  of  the  mes- 
sage not  accomplishing  its  purpose,  there  is  no  better  way  to  show 
this  to  a  jury  than  by  such  facts.  If  a  person  is  injured  physically, 
it  is  natural  for  him  to  show  suffering,  resulting  therefrom,  by  his 
behavior,  by  natural  expression  of  countenance  or  by  utterances  of 
pain ;  the  same  rule  is  applicable  when  the  mind  is  that  part  of  the 
body  which  suffers,  and  the  best  way  to  show  such  pain,  or  suffer- 
ing is  by  these  facts."  But  the  courts  do  not  agree  on  the  question 
whether  the  plaintiff  may  himself  testify  that  he  suffered  mental 
anguish.®^ 

South.  45.  59  L.  R.  A.  398 ;  West.  U.  Tel.  Co.  v.  Craven  (Tex.  Civ.  App.)  95 
S.  W.  633;  West.  U.  Tel.  Co.  v.  Olivarri  (Tex.  Civ.  App.)  110  S.  W.  930; 
West.  U.  Tel.  Co.  v.  Davis,  supra;  West.  U.  Tel.  Co.  v.  Rabon,  60  Tex.  Civ. 
App.  88,  127  S.  W.  580;  West.  U.  Tel.  Co.  v.  Glenn  (Tex.  Civ.  App.)  156  S.  W. 
1116 ;  Mentzer  v.  West.  U.  Tel.  Co.,  93  Iowa,  752,  62  N.  W.  1,  57  Am.  St.  Rep. 
294,  28  L.  R.  A.  72;  West.  U.  Tel.  Co.  v.  Drake,  14  Tex.  Civ.  App.  601,  38 
S.  W.  632. 

Evidence  of  special  affection  between  members  of  a  family  is  sometimes  ad- 
missible. See  West.  U.  Tel.  Co.  v.  Campbell,  supra;  West.  U.  Tel.  Co.  v. 
Lydon,  82  Tex.  364,  38  S.  W.  701;  West.  U.  Tel.  Co.  v.  Douglass  (Tex.  Civ. 
App.)  124  S.  W.  488 ;  West.  U.  Tel.  Co.  v.  Bell  (Tex.  Civ.  App.)  90  S.  W.  714 ; 
West.  U.  Tel.  Co.  v.  Rabon,  supra ;  Kivett  v.  West.  U.  Tel.  Co.,  156  N.  C.  296, 
72  S.  E.  3SS ;  Luckey  v.  West.  U.  Tel.  Co.,  151  N.  C.  551,  66  S.  E.  596.  See, 
also,  §  602.  But  see  West.  U.  Tel.  Co.  v.  Williams,  129  Ky.  515,  112  S.  W. 
651,  19  L.  R.  A.  (N.  S.)  409. 

Declarations  of  sick  persons  'before  death  have  been  held  not  to  be  ad- 
missible for  the  purpose  of  showing  the  extent  of  the  mental  anguish  suffered. 
See  West.  U.  Tel.  Co.  v.  Waller,  96  Tex.  589,  74  S.  W.  751,  97  Am.  St.  Rep. 
936,  reversing  (Civ.  App.)  72  S.  W.  264;  West.  U.  Tel.  Co.  v.  Evans,  1  Tex. 
Civ.  App.  297,  21  S.  W.  266 ;  West.  U.  Tel.  Co.  v.  Stiles,  89  Tex.  314,  34  S.  W. 
438;  West.  U.  Tel.  Co.  v.  Jackson,  35  Tex.  Civ.  App.  419,  SO  S.  W.  649; 
West.  U.  Tel.  Co.  v.  Williams,  supra.  But  see  Whitten  v.  West.  U.  Tel.  Co., 
141  N.  C.  361,  54  S.  E.  289;  Potter  v.  West.  U,  Tel.  Co.,  138  Iowa,  406,  116 
N.  W.  130 ;    Dowdy  v.  West.  U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E.  802. 

The  consciousness  of  the  sick  person  presumed. — See  West.  U.  Tel.  Co.  v. 
Hughey,  55  Tex.  Civ.  App.  403,  118  S.  W.  1130 ;  West.  U.  Tel.  Co.  v.  Robinson, 
97  Tenn.  638,  37  S.  W.  545,  34  L.  R.  A.  431. 

9  7  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  18  Am.  St. 
Rep.  148 ;  West.  U.  Tel.  Co.  v.  Carter  (Tex.  Civ.  App.)  20  S.  W.  834 ;  Mentzer 
V.  West.  U.  Tel.  Co.,  93  Iowa,  752,  62  N.  W.  1,  28  L.  R.  A.  72,  57  Am.  St.  Rep. 
294.  Compare  West.  U.  Tel.  Co.  v.  McLeod  (Tex.  Civ.  App.)  22  S.  W.  988; 
West.  U.  Tel.  Co.  v.  Adams,  75  Tex.  535,  12  S.  W.  857,  6  L.  R.  A.  844,  16  Am. 
St.  Rep.  920. 

0  8  The  rule  in  Alabama  is  that  he  cannot  testify,  as  this  infringes  upon  the 
province  of  the  jury.  Inland  v.  West.  U.  Tel.  Co.,  150  Ala.  245,  49  South. 
2.52 ;  West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St. 
Rep.  38 ;  West.  U.  Tel.  Co.  v.  Cleveland,  169  Ala.  131,  53  Soutli.  80,  Ann.  Cas. 
1912B,  534 ;  West.  U.  Tel.  Co.  v.  Peagler,  163  Ala.  38,  50  South.  913 ;  Lay  v. 
Postal  Tel.  Cable  Co.,  171  Ala.  172,  54  South.  529 ;  West.  U.  Tel.  Co.  v.  Mc- 
Morris,  158  Ala.  563,  48  South.  349,  132  Am.  St.  Rep.  46.  But  evidence  ot  his 
action  and  expression  is  admissible.     West.  U.  Tel.  Co.  v.  Henderson,  89  Ala. 


780  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  602 

§  602.  Same  continued — aggravation  of  suffering. — There  may 
be  circumstances  which  would  have  a  tendency  to  aggravate  mental 
suffering  and  anguish ;  and  when  this  is  the  case,  the  facts  tending 
to  show  it  should  be  admitted.  Thus,  where  the  plaintiff  was  pre- 
vented from  being  present  at  the  deathbed  of  his  mother,  by  a  de- 
layed message  announcing  her  serious  illness,  he  may  be  allowed, 
in  an  action  brought  to  recover  damages  for  mental  suffering  in 
consequence  of  such  delay,  to  show  that  he  was  her  favorite  son.®® 
The  great  affection  existing  between  the  plaintiff  and  the  person 
who  died  would  naturally  create  a  greater  injury  to  the  mind  of 
the  former,  if  he  was  prevented  from  being  present  during  the  lat- 
ter's  last  moments  in  this  world,  and  any  facts  which  tend  to  show 

510,  7  South.  419,  18  Am.  St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Manker,  145 
Ala.  418,  41  South.  850;  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South. 
73;  Id.,  166  Ala.  651,  51  South.  880.  But  this  evidence  is  not  necessary. 
West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712.  Such  evidence  was 
apparently  admitted  in  at  least  in  one  Arkansas  decision.  West.  U.  Tel.  Co. 
V.  Sockwell,  91  Ark.  475,  121  S.  W.  1046.  Two  Iowa  cases  proceeded  upon 
the  theory  that  direct  proof  of  mental  anguish  is  admissible.  Mentzer  v. 
West.  U.  Tel.  Co.,  93  Iowa,  752,  62  N.  W.  1,  57  Am.  St.  Rep.  294,  28  L.  R.  A. 
72 ;  Markley  v.  West.  U.  Tel.  Co.,  151  Iowa,  612,  132  N.  W.  37.  The  rule  is 
denied  in  Kentucky.  West.  U.  Tel.  Co.  v.  Williams,  129  Ky.  515,  112  S.  W. 
651,  19  L.  R.  A.  (N.  S.)  409.  Such  evidence  is  admissible  in  North  Carolina. 
Hunter  v.  West.  U.  Tel.  Co.,  135  N.  C.  458,  47  S.  E.  745 ;  Bailey  v.  West.  U. 
Tel.  Co.,  150  N.  C.  316,  63  S.  E.  1044 ;  Shepard  v.  West.  U.  Tel.  Co.,  143  X.  C. 
244,  55  S.  E.  704,  118  Am.  St.  Rep.  796 ;  Kivett  v.  West.  U.  Tel.  Co.,  156  X.  C. 
296,  72  S.  E.  388 ;  Shaw  v.  West.  U.  Tel.  Co.,  151  N.  C.  638,  66  S.  E.  668 ; 
Dowdy  V.  West.  U.  Tel.  Co.,  124  N.  C.  522,  32  S.  E.  802;  Sherrill  v.  West. 
U.  Tel.  Co.,  117  N.  C.  352,  23  S.  E.  277.  The  rule  prevails  in  South  Carolina. 
Roberts  v.  West.  U.  Tel.  Co.,  73  S.  C.  520,  53  S.  E.  985,  114  Am.  St.  Rep.  100 ; 
Hamilton  v.  West.  U.  Tel.  Co.,  96  S.  C.  398,  80  S.  E.  706;  Machen  v.  West. 
U.  Tel.  Co.,  72  S.  C.  256,  51  S.  E.  697;  Talbert  v.  West.  U.  Tel.  Co.,  83  S.  C. 
68,  64  S.  E.  862,  916.  But  cannot  state  his  own  peculiar  apprehension  and 
conclusions  when  he  learned  of  the  company's  negligence.  Roberts  v.  West. 
U.  Tel.  Co.,  supra;  Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531,  48  S.  E.  538, 
104  Am.  St.  Rep.  828,  2  Ann.  Cas.  52 ;  Ogilvie  v.  West.  U.  Tel.  Co.,  83  S.  C.  8, 
64  S.  E.  860,  137  Am.  St.  Rep.  790 ;  Doster  v.  West.  U.  Tel.  Co.,  77  S.  C.  56, 
57  S.  E.  671 ;  Graham  v.  West.  U.  Tel.  Co.,  93  S.  C.  173,  76  S.  E.  200.  •  The 
law  in  the  Texas  courts  is  that  such  evidence  is  unnecessary,  but  the  ad- 
mission of  such  would  not  be  reversible  error.  West.  U.  Tel.  Co.  v.  Simmons, 
32  Tex.  Civ.  App.  578,  75  S.  W.  822 ;  West.  U.  Tel.  Co.  v.  Johnson,  9  Tex.  Civ. 
App.  48,  28  S.  W.  124 ;  West.  U.  Tel.  Co.  v.  McLeod  (Civ.  App.)  22  S.  W.  988 ; 
West.  U.  Tel.  Co.  v.  Porter  (CiV.  App.)  26  S.  W.  866;  West.  U.  Tel.  Co.  v. 
Jobe,  6  Tex.  Civ.  App.  403,  25  S.  W.  168,  1036 ;  West.  U.  Tel.  Co.  v.  Adams, 
75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep.  920,  6  L.  R.  A.  844 ;  West.  U.  Tel. 
Co.  V.  Mooney  (Civ.  App.)  160  S.  W.  318;  West.  U.  Tel.  Co.  v.  Burrow,  10 
Tex.  Civ.  App.  122,  30  S.  W.  378 ;  West.  U.  Tel.  Co.  v.  Carter  (Civ.  App.)  20 
S.  W.  834 ;   West.  U.  Tel.  Co.  v.  Davis,  24  Tex.  Civ.  App.  427,  59  S.  W.  46. 

9  9  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  364,  18  S.  W.  701.  See  West.  U.  Tel. 
Co.  V.  Stiles,  89  Tex.  312,  34  S.  W.  438 ;  West.  U.  TeL  Co,  v.  Mellon,  96  Tenn. 
66,  33  S.  W.  725;  West.  U.  Tel.  Co.  v.  Jackson,  35  Tex.  Civ.  App.  419,  80 
S.  W.  649. 


liH 


8    603)  MEASURE   OF   DAMAGES  781 

this  relationship  should  be  brought  before  the  jury.i°°  The  court, 
in  rendering  an  opinion  on  this  point,  said:  "While  juries  in  the 
absence  of  any  evidence  on  the  subject  may  act  upon  their  own 
knowledge  of  the  affection  existing  between  a  mother  and  son,  still 
the  admission  of  evidence  upon  the  subject  may  be  proper,  and  we 
cannot  say  that  proof  of  a  special  regard  felt  and  shown  by  a 
mother  for  one  of  her  children  may  not  be  properly  considered  by 
the  jury,  in  connection  with  other  circumstances,  in  estimating  the 
feelings  of  the  child  for  the  parent."  "^  But,  in  such  cases,  it  is 
not  proper  to  admit  evidence  in  which  it  is  attempted  to  be  shown 
that  the  mother  was  making  frequent  inquiries  of  the  son's  where- 
abouts and  entreating  that  he  be  brought  to  her  bedside.^°-  While 
this  may  be  a  means  of  showing  the  affection  of  the  mother  for  the 
son,  yet  if  such  facts  are  not  imparted  to  the  latter  until  after  the 
mother's  death  the  suffering  endured  by  the  son  by  being  prevented 
from  being  with  her  before  death  would  not  be  any  greater,  and  "a 
deathbed  scene  is  reproduced  of  such  peculiar  pathos  that  its  in- 
fluence would  be  almost  sure,  under  a  ruling  admitting  it  as  proper 
subject  for  consideration,  to  usurp  the  attention  of  the  jury  to  the 
exclusion  of  those  considerations  which  alone  should  control  their 
action."  ^'' 

§  603.  Same  continued — sickness  as  a  result — admissible. — In 
those  jurisdictions  where  a  person  is  allowed  to  recover  damages 
for  mental  suffering  in  consequence  of  a  message  not  being  prop- 
erly delivered  announcing  the  serious  illness  of  a  relative,  or  where 
he  is  prevented  from  being  at  the  burial  by  such  delay,  he  may 
show  as  a  result  of  such  suffering  that  he  became  ill  and  was  com- 

100  Buchanan  v.  West.  TJ.  Tel.  Co.  (Tex.  Civ.  App.)  100  S.  W.  974;  Doster 
V.  West.  U.  Tel.  Co.,  77  S.  C.  56,  57  S.  E.  671 ;  West.  U.  Tel.  Co.  v.  Campbell, 
41  Tex.  Civ.  App.  204,  91  S.  W.  312 ;  Kivett  v.  West.  U.  Tel.  Co.,  156  N.  C. 
296,  72  S.  E.  388 ;  Markley  v.  West.  U.  Tel.  Co.,  159  Iowa,  557,  141  N.  W.  443. 
See  other  cases  in  note  96. 

101  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  364,  18  S.  W.  701. 

10  2  West.  U.  Tel.  Co.  v.  Stiles,  89  Tex.  312,  34  S.  W.  438.  Compare  West. 
U.  Tel.  Co.  V.  Evans,  1  Tex.  Civ.  App.  297,  21  S.  W.  266 ;  West.  U.  Tel.  Co.  v. 
Mellon,  96  Tenn.  66,  33  S.  W.  725 ;  West.  U.  Tel.  Co.  v.  Waller,  96  Tex.  589, 
74  S.  W.  751,  97  Am.  St.  Rep.  936,  reversing  (Civ.  App.)  72  S.  W.  264 ;  West. 
U.  Tel.  Co.  V.  Jackson,  35  Tex.  Civ.  App.  419,  80  S.  W.  649 ;  West.  U.  Tel.  Co. 
v.  Williams,  129  Ky.  515,  112  S.  W.  651.  19  L..  R.  A.  (N.  S.)  409.  But  see 
Potter  V.  West.  U.  Tel.  Co.,  138  Iowa,  406,  116  N.  W.  130;  Whitten  v.  West. 
U.  Tel.  Co.,  141  N.  C.  361,  54  S.  E.  289 ;  Dowdy  v.  West.  U.  Tel.  Co.,  124  N.  C. 
522,  .32  S.  E.  802. 

103  West.  U.  Tel.  Co.  v.  Waller,  96  Tex.  589,  74  S.  W.  751,  97  Am.  St.  Rep. 
936,  reversing  (Civ.  App.)  72  S.  W.  264;  West.  U.  TeL  Co.  v.  Stiles,  89  Tex. 
312,  34  S.  W.  438. 


782  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  604 

pelled  to  take  his  bed  and  incurred  medical  expenses.^"*  This  is 
merely  a  means  of  showing  the  extent  of  his  suffering;  and,  of 
course,  the  greater  the  suffering,  the  greater  should  be  the  compen- 
sation therefor.  If  there  were  other  causes  intervening  which  pro- 
duced this  result,  of  course  this  could  not  be  considered  in  deter- 
mining the  amount  of  damages  to  be  recovered;  yet  it  may  be  ad- 
mitted to  show  that  the  intervening  cause,  and  not  the  delay  of  the 
message,  was  the  proximate  cause  of  the  suffering.  The  mental 
suffering  and  anguish  must  be  the  natural  and  proximate  result  of 
the  negligence  of  the  company  and  such  as  was  contemplated  by 
the  parties  at  the  time  the  contract  was  made  as  would  be  the  most 
natural  and  probable  result  of  such  breach. ^°^  In  such  cases,  there 
can  be  no  recovery  for  "physical  suffering"  resulting  from  plaintiff's 
mental  anguish.^"^ 

§  604.  Same  continued — matters  of  defense — want  of  affection. 
Telegraph  companies,  where  actions  are  brought  against  them  to 
recover  damages  for  mental  suffering,  may  use  any  defense  which 
tends  to  show  that  the  mind  was  not  injured  or  impaired  or  that 
such  could  have  been  avoided. ^°'^    The  greatest  among  any  defenses 

104  Simmons  v.  West.  U.  Tel.  Co.,  63  S.  C.  425,  41  S.  E.  521,  57  L.  R.  A.  607; 
West.  U.  Tel.  Co.  v.  Sweetman,  19  Tex.  Civ.  App.  435,  47  S.  W.  676.  See  §§ 
612,  613.  See  Maley  v.  West.  U.  Tel.  Co.,  151  Iowa,  228.  130  K  W.  10S6,  49 
L.  R.  A.  (N.  S.)  327. 

10  5  See  §  592. 

106  West.  U.  Tel.  Co.  v.  Thompson,  18  Tex.  Civ.  App.  609,  45  S.  W.  429; 
West.  U.  Tel.  Co.  v.  Foy,  32  Okl.  801,  124  Pac.  305,  49  L.  R.  A.  (N.  S.)  343 ; 
Kline  v.  West.  U.  Tel.  Co.,  3  Ohio  N.  P.  143 ;  Kagy  v.  West.  U.  Tel.  Co.,  37 
Ind.  App.  73,  76  N.  E.  792.  117  Am.  St.  Rep.  278 ;  Tyler  v.  West.  U.  Tel.  Co. 
(C.  C.)  54  Fed.  634 ;  Curtin  v.  West.  U.  Tel.  Co.,  13  App.  Div.  253,  42  N.  Y. 
Supp.  1109;  Hadden  v.  Southern  Messensrpv  SAwice.  135  Ga.  372,  69  S.  E.  480. 

10"  Contributory  negUf/ence  is  a  good  defense. — Hocutt  v.  West.  U.  Tel.  Co., 
147  N.  C.  186,  60  S.  E.  980 ;  West.  U.  Tel.  Co.  v.  Gulledge,  84  Ark.  501.  106  S. 
W.  957 ;  Edwards  v.  West.  U.  Tel.  Co.,  147  N.  C.  126,  60  S.  E.  900 ;  West.  U. 
Tel.  Co.  V.  Jeanes,  88  Tex.  230,  31  S.  W.  186 ;  Mullinax  v.  West.  U.  Tel.  Co.,  156 
N.  C.  541,  72  S.  E.  583 ;  Southwestern,  etc.,  Tel.  Co.  v.  Givens  (Tex.  Civ.  App.) 
139  S.  W.  676 ;  West.  U.  Tel.  Co.  v.  Reynolds  (Tex.  Civ.  App.)  140  S.  W.  121. 
As  where  plaintiff  failed  to  send  a  message  requesting  the  postponement  of  a 
funeral,  West.  U.  Tel.  Co.  v.  Jeanes,  supra ;  but  see  Southwestern,  etc.,  Tel.  Co., 
V.  Jarrell  (Tex.  Civ.  App.)  138  S.  W.  1165 ;  West.  U.  Tel.  Co.  v.  Witt,  110  S. 
W.  889,  33  Ivy.  Law  Rep.  685 ;  Postal  Tel.  Cable  Co.  v.  Pratt,  85  S.  W.  225,  27 
Ky.  Law  Rep.  430;  West.  U.  Tel.  Co.  v.  Crawford  (Tex.  Civ.  App.)  75  S.  W. 
843 ;  West.  U.  Tel.  Co.  v.  Anderson  (Tex.  Civ.  App.)  37  S.  W.  619 ;  or  to  take 
an  earlier  train.  West.  U.  Tel.  Co.  v.  Johnsey,  49  Tex.  Civ.  App.  487.  109  S.  W. 
251 ;  Mullinax  v.  West.  U.  Tel.  Co.,  supra ;  Southwestern,  etc.,  Tel.  Co.  v. 
Gehring  (Tex.  Civ.  App.)  137  S.  W.  754 ;  West.  U.  Tel.  Co.  v.  Porterfield  (Tex. 
Civ.  App.)  84  S.  W.  850 ;  or  to  stop  off  at  an  intermediate  point.  West.  U.  Tel. 
Co.  V.  Birchfield,  14  Tex.  Civ.  App.  664,  38  S.  W.  635 ;  or  where  the  Injury  was 
caused  by  his  voluntary  and  deliberate  act,  Mitchiner  v.  West.  U.  Tel.  Co.,  75 , 
S.  C.  182,  55  S.  E.  222 ;  West.  U.  Tel.  Co.  v.  Ivy,  102  Ark.  246,  143  S.  W.  1078 ;  ' 


§    604)  MEASURE   OF   DAMAGES  '''83 

in  this  respect  is  that  there  was  no  affectionate  feelings  entertained 
by  the  plaintiff*  for  the  person  about  whom  the  message  which  is 
delayed  concerns.  It  seems  that  the  grief  of  a  loss  of  one,  or  a  fail- 
ure to  see  such  person  in  his  last  moments,  or  to  be  present  to  ten- 
der the  last  respect  to  the  dead,  affects  more  directly  the  mind  than 

Higdon  V.  West.  U.  Tel.  Co.,  132  N.  C.  726.  44  S.  B.  558 ;  Jones  v.  West.  U. 
Tel.  Co.,  75  S.  C.  208,  55  S.  E.  318 ;  Cloy  v.  West.  U.  Tel.  Co.,  78  S.  C.  109,  58 
S.  E.  972 ;  or  where  the  addressee  fails  to  act  promptly  on  the  information  of 
delayed  telegram,  West.  U.  Tel.  Co.  v.  Matthews,  113  Ky.  188,  67  S.  W\  849; 
Muliinax  v.  West.  U.  Tel.  Co.,  supra ;  Phillips  v.  West.  U.  Tel.  Co.  (Tex.  Civ. 
App.)  69  S.  W.  997 ;  West.  U.  Tel.  Co.  v.  Baker,  140  Fed.  315,  72  C.  C.  A.  87 ; 
West.  U.  Tel.  Co.  v.  Mellon,  96  Tenn.  66,  33  S.  W.  725 ;  West.  U.  Tel.  Co.  v. 
Terrell,  10  Tex.  Civ.  App.  60,  30  S.  W.  70 ;  West.  U.  Tel.  Co.  v.  Gulledge,  84 
Ark.  501,  106  S.  W.  957,  whether  he  acted  promptly  or  was  justified  in  acting 
as  he  did,  question  for  the  jury ;  West.  U.  Tel.  Co.  v.  Porterfield,  supra ;  West. 
U.  Tel.  Co.  V.  Daniels  (Tex.  Civ.  App.)  152  S.  W.  1116 ;  West.  U.  Tel.  Co.  v. 
Bryson,  25  Tex.  Civ.  App.  74,  61  S.  W.  548 ;  West.  U.  Tel.  Co.  v.  Matthews, 
supra ;   Efird  v.  West.  U.  Tel.  Co.,  132  N.  C.  267,  43  S.  E.  825 ;  or  where  there  is 
a  failure  to  act  upon  the  first  information  of  sickness.  Southwestern,  etc.,  Tel. 
Co.  V.  Gehring,  supra ;  West.  U.  Tel.  Co.  v.  Lydon,  82  Tex.  364,  IS  S.  W.  701 ; 
West.  U.  Tel.  Co.  v.  Revnolds  (Tex.  Civ.  App.)  140  S.  W.  121 ;  West.  U.  Tel.  Co. 
V.  Hardison  (Tex.  Civ.  App.)  101  S.  W.  541 ;  West.  U.  Tel.  Co.  v.  Glass  (Tex. 
Civ.  App.)  154  S.  W.  604 ;  West.  U.  Tel.  Co.  v.  Hill  (Tex.  Civ.  App.)  26  S.  W. 
2.52 ;  West.  U.  Tel.  Co.  v.  Drake,  14  Tex.  Civ.  App.  601,  38  S.  W^  632 ;  or  where 
the  plaintiff  has  failed  to  use  other  means  of  communication  to  minimize  or  to 
prevent  entirely  his  damages,  Willis  v.  West.  U.  Tel.  Co.,  69  S.  C.  531,  48  S.  E. 
538,  104  Am.  St.  Rep.  828,  2  Ann.  Cas.  52 ;  West.  U.  Tel.  Co.  v.  Taylor  (Ky.) 
112  S.  W.  844 ;  West.  U.  Tel.  Co.  v.  Wisdom,  85  Tex.  261,  20  S.  W.  56,  34  Am. 
St.  Rep.  805,  not  contributory  negligence ;  Walker  v.  West.  U.  Tel.  Co.,  75  S.  C. 
512,  56  S.  E.  38,  where  plaintiff  tried  to  reach  place ;  where  plaintiff  was  mis- 
led by  the  company's  agent  into  believing  that  any  attempt  of  using  any  other 
means  of  communication  would  be  unnecessary  is  admissible  as  tending  to  nega- 
tive contributory  negligence.  West.  U.  Tel.  Co.  v.  Lydon,  supra ;  West.  U.  Tel. 
Co.  V.  Guinn  (Tex.  Civ.  App.)  130  S.  W.  616;  Southwestern,  etc.,  Tel.  Co.  v. 
Owens  (Tex.  Civ.  App.)  116  S.  W.  S9 ;  Southwestern,  etc.,  Tel.  Co.  v.  Jarrell, 
supra ;  or  whether  the  plaintiff  did  or  should  have  taken  other  means  of  con- 
veyance other  than  the  regular  train  which  he  would  ordinarily  and  naturally 
have  taken,  but  usually  a  question  for  the  jury,  Cobb  v.  West.  U.  Tel.  Co.,  85 
S.  C.  430,  07  S.  E.  549 ;  West.  U.  Tel.  Co.  v.  Evans,  108  Ark.  39,  156  S.  W.  424 ; 
West.  U.  Tel.  Co.  v.  Sorsby,  29  Tex.  Civ.  App.  345,  69  S.  W.  122 ;  Toe  v.  West. 
U.  Tel.  Co.,  160  N.  C.  315,  76  S.  E.  81 ;  Southwestern,  etc.,  Tel.  Co.  v.  Taylor, 
26  Tex.  Civ.  App.  79,  63  S.  W.  1076 ;  West.  U.  Tel.  Co.  v.  Lavender  (Tex.  Civ. 
App.)  40  S.  W.  1035 ;  Bailey  v.  West.  U.  Tel.  Co.,  150  N.  C.  316,  63  S.  E.  1044 ; 
rierson  v.  West.  U.  Tel.  Co.,  150  N.  C.  559,  64  S.  E.  577 ;  West.  C.  Tel.  Co.  v. 
Johnson,  16  Tex.  Civ.  App.  546,  41  S.  W.  367.     As  to  effect  of  ignorance  of 
ability  to  attend  funeral,  see  West.  U.  Tel.  Co.  v.  North,  177  Ala.  319,  58  South. 
299;  West.  U.  Tel.  Co.  v.  Rabon,  60  Tex.  Civ.  App.  88,  127  S.  W.  580;  Roberts 
v.  West.  U.  Tel.  Co.,  73  S.  C.  520,  53  S.  E.  985,  114  Am.  St.  Rep.  100. 

Evidence  to  explain  delay  in  going  in  response  to  a  message  is  admissible. 
West.  U.  Tel.  Co.  v.  Lydon,  supra ;  West.  U.  Tel.  Co.  v.  Johnsey,  supra.  Plain- 
tiff may  testify  that  his  employer  owed  him  money  with  which  his  expenses 
on  the  trip  could  have  been  met.  West.  U.  Tel.  Co.  v.  Waller  (Tex.  Civ.  App.) 
47  S.  W\  396. 
As  to  other  special  defenses  unavailahUj  interposed  by  defendant,  see  West. 


784  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  605 

any  other  part  of  the  body;  and  so,  if  there  is  no  affectionate  feel- 
ings for  such  person,  the  mind  cannot  become  impaired  or  injured 
by  being  deprived  of  any  of  these  pleasures.^"®  So  it  has  been  held 
that  the  company  may  show,  as  a  defense  in  an  action  brought  by 
the  father  for  damages  for  mental  suffering,  in  consequence  of  a 
delayed  message  announcing  the  serious  illness  of  his  daughter, 
that  he  had  abandoned  his  family  and  was  living  apart  from 
them.^°^  We  think  that,  where  such  damages  are  allowed,  if  there 
is  any  affectionate  feelings  entertained  by  the  father  for  the 
daughter,  he  should,  on  proof  of  such  fact,  be  compensated  for  the 
injured  feelings  which  were  endured.  In  one  case,  the  company 
attempted  to  prove  that  the  plaintiff,  a  grandmother  of  the  child 
about  whom  the  message  concerned,  had  a  number  of  grandchil- 
dren— among  whom  her  affection  was  divided — but  the  court  held 
that  the  evidence  was  irrelevant. ^^° 

§  605.  Relationship  material. — It  was  shown  in  another  part  of 
this  work  that  in  order  to  hold  a  telegraph  company  liable  in  dam- 
ages for  mental  suffering,  caused  by  a  message  announcing  the 
dangerous  illness,  or  the  time  set  for  the  funeral  services  of  a  cer- 
tain person,  being  delayed  and  thereby  preventing  the  addressee 
from  being  present  with  said  person  before  death,  or  at  the  burial, 
the  company  must  have  had  some  information  of  the  fact  that  there 
was  a  close  relationship  between  these  two  persons. ^^^     It  neces- 

U.  Tel.  Co.  V.  Rosentreter,  SO  Tex.  406,  16  S.  W.  25 ;  Cumberland,  etc.,  Tel.  Co. 
V.  Quigley,  129  Ky.  788,  112  S.  W.  897,  19  L.  E.  A.  (X.  S.)  575,  no  defense  of 
company  as  a  delay  which  might  have  happened  as  the  result  of  a  third  party ; 
Cobb  V.  West.  U.  Tel.  Co.,  supra,  company  not  excused  although  plaintiff  did 
not  know  he  could  not  take  next  train  ;  West.  U.  Tel.  Co.  v.  Hamilton,  36  Tex. 
Civ.  App.  .300,  81  S.  W.  1052.  no  defense  where  decomposition  sets  in  earlier 
than  company  anticipated;  West.  U.  Tel.  Co.  v.  Ward,  4  Willson,  Civ.  Cas. 
Ct.  App.  §  317,  p.  553,  19  S.  W.  S9S ;  Woods  v.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61 
S.  E.  653,  128  Am.  St.  Rep.  581 ;  West.  U.  Tel.  Co.  v.  Cain  (Tex.  Civ.  App.)  40 
S.  W.  624 ;  West.  U.  Tel.  Co.  v.  Simmons  (Tex.  Civ.  App.)  93  S.  W.  686 ;  Green 
V.  West.  U.  Tel.  Co.,  136  N.  C.  506,  49  S.  E.  171,  1  Ann.  Cas.  358 ;  Lay  v.  Postal 
Tel.  Cable  Co.,  171  Ala.  172,  54  South.  529 ;  West.  U.  Tel.  Co.  v.  Shaw,  40  Tex. 
Civ.  App.  277,  90  S.  W.  58 ;  Ward  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  51  S.  W. 
259 ;  Gerock  v.  West.  U.  Tel.  Co.,  147  N.  C.  1,  60  S.  E.  637 ;  West.  U.  Tel.  Co. 
v.  Saunders,  164  Ala.  234,  51  South.  176,  137  Am.  St.  Rep.  35. 

los  West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App.  60,  30  S.  W.  70;  West.  U. 
Tel.  Co.  V.  Simmons,  32  Tex.  Civ.  App.  578,  75  S.  W.  822 ;  Buchanan  v.  West. 
U.  Tel.  Co.  (Tex.  Civ.  App.)  100  S.  W.  974 ;  West.  U.  Tel.  Co.  v.  Campbell,  41 
Tex.  Civ.  App.  204,  91  S.  W.  312 ;  Markley  v.  West.  U.  Tel,  Co.,  151  Iowa,  612, 
132  N.  W.  37.     See,  also,  §§  545,  546. 

109  West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App.  60,  30  S.  W.  70. 

110  West.  r.  Tel.  Co.  v.  Crocker,  135  Ala.  492,  33  South.  45,  59  L.  R.  A.  398. 

111  §§  545,  546.  See.  also,  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94,  30  S.  W. 
896 ;  West.  U.  Tel.  Co.  v.  McMillan  (Tex.  Civ.  App.)  30  S.  W.  298 ;  West.  U.  Tel. 
Co.  V.  Gibson  (Tex.  Civ.  App.)  39  S.  W.  198.     But  see  West.  U.  Tel.  Co.  v. 


§    605)  MEASURE  OF  DAMAGES  785 

sarily  follows,  therefore,  that  there  must  be  a  relationship  existing 
between  the  parties  to  or  concerning  a  telegram  before  damages  for 
mental  sufifering  can  be  recovered.^'-  Whenever  a  message  an- 
nouncing the  serious  illness,  death  or  time  of  funeral  of  a  person 
related  in  consanguinity  to  the  addressee  is  delayed,  mental  anguish 
and  suffering  will  be  presumed,  when,  through  the  fault  of  the  com- 
pany, he  is  prevented  from  being  present  at  the  bedside  or  funeral 
of  such  relative ;  and  it  is  not  necessary  for  him  to  prove  such  in- 
jury."^  While  we  perhaps  cannot  detect  with  the  eye  any  change 
or  difference,  it  is  a  natural  result  that  the  whole  tree  is  affected 
when  it  loses  one  of  its  branches.  It  is  according  to  nature  that 
such  shall  be  the  result.  The  same  rule  applies  to  man.  If  one  of. 
his  limbs  are  lost,  the  whole  body  becomes  more  or  less  affected. 
It  is  a  presumption  and  one  not  necessary  to  be  proven.  This  illus- 
tration may  be  far-fetched,  but  it  is  a  fact,  nevertheless,  that,  when 
one  member  of  a  family  suffers,  or  of  whom  we  are  deprived,  we 
suffer  as  a  natural  consequence;  and  when  the  relation  is  elose, 
the  fact  does  not  have  to  be  proven.  It  follows,  therefore,  that  if 
there  is  not  a  relationship,  especially  by  blood,  or  it  is  remote,  the 
presumption  of  mental  suffering  cannot  be  maintained,^^*  but  same 

Samuels  (Tex.  Civ.  App.)  141  S.  W.  802 ;  Amos  v.  West.  U.  Tel.  Co.,  79  S.  C. 
259,  60  S.  E.  660,  128  Am.  St.  Rep.  845 ;  Lewis  v.  West,  U.  Tel.  Co.,  84  S.  C. 
54,  65  S.  E.  941.  See  Foreman  v.  West.  U.  Tel.  Co.,  141  Iowa,  32,  116  N.  W. 
724,  19  L.  R.  A.  (N.  S.)  374. 

112  West.  U.  Tel.  Co.  v.  Ayers,  131  Ala.  391,  31  South.  78,  90  Am.  St.  Rep. 
92;  West.  U.  Tel.  Co.  v.  McMorris,  1.58  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46 ;  Lee  v.  West.  U.  Tel.  Co.,  130  Ky.  202,  113  S.  W.  55 ;  West.  U.  Tel.  Co. 
V.  Steenberiien,  107  Ky.  4G9,  54  S.  W.  829,  21  Ky.  Law  Rep.  1289 ;  Butler  v. 
West.  U.  Tel.  Co.,  77  S.  C.  148,  57  S.  E.  757 ;  West.  U.  Tel.  Co.  v.  Coffiu,  88  Tex. 
94,  30  S.  W.  896 ;  Denham  v.  West.  U.  Tel.  Co.,  27  Ky.  Law  Rep.  999,  87  S.  W. 
788 ;  Davidson  v.  West.  U.  Tel.  Co.,  21  Ky.  Law  Rep.  1292,  54  S.  W.  830 ;  Ran- 
dall V.  West.  U.  Tel.  Co.,  139  Ky.  373,  107  S.  W.  235,  15  L.  R.  A.  (N.  S.)  277, 
139  Am.  St.  Rep.  477 ;  West.  U.  Tel.  Co.  v.  Long,  14S  Ala.  202,  41  South.  965 ; 
West.  U.  Tel.  Co.  v.  Kirkpatrick,  2  Tenn.  Civ.  App.  41 ;  plaintite  and  the  per- 
son concerning  whom  message  relates,  Davidson  v.  West.  U.  Tel.  Co.,  supra ; 
Denham  v.  West.  U.  Tel.  Co.,  supra ;  West.  U.  Tel.  Co.  v.  Wilson,  97  Tex.  22, 
75  S.  W.  482;  West.  U.  Tel.  Co.  v.  Porterfield  (Tex.  Civ.  App.)  84  S.  W.  850; 
plaintiff  and  addressee.  West.  U.  Tel.  Co.  v.  Steenbergen,  supra ;  West.  V.  Tel. 
Co.  V.  Ayers,  supra ;  plaintiff  and  deceased,  as  to  the  arrival  of  the  body  or 
funeral  preparations.  West.  U.  Tel.  Co.  v.  McMorris,  supra. 

113  West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94,  30  S.  W.  896;  West.  U.  Tel.  Co.  v. 
Randies  (Tex.  Civ.  App.)  34  S.  W.  447 ;  West.  U.  Tel.  Co.  v.  Porter  (Tex.  Civ. 
App.)  26  S.  W.  866 ;  West.  U.  Tel.  Co.  v.  Mcl^eod  (Tex.  Civ.  App.)  22  S.  W.  988 ; 
West.  U.  Tel.  Co.  v.  Thompson,  18  Tex.  Civ.  App.  609,  45  S.  W.  429 ;  West.  U. 
Tel.  Co.  v.  Crocker,  1.35  Ala.  492,  33  South.  45,  59  L.  R.  A.  398.     See  §  60S. 

114  Harrison  v.  West.  U.  Tel.  Co.,  136  N.  C.  381,  48  S.  E.  772;  Foreman  v. 
West.  U.  Tel.  Co.,  141  Iowa,  32,  116  N.  W.  724,  19  L.  R.  A.  (N.  S.)  374  ;  Cashion 
v.  West.  U.  Tel.  Co.,  123  N.  C.  267,  31  S.  E.  493 ;  West.  U.  Tel.  Co.  v.  Ayers, 

Jones  Tel.(2d  Ed.) — 50 


786  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  606 

must  be  shown. ^^^  It  seems,  however,  that  if  there  is  an  affec- 
tionate feeling  existing  between  the  parties,  although  they  may 
not  be  related  by  blood,  proof  may  be  admitted  showing  this  fact, 
but  it  will  never  be  presumed  that  mental  suffering  and  anguish 
has  been  sustained. ^^"^ 

§  606.  Nature  of  damages. — As  will  be  seen  from  a  perusal  of 
the  preceding  sections,  actions  brought  to  recover  damages  for 
mental  suffering  relate  to  messages  announcing  the  serious  illness, 
death  or  time  of  funeral  services  of  some  relative  of  the  addressee, 
and  are  intended  to  bring  him  to  the  bedside  or  funeral  of  such  per- 
son, or  to  comply  with  the  information  in  other  ways  to  his  inter- 
est.^^^     But  even  in  such  cases  it  is  not  every  matter  incidental 

131  Ala.  391,  31  South.  78,  90  Am.  St.  Rep.  92 ;  Robinson  v.  West.  U.  Tel.  Co., 
68  S.  W.  C56,  24  Ky.  Law  Rep.  452,  57  L.  R.  A.  611.  See,  also,  AVest.  U.  Tel. 
Co.  V.  Steenbergen,  107  Ky.  469,  54  S.  W.  829 ;  Morrow  v.  West.  U.  Tel.  Co., 
107  Ky.  517,  54  S.  W.  853;  Davidson  v.  West.  U.  Tel.  Co.  (Ky.)  54  S.  W.  830. 
See  West.  U.  Tel.  Co.  v.  Crocker,  135  Ala.  492,  33  South.  45,  59  L,  R.  A.  398 ; 
Randall  v.  West.  U.  Tel.  Co.,  139  Ky.  373,  107  S.  W.  235,  15  L.  R.  A.  (N.  S.)  277, 
139  Am.  St.  Rep.  477 ;  West.  U.  Tel.  Co.  v.  Bennett,  3  Ala.  App.  275,  57  South. 
87 ;  Sherrill  v.  West.  U.  Tel.  Co.,  155  N.  C.  250,  71  S.  E.  330 ;  Seddon  v.  West.  U. 
Tel.  Co.,  146  Iowa,  743,  126  N.  W.  969;  West.  U.  Tel.  Co.  v.  Young  (Tex.  Civ. 
App.)  130  S.  W.  257 ;  West.  U.  Tel.  Co.  v.  Kanause  (Tex.  Civ.  App.)  143  S.  W. 
189. 

115  Foreman  v.  West.  U.  Tel.  Co.,  141  Iowa,  32,  116  S.  W.  724,  19  L.  R.  A. 
(N,  S.)  374,  plaintiff  son-in-law  of  addressee ;  West.  U.  Tel.  Co.  v.  Moxley,  80 
Ark.  554,  98  S.  W.  112,  plaintiff  son-in-law  of  person  who  was  sick;  Hunter 
v.  West.  U.  Tel.  Co.,  135  N.  C.  458,  47  S.  E.  745,  second  cousin ;  Bright  v.  West. 
U.  Tel.  Co.,  132  N.  C.  317,  43  S.  E.  841,  husband's  uncle ;  Bennett  v.  West.  U. 
Tel.  Co.,  128  N.  C.  103,  38  S.  E.  294,  father-in-law ;  Bush  v.  West.  U.  Tel.  Co.. 
93  S.  C.  176,  76  S..E.  197;  West.  U.  Tel.  Co.  v.  Steenbergen,  107  Ky.  409,  54 
S.  W.  829,  father-in-law  and  son-in-law ;  Lee  v.  West.  U.  Tel.  Co.,  130  Ky.  202, 
113  S.  W.  55,  aunt  and  nephew ;  Denham  v.  West.  U,  Tel.  Co.,  87  S.  W.  788,  27 
Ky.  Law  Rep.  999,  aunt  and  nephew ;  Randall  v.  West.  U.  Tel.  Co.,  107  S.  W. 
235,  32  Ky.  Law  Rep.  859,  15  L.  R.  A.  (N.  S.)  277,  engaged  couple. 

lie  West.  U.  Tel.  Co.  v.  Moxley,  80  Ark.  554,  98  S.  W.  112 ;  West.  U.  Tel.  Co. 
V.  Griffin,  92  Ark.  219,  122  S.  W.  489 ;  Seddon  v.  West.  U.  Tel.  Co.,  146  Iowa, 
743,  126  N.  W.  969 ;  Dayvis  v.  West.  U.  Tel.  Co.,  139  N.  C.  79,  51  S.  E.  898 ; 
Hunter  v.  West.  U.  Tel.  Co.,  135  N.  C.  458,  47  S.  E.  745 ;  Ellison  v.  West.  U. 
Tel.  Co.,  163  N.  C.  5,  79  S.  E.  277 ;  Harrison  v.  West.  U.  Tel.  Co.,  163  N.  C.  18, 
79  S.  E.  281 ;  West.  U.  Tel.  Co.  v.  Cline,  8  Ind.  App.  364,  35  N.  E.  564 ;  West. 
U.  Tel.  Co.  V.  Ayers,  131  Ala.  391,  31  South.  78,  90  Am.  St.  Rep.  92;  Lee  v. 
West.  U.  Tel.  Co.,  130  Ky.  202,  113  S.  W.  55 ;  West.  U.  Tel.  Co.  v.  Steenbergen, 
107  Ky.  469,  54  S.  W.  829,  21  Ky.  Law  Rep.  12S9.  But  see  Randall  v.  West. 
U.  Tel.  Co.,  107  S.  W.  235,  32  Ky.  Law  Rep.  859,  15  L.  R.  A.  (N.  S.)  277. 

11"  So  damages  may  be  recovered  for  being  prevented  from  being  present 
at  the  deathbed  or  funeral  of  a  near  relative  where  it  is  result  of  the  negli- 
gence of  the  company.  See  West.  U.  Tel.  Co.  v.  Crumpton,  138  Ala.  632,  36 
South.  517 ;  West.  U.  Tel.  Co.  v.  Arant,  88  Ark.  499,  115  S.  W.  136 ;  West.  U. 
Tel.  Co.  V.  Benson,  159  Ala.  254,  48  South.  712 ;  Ark.,  etc.,  R.  Co.  v.  Stroude, 
82  Ark.  117,  100  S.  W.  760 ;  Bailey  v.  -West.  U.  Tel.  Co.,  150  N.  C.  316,  63  S.  E. 
1044 ;  Postal  Tel.  Cable  Co.  v.  Pratt,  85  S.  W.  225,  27  Ky.  Law  Rep.  430 ;  Lyne 
V.  West.  U.  Tel.  Co.,  123  N.  C.  129,  31  S.  E.  350 ;  Hughes  v.  West.  U.  Tel.  Co.: 


§    606)  MEASURE  OF   DAMAGES  787 

thereto  which  may  be  considered  as  an  element  of  such  damages."* 
The  anxiety  to  be  present  on  such  occasion  is  greater  than  any 
that  can  ever  befall  a  man,  as  during  these  short  moments  we  ex- 
perience that  which  can  never  be  witnessed  again  while  on  earth; 
for  this  reason,  cases  of  this  nature  most  always  come  upon  the 
ground  of  failure  to  deliver  such  messages  in  time.  Cases,  however, 
have  been  brought  to  recover  damages  for  a  failure  to  deliver  other 
kinds  of  messages  where  they  are  of  information,  and  not  calculated 
or  intended  to  affect  the  movement  of  the  addressee."^  Thus, 
where  a  father  is  prevented   from   stopping  the   marriage  of   his 

72  S.  C.  516,  52  S.  E.  107 ;  West.  U.  Tel.  Co.  v.  O'Fiel,  47  Tex.  Civ.  App.  40, 
104  S.  W.  406 ;  West.  U.  Tel.  Co.  v.  Beringer.  84  Tex.  .38,  19  S.  W.  336 ;  Bu- 
chanan V.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  100  S.  W.  974 ;  Roach  v.  Jones,  18 
Tex.  Civ.  App.  231,  44  S.  W.  677 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50 
South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058;  West.  U.  Tel.  Co.  v. 
Peagler,  163  Ala.  38,  50  South.  913 ;  West.  U.  Tel.  Co.  v.  Fuel,  165  Ala.  391,  51 
South.  571;  West.  U.  Tel.  Co.  v.  Cleveland,  169  Ala.  131,  53  South.  80.  Ann. 
Cas.  1912B,  534;  West.  U.  Tel.  Co.  v.  Bickerstaff,  100  Ark.  1,  138  S.  W.  997, 
Ann.  Cas.  1913B,  242 ;  Mullinax  v.  West.  U.  Tel.  Co.,  156  N.  C.  541,  72  S.  E. 
583 ;  Southwestern,  etc.,  Tel.  Co.  v.  Gehring  (Tex.  Civ.  App.)  137  S.  W.  754 ; 
West.  U.  Tel.  Co.  v.  Sisson,  155  Ky.  624,  160  S.  W.  168;  West.  U.  Tel.  Co.  v. 
Kirkpatrick,  2  Tenn.  Civ.  App.  41. 

118  West.  U.  Tel.  Co.  v.  McCaul,  115  Tenn.  99,  90  S.  W.  856;  Arkansas,  etc., 
R.  Co.  V.  Stroude,  82  Ark.  117,  100  S.  W.  760 ;  Buchanan  v.  West.  U.  Tel.  Co. 
(Tex.  Civ.  App.)  100  S.  W.  974 ;  West.  U.  Tel.  Co.  v.  Birchfield,  14  Tex.  Civ. 
App.  664,  38  S,  W.  635 ;  prevented  from  being  present  with  other  members  of 
family.  West.  U.  Tel.  Co.  v.  Butler,  45  Tex.  Civ.  App.  28,  99  S.  W.  704 ;  Bu- 
chanan V.  West.  U.  Tel.  Co.,  supra ;  Machen  v.  West.  U.  Tel.  Co.,  72  S.  C.  256, 
51  S.  E.  697 ;  from  offering  them  his  assistance  and  consolation.  West.  U.  Tel. 
Co.  V.  Wilson,  97  Tex.  22,  75  S.  W.  482  ;  Ark.,  etc.,  R.  Co.  v.  Stroude,  supra ; 
AVest.  U.  Tel.  Co.  v.  Butler,  supra ;  buried  at  an  unsatisfactory  place,  West. 
U.  Tel.  Co.  V.  Carter,  85  Tex.  580,  22  S.  W.  961,  34  Am.  St.  Rep.  826 ;  West.  U. 
Tel.  Co.  V.  McCaul,  supra;  West.  U.  Tel.  Co.  v.  McNairy,  34  Tex.  Civ.  App. 
389,  78  S.  W.  969 ;  West.  U.  Tel.  Co..  v.  Arant,  88  Ark.  499,  115  S.  W.  136,  in 
unsuitable  clothes,  West.  U.  Tel.  Co.  v.  Carter,  supra,  or  at  the  expense  of 
strangers.  West.  U.  Tel.  Co.  v.  McNairy,  supra  ;  particular  clergyman  did  not 
conduct  the  funeral,  West.  U.  Tel.  Co.  v.  Arnold,  96  Tex.  493,  73  S.  W.  1043 ; 
West.  U.  Tel.  Co.  v.  Robinson,  97  Tenn.  638,  37  S.  W.  545,  34  L.R.  A.  431 ;  de- 
prived of  another  member  of  family  while  on  the  way.  West.  U.  Tel.  Co.  v. 
Birchfield,  supra;  compelled  to  leave  relative's  bedside  frequently  to  meet 
train,  Arial  v.  West.  U.  Tel.  Co.,  70  S.  C,  418,  50  S.  E.  6 ;  uncertainty  as  to 
whether  the  funeral  would  be  postponed.  West.  U.  Tel.  Co.  v.  Reed,  37  Tex. 
Civ.  App.  445,  84  S.  W.  296.  But  see  Hamrick  v.  West.  U.  Tel.  Co.,  140  N.  C. 
151,  52  S.  E.  232 ;  Meadows  v.  West.  U.  Tel.  Co.,  132  N.  C.  40,  43  S.  E.  512 ; 
West.  U.  Tel.  Co.  v.  De  Andrea,  45  Tex.  Civ.  App.  305,  100  S.  W.  977 ;  West. 
U.  Tel.  Co.  V.  Adams  (Tex.  Civ.  App.)  80  S.  W.  93 ;  West.  U.  Tel.  Co.  v.  Stacy 
(Tex.  Civ.  App.)  41  S.  W.  100;  West.  U.  Tel.  Co.  v.  Finer,  9  Tex.  Civ.  App.  152, 
29  S.  W.  66;  West.  U.  Tel.  Co.  v.  Hamilton,  36  Tex.  Civ.  App.  300,  81  S.  W. 
1052 ;  West.  U.  Tel.  Co.  v.  DeJarles,  8  Tex.  Civ.  App.  109,  27  S.  W.  792. 

119  West.  U.  Tel.  Co.  v.  Odom.  21  Tex.  Civ.  App.  537.  52  S.  W.  632;  West.  U. 
Tel.  Co.  V.  Hincs,  22  Tex.  Civ.  App.  315,  54  S.  W.  027.  See,  also,  §  589,  and 
cases  cited  in  notes  thereunder. 


788  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  607 

daughter  by  a  delay  in  delivering  a  message  to  that  effect,  he  was 
allowed  to  recover  damages  for  mental  suffering  resulting  from  an 
undesirable  marriage,^-^  although  he  could  not  recover  for  the 
mental  suft'ering  of  his  wife,  unless  it  appeared  to  the  company  that 
he  had  a  wife. 

§  607.  Actions  do  not  survive — limitation. — Actions  against 
telegraph  companies  for  damages  for  mental  suffering  are  for  "an 
injury  to  the  person,"  within  the  rule  that  such  actions  do  not  sur- 
vive, and  the  right  of  the  action  dies  with  the  person.^'^  His  in- 
juries are  such  as  none  other  can  suffer,  or,  if  they  suffer  same,  the 
injury  is  too  remote  for  damages  to  be  recovered.  The  sufferer 
himself  is  the  only  person  who  can  maintain  a  suit  thereon.  There 
are  statutes,  however,  which  confer  the  right  to  the  husband  for 
the  benefit  of  the  wife,  or  the  parent  for  the  child ;  but  this  is  the 
case  only  when  the  injured  person  still  lives.  These  actions  also 
fall  within  the  statutes  of  limitation,  as  "actions  for  the  injuries  to 
the  person."  ^^^ 

§  608.  Burden  of  proof — presumption. — In  these  cases,  the  bur- 
den of  proof  is  upon  the  plaintiff  to  make  out  his  case,^-^  and  that, 
as  the  proximate  result  of  the  company's  negligence  or  default, 
mental  anguish  has  been  suffered. ^^*  So,  where  the  message  re- 
quests that  the  sender  be  met  at  a  station  or  that  preparations  be 
made  for  a  burial,  it  must  affirmatively  be  shown  that,  if  the  mes- 
sage had  been  duly  delivered,  the  request  would  have  been  com- 
plied with  or  the  burial  arrangements  would  have  been  made.^-^ 
So  also,  where  the  message  announces  the  death  or  illness  of  a  rela- 
tive, it  must  be  shown  that,  if  the  message  had  been  duly  delivered, 
the  addressee  would  have  gone.^^®     In  none  of  these  instances  will 

120  West.  U.  Tel.  Co.  v.  Procter,  6  Tex.  Civ.  App.  300.  25  S.  W.  811.  And  as 
will  be  seen,  it  has  been  applied  to  other  causes.     §  577. 

121  Morton  v.  West.  U.  Tel.  Co.,  1-30  N.  C.  299,  41  S.  E.  4S4;  Fitzgerald  v. 
West.  U.  Tel.  Co.,  15  Tex.  Civ.  App.  143,  40  S.  W.  421. 

122  Kelly  V.  West.  U.  Tel.  Co.,  17  Tex.  Civ.  App.  344,  43  S.  W.  532 ;  Martin  v. 
West.  U.  Tel.  Co.,  6  Tex.  Civ.  App.  619,  26  S.  W.  136. 

123  Hauser  v.  We.st.  U.  Tel.  Co.,  150  N.  C.  557,  64  S.  E.  503;  West.  U.  Tel. 
Co.  V.  Long,  90  Ark.  203,  118  S.  W.  405 ;  West.  U.  Tel.  Co.  v.  Smith,  88  Tex.  9, 
28  S.  W.  931,  30  S.  W.  549.  See,  also,  Heathcoat  v.  West.  U.  Tel.  Co.,  156  Ala. 
339,  47  South.  139. 

124  Hauser  v.  West.  U.  Tel.  Co.,  150  N.  C.  557,  64  S.  E.  503 ;  Lanning  v.  West. 
U.  Tel.  Co.,  155  N.  C.  344,  71  S.  E.  309. 

12  5  Hancock  v.  West.  U.  Tel.  Co.,  137  N.  C.  497,  49  S.  E.  952,  69  D.  R.  A. 
403;  West.  U.  Tel.  Co.  v.  Mc:Morris,  158  Ala.  563,  48  South.  349,  132  Am. 
St.  Rep.  46;  Johnson  v.  West.  U.  Tel.  Co.,  81  S.  C.  235,  62  S.  E.  244,  128 
Am.  St.  Rep.  905,  17  L.  R.  A.  (N.  S.)  1002. 

12  6  West.  U.  Tel.  Co.  v.  Adams  (Tex.  Civ.  App.)  80  S.  W.  93;  West.  U.  Tel. 
Co.  V.  Robbius,  3  Ala.  App.  234,  56  South.  879.     Compare  West.  U.  Tel.  Co.  v. 


i 


I    608)  MEASURE  OF  DAMAGES  789 

the  presumption  arise  in  the  plaintiff's  favor,  but  it  must  be  shown 
that  the  party  would  have  been  met/-''  or  the  funeral  arrangements 
made/-^  or  that  the  addressee  could  and  would  have  gone/^^  and 
arrived  in  time/^''  Where,  however,  the  relationship  between  the 
parties  is  near,  mental  suffering  will  be  presumed  "^  without  af- 
firmative proof  ^^^  of  the  existence  of  such  suffering  ^^^  or  of  the 
amount  of  damages  to  be  recovered, ^^*  provided  there  is  proof  of 
the  existence  of  a  sufficiently  close  relationship. ^^^  So,  where  the 
relationship  is  remote  or  is  merely  by  marriage,  mental  anguish 

Snell,  3  Ala.  App.  263,  56  South.  854,  when  addressee  would  have  gone  at 
little  expense. 

127  Hancock  v.  West.  U.  Tel.  Co.,  137  N.  C.  497,  49  S.  E.  952,  69  L.  R.  A. 
403 ;  West.  U.  Tel.  Co.  v.  McMorris,  15S  Ala.  563,  48  South.  349,  132  Am.  St. 
Rep.  46. 

128  Id. 

129  West.  U.  Tel.  Co.  v  Adams  (Tex.  Civ.  App.)  80  S.  W.  93;  Cumberland 
Tel.  Co.*  V.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78  Am.  St.  Rep.  906,  50  L.  R.  A. 
277 ;    Cobb  v.  West.  U.  Tel.  Co.,  85  S.  C.  430,  67  S.  E.  549. 

130  Cumberland  Tel.  Co.  v.  Brown,  104  Tenn.  56,  55  S.  W.  155,  78  Am.  St. 
Rep.  906,  50  L.  R.  A.  277 ;  Howard  v.  West.  U.  Tel.  Co.,  119  Ky.  625,  84  S.  W. 
764,  86  S.  W.  982,  7  Ann.  Cas.  1065,  27  Ky.  Law  Rep.  244,  858 ;  West.  U.  Tel. 
Co.  V.  Smith,  88  Tex.  9,  28  S.  W.  931,  30  S.  W.  549;  West.  U.  Tel.  Co.  v. 
Shofner,  87  Ark.  303,  112  S.  W.  751,  plaintiff  need  not  negative  the  contingen- 
cies of  wrecks,  washouts,  or  other  accidents  which  might  have  delayed  her 
arrival,  but  a  prima  facie  case  is  made  out  if  evidence  is  submitted  showing 
that,  according  to  train  schedule,  she  should  have  reached  the  place  of  the 
funeral  in  time  if  the  message  had  not  been  delayed ;  Kivett  v.  West.  U. 
Tel.  Co.,  156  K  C.  296,  72  S.  E.  388. 

131  West.  U.  Tel.  Co.  v.  Thompson,  18  Tex.  Civ.  App.  609,  45  S.  W.  429; 
West.  U.  Tel.  Co.  v.  Blair,  51  Tex.  Civ.  App.  427,  113  S.  W.  164,  the  presump^ 
tion  may  be  rebutted ;  Kivett  v.  West.  U.  Tel.  Co.,  156  N.  C.  296,  72  S.  E.  388. 
See,  also.  West.  U.  Tel.  Co.  v.  Coffin.  88  Tex.  94,  30  S.  W.  896 ;  West.  U.  Tel. 
Co.  V.  Simmons,  32  Tex.  Civ.  App.  578,  75  S.  W.  822;  Sherrill  v.  West.  U. 
Tel.  Co.,  155  N.  C.  250,  71  S.  E.  330 ;  West.  U.  Tel.  Co.  v.  Fuel,  165  Ala.  391, 
51  South.  571;  West.  U.  Tel.  Co.  v.  Randies  (Tex.  Civ.  App.)  34  S.  W.  447; 
West.  U.  Tel.  Co.  v.  Porterfield  (Tex.  Civ.  App.)  84  S.  W.  850;  West.  U.  Tel. 
Co.  v.  Hankins  (Tex.  Civ.  App.)  110  S.  W.  543 ;  West.  U.  Tel.  Co.  v.  Wilson, 
97  Ark.  198,  133  S.  W.  845;  West.  U.  Tel.  Co.  v.  McMorris,  158  Ala.  563, 
48  South.  349,  132  Am.  St.  Rep.  46;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala. 
254,  48  South.  712;  West.  U.  Tel.  Co.  v.  Campbell,  41  Tex.  Civ.  App.  204, 
91  S.  W.  312,  may  be  rebutted ;  West.  U.  Tel.  Co.  v.  Terrell,  10  Tex.  Civ.  App. 
60,  30  S.  W.  70,  as  where  plaintiff  had  abandoned  his  daughter  before  her 
death. 

132  West.  U.  Tel.  Co.  v.  Thompson,  18  Tex.  Civ,  App.  609,  45  S,  W.  429; 
West.  U.  Tel.  Co.  v.  Blair,  51  Tex.  Civ.  App.  427,  113  S.  W.  164;  West.  U. 
Tel.  Co.  v.  Randies  (Tex.  Civ.  App.)  34  S.  W.  447;  West,  U.  Tel.  Co.  v.  Mc- 
Leod  (Tex.  Civ.  App.)  22  S.  W.  9SS. 

133  West.  U.  Tel.  Co.  v.  Randies  (Tex.  Civ.  App.)  34  S.  W,  447. 

134  West.  U.  Tel.  Co.  v.  Adams,  75  Tex.  531,  12  S.  W.  857,  16  Am.  St.  Rep. 
920,  6  L.  R.  A.  844 ;  West.  U.  Tel.  Co.  v.  Benson,  159  Ala.  254,  48  South.  712 ; 
West.  U.  Tel.  Co.  v.  McLeod  (Tex.  Civ.  App.)  22  S.  W.  988. 

13  5  Harrison  v.  West.  U.  Tel.  Co.,  136  N.  C.  381,  48  S.  E.  772. 


790  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  GOd' 

will  not  be  presumed,  but  must  be  affirmatively  shown. ^^^  Further- 
more, where  mental  anguish  is  presumed  from  the  relationship  be- 
tween the  parties,  if  the  action  is  brought  to  recover  damages  on 
other  grounds,  as  for  physical  suffering,  such  other  damages  must 
be  shown  and  not  presumed/^'' 

§  609.  Damages  for  mental  suffering — doctrine  denied. — While 
it  is  held,  in  some  few  states,  that  damages  may  be  recovered  for 
mental  suffering  unaccompanied  by  a  pecuniary  loss  or  physical 
injury,  yet  the  weight  of  authority  holds  a  contrary  view.^^^     With 

136  Alexander  v.  West.  U.  Tel.  Co.,  141  N.  C.  75,  53  S.  E.  657;  Foreman  v. 
West.  U.  Tel.  Co.,  141  Iowa,  32,  116  N.  W.  724,  19  L.  R.  A.  (N.  S.)  374 ;  CasMon 
V.  West.  U.  Tel.  Co.,  123  N.  C.  267,  31  S.  E.  493;  Johnson  v.  West.  U.  Tel. 
Co.,  81  S.  C.  325,  62  S.  E.  244,  12S  Am.  St.  Rep.  905,  17  L.  R.  A.  (N.  S.)  1002; 
West.  U.  Tel.  Co.  v.  Coffin,  88  Tex.  94,  30  S.  W.  896 ;  West.  U.  Tel.  Co.  v. 
Samuels  (Tex.  Civ.  App.)  141  S.  W.  802;  West.  U.  Tel.  Co.  v.  Wilson,  97 
Tex.  22,  75  S.  W.  482 ;  Harrison  v.  West.  U.  Tel.  Co.,  143  N.  C.  147,  55  S.  E. 
435,  10  Ann.  Cas.  476;  West.  U.  Tel.  Co.  v.  Kanause  (Tex.  Civ.  App.)  143 
S.  W.  189,  stepfather  and  stepson ;  Rich  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.> 
110  S.  W.  93 ;  West.  U.  Tel.  Co.  v.  Crow,  106  Ark.  117,  152  S.  W.  1015.  But 
see  West.  U.  Tel.  Co.  v.  Saunders,  164  Ala.  234,  51  South.  176,  137  Am.  St. 
Rep.  35. 

As  to  sufficiency  of  proof  of  affection  where  relationship  is  not  close,  see 
Alexander  v.  West.  U.  Tel.  Co.,  supra ;  Bright  v.  West.  U.  Tel.  Co.,  132  N.  C. 
317,  43  S.  E.  841 ;  Harrison  v.  West.  U.  Tel.  Co.,  supra ;  Pierson  v.  West.  U. 
Tel.  Co.,  150  N.  C.  559,  64  S.  E.  577;  Busbee  v.  West.  U.  Tel.  Co.,  89  S.  C. 
567,  72  S.  E.  499 ;    Doster  v.  West.  U.  Tel.  Co.,  77  S.  C.  56,  57  S.  E.  671. 

Notice  to  compfiny  of  affection  hetwecn  distant  reia^^o»s.— Some  courts  hold 
that  there  must  not  only  be  proof  of  tender  and  affectionate  relations  where 
the  parties  are  not  closely  connected,  but  the  company  must  have  notice  of 
such  fact  at  the  time  message  was  given  to  it  for  transmission.  West.  U. 
Tel.  Co.  v.  Coffin,  supra;  West.  U.  Tel.  Co.  v.  Mc]Millau  (Tex.  Civ.  App.)  30 
S.  W.  298 ;  West.  U.  Tel.  Co.  v.  Gibson  (Tex.  Civ.  App.)  39  S.  W.  198 ;  Amos 
V.  West.  U.  Tel.  Co.,  79  S.  C.  259,  60  S.  E.  660,  128  Am.  St.  Rep.  845;  Lewis 
V.  West.  U.  Tel.  Co.,  84  S.  C.  54,  65  S.  E.  941 ;  West.  U.  Tel.  Co.  v.  Samuels, 
supra.  But  see  Foreman  v.  West.  U.  Tel.  Co.,  supra ;  Cameron  v.  West.  U. 
Tel.  Co.,  90  S.  C.  503,  74  S.  E.  929 ;  Bush  v.  West.  U.  Tel.  Co.,  93  S.  C.  176, 
76  S.  E.  197.     See  §§  545,  546. 

13  7  West.  U.  Tel.  Co.  v.  Thompson,  18  Tex.  Civ.  App.  009,  45  S.  W.  429. 

138  Arkansas.— Feay  v.  West.  U.  Tel.  Co.,  64  Ark.  538,  43  S.  W.  965,  39 
L.  R.  A.  463.  But  the  rule  has  been  changed  in  this  state  by  statute.  See  § 
615. 

Dakota.— -Russell  v.  West.  U.  Tel.  Co.,  3  Dak.  315,  19  N.  W.  408. 

Florida. — ^International  Ocean  Tel.  Co.  v.  Saunders,  32  Fla.  434,  14  South. 
148,  21  L.  R.  A.  810. 

Geo;sri.a.— Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am. 
St.  Rep.  183,  17  L.  R.  A.  430;  Seifert  v.  West.  U.  Tel.  Co.,  129  Ga.  181,  58 
S.  E.  699,  121  Am.  St.  Rep.  210,  11  L.  R.  A.  (N.  S.)  1149 ;  Glenn  v.  West.  U. 
Tel.  Co.,  1  Ga.  App.  821,  58  S.  E.  83. 

Illinois.— West.  U.  Tel.  Co.  v,  Haltom,  71  111.  App.  63. 

Indiana.— West.  U.  Tel.  Co.  v.  Adams,  28  Ind.  App.  420,  63  N.  E.  125 ;  West. 
U.  Tel.  Co.  V.  Ferguson,  157  Ind.  64,  60  N.  E.  674,  1080,  54  L.  R.  A.  846,  over- 
ruling Reese  v.  West.  U.  Tel.  Co.,  123  Ind.  294,  24  N.  E.  163,  7  L.  R.  A.  583; 
Kagy  V.  West.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117  Am.  St.  Rep.  278. 


§    609)  MEASURE   OF  DAMAGES  791 

all  due  respect  to  the  courts  hokling  that  damages  for  such  injuries 
may  be  recovered,  we  are  clearly  convinced  that  the  ground  upon 
which  they  base  their  opinion  is  not  of  very  firm  foundation.  We 
do  not  deny  the  fact  that  the  mind  is  injured  to  a  certain  extent  as 
a  result  of  the  breach  of  almost  any  contract,  but  it  is  of  such  pecul- 
iar nature  that  we  cannot  begin  to  estimate  the  degree  of  suffering 
in  order  to  make  sufficient  compensation  therefor.  The  anxiety  of 
the  mind  is  too  refined  and  vague  in  its  nature  to  be  taken  as  a  sub- 

Kansas.— West  v.  West.  U.  Tel.  Co.,  39  Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep. 
530. 

1/wnesofa.— Francis  v.  West.  U.  Tel.  Co.,  58  Minn.  252,  59  N.  W,  1078, 
49  Am.  St.  Rep.  507,  25  L.  R.  A.  406. 

Mississippi.— West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24 
Am.  St.  Rep.  300,  13  L.  R.  A.  859 ;  Duncan  v.  West.  U.  Tel.  Co.,  93  Miss.  500, 
47  South.  552 ;    West.  U.  Tel.  Co.  v.  Watson,  82  Miss.  101,  33  South.  76. 

Missouri. — Newman  v.  West.  U.  Tel.  Co.,  54  Mo.  App.  434 ;  Connell  v.  West. 
U.  Tel.  Co.,  116  Mo.  34,  22  S.  W.  345,  38  Am.  St.  Rep.  575,  20  L.  R.  A.  172 ; 
Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599. 

Tsleiv  Yor/c— Curtin  v.  West.  U.  Tel.  Co.,  13  App.  Div.  253,  42  N.  Y.  Supp. 
1109,  3  N.  Y.  Ann.  Cas.  286. 

07iio.— Kester  t.  West.  U.  Tel.  Co.,  8  Ohio  Cir.  Ct.  R.  236,  4  O.  C.  D.  410 ; 
Morton  v.  West.  U.  Tel.  Co.,  53  Ohio  St.  431,  41  N.  E.  689,  53  Am.  St.  Rep. 
648,  32  L.  R.  A.  735 ;  Kline  v.  West.  U.  Tel.  Co.,  4  Ohio  S.  &  C.  P.  Dec.  224, 
3  Ohio  N.  P.  143. 

OAZa/ioma.— Butner  v.  West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087;  West.  U. 
Tel.  Co.  V.  Chouteau,  28  Okl.  664,  115  Pac.  879,  Ann.  Cas.  1912D,  824,  49 
L.  R.  A.  (N.  S.)  207 ;  Thomas  v.  West.  U.  Tel.  Co.,  30  Okl.  63,  118  Pac.  370 ; 
West.  U.  Tel.  Co.  v.  Foy,  32  Okl.  801,  124  Pac.  305,  49  L.  R.  A.  (N.  S.)  343 ; 
West.  U.  Tel.  Co.  v.  Reeves,  34  Okl.  468,  126  Pac.  216. 

Pennsylvania. — Huston  v.  Freemansburg  Borough,  212  Pa.  548,  61  Atl.  1022, 
3  L.  R.  A,  (N.  S.)  49 ;    Kightlinger  v.  West.  U.  Tel.  Co.,  20  Pa.  Co.  Ct.  R.  630. 
South  Carolina.— 'Lewis  v.  West.   U.  Tel.  Co.,  57  S.   C.  325,  35  S.   E.  550. 
Rule  changed  by  statute  in  this  state.     See  §  615. 

yirf7ima.— Connelly  v.  West.  U.  Tel.  Co.,  100  Va.  51,  40  S.  E.  618,  93  Am. 
St.  Rep.  919,  56  L.  R.  A.  603. 

Wos/mi(7^on.— Corcoran  v.  Postal  Tel.  Cable  Co.,  80  Wash.  570,  142  Pac.  29, 
L.  R.  A.  1915B,  552. 

West  Virginia.— DsiYis  v.  West.  U.  Tel.  Co.,  46  W.  Va.  48,  32  S.  E.  1026. 
Wi.5co»sin.— Summerfield  v.  West.  U.  Tel.  Co.,  87  Wis.  1,  57  N.  W.  973,  41 
Am.  St.  Rep.  17.     Rule  changed  by  statute  in  this  state.     See  §  615. 

United  States.— Alexander  v.  West.  U.  Tel.  Co.  (C.  C.)  126  Fed.  445;  Rowan 
V.  West.  U.  Tel.  Co.  (C.  C.)  149  Fed.  550;  West.  U.  Tel.  Co.  v.  Sklar,  126  Fed. 
295,  61  C.  C.  A.  281 ;  Stansell  v.  West.  U.  Tel.  Co.  (C.  C.)  107  Fed.  668 ;  Mc- 
Bride  v.  Sunset  Tel.  Co.  (C.  C.)  96  Fed.  81 ;  Gahan  v.  West.  U.  Tel.  Co.  (C.  C) 
59  Fed.  433 ;  West.  U.  Tel.  Co.  v.  Wood,  57  Fed.  471,  6  C.  C.  A.  432,  21  L.  R. 
A.  706 ;  Crawson  v.  West.  U.  Tel.  Co.  (C.  C.)  47  Fed.  544 ;  Tyler  v.  West.  U. 
Tel.  Co.  (C.  C.)  54  Fed.  634 ;  Chase  v.  West.  U.  Tel.  Co.  (C.  C.)  44  Fed.  554, 
10  L.  R.  A.  464. 

In  Alalama  the  question  is  complicated  by  the  fact  that  the  courts  preserve 
the  old  common-law  distinction  between  actions  ex  contractu  and  ex  delicto. 
So  there  can  be  a  recovery  in  an  action  on  the  contract,  although  the  only 
other  damage  was  the  loss  of  the  toll  or  the  nominal  damage  of  breach  of 


792  TELEGRAPH  AXD  TELEPHONE  COMPANIES  (§  610 

ject  for  pecuniary  consideration.^^®  It  deals  too  much  with  the  sci- 
ence of  psychopathy  and  is  a  matter  that  appeals  to  the  imaginative 
powers  of  man  to  such  an  extent  that  it  becomes  dangerous  to  tam- 
per with  when  the  rights  of  others  are  involved. 

§  610.  When  may  be  basis  of  action — malicious  or  willful 
wrong. — There  are  instances  where  damages  may  be  recovered  for 
mental  suffering  disconnected  from  other  losses;  and  yet  this  is  in 
the  nature  of  punitive  damages,  or  a  punishment  imposed  on  the 
wrongdoer.  Thus,  if  the  company's  operator  is  guilty  of  such  gross 
negligence  in  the  discharge  of  his  duties  as  amounts  to  a  willful 
wrong,  whereby  another  suffers  agony  or  a  distress  of  mind,  the 
company  would  be  liable  in  damages  for  such  wrong.^*°  It  is  ex- 
acted of  the  company  more  to  deter  others  from  committing  other 
and  similar  offenses  than  as  a  compensation  for  the  mental  suft'er- 
ing  endured. ^*^  If  an  agent  of  a  telegraph  company  should  be 
guilty  of  such  gross  negligence  as  to  indicate  a  wanton  or  malicious 
purpose  in  failing  to  transmit  and  deliver  a  message,  the  person 
injured  thereby  would  be  entitled  to  exemplary  damages,  although 
he  might  not  have  sustained  any  loss  except  a  worry  and  distress 
of  mind.^*"    So,  in  actions  for  libel  and  slander,  they  will  be  liable 

contract.  West.  U.  Tel.  Co.  v.  Wilson,  93  Ala.  32,  9  South.  414,  30  Am.  St. 
Kep.  23;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  IS  Am. 
St.  Rep.  148;  West.  U.  Tel.  Co.  v.  Crumpton,  138  Ala.  632,  36  South.  517; 
West.  U.  Tel.  Co.  v.  Northcutt,  158  Ala.  539,  48  South.  553,  132  Am.  St.  Rep. 
38 ;  West.  U.  Tel.  Co.  v.  Manker,  145  Ala.  418,  41  South.  850 ;  West.  U.  Tel. 
Co.  V.  Saunders,  164  Ala.  2.34,  51  South.  176,  137  Am.  St.  Rep.  35 ;  West.  U. 
Tel.  Co.  V.  Young  (Tex.  Civ.  App.)  133  S.  W.  512,  case  arose  In  Alabama.  But, 
where  the  action  is  ex  delicto,  there  can  be  no  recovery.  West.  U.  Tel.  Co.  v. 
Kriehbaum,  132  Ala.  535,  31  South.  607 ;  Blount  v.  West.  U.  Tel.  Co.,  126  Ala. 
105,  27  South.  779 ;  West.  U.  Tel.  Co.  v.  Blocker,  138  Ala.  484,  35  South.  468 ; 
West.  U.  Tel.  Co.  v.  Waters,  1-39  Ala.  652,  36  South.  773 ;  West.  U.  Tel.  Co.  v. 
Wright,  169  Ala.  108,  53  South.  95 ;  West.  U.  Tel.  Co.  v.  Brown,  6  Ala.  App. 
339,  59  South.  329.  But  if  the  plaintiff  can  show  a  loss  of  the  toll  he  may 
recover  whether  the  action  be  in  tort  or  in  contract.  West.  U.  Tel.  Co.  v. 
Burns,  164  Ala.  252,  51  South.  373;  West.  U.  Tel.  Co.  v.  Westmoreland,  150 
Ala.  654,  43  South.  790;  West.  U.  Tel.  Co.  v.  Kriehbaum,  supra.  See,  also, 
West.  U.  Tel.  Co.  v.  Jackson,  163  Ala.  9,  50  South.  316 ;  West.  U.  Tel.  Co.  v. 
Mcilorris,  158  Ala.  563,  48  South.  349.  132  Am.  St.  Rep.  46. 

13  0  Davis  V.  West.  U.  Tel.  Co.,  46  W.  Ya.  48,  32  S.  E.  1026.  See,  also,  note 
147,  post. 

140  West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St.  Rep. 
300,  13  L.  R.  A.  859,  note;  Dunn  v.  West.  U.  Tel.  Co.,  2  Ga.  App.  845,  59 
S.  E.  189,  where  plaintiff  entered  company's  office  to  deliver  a  message  for 
transmission,  and  without  provocation  the  agent  ordered  him  out  and  in- 
sulted and  humiliated  him  by  profane  and  abusive  language.  See,  also,  Jef- 
fries V.  West.  U.  Tel.  Co.,  2  Ga.  App.  853,  59  S.  E.  192. 

141  Scott  &  Jarnagin  on  Tel.  §§  417,  418;  Southern  Kansas  R.  Co.  v.  Rice, 
38  Kan.  398,  16  Pac.  817,  5  Am.  St.  Rep.  766. 

142  West   V.  West.  U.  Tel.  Co.,  39  Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep.  530. 


§    611)  MEASURE   OF  DAMAGES  793 

in  damages  to  the  injured  person,  since  in  such  cases  malice  is  an 
essential  element.  When,  however,  the  words  are  not  actionable 
per  se,  there  must  be  proof  of  special  damages.  If,  on  the  other 
hand,  they  are  actionable  per  se,  they  have  a  sure  tendency  to  de- 
grade the  citizen  in  the  estimation  of  his  fellows,  which  results  in 
damages  to  his  social  influence  and  business  efficiency.^*^  When 
this  is  the  case,  it  does  not  devolve  upon  him  to  prove  other  in- 
juries except  that  endured  by  the  mind.  The  wrongful  act  com- 
plained of  may  have  been  done  in  good  faith,  but  if  the  subsequent 
acts  of  the  company  indicate  a  total  disregard  of  the  rights  of  oth- 
ers, it  would  still  be  liable.  It  would  be  liable  in  damages  for  men- 
tal suffering  in  cases  of  assault  or  assault  and  battery.  It  was  for- 
merly held  that  a  corporation  could  not  be  guilty  of  a  wrong,  where 
the  element  of  criminal  intent  was  necessary  to  constitute  the 
wrong,  but  this  doctrine  has  long  since  been  refuted. 

§  611.  Reasons  for  not  allowing  such  damages. — The  general 
rule,  under  the  common  law,  and  that  followed  by  the  preponder- 
ance of  authority  is  that  mental  suffering,  unaccompanied  by  other 
losses  or  injuries,^**  and  not  resulting  from  the  willful  or  malicious 
wrong  of  the  company,^*^  is  not  sufficient  grounds  upon  which  to 
maintain  an  action  against  a  telegraph  company  for  the  recovery 
of  damages  therefor,  in  consequence  of  a  negligent  transmission  or 
delivery  of  a  message,  although  it  was  informed  at  the  time  the 
message  was  accepted  for  transmission  that  mental  anguish  and 
suffering  would  be  the  result.^**'  The  best  reasons  found  in  our 
research  on  this  subject  were  given  by  Judge  Lurton  in  a  dissenting 
opinion,  and  as  they  are  so  clearly  and  satisfactorily  stated,  we  take 

143  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  17  L.  R.  A.  430, 
30  Am.  St.  Rep.  186 ;  West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823, 
24  Am.  St.  Rep.  300,  13  L.  R.  A.  S59n. 

3  44  West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St.  Rep. 
300,  13  L.  R.  A.  859;  Francis  v.  West.  U.  Tel.  Co.,  58  Minn.  252,  59  N.  W. 
1078,  49  Am.  St.  Rep.  507,  25  L.  R.  A.  406;  Connelly  v.  West.  U.  Tel.  Co., 
100  Va.  51,  40  S.  E.  G18,  93  Am.  St.  Rep.  919,  56  L.  R.  A.  663 ;  West.  U.  Tel. 
Co.  V.  Sklar,  126  Fed.  295,  61  C.  C.  A.  281 ;  West.  U.  Tel.  Co.  v.  Chouteau,  28 
Old.  664,  115  Pac.  879,  Ann.  Cas.  1912D,  824,  49  L.  R.  A.  (N.  S.)  208. 

145  See  West.  U.  Tel.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St. 
Rep.  300,  13  L.  R.  A.  859. 

146  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  64,  .60  N.  E.  674,  lOSO,  54  L. 
R.  A.  846;  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am. 
St.  Rep.  183,  17  L.  R.  A.  430;  West.  U.  Tel.  Co.  v.  Rogers,  68  IMiss.  748,  9 
South.  823,  24  Am.  St.  Rep.  300,  13  L.  R.  A.  S59 ;  Francis  v.  West.  U.  Tel. 
Co.,  58  Minn.  252,  59  N.  W.  1078,  49  Am.  St.  Rep.  507,  25  L.  R.  A.  406 ;  Con- 
nelly V.  West.  U.  Tel.  Co.,  100  Va.  51,  40  S.  E.  618,  93  Am.  St.  Rep.  919,  56 
L.  R.  A.  663 ;  West.  U.  Tel.  Co.  v.  Sklar,  126  Fed.  295,  61  C.  C.  A.  281 ;  West. 
U.  Tel.  Co.  V.  Ford,  8  Ga.  App.  514,  70  S.  E.  65. 


794  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  611 

pleasure  in  quoting  them  at  this  place :  "The  reason  an  independent 
action  for  such  damages  cannot  and  ought  not  to  be  sustained  is 
found  in  the  remoteness  of  such  damages,  and  in  the  metaphysical 
character  of  such  an  injury  considered  apart  from  physical  pain. 
Such  injuries  are  generally  more  sentimental  than  substantial.  De- 
pending largely  upon  physical  and  nervous  condition,  the  suffering 
of  one  under  precisely  the  same  circumstances  would  be  no  test 
of  the  sufferings  of  another.  Vague  and  shadowy,  there  is  no  pos- 
sible standard  by  which  an  injury  can  be  justly  compensated  or 
even  approximately  measured.  Easily  simulated  and  impossible  to 
disprove,  it  falls  within  all  the  objections  to  speculative  damages, 
which  are  universally  excluded  because  of  their  uncertain  char- 
acter. That  damages  so  imaginary,  so  metaphysical,  so  sentimental, 
shall  be  ascertained  and  assessed  by  a  jury  with  justness,  not  by 
way  of  punishment  to  the  defendant,  but  as  a  mere  compensation, 
to  the  plaintiff,  is  not  to  be  expected.  That  the  grief  natural  to  the 
death  of  a  loved  relative  shall  be  separated  from  the  added  grief 
and  anguish  resulting  from  delayed  information  of  such  mortal  ill- 
ness or  death,  and  compensation  given  for  the  latter  only,  is  the 
task  imposed  by  the  law,  as  determined  by  the  majority.  *  *  * 
It  is  legitimate  to  consider  the  evils  to  which  such  a  precedent 
logically  leads.  Upon  what  sound  legal  considerations  can  this 
court  refuse  to  award  damages  for  injuries  to  the  feelings,  mental 
distress  and  humiliation  where  such  injury  results  from  the  breach 
of  any  contract?  Take  the  case  of  a  debtor  who  agrees  to  return 
the  money  borrowed  on  a  certain  day,  who  breaches  his  agreement 
willfully  with  knowledge  that  such  breach  on  his  part  will  probably 
result  in  the  financial  ruin  and  dishonor  of  his  disappointed  creditor. 
Why  shall  not  such  a  debtor,  in  addition  to  the  debt  and  the  inter- 
est, also  compensate  his  creditor  for  this  ruin,  or  at  least  for  his 
mental  suffering?  *  *  *  Upon  what  principle  can  we  longer 
refuse  to  entertain  an  action  for  injured  feelings  consequent  upon 
the  use  of  abusive  and  defamatory  language  not  charging  a  crime 
or  resulting  in  special  pecuniary  damages?  Mental  distress  is  or 
may  be  in  some  cases  as  real  as  bodily  pain,  and  it  as  certainly  re- 
sults from  language  not  amounting  to  an  imputation  of  crime,  yet 
such  actions  have  always  been  dismissed  as  not  authorized  by  the 
law  as  it  has  come  down  to  us,  and  as  it  has  been  for  all  times  ad- 
ministered." ^*^ 

147  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  695,  8  S.  W.  574,  6  Am.  St. 
Rep.  875. 

Other  reasons. — There  are  other  reasons  advanced  for  dmying  the  doetrine: 
First,  that  the  doctrine  is  unlcnoion  to  the  common  law. — West.  U.  Tel.  Co. 


§    612)  MEASURE   OF  DAMAGES  795 

§  612.  Same  continued — other  reasons — nominal  damages — in- 
cidental to  other  injury. — Some  of  the  courts  which  hold  the  first 
view  commented  upon — that  damages  may  be  recovered  for  mental 
anguish — claim  that  there  must  be  nominal  damages,  in  order  to 
recover  damages  for  mental  anguish,  but  this  fact  cannot  be  enter- 
tained, since  nominal  damages  necessarily  deny  any  further  recov- 
ery. The  inconsistency  of  such  a  palpable  reason  is  too  great  to 
be  considered.  If  damages  for  mental  suffering  may  be  recovered 
where  there  is  no  other  loss,  then  there  is  no  need  of  the  injured 
person  having  to  sufifer  nominal  damages ;  but  if  it  is  necessary 
that  he  should  have  sustained  nominal  damages,  however  slight 
they  may  be,  then  damages  cannot  be  recovered  for  mental  suiTer- 

V.  Ferguson,  157  Tnd.  64,  60  N.  E.  674,  1080,  54  L.  R.  A.  846 ;  Russell  v.  West. 
U.  Tel.  Co.,  3  Dak.  315,  19  N.  W.  408;  Wadswortli  v.  West.  U.  Tel.  Co.,  86 
Tenn.  695,  8  S.  W.  574,  6  Am.  St.  Rep.  864 ;  Rowan  v.  West.  U.  Tel.  Co.  (C.  C.) 
349  Fed.  550  ;  West.  U.  Tel.  Co.  v.  Chouteau,  28  Okl.  664,  115  Pae.  879,  Ann..  Cas. 
1912D,  824,  49  L..  R.  A.  (N.  S.)  206 ;  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763, 
15  S.  E.  901,  30  Am.  St.  Rep.  183,  17  L.  R.  A.  430 ;  Francis  v.  West.  U.  Tel.  Co., 
58  Minn.  252,  59  N.  W.  1078,  49  Am.  St.  Rep.  507,  25  L.  R.  A.  406 ;  Connell  v. 
West.  U.  Tel.  Co.,  116  Mo.  34,  22  S.  W.  345,  38  Am.  St.  Rep.  575,  20  L.  R.  A. 
172 ;  Curtin  v.  West.  U.  Tel.  Co.,  13  App.  Div.  253,  42  N.  Y.  Supp.  1109.  But 
see  the  following  cases  upon  this  point  by  those  upholding  the  doctrine:  Cates 
V.  West.  U.  Tel.  Co.,  151  N.  C.  497,  66  S.  B.  592,  24  L.  R.  A.  (N.  S.)  1286; 
Wadsworth  v.  West.  U.  Tel.  Co.,  supra ;  International  Ocean  Tel.  Co.  v.  Saun- 
ders, 32  Fla.  434,  14  South.  148,  21  L.  R.  A.  810. 

Second,  that  it  would  he  difficuU  in  determitmig  the  measure  of  darna<jcs. — 
Wadsworth  v.  West.  U.  Tel.  Co.,  supra ;  McBride  v.  Sunset  Tel.  Co.  (C.  C.)  96 
Fed.  81 ;  Francis  v.  West.  U.  Tel.  Co.,  supra ;  Chapman  v.  West.  U.  Tel.  Co., 
«upra ;  Kester  v.  West.  U.  Tel.  Co.  (C.  C.)  55  Fed.  603 ;  Peay  v.  West.  U.  Tel. 
Co.,  64  Ark.  538,  43  S.  W.  965,  39  L.  R.  A.  463.  But  this  objection  is  met  by 
those  upholding  the  doctrine  in  the  following  cases:  Barnes  v.  West.  U.  Tel. 
Co.,  27  Nev.  438,  76  Pac.  931,  103  Am.  St.  Rep.  776,  1  Ann.  Cas.  346,  65  L.  R.  A. 
666 ;  Harrison  v.  West.  U.  Tel.  Co.,  143  N.  C.  147,  55  S.  E.  435,  10  Ann.  Cas. 
476 ;  Young  v.  West.  U.  Tel.  Co.,  107  N.  C.  384,  11  S.  E.  1044,  22  Am.  St.  Rep. 
883,  9  L.  R.  A.  669 ;  West.  U.  Tel.  Co.  v.  Adair,  115  Ala.  441,  22  South.  73 ; 
Graham  v.  West.  U.  Tel.  Co.,  109  La.  10G9,  34  South.  91 ;  West.  U.  Tel.  Co.  v. 
Van  Cleave,  107  Ky.  464,  54  S.  W.  827,  92  Am.  St.  Rep.  366;  Wadsworth  v. 
West.  U.  Tel.  Co.,  supra ;  Stuart  v.  West.  U.  Tel.  Co.,  66  Tex.  580,  IS  S.  W. 
351,  59  Am.  Rep.  623 ;  Davis  v.  West.  U.  Tel.  Co.,  46  W.  Va.  48,  32  S.  E.  1026 ; 
Connell  v.  West.  U.  Tel.  Co.,  supra;  West.  U.  Tel.  Co.  v.  Stratemeier,  6  Ind. 
App.  125,  32  N.  E.  871 ;  Curtin  v.  West.  U.  Tel.  Co.,  supra. 

Tliird,  that  there  is  no  analogy  bctivcen  the  actions  of  this  nature  and  those 
for  a  breach  of  promise  or  seduction,  libel,  etc.,  cases. — West.  U.  Tel.  Co.  v. 
Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St.  Rep.  300,  13  L.  R.  A.  859;  But- 
ner  v.  West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087 ;  Chapman  v.  West.  U.  Tel. 
Co.,  supra ;  Francis  v.  West.  U.  Tel.  Co.,  supra ;  West.  U.  Tel.  Co.  v.  Ferguson, 
supra  ;  Connell  v.  West.  U.  Tel.  Co.,  supra ;  International  Ocean  Tel.  Co.  v. 
Saunders,  supra.  But  see  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E. 
938,  where  this  objection  is  answered. 

Fourth,  that  it  ivould  open  the  doors  to  unlimited  and  "intolerable"  litifja- 
tion. — West.  U.  Tel.  Co.  v.  Chouteau,  supra  ;  Chapman  v.  West.  U.  Tel.  Co., 
supra ;  Francis  v.  West.  U.  Tel.  Co.,  supra ;  West.  U.  Tel.  Co.  v.  Rogers,  supra ; 


796  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  612 

ing  unaccompanied  by  other  loss.^*«  But  there  must  be  a  greater 
loss  than  mere  nominal  damages  in  order  to  recover  for  the  worry 
or  distress  of  the  mind.  If  pecuniary  loss  has  been  sustained,  dam- 
ages over  and  above  this  loss  should  in  some  instances  be  awarded 
in  the  nature  of  punitive  damages.  In  fact  and  in  truth  there  are 
but    one    class    of    cases — in    the    absence    of    malice    and    willful 

Kester  v.  West.  U.  Tel.  Co.,  supra;  Wadsworth  v.  West.  U.  Tel.  Co.,  supra. 

See,  also,  §  590.     But  see  the  following  cases  where  this  objection  is  luet: 

Sherrill  v.  West.  U.  Tel.  Co.,  155  N.  C.  250,  71  S.  E.  3.30 ;  Bowers  v.  West.  U. 

Tel.  Co.,  135  N.  C.  504,  47  S.  E.  597 ;  Wadsworth  v.  West.  U.  Tel.  Co.,  supra ; 

West.  U.  Tel.  Co.  v.  Adair,  115  Ala.  441,  22  South.  73.     See,  also,  Cowau  v. 

West.  U.  Tel.  Co.,  122  Iowa,  379,  98  N.  W.  281,  101  Am.  St.  Rep.  268,  64  L.  R, 

A.  545 ;  Green  v.  West.  U.  Tel.  Co.,  136  N.  C.  489,  49  S.  E.  165,  103  Am.  St. 

Rep.  955,  1  Ann.  Cas.  349,  67  L.  R.  A.  985. 

Fifth,  that  it   icould  6e  difficult  in  applying  the  doctrine  consist ent 1 1/.— 

Cashion  v.  West,  U.  Tel.  Co.,  123  N.  0.  267,  31  S.  E.  493 ;  West.  U.  Tel.  Co.  v. 

Ferguson,  supra;  West,  U.  Tel.  Co.  v.  Chouteau,  supra;  Butner  v.  West.  U. 

Tel.  Co.,  supra. 

sixth,  that  it  would  he  difficult  to  secure  evidence  of  mental  anguish. — ■ 

West.  U.  Tel.  Co.  v.  Ferguson,  supra ;  Kester  v.  West.  U.  Tel.  Co.,  supra. 

Seventh,  that  it  icould  Tie  a  discrimination  against  telegraph  companies,  if  it 
does  not  apply  to  all  public  service  corporations  as  tvell. — Connell  v.  West.  U. 

Tel.  Co.,  supra ;  West.  U.  Tel,  Co.  v.  Ferguson,  supra.  But  see  Poteet  v.  West. 
U.  Tel.  Co.,  74  S.  C.  491,  55  S.  E.  113 ;  Wadsworth  v.  West.  U.  Tel.  Co.,  supra. 
148  Chapman  v.  West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  17  L.  R.  A.  430, 
30  Am.  St.  Rep.  190.  In  this  case  the  court  said:  "The  case  West,  U.  Tel.  Co. 
V.  Rogers,  68  Miss.  748,  9  South.  823,  13  L.  R.  A.  859,  note,  24  Am.  St.  Rep. 
300,  suggests  that  the  doctrine  it  opposes  would  open  up  a  new  field  of  litiga- 
tion. This  is  worthy  of  remark.  Except  in  Texas,  suits  like  this  have  been 
infrequent  in  the  past.  If  their  foundation  principle  be  sanctioned,  they  are 
likely  to  multiply  indefinitely.  Nowhere  can  be  found  any  satisfactory  sug- 
gestion of  a  principle  to  restrain  such  suits  within  reasonable  limits.  How 
much  mental  suffering  shall  be  necessary  to  constitute  a  cause  of  action?  Let 
some  of  the  courts  favoring  recovery  measure  out  the  quantity.  If  they  are 
unable  to  do  this,  then,  on  principle,  any  mental  suffering  would  be  actionable, 
the  degree  of  it  merely  determining  the  quantum  of  damages.  The  cases  do 
suggest  as  a  restriction  that  the  plaintiff  must  be  entitled  to  damages  on  some 
other  ground,  or  to  nominal  damages  at  least ;  in  other  words,  there  must  be 
an  infraction  of  some  legal  right  for  the  plaintiff ;  then  the  damages  may  be 
increased  for  the  mental  suffering.  If  the  plaintiff  must  be  entitled  to  sub- 
stantial damages  on  other  grounds,  then  mental  suffering  alone  is  not  the 
ground  for  damages,  which  is  the  very  point  contended  for.  To  speak  of  tue 
right  to  nominal  damages  as  a  condition  for  giving  substantial  damages  is  a 
palpable  contradiction.  To  give  nominal  damages  necessarily  denies  any  fur- 
ther recovery.  It  is  said  there  must  be  an  infraction  of  some  legal  right,  at- 
tended with  mental  suffering,  for  this  kind  of  damages  to  be  given.  If  this 
be  true  law,  why  is  not  mental  distress  always  an  item  to  be  allowed  for  in 
the  damages?  We  have  seen  that,  though  allowed  in  some,  it  is  in  many 
cases  excluded.  Every  man  knows  that  the  violation  of  any  material  right  is 
necessarily  productive  of  more  or  less  pain  of  mind.  Then  why  not  com- 
pensate it  in  every  instance  where  a  right  has  been  violated?  In  no  case 
whatever  are  damages  recoverable,  unless  a  legal  duty  has  been  broken.  By 
the  test  proposed,  it  is  first  granted  that  mental  suffering  alone  is  not  action- 
able ;  then  a  case  arises  in  which  there  is  no  actionable  damages,  unless  men- 


S   613)  MEASURE   OF  DAMAGES  797 

wrong  ^*^ — in  which  damages  should  be  awarded  for  mental  suffer- 
ing and  anguish.  Where  both  the  mind  and  body  suffers  from  the 
same  cause,  damages,  in  a  sense,  should  be  awarded  for  both.  "The 
mind  is  as  much  a  part  of  the  body  as  the  bones  and  muscles,  and 
an  injury  to  the  body  includes  the  whole,  and  its  effects  are  in- 
separable." ^'°  Where  mental  pain  is  therefore  an  element  of  physi- 
cal pain,  or  is  a  necessary  consequence  of  physical  pain,  or  is  the 
natural  and  proximate  result  of  the  physical  injury,  then  damages 
for  mental  suffering  may  be  recovered  where  the  injury  had  been 
caused  by  the  negligence  of  defendant.^^^  Thus,  where  the  message 
is  a  summons  to  a  physician  to  attend  a  sick  person,  but  on  account 
of  the  company  negligently  delaying  the  message  the  physician 
failed  to  reach  the  patient,  in  consequence  of  which  the  patient 
suffers  great  physical  and  mental  pain  and  anguish,  in  such  cases 
damages  should  be  awarded  for  the  mental  suffering.^ ^^ 

§  613.  Same  continued — mental  suffering  following  physical 
pain. — It  seems,  in  those  cases  where  damages  may  be  recovered 
for  mental  suffering  accompanying  physical  pain,  that  the  former 
suffering  must  be  an  element  of  the  latter  and  not  the  cause  of 
it.^^^  Thus,  where  fright  caused  by  the  negligence  of  the  defendant 
was  so  great  and  sudden  as  to  immediately  produce  physical  sick- 

tal  suffering  be  such,  when  it  is  simply  assumed  that  it  is  actual  damages. 
Throwing  away  the  lame  pretense  of  basing  recovery  or  mental  suffering  upon 
an  otherwise  harmless  transgression,  and  stripping  it  of  all  false  form  and  con- 
fusing technicality,  it  is  manifest  that  to  allow  such  a  recovery,  in  real  sub- 
stance, is  an  effort  to  protect  feeling  by  legal  remedy."  See  Corcoran  v.  Post- 
al Tel.  Cable  Co.,  80  Wash.  570,  142  Pac.  29,  L.  R.  A.  1915B,  552. 

149  Where  personal  security  or  personal  liberty  is  infringed,  the  mental  suf- 
fering seems  to  be  a  necessary  component  in  the  injury.  Chapman  v.  West.  U. 
Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  17  L.  R.  A.  430,  30  Am.  St.  Rep.  187.  But 
mental  suffering  alone  is  not  such  an  infringement  of  the  rights  as  to  justify 
damages  therefor.     Id. 

150  Connell  v.  West.  U.  Tel.  Co.,  116  Mo.  34,  22  S.  W.  345,  20  L.  R.  A.  172, 
38  Am.  St.  Rep.  584. 

15  1  West  V.  West.  U.  Tel.  Co.,  39  Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep.  533; 
West.  U.  Tel.  Co.  v.  Hanley,  85  Ark.  263,  107  S.  W.  1168 ;  Barnes  v.  West.  U. 
Tel.  Co.,  27  Nev.  438,  76  Pac.  931,  103  Am.  St.  Rep.  770,  65  L.  R.  A.  666.  1  Ann. 
Cas.  346 ;  West.  U.  Tel.  Co.  v.  Burgess  (Tex.  Civ.  App.)  56  S.  W.  237 ;  West.  U. 
Tel.  Co.  V.  Procter,  6  Tex.  Civ.  App.  300,  25  S.  W.  811 ;  West.  U.  Tel.  Co.  v. 
Wells,  50  Pla.  474,  39  South.  838,  111  Am.  St.  Rep.  129,  2  L.  R.  A.  (N.  S.)  1072, 

7  Ann.  Cas.  531 ;  AVest.  U.  Tel.  Co.  v.  Burns,  164  Ala.  252,  51  South.  373 ;  West. 
U.  Tel.  Co.  V.  Young  (Tex.  Civ.  App.)  133  S.  W.  512 ;  West.  U.  Tel.  Co.  v.  Ford, 

8  Ga.  App.  514,  70  S.  E.  65.  See  Glawson  v.  Southern  Bell,  etc.,  Tel.  Co.,  9 
Ga.  App.  450,  71  S.  E.  747 ;  Corcoran  v.  Postal  Tel.  Cable  Co.,  80  Wash.  570, 
142  Pac.  29,  L.  R.  A.  1915B,  552. 

15  2  See  §  578. 

153  Curtin  v.  West.  U.  Tel.  Co.,  13  App.  Div.  253,  42  N.  Y.  Supp.  1109;  Kagy 
v.  West.  U.  Tel.  Co.,  37  Ind.  App.  73,  76  N.  E.  792,  117  Am.  St.  Rep.  278.  See 
West.  U.  Tel.  Co.  v.  Cordage  Co.,  6  Ala.  App.  351,  59  South.  757. 


798  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  614 

ness  and  suffering,  it  was  held  that  damages  could  not  be  recovered. 
The  principle  upon  which  this  was  held  was  that  for  the  mere  men- 
tal suffering  there  could  be  no  recovery,  and  the  physical  injury 
was  too  remote,  being  unlikely  to  result  from  the  wrongful  act/^* 
It  was  held  in  another  case,  however,  that  fright  causing  nervous 
convulsions  and  illness  was  a  ground  for  damages.  But  even  here 
the  action  was  sustained  on  account  of  the  physical  injury  as  the 
proximate  result  of  the  negligent  act  and  not  on  account  of  the  in- 
tervening mental  suffering,  conceding  that  this  alone  would  not 
warrant  recovery.^ ^^ 

§  614.  Conflict  of  law — with  respect  to  mental  damages. — We 
have  had  an  opportunity  elsewhere  ^^*^  to  discuss,  in  a  general  way, 
the  law  applicable  to  contracts  made  for  the  transmission  and  de- 
livery of  messages  sent  from  one  state  to  another,  and  where  there 
was  a  conflict  of  the  laws  in  respect  to  such  transmission  in  the  two 
states.  So  we  shall  at  this  place  say  something  on  the  subject  with 
respect  to  the  recovery  of  damages  for  mental  suffering,  where  such 
damages  are  allowed  in  one  state  and  not  in  the  other.  It  is  very 
often  the  case  that  messages  are  sent  from  one  state  in  which  such 
damages  are  allowed,  into  another  where  such  are  not  permitted  to 
be  recovered ;  and  the  question  which  presents  itself  under  these 
circumstances  is.  By  what  laws  should  the  contract  of  sending  be 
enforced?  The  general  rule  on  this  subject  is  that  the  laws  of  the 
state  in  which  the  contract  was  made  should  control,^  ^'^  unless  it  is 
otherwise  understood,  and  this  regardless  of  where  the  breach  of 


154  Victorian  R.  Co.  v.  Coultas,  L.  R.  13  App.  C.  222;  Fox  v.  Borkey,  126 
Pa.  164.  17  Atl.  604 ;  Ewing  v.  Pittsburgh,  etc.,  R.  Co.,  147  Pa.  40.  2.3  Atl.  .340, 
14  L.  R.  A.  666  n.,  30  Am.  St.  Rep.  709 ;  Lehman  v.  Brooklyn,  etc.,  R.  Co.,  47 
Hun  (N.  Y.)  355 ;  Allsop  v.  Allsop,  5  Hurl.  &  N.  5.34. 

15  5  Purcell  V.  St.  Paul  City  R.  Co.,  48  Minn.  134,  50  N.  W.  1034,  16  L.  R.  A. 
203. 

15  6  See  §  4SS  et  seq. 

15  7  Johnson  v.  West.  U.  Tel.  Co.,  144  N.  C.  410,  57  S.  E.  122,  10  L.  R.  A.  (N. 
S.)  256,  119  Am.  St.  Rep.  961 ;  West.  U.  Tel.  Co.  v.  Woodard,  S4  Ark.  .323,  105 
S.  W.  579,  13  Ann.  Cas.  354 ;  Hall  v.  We.st.  U.  Tel.  Co.,  139  N.  C.  369,  52  S.  B. 
50 ;  West,  U.  Tel.  Co.  v.  Waller,  96  Tex.  589,  74  S.  W.  751,  97  Am.  St.  Rep.  936, 
reversing  (Civ.  App.)  72  S.  W.  264 ;  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603, 
45  S.  E.  938 ;  West.  U.  Tel.  Co.  v.  Parsley,  57  Tex.  Civ.  App.  8,  121  S.  W.  226 ; 
West.  U.  Tel.  Co.  v.  Sloss,  45  Tex.  Ci^-.  App.  153,  100  S.  W.  354,  disapproving 
West.  U.  Tel.  Co.  v.  Blake,  29  Tex.  Civ.  App.  224,  68  S.  W.  526 ;  Ligon  v.  West. 
U.  Tel.  Co.,  46  Tex.  Civ.  App.  408,  102  S.  W.  429 ;  West.  U.  Tel.  Co.  v.  Cooper, 
29  Tex.  Civ.  App.  591,  69  S.  W.  427 ;  Markley  v.  West.  U,  Tel.  Co.,  151  Iowa, 
612,  1.32  N.  W.  37 :  Brown  v.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146,  137 
Am.  St.  Rep.  914 ;  West.  U.  Tel.  Co.  v.  Turley.  108  Ark.  92,  156  S.  W.  836.  See 
^'est.  U.  Tel.  Co.  v.  Young  (Tex.  Civ.  App.)  133  S.  W.  512. 


i 


§   614)  MEASURE  OF  DAMAGES  799 

duty  occurred/^®  or  where  the  action  is  brought.^ ^^  Under  the 
rulings  of  the  courts  in  those  states  which  permit  a  recovery  of 
damages  for  mental  anguish  or  suffering,  such  damages  may  be 
recovered  for  the  negligent  transmission  or  delivery  of  a  message, 
although  the  message  was  addressed  to  a  point  in  a  state  where 
such  damages  are  not  recoverable, ^''°  and  the  breach  of  duty  oc- 
curred in  the  latter  state.^^^  Conversely,  such  damages  cannot  be 
recovered  if  not  allowed  in  the  state  in  which  the  contract  was  en- 
tered into,  although  the  message  is  addressed  to  a  state  where  such 
damages  are  recoverable,^*^^  and  the  breach  occurred  in  the  latter 
state. ^®^  It  will  be  presumed,  however,  that  the  law  of  the  state 
where  the  contract  was  made  is  the  same  as  that  where  the  action 
is  brought.^''*  If  both  the  states  from  and  to  which  the  message 
is  sent  refuse  to  allow  damages  for  mental  suffering,  such  cannot 
be  recovered,  although  the  suit  is  brought  in  a  state  which  does 
allow  such  damages,  and  one  through  which  the  company  has  a 

158  Johnson  v.  West.  U.  Tel.  Co.,  144  N.  C.  410,  57  S.  E.  122,  10  L.  R.  A. 
(N.  S.)  256,  119  Am.  St.  Eep.  961 ;  West.  U.  Tel.  Co.  v.  Cooper,  29  Tex.  Civ.  App. 
591,  G9  S.  W.  427. 

15  9  Jobnson  v.  West.  U.  Tel.  Co.,  144  N.  C.  410,  57  S.  E.  122,  10  L.  R.  A. 
(N.  S.)  256,  119  Am.  St.  Rep.  961 ;  Thomas  v.  West.  U.  Tel.  Co.,  25  Tex.  Civ. 
App.  398,  61  S.  W.  501. 

160  Bryan  v.  West.  U.  Tel.  Co.,  133  N.  C.  603,  45  S.  E.  938;  West.  U.  Tel. 
Co.  V.  Woodard,  84  Ark.  323,  105  S.  W.  579,  13  Ann.  Cas.  354 ;  West.  U.  Tel. 
Co.  V.  Waller,  96  Tex.  5S9,  74  S.  W.  751,  97  Am.  St.  Rep.  936,  reversing  (Civ. 
App.)  72  S.  W.  264 ;  West.  U.  Tel.  Co.  v.  Parsley,  57  Tex.  Civ.  App.  8,  121  S.  W. 
226 ;  West.  U.  Tel.  Co.  v.  Anderson,  34  Tex.  Civ.  App.  14,  78  S.  W.  34 ;  Brown 
V.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146,  137  Am.  St.  Rep.  914. 

161  West.  U.  Tel.  Co.  v.  Lacer,  122  Ky.  839,  93  S.  W.  34,  29  Ky.  Law  Rep.  379, 
121  Am.  St.  Rep.  502,  5  L.  R.  A.  (N.  S.)  751 ;  West.  U.  Tel.  Co.  v.  Hill,  163 
Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  10.58;  Howard 
V.  West.  U.  Tel.  Co.,  119  Ky.  625,  84  S.  W.  764,  86  S.  W.  9S2,  7  Ann.  Cas.  1065, 
27  Ky.  Law  Rep.  244,  858. 

162  Hancock  v.  West.  U.vTel.  Co.,  137  N.  C.  497,  49  S.  E.  952,  69  L.  R.  A. 
403 ;  Id.,  142  N.  C.  163,  55  S.  E.  82 ;  Johnson  v.  West.  U.  Tel.  Co.,  144  N.  C. 
410,  57  S.  E.  122,  10  L.  R.  A.  (N.  S.)  256,  119  Am.  St.  Rep.  961 ;  Ligou  v.  West. 
U.  Tel.  Co.,  46  Tex.  Civ.  App.  408,  102  S.  W.  429 ;  West.  U.  Tel.  Co.  v.  Garrett, 
46  Tex.  Civ.  App.  430,  102  S.  W.  456 ;  West.  U.  Tel.  Co.  v.  Sloss,  45  Tex.  Civ. 
App.  153,  100  S.  W.  354,  disapproving  West.  U.  Tel.  Co.  v.  Blake,  29  Tex.  Civ. 
App.  224,  68  S.  W.  526 ;  West.  U,  Tel.  Co.  v.  Buchanan,  35  Tex.  Civ.  App.  437, 
80  S.  W.  561 ;  West.  U.  Tel.  Co.  v.  Christeusen  (Tex.  Civ.  App.)  78  S.  W.  744 ; 
West.  U.  Tel.  Co.  v.  Moore  (Tex.  Civ.  App.)  139  S.  W.  1020. 

163  West.  U.  Tel.  Co.  v.  Buchanan,  35  Tex.  Civ.  App.  437,  SO  S.  W.  561; 
Johnson  v.  West.  U.  Tel.  Co.,  144  N.  C.  410,  57  S.  E.  122,  10  L.  R.  A.  (N.  S.) 
256,  119  Am.  St.  Rep.  961;  West.  U.  Tel.  Co.  v.  Christensen  (Tex.  Civ.  App.) 
78  S.  W.  744. 

164  West.  U.  Tel.  Co.  v.  Parsley,  57  Tex.  Civ.  App.  8,  121  S.  W.  226;  Woods 
V.  West.  U.  Tel.  Co.,  148  N.  C.  1,  61  S.  E.  653,  128  Am.  St.  Rep.  581 ;  West.  U. 
Tel.  Co.  V.  McNairy,  34  Tex.  Civ.  App.  389,  78  S.  W.  969. 


800  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  614 

line.^^^  On  the  other  hand,  if  such  damages  are  recoverable  both 
where  the  contract  was  made  and  where  it  was  to  be  performed,  it 
is  of  course  immaterial  as  to  which  law  should  be  considered  as 
governing,^°®  and  in  such  cases  damages  of  this  nature  may  be  re- 
covered,^®'' although  the  action  is  instituted  in  another  jurisdiction 
where  the  mental  anguish  doctrine  is  not  recognized  at  common 
law,  but  has  been  introduced  by  statute. ^•'^  Under  the  rulings  of 
some  of  the  courts,  the  law  of  the  state  where  the  contract  is  to  be 
performed  governs,^®®  some  regarding  the  performance  as  being 
entirely  in  the  state  where  the  delivery  is  to  be  made,^^°  while 
others  regard  it  as  being  done  in  each  state  and  making  the  right 
to  maintain  the  action  dependent  upon  the  laws  of  the  state  in 
which  the  breach  occurred.'^'^^  Others  draw  a  distinction  between 
cases  based  upon  contract  or  upon  tort  or  upon  statutory  liabili- 
ties,^'^^  it  being  held  that  the  laws  of  the  state  in  which  the  breach 
of  duty  occurred  should  govern,^^^  and  this,  too,  notwithstanding 
the  fact  that  the  laws  of  the  states  from  or  to  which  the  message  is 
sent  denies  a  recovery  of  damages  for  mental  anguish. ^^*     If,  how- 

165  Thomas  v.  West.  U.  Tel.  Co.,  25  Tex.  Civ.  App.  398,  61  S.  W.  501. 
106  West.  U.  Tel.  Co.  v.  Woodard,  84  Ark.  323,  105  S.  W.  579,  13  Ann.  Cas. 
354. 

16  7  West.  U.  Tel.  Co.  v.  Woodard,  84  Ark.  323,  105  S.  W.  579,  13  Ann.  Cas. 
354 ;  West.  U.  Tel.  Co.  v.  Hanley,  85  Ark.  263,  107  S.  W.  1108. 

16S  West.  U.  Tel.  Co.  v.  Hanley,  85  Ark.  263,  107  S.  W.  1168. 

169  West.  U.  Tel.  Co.  v.  Lacer,  122  Ky.  839,  93  S.  W.  34,  29  Ky.  Law  Rep. 
379,  121  Am.  St.  Rep.  502,  5  L.  R.  A.  (N.  S.)  751 ;  West.  U.  Tel.  Co.  v.  Hill, 
163  Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann.  Cas.  1058;  Howard 
V.  West.  U.  Tel.  Co.,  119  Ky.  625,  84  S.  W.  764,  86  S.  W.  982,  7  Ann.  Cas.  1065, 
27  Ky.  Law  Rep.  244,  858 ;  West.  U.  Tel.  Co.  v.  Burris,  179  Fed.  92,  102  C.  C. 
A.  386. 

170  West.  U.  Tel.  Co.  v.  Lacer.  122  Ky.  839.  92  S.  W.  34,  29  Ky.  Law  Rep. 
379,  121  Am.  St.  Rep.  502,  5  L.  R.  A.  (N.  S.)  751 ;  West.  U.  Tel.  Co.  v.  Burris, 
179  Fed.  92,  102  C.  C.  A.  386. 

171  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.) 
648,  19  Ann.  Cas.  1058;  Howard  v.  West.  U.  Tel.  Co.,  119  Ky.  625,  84  S.  W. 
764,  86  S.  W.  982,  7  Ann.  Cas.  1065,  27  Ky.  Law  Rep.  244,  858. 

172  West.  U.  Tel.  Co.  v.  Ford.  77  Ark.  531,  92  S.  W.  528,  statute;  West.  U. 
Tel.  Co.  V.  Hill,  163  Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.)  648,  19  Ann. 
Cas.  1058,  tort;  Balderston  v.  West.  U.  Tel.  Co.,  79  S.  C.  160,  60  S.  E.  435, 
tort;  Gray  v.  West.  U.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1063,  91  Am.  St.  Rep. 
706,  56  L.  R.  A.  301,  statute. 

17  3  Gray  v.  West.  U.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1063,  91  Am.  St.  Rep. 
706,  56  L.  R.  A.  301 ;  West.  U.  Tel.  Co.  v.  Ford,  77  Ark.  531,  92  S.  W.  528 ; 
Balderston  v.  West.  U.  Tel.  Co.,  79  S.  C.  160,  60  S.  E.  435 ;  West.  U.  Tel.  Co. 
V.  See,  94  Ark.  86,  126  S.  W.  78;  West.  U.  Tel.  Co.  v.  Crenshaw,  93  Ark.  415, 
125  S.  W.  420;  West.  U.  Tel.  Co.  v.  Burris,  179  Fed.  92,  102  C,  C.  A.  386. 
Compare  Heath  v.  Postal  Tel.  Cable  Co.,  87  S.  C.  219,  69  S.  E.  283 ;  Hughes 
V.  West.  U.  Tel.  Co.,  72  S.  C.  519,  52  S.  E.  107 ;  Harrison  v.  West.  U.  Tel.  Co., 
71  S.  C.  386,  51  S.  E.  119. 

174  Gentle  v.  West.  U.  Tel.  Co.,  82  Ark.  96,  100  S.  W.  742;  Arkansas,  etc., 
R.  Co.  V.  Lee,  79  Ark.  448,  96  S.  W.  148 ;    West.  U.  Tel.  Co.  v.  Ford,  77  Ark. 


( 


§    615)  MEASURE  OF  DAMAGES  801 

ever,  the  message  is  sent  from  a  state  denying  such  damages  to  a 
state  where  the  same  may  be  recovered  by  virtue  of  a  statute,  it 
must  be  shown  that  the  breach  occurred  in  the  latter  state  to  which 
the  message  had  actually  reached. ^'^^  Where  the  action  is  brought 
for  a  nondelivery  of  the  message,  the  breach  of  duty  occurred,  ac- 
cording to  some,  in  the  state  where  it  should  have  been  delivered, 
although  this  was  due  to  negligence  at  a  relay  station  in  a  differ- 
ent state. ^^®  When  the  question  arises  as  to  the  nature  of  action 
to  be  brought,  that  is,  whether  the  action  should  be  in  contract  or 
in  tort,  it  becomes  immaterial  if  both  the  breaches  occurred  in  the 
same  state;  ^''''  and  where  the  action  is  in  tort,  it  will  be  presumed 
that  the  law  of  the  state  where  the  breach  of  duty  occurred  is  the 
same  as  that  where  the  action  is  brought. ^^®  A  telegram  transmit- 
ted between  points  within  the  state  does  not  constitute  interstate 
commerce,  although  the  message  in  transmission  passes  through 
points  in  another  state,  and  so  the  rule  as  to  intrastate  messages  is 
applicable.^'^® 

§  615.  Under  statutes — constitutionality  of. — Statutes  express- 
ly allowing  a  recovery  for  mental  anguish  have  been  passed  in  a 
few  of  the  states,^^"  in  each  of  which  states  the  courts  had  previ- 

531,  92  S.  W.  528;  Fail  v.  West.  U.  Tel.  Co.,  80  S.  C.  207,  60  S.  E.  697,  Gl 
S.  E.  258 ;  Walker  v.  West.  U.  Tel.  Co.,  75  S.  C.  512,  56  S.  E.  38 ;  Balderston 
V.  West.  U.  Tel.  Co.,  79  S.  C.  160,  60  S.  E.  435 ;  Hughes  v.  West.  U.  Tel.  Co., 
72  S.  C.  516,  52  S.  E.  107;  Harrison  v.  West.  U.  Tel.  Co.,  71  S.  C.  386,  51 
S.  E.  119;  Gray  v.  West.  U.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1063,  91  Am. 
St.  Rep.  706,  56  L.  R.  A.  .301 ;  West.  U.  Tel.  Co.  v.  Hill,  163  Ala.  18,  50  South. 
248,  23  L.  R,  A.  (N.  S.)  648,  19  Ann.  Cas.  1058 ;  West.  U.  Tel.  Co.  v.  Chilton. 
100  Ark.  296,  140  S.  W.  26.  See  Boyd  v.  West.  U.  Tel.  Co.,  88  S.  C.  518,  71 
S.  E.  28;    Heath  v.  Postal  Tel.  Cable  Co.,  87  S.  C.  219,  69  S.  E.  283. 

17  3  West.  U.  Tel.  Co.  v.  See,  94  Ark.  86,  126  S.  W.  78;  West.  U.  Tel.  Co. 
V.  Crenshaw,  93  Ark.  415,  125  S.  W.  420;  West.  U.  Tel.  Co.  v.  Burris,  179 
Fed.  92,  102  C.  C.  A.  386. 

1-6  Balderston  v.  West.  U.  Tel.  Co.,  79  S.  C.  160,  60  S.  E.  435.  See  Brown 
V.  West.  U.  Tel.  Co.,  85  S.  C.  495,  67  S.  E.  146,  137  Am.  St.  Rep.  914. 

177  West.  U.  Tel.  Co.  v.  Woodard,  84  Ark.  323,  105  S.  W.  579,  13  Ann.  Cas. 
354 ;  Thomas  v.  West.  U.  Tel.  Co.,  25  Tex,  Civ.  App.  398,  61  S.  W.  501.  See, 
also,  Fail  v.  West.  U.  Tel.  Co.,  80  S.  C.  207,  60  S.  E.  697,  61  S.  E.  258. 

17  8  West.  U.  Tel.  Co.  v.  Parsley,  57  Tex.  Civ.  App.  8,  121  S.  W.  226. 

170  West.  U.  Tel.  Co.  v.  Sharp  (Ark.)  180  S.  W.  504, 

18"  Arkansas,  South  Carolina,  and  Wisconsin. 

Statute  does  not  cmhrace  telephone. — It  has  been  held  that  a  telephone 
company  is  not  liable  under  a  statute  which  provides  that  telegraph  com- 
panies shall  be  liable  for  mental  anguish  for  negligence  "in  receiving,  trans- 
mitting or  delivering  messages,"  as  a  telephone  company  does  not  "receive," 
"transmit"  and  "deliver"  a  message  in  the  ordinary  acceptation  of  the  words. 
Southern  Telephone  Co.  v.  King,  103  Ark.  160,  146  S.  W.  489,  39  L.  R.  A.  (N.  S.) 
402,  Ann.  Cas.  1914B,  780,  citing  author. 
Jones  Tel.(2d  Ed.) — 51 


803  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  615 

ously  repudiated  the  doctrine.  As  a  general  rule,  the  statutes  go 
no  further  than  to  state  that  a  recovery  may  be  allowed  for  mental 
anguish  alone,  and  consequently  the  statutes  have  been  applied  in 
these  jurisdictions  in  practically  the  same  manner  as  they  had  been 
applied  in  states  which  recognized  a  recovery  for  mental  anguish 
permissible  under  the  common-law  principles.^^^  As  this  right  is 
expressly  created  by  statutes  in  these  states,  statutes  imposing 
penalties  upon  these  companies  for  negligently  transmitting  and 
delivering  messages  have  for  the  most  part  been  held  inadequate  to 
sustain  a  recovery  for  mental  anguish. ^^^  'phg  validity  of  these 
statutes  has  been  upheld  against  attacks  on  various  grounds.  Thus 
it  has  been  held  that  they  did  not  deprive  telegraph  companies  of 
their  property  without  due  process  of  law;  ^^^  nor  did  they  unlaw- 
fully discriminate  against  such  companies;  ^^*  nor  did  they  impair 
the  obligation  of  any  contract,  even  as  to  a  foreign  telegraph  com- 
pany which,  prior  to  the  enactment  of  the  statute,  complied  with 
the  provisions  of  the  state  laws  relating  to  their  doing  business 
therein;  ^^^  nor  are  they  invalid  as  to  a  telegraph  company  which 
has  complied  with  the  act  of  Congress  authorizing  telegraph  com- 

181  West.  U.  Tel.  Co.  v.  Hogue,  79  Ark.  33,  94  S.  W.  924;  West.  U.  Tel. 
Co.  V.  Slienep,  83  Ark.  476,  104  S.  W.  154,  12  L.  R.  A.  (N.  S.)  886,  119  Am.  St. 
Rep.  145 ;  West.  U.  Tel.  Co.  v.  Raines,  78  Ark.  545,  94  S.  W.  700 ;  Capers  v. 
West.  U.  Tel.  Co.,  71  S.  C.  29,  50  S.  E.  537;  Arial  v.  West.  U.  Tel.  Co.,  70 
S.  C.  418,  50  S.  E.  6;  West.  U.  Tel.  Co.  v.  Hollingsworth,  83  Ark.  39,  102 
S.  W.  681,  11  L.  R.  A.  (N.  S.)  497.  119  Am.  St.  Rep.  105,  13  Ann.  Cas.  397. 

152  Russell  V.  West.  U.  Tel.  Co.,  3  Dak.  315,  19  N.  W.  408;  Chapman  v. 
West.  U.  Tel.  Co.,  88  Ga.  763,  15  S.  E.  901,  30  Am.  St.  Rep.  183,  17  L.  R.  A. 
430;  Rowan  v.  West.  U.  Tel.  Co.  (C.  C.)  149  Fed.  550;  Francis  v.  West.  U. 
Tel.  Co..  58  Minn.  252,  59  N.  W.  1078,  49  Am.  St.  Rep.  507,  25  L.  R.  A.  406 ; 
Galian  v.  West.  U.  Tel.  Co.  (C.  C.)  59  Fed.  433 ;  Connelly  v.  West.  U.  Tel.  Co., 
100  Ya.  51,  40  S.  E.  618,  93  Am.  St.  Rep.  919,  56  L.  R.  A.  663 ;  Alexander  v. 
West.  U.  Tel.  Co.  (C.  C.)  126  Fed.  445 ;  Tyler  v.  West.  U.  Tel.  Co.  (C.  C.)  54 
Fed.  634 ;  Summerfield  v.  West.  U.  Tel.  Co.,  87  Wis.  1,  57  N.  W.  973,  41  Am. 
St.  Rep.  17.  But  see  Wadsworth  v.  West.  U.  Tel.  Co.,  86  Tenn.  695,  8  S.  W. 
574,  6  Am.  St.  Rep.  864;  Stafford  v.  West.  U.  Tel.  Co.  (C.  C.)  73  Fed.  273; 
Graliam  v.  West.  U.  Tel.  Co.,  109  La.  1069,  34  South.  91. 

153  Simmons  v.  West.  U.  Tel.  Co.,  63  S.  C.  429,  41  S.  E.  521,  57  L.  R.  A.  607; 
Xitka  V.  West.  U.  Tel.  Co.,  149  Wis.  106,  135  N.  W.  492,  Ann.  Cas.  1913C,  863, 
49  L.  R.  A.  (N.  S.)  337. 

184  Ivy  V.  West.  U.  Tel.  Co.  (C.  C.)  165  Fed.  375,  reversed  on  other  grounds 
in  177  Fed.  63,  100  C.  C.  A.  481 ;  Simmons  v.  West.  U.  Tel.  Co.,  63  S.  C.  432, 
41  S  E.  521,  57  L.  R.  A.  607:  Capers  v.  West.  U.  Tel.  Co.,  71  S.  C.  34,  50 
S.  E.  537.  See  Tick  Wo  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  Ed. 
220 ;  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  72,  60  N.  E.  674,  1080,  54  L.  R.  A. 
846  '•  Connelly  v.  West.  U.  Tel.  Co.,  100  Va.  67,  40  S.  E.  618,  93  Am.  St.  Rep. 
919,  56  L.  R.A.  663;  Nitka  v.  West.  U.  Tel.  Co.,  149  Wis.  106,  135  N.  W.  492, 
Ann.  Cas.  1913C,  863,  49  L.  R.  A.  (N.  S.)  337. 

185  Ivy  V.  West.  U.  Tel.  Co.  (C.  C.)  165  Fed.  377,  reversed  on  other  grounds 
in  177  Fed.  63,  100  C.  C.  A.  481. 


§    615)  MEASURE   OF   DAMAGES  803 

panics  to  construct  and  operate  lines  over  the  public  domain  and 
over  the  federal  military  and  post  roads,  and  over,  under  and  across 
the  navigable  waters  of  the  United  States. ^^^  And  since,  in  the 
absence  of  any  legislation  by  Congress  to  the  contrary,  a  penalty 
imposed  by  statute  upon  these  companies  for  negligently  transmit- 
,  ting  and  delivering  a  message  may  be  recovered,  if  the  negligence 
complained  of  occurs  in  the  state  imposing  such  penalty,  even 
though  the  message  may  be  an  interstate  message,^^'^  it  seems  that 
a  recovery  of  damages  allowed  by  statute  for  mental  anguish  under 
the  same  circumstances  is  permissible.^*^  But  a  recovery  in  an 
action  of  tort  in  the  courts  of  one  state  of  damages  for  mental  an- 
guish arising  out  of  the  negligent  failure  of  a  telegraph  company  to 
deliver  at  a  place  in  another  state  a  telegram  forwarded  without 
delay  to  the  latter  place  from  the  company's  office  in  the  former 
state,  where  it  was  received,  cannot  be  authorized  under  a  state 
statute  expressly  allowing  a  recovery  of  damages  for  mental  an- 
guish, without  violating  the  commerce  clause  of  the  federal  Con- 
stitution.^^^ 

186  Ivy  V.  West.  U.  Tel.  Co.  (C.  C.)  165  Fed.  .371.  reversed  on  otlier  ground.s 
in  177  Fed.  61,  100  C.  C.  A.  481,  holding  that  such  statute  was  not  unconstitu- 
tional on  the  ground  that  it  interfered  with  or  placed  burdens  on  interstate 
commerce. 

187  West.  U.  Tel.  Co.  v.  Crovo,  220  U.  S.  364,  31  Sup.  Ct.  899,  55  L.  Ed.  498. 

188  See  West.  U.  Tel.  Co.  v.  Crovo,  220  U.  S.  364,  31  Sup.  Ct.  399,  55  L.  Ed. 
498. 

189  West.  U.  Tel.  Co.  v.  Brown,  234  U.  S.  542,  34  Sup.  Ct.  955,  58  L.  Ed. 
1457,  reversing  92  S.  C.  354,  75  S.  E.  542,  and  Ivy  v.  West.  U.  Tel.  Co.  (C.  C.) 
165  Fed.  371,  reversed  on  other  grounds  in  177  Fed.  63,  100  C.  C.  A.  481.  See, 
also,  West.  U.  Tel.  Co.  v,  Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed. 
1187. 


804  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  616 


CHAPTER  XXIV 

DAMAGES  CONTINUED— EXEMPLARY  OR  PUNITIVE— EXCESSIVE 

AND    NOMINAL 

§  616.  In  general — meaning  of  term, 

617.  Same  as  applied  to  telegraph,  etc.,  companies. 

618.  Exemplary  damages  done  by  agents  and  employes — malice, 

619.  Whether  a  question  of  fact  or  law. 

620.  The  purpose  of  such  damages. 

621.  Assault  and  battery. 

622.  Libel. 

623.  Malicious  prosecution. 

624.  Trespass — accompanied  with  malice. 

625.  Negligence — question  for  jury. 

626.  Same  continued — actual  damages, 

627.  Excessive  damages. 

628.  Nominal  damages. 

§  616.  In  general — meaning  of  term. — Having  discussed  at  some 
length  in  the  preceding  chapters  the  measure  of  damages  arising  in 
different  cases  brought  against  telegraph  and  telephone  companies, 
we  shall  now  say  something  further  in  regard  to  the  same  subject, 
but  more  particularly  with  respect  to  the  kinds  and  amount  of  dam- 
ages ;  and,  first,  we  shall  discuss  such  as  are  exemplary  or  punitive, 
or  such  as  are  imposed  on  these  companies  by  way  of  punishment. 
Punitive,  vindictive  and  exemplary  damages  are  synonymous  terms 
in  legal  contemplation.^  Exemplary  damages  apply  to  those 
wrongs  which,  beside  the  violation  of  a  right  or  the  actual  dam- 
ages sustained,  import  insult,  fraud  or  oppression,  and  are  injuries 
inflicted  in  the  spirit  of  wanton  disregard,  and  not  merely  injuries.^ 
While  there  has  been  some  discussion  between  law  writers  as  to 
whether  this  kind  of  damages  was  intended  as  a  personal  punish- 
ment to  the  offender,  or  as  a  lesson  to  the  public,^  the  better  doc- 
trine is  that  such  damages  are  given  as  a  punishment  to  the  oft'en- 
der,  for  the  benefit  of  the  public  and  as  a  restraint  to  the  transgres- 

1  See  Herf urth  v.  Washington,  6  D.  C.  288 ;  Lowry  v.  Coster,  91  111.  182 ; 
Koerner  v.  Oberly,  56  Ind.  284,  26  Am.  Rep.  34 ;  Chiles  v.  Drake,  2  Mete.  (Ky.) 
146,  74  Am.  Dec.  406 ;  Bixby  v.  Dunlap,  56  N.  H.  456,  22  Am.  Rep.  475. 

2  See  New  Orleans,  etc.,  R.  Co.  v.  Statham,  42  Miss.  607,  97  Am.  Dec.  478; 
Zimmerman  v.  Bonzar  (Pa.)  16  Atl.  71;  Chicago,  etc.,  R.  Co.  v.  Scurr,  59 
Miss.  456,  42  Am.  Rep.  373 ;  South.  R.  Co.  v.  K*endrick,  40  Miss.  374.  90  Am. 
Dec.  332. 

3  See  Wright  v.  Donnell,  34  Tex.  291.  See,  also,  South.  R.  Co.  v.  Barr,  55 
S.  W.  900,  21  Ky.  Law  Rep.  1615. 


§    616)  MEASURE   OF   DAMAGES  805 

sor.*  Actions  for  the  recovery  of  such  damages  can  only  be  sus- 
tained where  there  is  malice,  fraud  or  gross  negligence  engendered 
in  the  commission  of  the  act,  and,  in  order  to  warrant  a  recovery 
of  such,  there  must  enter  into  the  injury  some  element  of  aggrava- 
tion, or  some  coloring  of  insult  or  malice  that  will  take  the  case  out 
of  the  ordinary  rule  of  compensation ;  ^  if  there  is  a  want  of  any  of 
these  elements,  the  measure-  of  damages  is  the  measure  of  com- 
pensation for  the  loss  sustained  and  nothing  more.*^  The  question 
as  to  whether  an  act  was  willful,  wanton  or  malicious  relates  only 
to  damages  and  not  to  the  right  of  recovery;  and  if  the  act  com- 
plained of  can  be  so  classified,  the  jury  is  authorized  by  law  to 
award  such  damages. '^  It  must  be  understood  that  this  rule  applies 
only  when  the  action  is  brought  in  tort,  for  only  actual  damages 
can  be  recovered  for  a  breach  of  a  contract,  although  the  defendant 
willfully  disregarded  compliance  with  such  contract.^  There  is 
one  exception,  however,  to  this  latter  rule ;  that  is,  where  the  action 
is  brought  for  the  breach  of  promise  of  marriage.® 

4  See  Burns  v.  Campbell,  71  Ala.  271 ;  St.  Louis  Consol.  Coal  Co.  v.  Haennl, 
146  111.  614,  35  N.  E.  162 ;  Ward  v.  Ward,  41  Iowa,  6SG ;  Kansas  City,  etc.,  R. 
Co.  V.  Kier,  41  Kan.  661,  21  Pac.  770,  13  Am.  St.  Rep.  311 ;  Edwards  v.  Ricks, 
30  La.  Ann.  926 ;  Millard  v.  Brown,  35  N.  Y.  297 ;  Rippey  v.  Miller,  33  N.  C. 
247 ;  Cole  v.  Tucker,  6  Tex,  266 ;  Borland  v.  Barrett,  76  Va.  128,  44  Am.  Rep. 
352 ;  Mayer  v.  Frobe,  40  W.  Va.  246,  22  S.  E.  58 ;  Press  Pub.  Co.  v.  Monroe,  73 
Fed.  196,  19  C.  C.  A.  429,  51  L.  R.  A.  353. 

5  West.  U.  Tel.  Co.  v.  Westmoreland,  151  Ala.  319,  44  South.  382 ;  Cumber- 
land, etc.,  Tel.  Co.  v.  Paine,  94  Miss.  883,  48  South.  229 ;  West.  U.  Tel.  Co.  v. 
Spratley,  84  Miss.  86,  36  South.  188 ;  McAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243, 
7  S.  W.  715;  Kopperl  v.  West.  U.  Tel.  Co.  (Tex.  Civ.  App.)  85  S.  W.  1018; 
Sledge  V.  West.  U.  Tel.  Co.,  163  Ala.  4,  50  South.  886;  West.  U.  Tel.  Co.  v. 
Miller.  97  Miss.  225,  52  South.  701 ;  Telephone  v.  King,  103  Ark.  160,  146  S.  W. 
489,  39  L.  R.  A.  (N.  S.)  402,  Ann.  Cas.  1914B,  780;  Carmichael  v.  Telephone, 
etc.,  Co.,  157  N.  C.  21,  72  S.  E.  619,  39  L.  R.  A.  (N.  S.)  65,  Ann.  Cas.  1913B, 
1117.  See  Telephone  Co.  v.  Reeves,  34  Okl.  468,  126  Pac.  216 ;  Cordell  v.  West. 
U.  Tel.  Co.,  149  N.  C.  402,  63  S.  E.  71,  22  L.  R.  A.  (N.  S.)  540.  See  §  618  et 
seq. 

6  See  Kelly  v.  McDonald,  39  Ark.  387 ;  Selden  v.  Cashman,  20  Cal.  56,  81 
Am.  Dec.  93 ;  Biloxi  City  R.  Co.  v.  Maloney,  74  Miss.  738,  21  South.  561 ;  Chi- 
cago, etc.,  R.  Co.  V.  Scurr,  59  Miss.  456,  42  Am.  Rep.  373 ;  Chicago,  etc.,  R.  Co. 
V.  Jackson,  55  111.  492,  8  Am.  Rep.  661. 

7  See  Kirton  v.  North  Chicago  St.  R.  Co.,  91  111.  App.  554. 

8  West.  U.  Tel.  Co.  v.  Way,  S3  Ala.  542,  4  South.  844;  Haber,  etc..  Hat  Co. 
V.  Southern  Bell  Tel.  Co.,  118  Ga.  874,  45  S.  E.  696 ;  Stuart  v.  West.  U.  Tel.  Co., 
66  Tex.  580,  18  S.  W.  351,  59  Am.  Rep.  623;  West.  U.  Tel.  Co.  v.  Brown,  58 
Tex.  170,  44  Am.  Rep.  610 ;  McAllen  v.  West.  U.  Tel.  Co.,  70  Tex.  243,  7  S.  W. 
715 ;  Davis  v.  West.  U.  Tel.  Co.,  46  W.  Va.  48.  32  S.  E.  1026 ;  West.  U.  Tel.  Co. 
V.  Benson,  159  Ala.  254,  48  South.  712 ;  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala. 
295,  45  South.  73 ;  Cumberland  Tel.,  etc.,  Co.  v.  Cartwright  Creek  Tel.  Co.,  128 
Ky.  395,  108  S.  W.  875,  32  Ky.  Law  Rep.  1357;  Telephone  Co.  v.  Reeves,  34 
Okl.  468,  126  Pac.  216. 

9  See  Kurtz  v.  Frank,  76  Ind.  594,  40  Am.  Rep.  275. 


806  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  617 

§  617.  Same  as  applied  to  telegraph,  etc.,  companies. — x\t  one 
time,  on  account  of  the  inabiHty  of  corporations  to  entertain  an  evil 
intent,  it  was  held  that  punitive  or  exemplary  damages  could  not 
be  imposed  upon  them.  In  fact  they  were  not  held  liable  for  a 
tort.  But  "the  law  of  remedies  against  corporations  originated 
when  those  artificial  bodies  were  few,  and  those  few  were,  in  the 
main,  such  as  were  created  for  municipal  purposes.  As  corpora- 
tions multiplied,  created  chiefly  for  purposes  of  trade,  the  obstacle 
in  the  way  of  the  attainment  of  justice,  which  arose  out  of  prin- 
ciples applicable  only  to  municipal  corporations,  have  gradually 
been  removed"  and  swept  away.^°  So  a  telegraph,  telephone,  or 
electric  company  is  held  just  as  liable  for  an  act,  when  committed 
either  with  or  without  an  evil  intent,  so  far  as  it  may  have  been 
done  while  acting  within  the  scope  of  its  authority,  as  if  the  act 
had  been  committed  by  an  individual. ^^  Thus  they  may  be  liable 
for  all  their  torts,  and  this  liability  may  be  enforced  in  the  same 
manner  and  way  as  if  the  wrong  complained  of  had  been  committed 
by  a  natural  person.^-  It  has  sometimes  been  questionable  whether 
damages  for  punishment  could  be  given  in  civil  cases. ^^  In  the 
state  of  Washington  it  has  been  adjudged  that  the  principle  for  al- 
lowing such  damages  was  unfair  and  unsound,  and  they  are  not, 
therefore,  allowed  in  that  state,  although  the  corporation  may  have 
^een  guilty  of  gross  negligence.^*  It  has  been  held  that  damages 
by  way  of  punishment  merely  cannot  be  recovered  in  any  case.^^ 
In  Colorado  punitive  damages  cannot  be  recovered  against  a  cor- 
poration in  a  civil  action,  although  the  wrong  complained  of  was 
willfully  committed.^*'     The  weight  of  authority  is,  however,  that 

10  See  Dock  v.  ElizabetMown  Steam  Mfg.  Co.,  34  N.  J.  Law,  312 ;  New  York, 
etc.,  R.  Co.  '.  Schuyler,  34  N.  Y.  30.  See,  also,  the  monographic  note  to  Orr 
V.  Bank  of  the  United  States,  13  Am.  Dec.  596 ;  Hussey  v.  Norfolk  South.  R. 
Co.,  98  N.  C.  34,  3  S.  E.  923,  2  Am.  St.  Rep.  312  and  note. 

11  See  Atlantic,  etc.,  R.  Co.  v.  Dmiu,  19  Ohio  St.  162,  2  Am.  Rep.  3S2 ;  Inter- 
national, etc.,  R.  Co.  V.  Tel.,  etc.,  Co.,  69  Tex.  277,  5  S.  W.  517,  5  Am.  St.  Rep. 
45 ;  Spellman  v.  Richmond,  etc.,  R.  Co.,  35  S.  C.  475,  14  S.  E.  947,  28  Am.  St. 
Rep.  858 ;  Samuels  v.  Richmond,  etc.,  R.  Co.,  35  S.  C.  493,  14  S.  E.  943,  28  Am. 
St.  Rep.  883. 

12  See  Cooley  on  Torts,  120;  Peebles  v.  Patapsco  Guano  Co.,  77  N.  C.  233, 
24  Am.  Rep.  447 ;  Hayes  v.  Houston  R.  Co.,  46  Tex.  272 ;  Lee  v.  Village  of 
Sandy  Hill,  40  N.  Y.  442  ;  Orr  v.  Bank  of  the  United  States,  1  Ohio,  36,  13 
Am.  Dec.  588,  and  note ;  Hussey  v.  Norfolk  So.  R.  Co.,  98  N.  C.  34,  3  S.  E.  923, 
2  Am.  St.  Rep.  312,  and  note. 

13  See  Fay  v.  Parker,  53  N.  H.  342,  16  Am.  Rep.  270. 

1*  See  Spokane  Truck  &  Dray  Co.  v.  Hoefer,  2  Wash.  45,  25  Pac.  1072,  11 
L.  R.  A.  689,  26  Am.  St.  Rep.  842. 

15  Stuyvesant  v.  Wilcox,  92  .Mich.  233,  52  N.  W.  465,  31  Am.  St.  Rep.  580. 

16  Greely,  etc.,  R.  Co.  v.  Yeager,  11  Colo.  345,  IS  Pac,  211. 


§    618)  MEASURE   OF   DAMAGES  807 

such  damages  may  be  recovered  against  a  corporation  in  civil  ac- 
tions, and  the  remedy  is  just  as  enforceable  against  them  as  if  the 
same  act  was  that  of  a  natural  person.^^  It  is  further  held  that  the 
right  to  recover  such  damages  is  not  confined  to  one  kind  of  ac- 
tions, but  that  they  may  be  recovered  in  case,  as  well  as  in  tres- 
pass.^^ 

§  618.  Exemplary  damages  done  by  agents  and  employes — mal- 
ice.— In  many  jurisdictions  telegraph,  telephone,  and  electrical 
companies  are  liable  in  exemplary  or  punitive  damages  for  such 
acts  done  by  their  agents  or  employes  while  acting  within  the  scope 
of  their  employment,  as  if  the  same  act  was  done  by  an  individual 
acting  for  himself;  ^^  and  when  such  damages  are  allowed,  they 
should  be  proportioned  to  the  actual  damages  sustained. -°    As  said, 

]  7  Spellman  v.  Riclmiond,  etc.,  R.  Co.,  .S.5  S.  C.  475,  14  S.  E.  947,  28  Am.  St. 
Rep.  858,  and  note ;  Hoboken  Printing  Co.  v.  Kahn,  59  N.  J.  Law,  218,  35  Atl. 
1053,  59  Am.  St.  Rep.  590,  and  note. 

18  Hopldns  V.  Atlantic,  etc.,  R.  Co.,  36  N.  H.  9,  72  Am.  Dec.  287. 

isMagouirk  v.  West.  V.  Tel.  Co.,  79  Miss.  G32,  31  Soutli.  206,  89  Am.  St. 
Rep.  663 ;  Atlantic  Great  Western  R.  Co.  v.  Dunn,  19  Ohio  St.  162,  2  Am.  Rep. 
SS2 ;  West.  U.  Tel.  Co.  v.  Crowley,  158  Ala.  583,  48  South.  381 ;  West.  U.  Tel. 
Co,  V.  Seed,  115  Ala.  670,  22  South.  479 ;  West.  U.  Tel.  Co.  v.  Gilstrap,  77  Kan. 
191.  94  Pac.  122 ;  West.  U.  Tel.  Co.  v.  Lawson,  66  Kan.  660,  72  Pac.  283 ;  West 
V.  West.  r.  Tel.  Co.,  39  Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep.  530 ;  West.  U.  Tel. 
Co.  V.  Hiller,  93  Miss.  658,  47  South.  377;  West.  U.  Tel.  Co.  v.  Watson.  82 
Miss.  101,  33  South.  76 ;  Glover  v.  West.  U.  Tel.  Co.,  78  S.  C.  502,  59  S.  E.  526 ; 
Doster  v.  West.  U.  Tel.  Co..  77  S.  C.  56,  57  S.  E.  671 ;  Bowen  v.  West.  U.  Tel. 
Co.,  77  S.  C.  122,  57  S.  E.  674 ;  Toale  v.  West.  U.  Tel.  Co.,  76  S.  C.  248,  57  S.  E. 
117 ;  Pouluot  V.  West.  U.  Tel.  Co.,  G9  S.  C.  545,  48  S.  E.  622 ;  Machen  v.  West. 
XJ.  Tel.  Co.,  72  S.  C.  256,  51  S.  E.  697 ;  Butler  v.  West.  U.  Tel.  Co.,  65  S.  C. 
510,  44  S.  E.  91 ;  Marsh  v.  West.  U.  Tel.  Co.,  65  S.  C.  430,  43  S.  E.  953 ;  Young 
V.  West.  U.  Tel.  Co.,  65  S.  C.  93,  43  S.  E.  448 ;  West.  U.  Tel.  Co.  v.  Frith,  105 
Tenn.  167,  58  S.  W.  118 ;  Telephone  Co.  v.  Stokes,  171  Ala.  168,  54  South.  181 ; 
Telephone  Co.  v.  Robbins,  3  Ala.  App.  234,  56  South.  879 ;  Steinberger  v.  Tele- 
phone Co.,  97  Miss.  260,  52  South.  691 :  Brown  v.  Telephone  Co.,  85  S.  C.  495, 
67  S.  E.  146,  137  Am.  St.  Rep.  914 ;  Wilhelm  v.  Telephone  Co.,  90  S.  C.  536,  73 
S.  E.  865 ;  Arkansas,  etc.,  Co.  v.  Stroude,  77  Ark.  109,  91  S.  W.  18,  113  Am. 
St.  Rep.  130 ;  West.  U.  Tel.  Co.  v.  Bodkin,  79  Kan.  792,  101  Pac.  655 ;  Mclnturf 
V.  West.  U.  Tel.  Co.,  81  Kan.  476,  106  Pac.  282 ;  Lewis  v.  West.  U.  Tel.  Co.,  57 
S.  C.  325,  35  S.  E.  556 ;  Butler  v.  West.  U.  Tel.  Co.,  62  S.  C.  223,  40  S.  E.  165, 
89  Am.  St.  Rep.  893;  Mathews  v.  West.  U.  Tel.  Co.,  3  Willson,  Civ.  Cas.  Ct. 
App.  (Tex.)  378 ;  Beasley  v.  West.  U.  Tel.  Co.  (C.  O.)  39  Fed.  181.  Compare 
Hartzog  v.  West.  U.  Tel.  Co.  (Miss.)  34  South.  361.  In  Gulf,  etc.,  R.  Co.  v. 
Levy,  59  Tex.  563,  46  Am.  Rep.  278,  it  is  held  that  unless  -some  actual  damage 
is  sustained  there  can  be  no  recovery  for  exemplary  damages. 

Authorization  or  ratification. — Company  not  liable  unless  authorized  or  rati- 
fied, West.  U.  Tel.  Co.  v.  Brown,  58  Tex.  170,  44  Am.  Rep.  610 ;  West.  U.  Tel. 
Co.  V.  Landry  (Tex.  Civ.  App.)  108  S.  W.  401,  reversed  Id.,  on  other  grounds 
in  102  Tex.  67,  113  S.  W.  10 ;  or  unless  negligent  in  the  selection  of  servants, 
West.  U.  Tel.  Co.  v.  Brown,  supra.  See  West.  U.  Tel.  Co.  v.  Karr,  5  Tex.  Civ. 
App.  60,  24  S.  W.  302. 

20  International,  etc.,  R.  Co.  v.  Tel.,  etc.,  Co.,  69  Tex.  277,  5  S.  W.  517,  5 


808 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  619 


there  must  be  some  element  of  malice  in  order  to  recover  these 
damag-es,^^  but  it  is  not  necessary  that  there  be  actual  malice. ^^ 
Malice  of  a  telegraph,  telephone,  or  electrical  company  may  be 
shown  by  proving  the  motives  of  its  directors,  in  the  same  way  that 
the  motives  of  other  associated  or  conspiring  bodies  are  proved.^^ 
Malice,  in  its  legal  sense,  means  a  wrongful  act,  done  intentionally, 
without  just  cause  or  excuse;  and  the  malice  of  the  agent  or  em- 
ploye of  one  of  these  companies,  in  this  sense,  is  the  malice  of  that 
company.^*  The  act  of  an  officer,  agent  or  servant  of  a  company, 
when  committed  within  the  scope  of  his  authority  and  employment, 
is  the  act  of  the  company,  and  his  negligence  is  its  negligence.^  ^ 
Corporations  only  act  through  their  agents  and  employes,  and  if 
the  latter  entertained  no  evil  intent,  the  former  could  not  be  liable 
for  a  criminal  act;  for,  without  this,  the  criminal  intent  could  not 
be  entertained  by  the  corporation.  In  a  sense,  the  servant  of  the 
corporation  is  the  life,  or  that  which  creates  life  in  the  latter. 
Therefore,  there  must  be  an  element  of  fraud,  violence,  outrage, 
wanton  recklessness,  malice,  evil  intent  or  oppression  forming  part 
of  the  wrongful  act  of  the  agent  or  employe ;  -*'  and  if  there  is  not 
shown  any  circumstance  of  aggravation,  and  no  evil  motive  is  im- 
puted in  the  agent  as  forming  a  part  of  his  actual  or  apparent 
duties,  vindictive  or  punitive  damages  should  not  be  awarded 
against  the  company.^'' 

§  619.  Whether  a  question  of  fact  or  law. — In  cases  brought 
against  telegraph,  telephone,  or  electric  companies  to  recover  ex- 
emplary or  punitive  damages,  it  is  sometimes  difficult  to  determine 


Am.  St.  Rep.  45.     See  Ramey  v.  West.  U.  Tel.  Co.,  Qi  Kan.  196,  146  Pac.  421, 
where  no  actual  damages  shown,  not  recoverable. 

21  See  §§  617,  624,  625. 

22  Spellman  v.  Richmond,  etc.,  R.  Co.,  35  S.  C.  475,  14  S.  E.'  947,  28  Am.  St. 
Rep.  S5S,  and  note. 

23  See  Goodspeed  v.  East  Haddam  Bank,  22  Conn.  530,  58  Am.  Dec.  439 ; 
Souther  v.  Northwestern  Tel.  Exch.  Co.,  118  Minn.  102,  136  N.  W.  571,  45  L. 
R.  A.  (N.  S.)  601,  evidence  of  wanton  negligence. 

24  See  Maynard  v.  Firemen's  Fund  Ins.  Co.,  34  Cal.  48,  91  Am.  Dec.  872. 

25  See  Hopkins  v.  Atlantic,  etc.,  R.,  36  N.  H.  9,  72  Am.  Dec.  287;  Souther  v. 
Northwestern  Tel.  Exch.,  118  Minn.  102,  136  N.  W.  571,  45  L.  R.  A.  (N.  S.)  601, 
Ann.  Cas.  1913E,  472. 

2  6  See  §  617.  See  Souther  v.  Northwestern  Tel.  Exch.,  118  Minn.  102,  136 
N.  W.  571,  45  L.  R.  A.  (N.  S.)  601,  Ann.  Cas.  1913E,  472.  See,  also.  Painter  v. 
West.  U.  Tel.  Co.,  100  S.  C.  65,  84  S.  E.  293,  want  of  information. 

2  7  See  New  Orleans,  etc.,  R.  Co.  v.  Statham,  42  Miss.  607,  97  Am.  Dec.  478; 
McKeon  v.  Citizens'  R.  Co.,  42  Mo.  79 ;  Philadelphia,  etc.,  R.  Co.  v.  Hoeflich,  62 
Md.  300,  50  Am.  Rep.  223 ;  Chicago  v.  Martin,  49  111.  241,  95  Am.  Dec.  590 ; 
Toledo,  etc.,  R.  Co.  v.  Patterson,  63  111.  304 ;  McPee  v.  Vicksburg,  etc.,  R.  Co., 
42  La.  Ann.  790,  7  South.  720 ;  Webb  v.  West.  U.  Tel.  Co.,  167  N.  C.  483,  83  S. 
E.  508.    See,  also,  §  625. 


8    620)  MEASURE   OF   DAMAGES  809 

whether  the  facts  involved  are  such  as  should  be  left  to  the  consid- 
eration of  the  court,  or  should  be  given  to  the  jury  under  proper 
instructions.  It  is  generally  held  that  whether  there  is  or  is  not 
evidence  in  any  particular  case  which  would  warrant  exemplary  or 
vindictive  damages  is  a  question  for  the  court  to  determine;  but 
its  sufficiency  to  establish  such  fact,  is  a  matter  for  the  considera- 
tion of  the  jury .28  In  such  actions  as  these,  it  is  the  privilege  and 
the  duty  of  the  court  to  determine  whether  there  is  sufficient  evi- 
dence to  support  the  allegations,^^  but  it  cannot  go  further  and 
announce  to  the  jury  in  its  instructions  that  there  is  or  is  not 
enough  evidence  adduced  to  support  the  issue.'"  In  the  trial  of 
the  case,  if  it  is  shown  by  the  proper  evidence  that  the  act  com- 
plained of  "was  wantonly  and  willfully  inflicted,  or  with  such  a 
gross  want  of  care  and  regard  for  the  rights  of  others  as  to  justify 
the  presumption  of  willfulness  or  wantonness,  the  court  will  in- 
struct the  jury  that  they  are  at  liberty  to  find  for  the  plaintiff,  in 
addition  to  a  compensation  for  the  injury  actually  sustained,  such 
a  sum  as  the  circumstances  justify."  ^^  But  if,  on  the  other  hand, 
there  is  not  sufficient  evidence  to  impute  willfulness,  wantonness 
or  a  disregard  for  the  rights  of  others,  the  court  on  proper  request 
may  instruct  the  jury  that  the  evidence  is  not  sufficient  to  warrant 
them  in  assessing  exemplary  damages.^-  Some  courts  have  held 
that  the  jury  should  not  be  instructed  on  the  question  of  vindictive 
damages  in  cases  clearly  not  warranting  its  application,  on  account 
of  the  great  abuses  to  which  this  doctrine  may  be  used."' 

§  620.  The  purpose  of  such  damages. — The  purpose  in  award- 
ing exemplary  damages  is  to  compensate  the  plaintiff  for  the  wrong 
done  him,  and  at  the  same  time  to  punish  the  company  for  commit- 
ting such  wrong,  and  to  deter  it  and  others  from  repeating  such 
acts.'*  On  account  of  the  nature  of  corporations,  the  manner  in 
which  they  must  be  punished  for  the  wrongful  acts  is  different  from 
that  generally  imposed  on  individuals  or  natural  persons  for  the 
same  act.  It  is  not  necessary  to  furnish  a  jury  with  the  data  from 
which  they  can  ascertain  with  reasonable  certainty  the  extent  of 
the  damages  to  be  awarded,  but  the  amount  of  such  is  at  the  discre- 
tion of  the  jury  within  reasonable  limits.     If  there  is  sufficient  evi- 

28  See  §  520  et  seq.  20  See  §  519.     .  so  See  §  521. 

31  Samuels  v.  Richmond,  etc.,  R.  Co.,  35  S.  C.  493,  14  S.  E.  943,  28  Am.  St. 
Rep.  883.     See,  also,  §§  520,  521. 

3  2  Pittsburg,  etc.,  R.  Co.  v.  Slusser,  19  Oliio  St.  157;  Toledo,  etc.,  R.  Co.  v. 
Patterson,  63  111.  304.    See,  also,  §  521. 

33  Samuels  v.  Richmond,  etc.,  R.  Co.,  35  S.  C.  493,  14  S.  E.  943,  28  Am.  SL 
Rep.  883. 

34  Cumberland,  etc.,  Tel.  Co.  v.  Poston,  94  Tenn.  696,  30  S.  W.  1040. 


810  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  621 

dence  adduced  to  warrant  a  verdict  for  exemplary  damages,  the 
pecuniary  condition  of  the  company  may  be  shown,  since  by  this 
means  the  extent  of  the  punishment  to  be  inflicted  in  every  particu- 
lar case  can  only  be  ascertained.^^  Exemplary  damages  inflicted  on 
a  corporation  as  a  means  of  punishment  for  its  wrongful  acts  may 
be  excessively  great  on  account  of  its  small  wealth,  but  at  the  same 
time  the  same  amount  of  damages  would,  on  another  corporation 
which  represents  much  greater  capital  be  considered  a  small  punish- 
ment. But  the  fact  must  not  be  lost  sight  of  that,  in  all  cases  of  this 
kind,  the  jury  is  to  be  governed  wholly  by  the  malice  or  wanton- 
ness of  the  corporation  as  shown  by  its  conduct,^®  and  they  may 
take  into  consideration  the  injury  to  the  plaintifif's  feelings  and  the 
loss  of  his  credit  in  estimating  exemplary  damages.^'' 

§  621.  Assault  and  battery. — The  general  rule  of  common  car- 
riers is  that  they  are  answerable  for  the  malicious  and  wanton  acts 
of  their  servants  to  a  passenger,  whether  done  in  the  line  of  their 
employment  or  service  or  not,  provided  the  same  is  done  during 
the  discharge  of  their  duty  to  the  master  which  relates  to  the  pas- 
senger. They,  as  common  carriers,  owe  the  duty  toward  their 
passengers  to  protect  them  against  the  insults  of  their  servants.^* 
Telegraph  companies  are  made  common  carriers  by  statutes  in 
many  states,  but  there  is  a  distinction  to  be  drawn  between  these 
two  kinds  of  carriers  with  respect  to  the  present  issue ;  however, 
we  do  not  think  that  the  distinction  is  material  in  the  present  dis- 
cussion. One  is  a  common  carrier  of  passengers,  and  is  intrusted 
with  the  person  of  the  individual  to  whom  it  owes  the  duty  of  pro- 
tection ;  the  other  is  only  intrusted  with  the  property  of  the  person. 
While  the  carrier  owes  this  duty  to  the  passenger  only  when  he 
is  a  passenger,  yet  it  is  not  necessary  for  him  to  be  in  actual  transit 
or  on  board  the  vehicle  furnished  for  his  transportation  in  order  to 
constitute  him  a  passenger.  If  he  has  made  arrangements  for 
passage  and  is  within  the  premises  of  the  company  in  readiness  of 
departure,  as  where  he  is  in  the  depot  or  waiting  room,  he  is  never- 
theless a  passenger  within  the  meaning  of  the  terms.  We  have 
been  unable  to  find  a  case  against  a  telegraph  company  touching  on 


3  5  See  §  513. 

3  6  state  V.  Patterson,  45  Vt.  308,  12  Am.  Rep.  200. 

3  7  Note  to  Burnham  v.  Cornwell,  63  Am.  Dec.  545;  Tobin  v.  Shaw,  45  Me. 
331,  71  Am.  Dec.  547. 

ssGoddard  v.  Grand  Trunk  R.  Co.,  57  Me.  202,  2  Am.  Rep.  39;  Hobokeu 
Print.,  etc.,  Co.  v.  Kahn,  59  N.  J.  Law,  218,  35  Atl.  1053,  59  Am.  St.  Rep. 
592 ;  Richmond,  etc.,  R.  Co.  v.  .Jefferson,  89  Ga.  554,  16  S.  E.  69,  17  L.  R.  A. 
571,  32  Am.  St.  Rep.  87,  and  note. 


I 


§    622)  MEASURE   OF   DAMAGES  811 

this  particular  point,  but  we  can  easily  imagine  instances  where 
such  cases  could  occur.  For  instance,  if  a  person  is  within  the  office 
or  exchange  of  a  telegraph  or  telephone  company,  transacting  or  for 
the  purpose  of  transacting  business  with  respect  to  the  transmis- 
sion of  news,  or  engaging  its  employment,  and  while  there  the 
agent  or  servant  of  the  company  commits  an  assault  and  battery 
upon  such  person,  which  is  done  while  acting  within  the  apparent 
discharge  of  his  duty  to  the  company  relative  to  the  services  of 
employment,  the  company  would  be  liable  for  such  act.^®  We  shall 
presume  to  go  further  in  the  discussion  of  this  subject  by  saying 
that  we  do  not  think  it  necessary  that  such  person  should  be  within 
the  premises  of  the  company;  but  if  he  is  accompanying  one  of  the 
servants  of  the  company  to  the  office  or  exchange  for  the  purpose 
of  answering  a  call,  and  is  in  the  apparent  protection  of  the  servant 
as  such,  an  assault  by  such  servant  will  be  considered  that  of  the 
company.*"  For  instance,  suppose  that  the  servants  of  the  tele- 
phone company  conspire  to  commit  an  assault  on  a  strange  lady  in 
a  small  town,  and  in  order  to  accomplish  their  purpose  they  put  in 
a  false  call  at  night  for  her.  To  answer  said  call,  it  becomes  neces- 
sary for  the  latter  to  go  to  the  exchange,  and,  according  to  the  plans 
of  the  conspiracy,  one  of  the  servants  offers  to  and  does  accompany 
her  to  the  exchange.  On  reaching  the  exchange  the  supposed  per- 
son calling  her  cannot  be  found  and  she  then  returns,  in  the  com- 
pany of  the  servant  to  her  stopping  place.  If  while  enroute  an 
assault  is  committed  on  her  by  said  servant,  the  company  would 
undoubtedly  be  liable. 

§  622.  Libel. — While  all  corporations  may  be  civilly  liable  for  a 
libel, ■^^  yet  the  opportunities  more  often  present  themselves  for 
such  acts  to  be  committed  by  telegraph  companies  than  by  most 
any  other  kind  of  corporation,  unless  it  be  a  publishing  company. 
Their  express  purpose  is  to  transmit  news,  and  most  often  such 
as  is  libelous  is  made  public  by  means  of  these  companies.*^^     As  is 

39Galehouse  v.  Minneapolis,  etc.,  R.  Co.,  22  N.  D.  615,  135  N.  W.  ISO,  47 
L.  R.  A.  (N.  S.)  9G5.  See,  also,  Souther  v.  Noi-thwesteni  Tel.  Excli.  Co.,  118 
Minn.  102,  136  N.  W.  571,  45  L.  R.  A.  (N.  S.)  601,  Ann.  Cas.  1913E,  472.  But 
see  Crelly  v.  Missouri,  etc.,  Tel.  Co.,  84  Kan.  19,  113  Pac.  386,  33  L.  R.  A, 
(N.  S.)  328,  not  within  scope  of  authority. 

40  See  Galehouse  v.  Minneapolis,  etc.,  R.  Co.,  22  N.  D.  615.  135  N.  W.  189, 
47  L.  R.  A.  (N.  S.)  965,  outside  of  authority,  but  resulting  from  operator's 
duties. 

•iiBelo  V.  Fuller,  84  Tex.  4.50.  10  S.  W.  616,  31  Am.  St.  Rep.  75;  Fogg  v. 
Boston,  etc.,  R.  Corp.,  148  Mass.  513,  20  N.  E.  109,  12  Am.  St.  Rep.  583 ;  Even- 
ing Journal  Ass'n  v.  McDermott,  44  N.  J.  T>aw,  430,  43  Am.  Rep.  392 ;  John- 
son V.  St.  Louis  Dispatch  Co.,  65  Mo.  5.39.  27  Am.  Rep.  293. 

*2  Peterson  v.  West.  U.  Tel.  Co.,  72  Minn.  41,  74  N.  W.  1022,  71  Am.  St 


812  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  622 

known,  the  publishers  of  a  libel  are  as  guilty  as  the  author  himself, 
and  whenever  one  or  more  persons,  other  than  he  on  whom  the 
calumny  is  cast,  sees  the  libelous  words,  this  is  sufficient  publica- 
tion. It  seems  that  it  is  not  necessary  that  some  third  person,  dis- 
connected from  the  company,  should  have  seen  the  libelous  words  in 
order  to  make  a  publication,  but  if  the  servants  of  the  company  see 
them,  this  is  sufficient.*^  So,  in  an  action  against  a  telegraph  com- 
pany for  libel,  the  jury  would  be  authorized  to  give  such  exemplary 
damages  as  the  circumstances  required,  if  the  evidence  shows  that 
the  publication  was  the  result  of  that  reckless  indifference  to  the 
rights  of  others  which  is  equivalent  to  the  intentional  violation  of 
them.**  When  malice  on  the  part  of  the  company  is  established  as 
a  fact  in  such  cases,  either  actually  or  by  presumption  or  inference 
of  facts  from  the  libelous  character  of  the  publication,  exemplary 
damages  may  be  recovered.*^  If,  however,  there  is  no  evidence  that 
the  company  published  the  libel  carelessly,  maliciously  or  wantonly, 
exemplary  or  punitive  damages  cannot  be  recovered.*^  The  dam- 
ages sustained  must  be  more  than  merely  nominal,  and  if  the  jury 
should  find  that  this  is  the  only  loss  suffered,  they  would  not  be 
justified  in  awarding  punitive  damages;*^  but,  if  it  is  shown  that 
the  publication  was  maliciously  made  to  bring  reproach  upon  the 
plaintiff's  business  or  domestic  relations,  damages  other  than  nomi- 

Eep.  461,  40  L.  R.  A.  661.     See,  also,  Peterson  t.  West.  U.  Tel.  Co.,  65  Minn. 
18,  67  N.  W.  646,  .33  L.  R.  A.  302 ;   Telephone  Co.  v.  Silver,  10  Can.  S.  Ct.  238. 

43  Peterson  v.  West.  U.  Tel.  Co.,  75  Minn.  368,  77  N.  W.  985,  74  Am.  St. 
Rep.  502,  43  L.  R.  A.  581;  Peterson  v.  West.  U.  Tel.  Co.,  72  Minn.  41,  74 
N.  W.  1022,  71  Am.  St.  Rep.  461,  40  L.  R.  A.  661 ;  Peterson  v.  West.  U.  Tel. 
Co.,  65  Minn.  18,  67  N.  W.  646,  33  L.  R.  A.  302 ;  Telephone  Co.  v.  Cashman, 
149  Fed.  367,  81  C.  C.  A.  5,  9  L.  R.  A.  (N.  S.)  140 ;  Telephone  Co.  v.  Silver,  10 
Can.  S.  Ct.  238.  See,  also,  Whitfield  v.  Southeastern  R.  Co.,  E.  B.  &  E.  115, 
4  Jur.  (N.  S.)  688,  27  L.  J.  Q.  B.  229,  6  Wkly.  Rep.  545,  96  E.  C.  L.  115. 

No  publication  where  the  message  is  transmitted  by  a  person  who  is  not 
an  agent  of  the  company  and  the  message  is  merely  received  by  an  agent  of 
the  company  at  the  point  of  destination  and  delivered  in  an  envelope.  Tele- 
phone V.  Cashman,  supra. 

44  See  Morning  Journal  Ass'n  v.  Rutherford,  51  Fed.  513,  2  C.  C.  A.  354,  16 
L.  R.  A.  803 ;   Cooper  v.  Sun  Print,  etc.,  Ass'n  (C.  C.)  57  Fed.  566. 

45  See  Childers  v.  San  Jose,  etc.,  Pub.  Co.,  105  Cal.  284,  38  Pae.  903,  45  Am. 
St.  Rep.  40. 

4  6  See  Philadelphia,  etc.,  R.  Co.  v.  Quigley,  21  How.  202,  16  L.  Ed.  73; 
Missouri  Pac.  R.  Co.  v.  Richmond,  73  Tex.  568,  11  S.  W.  555,  15  Am.  St.  Rep. 
794,  4  L.  R.  A.  280. 

47  See  Schippel  v.  Norton,  38  Kan.  567,  16  Pac.  804 ;  West.  U.  Tel.  Co.  v. 
Cross,  116  Ky.  5,  74  S.  W.  1098,  76  S.  W.  162. 

When  plaintiff  makes  out  a  case  entitling  him  to  recover  the  price  paid 
for  transmission,  that  is  a  showing  of  actual  damages  which  will  warrant 
allowance  of  exemplary  damages  if  a  willful  injury  or  gross  negligence  is 
shown.    West.  U.  Tel.  Co.  v.  Lawson,  66  Kan.  660,  72  Pac.  283. 


§    624)  MEASURE   OF   DAMAGES  813 

nal  will  be  presumed  and  exemplary  damages  may  be  recovered.*^ 
It  is  not  necessary  that  the  publication  be  made  by  means  of  trans- 
mission of  news,  but  if  it  is  done  carelessly,  recklessly,  or  mali- 
ciously in  any  other  way  by  its  servants  while  acting  within  the 
scope  of  their  authority,  it  will  be  liable.  For  instance,  if  a  tele- 
phone company  negligently  prints  the  name  of  one  of  its  subscrib- 
ers in  the  directory,  so  as  to  indicate  that  he  is  a  different  person 
from  that  which  he  really  is,  and  these  are  afterwards  published  or 
distributed — against  the  said  person's  consent — to  the  other  sub- 
scribers by  the  servants  in  a  malicious  manner  and  in  utter  disre- 
gard of  consequences,  the  company  will  be  liable. 

§  623.  Malicious  prosecution. — A  telegraph  company  may  be 
held  liable  for  a  malicious  prosecution  conducted  by  its  agents  and 
officers,  just  as  if  it  were  a  natural  person,  and,  in  such  cases,  where 
it  is  shown  that  the  case  was  maliciously  prosecuted,  exemplary  or 
punitive  damages  may  be  recovered.  "The  old  doctrine  was,"  said 
Judge  Campbell,  "that  a  corporation  was  not  so  liable,  because 
malice  is  the  gist  of  the  action,  and  it  was  said  that  malice  could 
not  be  imputed  to  a  mere  legal  entity,  which  having  no  mind  could 
have  no  motive  and  therefore  no  malice,  and  this  narrow  view  still 
prevails  to  some  extent.  But  the  steady  process  of  judicial  evolu- 
tion has  led  to  the  establishment  in  some  of  the  courts  of  the  just 
doctrine  of  the  civil  responsibility  of  a  corporation  for  the  acts  of 
the  sentient  persons  who  represent  it,  and  through  whom  it  acts, 
and  of  the  liability  of  a  corporation  for  the  acts  of  its  agents,  under 
the  conditions  that  attach  to  individuals."  *^ 

§  624.  Trespass — accompanied  with  malice. — It  is  necessary 
that  bad  motives  be  involved  in  order  that  exemplary  damages  may 
always  be  recovered  in  actions  of  tort  against  a  corporation.  They 
are  not  recoverable  for  every  trespass  made  by  a  corporation  on 
other's  lands,  but  only  where  it  is  committed  through  malice,  or  is 
accompanied  by  threats,  oppression  or  rudeness  to  the  owner  or 
occupant,  can  they  be  recovered.^"  Punitive  damages  are  not  al- 
lowed where  the  trespass  has  been  made  in  good  faith  or  by  mis- 
take as  to  authority,  otherwise  they  will  be.^^  Thus  in  one  case  the 
employes  of  a  telephone  company  went  to  the  owner  of  a  tree  which 

48  See  West.  U.  Tol.  Co.  v.  Rogers,  68  Miss.  748,  9  South.  823,  24  Am.  St. 
Rep.  300,  13  L.  R.  A.  8.59. 

49  Williams  v.  Planter.s'  Ins.  Co.,  57  Miss.  759,  34  Am.  Rep.  494,  andLuote. 

5  0  Johns  V.  Cumberland  Tel.,  etc.,  Co.,  80  S.  W.  165,  25  Ky.  Law  Rep.  2074. 

51  Southwestern  Tel.,  etc.,  Co.  v.  Whiteman,  36  Tox.  Civ.  App.  163,  81  S.  W. 
76;  West.  U.  Tel.  Co.  v.  Eyser,  91  U.  S.  495,  23  L.  Ed.  377,  reversing  Id., 
2  Colo.  141 ;  Erie  Tel.,  etc.,  Co.  v.  Kennedy,  SO  Tex.  71.  15  S.  W.  704 ;  Camp- 
bell V.  Telephone,  etc.,  Co.,  108  Ark.  569,  158  S.  W.  1085. 


814  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  625 

was  standing  in  front  of  his  house  to  get  permission  to  trim  it,  so 
as  to  stretch  a  line  of  wire  along  the  street.  On  refusal  of  the 
owner  to  grant  such  permission,  if  they  wait  until  he  leaves  home 
and  then  trim  the  tree,  the  company  will  be  liable,  and  in  addition 
to  the  actual  damages  sustained,  to  punitive  damages;  or,  if  they 
wait  until  night  to  take  advantage  of  such  right,  the  company  will 
be  liable  to  exemplary  or  punitive  damages. ^^  Should  the  com- 
pany's servants  trespass  upon  the  land  of  another,  against  his  con- 
sent in  the  construction  of  a  line  of  wires,  and  in  doing  so  destroy 
his  crops  adjoining  the  right  of  way,  the  company  will  be  liable 
in  punitive  damages.  In  other  words,  the  company  will  be  liable 
for  the  unlawful  trespass  of  its  servants  committed  while  in  the  dis- 
charge of  their  duty  toward,  the  company,  just  the  same  as  the 
servants  would  be  if  they  were  acting  for  themselves. ^^ 

§  625.  Negligence — question  for  jury. — Exemplary  or  punitive 
damages  cannot  be  recovered  from  a  telegraph,  telephone,  or  elec- 
tric company  for  injuries  to  the  person  caused  by  the  mere  negli- 
gence of  its  servants  or  employes;^*  so  a  jury  would  be  unwar- 
ranted in  awarding  such  damages,  where  it  is  shown  that  the  in- 
jury is  the  result  of  nothing  more  than  negligence  on  the  part  of 
the  servants. ^'^  Thus  a  mere  refusal  by  a  telephone  company  to 
furnish  a  long  distance  connection  will  not  justify  the  allowance  of 
exemplary  damages.^®     Such   damages   are  only  allowed  for  per- 

52  Cumberland  Tel.,  etc.,  Co.  v.  Poston,  94  Tenn.  696.  30  S.  W.  1040;  Cum- 
berland Tel.,  etc.,  Co.  v.  Cassedy,  78  Miss.  666,  29  South.  762;  Cumberland 
Tel.,  etc.,  Co.  v.  Shaw,  102  Tenn.  313,  52  S.  W.  163. 

5  3  See  §  126  et  seq. 

5  4  West.  U.  Tel.  Co.  v.  Westmoreland,  151  Ala.  319,  44  South.  382;  mere 
mistake,  Cumberland  Tel.,  etc.,  Co.  v.  Henbon,  114  Ky.  501,  71  S.  W.  435, 
24  Ky.  Law  Rep.  1271, 102  Am.  St.  Rep.  290,  60  L.  R.  A.  849 ;  Cumberland  Tel., 
etc.,  Co.  V.  Paine,  94  Miss.  883,  48  South.  229 ;  Gwynn  v.  Citizens'  Tel.  Co., 
69  S.  C.  434,  48  S.  E.  460,  104  Am.  St.  Rep.  819,  67  L.  R.  A.  Ill ;  thoughtless- 
ness, Cocke  V.  West.  U.  Tel.  Co.,  84  Miss.  380,  36  South.  392;  some  honest 
effort  to  perform  its  duty,  West.  U.  Tel.  Co.  v.  Cross,  116  Ky.  5,  74  S.  W. 
1098,  25  Ky.  Law  Rep.  268,  76  S.  W.  162,  25  Ky.  Law  Rep.  ^46 ;  West.  U. 
Tel.  Co.  V.  Spratley,  84  Miss.  86,  36  South.  188 ;  Cloy  v.  West.  U.  Tel.  Co.,  78 
S.  C.  109,  58  S.  E.  972;  Butler  v.  West.  U.  Tel.  Co.,  77  S.  C.  148,  57  S.  E. 
757;  Key  v.  West.  U.  Tel.  Co.,  76  S.  C.  301,  56  S.  E.  962;  Lewis  v.  West 
U.  Tel.  Co.,  57  S.  C.  325,  35  S.  E.  556.  Todd  v.  West.  U.  Tel.  Co.,  77  S.  C. 
522,  58  S.  E.  433,  where  the  evidence  is  uncontradicted;  Foster  v.  West.  U. 
Tel.  Co.,  77  S.  C.  155,  57  S.  E.  760. 

5  5  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542,  4  South.  844;  Haber,  etc..  Hat 
Co.  v.  Southern  Bell  Tel.,  etc.,  Co..  118  Ga.  874,  45  S.  E.  696 ;  Stuart  v.  West 
U.  Tel.  Co.,  66  Tex.  580,  18  S.  W.  351,  59  Am.  Rep.  623 ;  West.  U.  Tel.  Co.  v. 
Brown,  58  Tex.  170.  44  Am.  Rep.  610 ;  McAllen  v.  West.  U.  Tel.  Co..  70  Tex. 
243,  7  S.  W.  715 ;   Davis  t.  West.  U.  Tel.  Co.,  46  W.  Va.  48,  32  S.  E.  1026. 

5  6  Magouirk  v.  West.  "U.  Tel.  Co.,  79  Miss.  632,  31  South.  206,  89  Am.  St 
Rep.  663. 


§    625)  MEASURE   OF   DAMAGES  815 

sonal  injuries,  when  the  wrong  is  wantonly  and  willfully  inflicted, 
or  with  such  gross  want  of  care  and  regard  for  the  rights  of  others 
as  to  justify  the  presumption  of  wantonness  or  willfulness."  In 
other  words,  the  injury  must  be  the  direct  result  of  the  act  of  the 
agents,  where  they  have  been  guilty,  not  only  for  want  of  ordinary 
care,  but  of  that  entire  want  of  care  which  would  raise  the  presump- 
tion of  a  conscious  indifiference  to  consequences,  or  which  shows 
wantonness  or  recklessness,  or  a  grossly  careless  disregard  of  the 
safety  and  welfare  of  the  public,  or  that  reckless  indifference  to  the 
rights  of  others  which  is  equivalent  to  an  intentional  violation  of 
them.^^  Thus,  it  has  been  held,  that  punitive  damages  can  be  re- 
covered where  a  messenger  boy  intentionally  fails  to  deliver  a  mes- 
sage.^'^  Whether  there  is  or  is  not  sufficient  evidence  adduced  to 
disclose  wanton  and  gross  negligence,  it  is  not  only  a  privilege  but 
the  duty  of  the  court,  by  proper  request,  to  instruct  the  jury  that 
they  may  ^^  or  may  not  award  punitive  damages  as  the  case  may 
be."^  It  is  a  question  for  the  jury  on  being  properly  instructed  to 
determine  whether,  from  the  evidence,  the  degree  of  care  exercised 
amounts  to  the  degree  of  gross  negligence  to  constitute  the  act  as 
willfully  or  wantonly  committed.*'^  Thus  exemplary,  punitive  or 
vindictive  damages  may  be  recovered  against  a  telegraph  company 
for  a  failure  to  transmit  and  deliver  a  message,  where  there  is  such 
gross  negligence  on  the  part  of  the  agents  or  employes  of  the  com- 
pany as  to  indicate  wantonness  or  a  malicious  purpose  in  failing  to 
transmit  and  deliver  it.**^    So  also,  if  the  agent  of  the  company  who 

5  7  Masouirk  v.  West.  U.  Tel.  Co.,  79  Miss.  632,  31  South.  206,  89  Am.  St. 
Eep.  663 ;  Lewis  v.  West.  U.  Tel.  Co.,  57  S.  C.  32.5,  35  S.  E.  556.  See,  also, 
Butler  V.  West.  U.  Tel.  Co.,  65  S.  C.  510,  44  S.  E.  91. 

5  8  West.  U.  Tel.  Co.  v.  Seed,  115  Ala.  670,  22  South.  474;  West.  U.  Tel. 
Co.  V.  Cunningham,  99  Ala.  314,  14  South.  579:  West  v.  West.  U.  Tel.  Co., 
39  Kan.  93,  17  Pac.  807,  7  Am.  St.  Rep.  530;  Southern  Kan.  R.  Co.  v.  Rice. 
38  Kan.  398,  16  Tac.  817,  5  Am.  St.  Rep.  766;  West.  U.  Tel.  Co.  v.  Lawson, 
66  Kan.  660,  72  Pac.  283 ;  West.  U.  Tel.  Co.  v.  Watson,  82  Miss.  101,  33  South. 
76 ;  Young  v.  West.  U.  Tel.  Co..  65  S.  C.  93,  43  S.  E.  448 ;  West.  U.  Tel.  Co. 
V.  Frith,  105  Tenn.  167,  58  S.  W.  118;  West.  U.  Tel.  Co.  v.  Morris,  77  Tex. 
173,  13  S.  W.  888;  Gulf,  etc.,  R.  Co.  v.  Levy,  59  Tex.  542,  46  Am.  Rep.  269. 
Where  the  gross  negligence  is  the  employment  of  an  incompetent  agent,  and 
it  appears  that  the  agent  referred  to  had  never  been  negligent  before,  ex- 
emplary damages  are  not  recoverable.  West.  U.  Tel.  Co.  v.  Karr,  5  Tex. 
Civ.  App.  60,  24  S.  W.  302. 

5  9  Butler  V.  West.  U.  Tel.  Co.,  65  S.  C.  510,  44  S.  E.  91. 
CO  See  Kansas  I'ac.  R.  Co.  v.  Kessler,  18  Kan.  523. 

61  See  Chicago  R.  Co.  v.  Scurr.  .59  Miss.  4.56,  42  Am.  Rep.  373. 

02  See  Southern,  etc..  R.  Co.  v.  McLendon.  63  Ala.  266;  Western  U.  Tel.  Co. 
V.  Cunningham,  99  Ala.  314,  14  South,  579;  Baunon  v.  Baltimore,  etc.,  R. 
Co.,  24  Md.  108. 

6  3  See  note  45. 


816 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  626 


receives  a  reply  message  for  transmission  knows  the  urgent  neces- 
sity for  promptness  in  forwarding  it,  but  delays  sending  it  off  until 
the  next  morning,  it  is  a  question  for  the  jury  to  decide  whether 
this  was  not  such  gross  negligence  as  evij;iced  an  utter  disregard 
of  plaintiff's  feelings  and  rights,  and  if  they  so  determine,  punitive 
damages  may  be  awarded.®*  If  the  employes  of  the  company  neg- 
ligently allow  the  wires  to  fall  on  the  wires  of  an  electric  light  com- 
pany, and  to  remain  there  hanging  down,  the  company  will  be  liable 
in  exemplary  damages  to  one  injured  by  accidentally  coming  in 
contact  with  the  wires,  if  the  employes  acted  in  a  spirit  of  mischief 
or  criminal  indifference,  and  it  was  known  to  the  company's  man- 
agers ;  or,  if  the  managers  did  not  exercise  proper  care  in  selecting 
the  employes,  or  if  they  knew,  or  had  means  of  knowing,  that  they 
were  not  skillful,  prudent  or  careful,  it  would  still  be  liable.®^  A 
telegraph  company  cannot,  however,  be  held  answerable  in  exem- 
plary damages  for  an  injury  occasioned  by  its  servants  or  employes, 
in  the  absence  of  willful  or  malicious  conduct  or  intentional 
wrong.^^  So,  a  telegraph  company  is  not  answerable  in  exemplary 
damages  on  account  of  the  mere  failure  of  its  agents  to  find  the 
addressee  of  a  message,  where  it  is  not  shown  that  the  company 
had  knowledge  of  the  incompetency  of  its  agents  when  they  were 
employed,  or  that  they  were  retained  after  it  was  known. °^ 

§  626.  Same  continued — actual  damages. — In  cases  brought 
against  telegraph,  telephone,  or  electrical  companies  to  recover 
punitive  damages  for  injuries  resulting  from  the  willful  acts  of 
their  servants  or  employes,  it  is  necessary  to  show  that  actual  dam- 
ages have  been  sustained.®*  While  this  is  the  rule,  yet  the  amount 
of  damages  sustained  may  be  very  small.  Thus  it  was  held  that, 
when  the  plaintiff  makes  out  a  case  entitling  him  to  recover  the 
price  paid  for  transmission,*"^  this  is  a  sufficient  showing  of  actual 
damages  to  warrant  the  allowance  of  exemplary  damages,  if  a  will- 
ful injury  or  gross  negligence  is  shown. ^"  If,  however,  mental 
suffering  has  been  the  result  of  injury  to  the  character  or  reputa- 
tion of  one  of  the  parties  to  a  forged  telegram  sent  by  the  com- 


04  West.  U.  Tel.  Co.  v.  Cunningham,  99  Ala.  314,  14  South.  579;  Butler  v. 
West.  U.  Tel.  Co.,  62  S.  C.  222,  40  S.  E.  162,  89  Am.  St.  Rep.  893. 

6  5  Henning  v.  West.  U.  Tel.  Co.  (C.  C.)  41  Fed.  864. 

6  6  West.  U.  Tel.  Co.  v.  Eyser,  91  U.  S.  495,  23  L.  Ed.  377,  note  reversing  Id., 
2  Colo.  141 ;    Erie  Tel.  Co.  v.  Kennedy,  SO  Tex.  71,  15  S.  W.  704. 

6  7  West.  U.  Tel.  Co.  v.  Karr,  5  Tex.  Civ.  App.  60,  24  S.  W.  302. 

6s  Gulf,  etc.,  R.  Co.  V.  Levy,  59  Tex.  563,  46  Am.  Rep.  278. 

6  9  See  §  525. 

7  0  West.  U.  Tel.  Co.  v.  Lawson,  66  Kan.  660,  72  Pac.  283. 


§    627)  MEASURE   OP   DAMAGES  817 

pany's  agent,  while  acting  within  the  scope  of  his  authority  or  em- 
ployment, it  is  not  necessary  that  actual  damages  be  sustained/^ 

§  627.  Excessive  damages. — We  shall  not  comment  to  any  great 
extent  upon  the  subject  of  excessive  damages,  since  there  is  no 
difference  in  the  application  of  the  rules  of  law  on  this  subject  as 
regards  actions  brought  against  telegraph,  telephone,  and  electric 
companies  and  those  brought  for  the  same  causes  against  other  cor- 
porations and  individuals;  ^-  and  to  treat  the  subject  as  it  should 
be  would  necessarily  consume  much  valuable  time  and  encumber 
the  pages  of  this  work  with  matter  foreign  to  the  object  for  which 
it  was  prepared.  Damages,  as  has  been  said  elsewhere,  are  re- 
garded as  a  compensation  for  infringement  of  the  rights  of  oth- 
ers ;  ''^  and  when  not  connected  with  matters  of  aggravation  or 
malice,  they  are  considered  as  matter  within  the  discretion  of  the 
jury,  under  proper  instructions  by  the  court,'^*  and  an  appellate 
court  will  seldom  interfere  with  the  verdict  when  rendered. '^^  The 
general  rule  on  this  point  as  expressed  by  Judge  Story  is  "that  a 
verdict  will  not  be  set  aside  in  a  case  of  tort  for  excessive  dam- 
ages,'*' unless  the  court  can  clearly  see  that  the  jury  has  committed 

71  Magouirk  v.  West.  U.  Tel.  Co.,  79  Miss.  632,  31  South.  206,  89  Am.  St. 
Rep.  663. 

7  2  West.  U.  Tel.  Co.  v.  McCall,  9  Kan.  App.  886,  58  Pac.  797;  Peterson  v. 
West.  U.  Tel.  Co.,  75  Minn.  368,  77  N.  W.  9S5,  74  Am.  St.  Rep.  502,  43  L.  R.  A. 
581.    . 

7  3  See  §  525. 

74  Birmingham  R.,  etc.,  Co.  v.  Baird,  1.30  Ala.  334,  30  South.  456,  89  Am.  St. 
Rep.  43,  54  L.  R.  A.  752;  Wynne  v.  Atlantic  Ave.  R.  Co.,  156  N.  Y.  702,  51 
N.  E.  1094 ;  New  Orleans,  etc.,  R.  Co.  v.  Schneider,  60  Fed.  210.  8  C.  C.  A.  571 ; 
Missouri  Pac.  R.  Co.  v.  Texas,  etc.,  R.  Co.  (C.  C.)  33  Fed.  803 ;  Montreal  Gas 
Co.  V.  St.  Lawrence,  26  Can.  Supreme  Ct.  176 ;  West.  U.  Tel.  Co.  v.  Crawford. 
29  Old.  143,  116  Pac.  925,  35  L.  R.  A.  (N.  S.)  930. 

7  5  Whether  the  damages  are  excessive  will  not  be  considered  on  appeal 
where  the  question  was  not  raised  by  a  motion  for  a  new  trial  in  the  court 
below.     West.  U.  Tel.  Co.  v.  Hopkins,  49  lud.  223. 

TQ  For  mental  anguish  suffered  as  result  of  the  inahility  to  reach  parent  be- 
fore death,  not  excessive. — West.  U.  Tel.  Co.  v.  Blackmer,  82  Ark.  526,  102  S. 
W.  336,  daughter  prevented  from  reaching  dying  mother,  $1,000.00  recovered ; 
West.  U.  Tel.  Co.  v.  Newhouse,  6  Ind.  App.  422,  33  N.  E.  800,  son  prevented 
from  reaching  mother  before  her  death,  $400.00  recovered ;  Potter  v.  West.  U. 
Tel.  Co.,  138  Iowa,  406,  116  N.  W.  130.  same;  West.  U.  Tel.  Co.  v.  Cunningham, 
99  Ala.  314,  14  South.  579,  same,  .$500.00  recovered;  Erie  Telephone,  etc.,  Co. 
V.  Grimes,  82  Tex.  89,  17  S.  W.  831,  same,  $667..56  recovered ;  West.  U.  Tel.  Co. 
v.  Gilstrap,  77  Kan.  191,  94  Pac.  122,  son  prevented  from  reaching  father, 
$750.00  recovered. 

Inability  to  reach  a  son  or  daughter  before  death,  not  excessive. — West.  U. 

Tel.  Co.  V.  Houghton  (Tex.  Civ.  App.)  26  S.  W.  448,  father  prevented  from 

reaching  son,  $2,000.00  recovered  ;   West.   U.  Tel.  Co.  v.   Evans,  5  Tex.  Civ. 

App,  55,  23  S.  W.  998,  mother,  son,  $2,500.00  recovered ;  West.  U.  Tel.  Co.  v. 

Jones  Tel.(2u  Ed.) — 52 


818  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  627 

some  very  gross  and  palpable  error,  or  has  acted  under  some  im- 
proper bias,  influence  or  prejudice,  or  has  totally  mistaken  the  rules 

Sloss,  45  Tex.  Civ.  App.  153,  100  S.  W.  354,  father,  son,  $1,995.00  recovered ; 
West.  U.  Tel.  Co.  v.  James,  31  Tex.  Civ.  App.  503,  73  S.  W.  79,  mother,  son, 
^1.995.25  recovered ;  West.  U.  Tel.  Co.  v.  Cobb  (Tex.  Civ.  App.)  118  S.  W.  717, 
father,  son,  $1,200.00  recovered ;  West.  U.  Tel.  Co.  v.  Fisher,  107  Ky.  513,  54 
S.  W.  830,  father,  daughter,  $300.00  recovered;  West.  U.  Tel.  Co.  v.  O'Keefe 
(Tex.  Civ.  App.)  29  S.  W.  1137,  father,  daughter,  $1,000.00  recovered. 

Inahility  to  reach  a  brother  or  sister  before  death,  not  excessive. — West.  U. 
Tel.  Co.  V.  Porter  (Tex.  Civ.  App.)  26  S.  W.  866,  sister,  half-sister,  no  great 
degree  of  affection  shown,  $1,000.00  recovered;  West.  U.  Tel.  Co.  v.  Zane,  6 
Tex.  Civ.  App.  585,  25  S.  W.  722,  brother,  brother  $1,950.00  recovered ;  West.  U. 
Tel.  Co.  V.  Trice  (Tex.  Civ.  App.)  48  S.  W.  770,  sister,  brother,  $1,000.00  re- 
covered. 

Inability  of  owe's  spouse  to  reach  the  other  before  death,  not  excessive. — 
Ark.,  etc.,  R.  Co.  v.  Stroude,  82  Ark.  117,  100  S.  W.  760,  husband,  wife,  $500.00 
recovered;  Louisiana,  etc.,  R.  Co.  v.  Reeves,  95  Ark.  214,  128  S.  W.  1051, 
wife,  husband,  $750.00  recovered. 

Inability  to  reach  dying  relative  before  final  unconsciousness. — West.  U.  Tel. 
Co.  v.  Price,  137  Ky.  758,  126  S.  W.  1100,  29  L.  R.  A.  (N.  S.)  836,  wife,  husband, 
$955.50  recovered ;  West.  U.  Tel.  Co.  v.  Piner,  9  Tex.  Civ.  App.  152,  29  S.  W. 
66,  son,  father,  $2,150.00  recovered ;  West.  U.  Tel.  Co.  v.  Bennett,  58  Tex.  Civ. 
App.  60,  124  S.  W.  151,  son,  mother,  $1,150.00  recovered ;  West.  U.  Tel.  Co.  v. 
Cleveland,  169  Ala.  131,  53  South.  81,  Ann.  Cas.  1912B,  534,  son,  mother, 
$500.00  recovered;  West.  U.  Tel.  Co.  v.  Gillis,  97  Ark.  226,  133  S.  W.  833, 
daughter,  mother,  $300.00  recovered. 

Inability  to  be  present  at  the  funeral  of  a  parent,  not  excessive. — Nitka  v. 
West.  U.  Tel.  Co.,  149  Wis.  106,  135  N.  W.  492,  49  L.  R.  A.  (N.  S.)  337,  Ann. 
Cas.  1913C,  863,  son,  father,  $350.00  recovered ;  West.  U.  Tel.  Co.  v.  Hardison 
(Tex.  Civ.  App.)  101  S.  W.  541,  daughter,  mother,  $2,000.00  recovered;  West. 
U.  Tel.  Co.  V.  Seed,  115  Ala.  670,  22  South.  474,  son,  mother,  $1,500.00  recov- 
ered :  West.  U.  Tel.  Co.  v.  McDavid  (Tex.  Civ.  App.)  121  S.  W.  893,  daughter, 
father,  $1,350.00  recovered. 

Inability  to  be  present  at  the  funeral  of  a  son  or  daughter,  not  excessive. — 
West.  U.  Tel.  Co.  v.  Guest  (Tex.  Civ.  App.)  33  S.  W.  281,  father,  child,  $450.00 
recovered;  West.  U.  Tel.  Co.  v.  Shaw,  40  Tex.  Civ.  App.  277,  90  S.  W.  58, 
mother,  son,  $1,100.00  recovered ;  West.  U.  Tel.  Co.  v.  Rice  (Tex.  Civ.  App.)  61 
S.  W.  327,  father,  daughter,  $750.00  recovered ;  West.  U.  Tel.  Co.  v.  Frith,  105 
Tenn.  167,  58  S.  W.  118,  father,  only  son,  $1,000.00  recovered. 

Inability  to  be  present  at  the  funeral  of  a  brother  or  sister,  not  excessive. — 
West.  U.  Tel.  Co.  v.  Johnson,  16  Tex.  Civ.  App.  546.  41  S.  W.  367,  brother, 
brother,  $400,00  recovered ;  West.  U.  Tel.  Co.  v.  Hill  (Tex.  Civ.  App.)^26  S.  W. 
252,  brother,  brother,  $500.00  recovered;  West.  U.  Tel.  Co.  v.  Thompson,  18 
Tex.  Civ.  App.  279,  44  S.  W.  402,  brother,  brother,  $700.00  recovered ;  West.  U. 
Tel.  Co.  V.  Caldwell,  126  Ky.  42,  102  S.  W.  840,  12  L.  R.  A.  (N.  S.)  748,  sister, 
brother,  $1,000.00  recovered ;  West.  U.  Tel.  Co.  v.  Rosentreter,  SO  Tex.  406,  16 
S.  W.  25,  brother,  sister,  $1,000.00  recovered ;  West.  U.  Tel.  Co.  v.  Rabon,  60 
Tex.  Civ.  App.  88,  127  S.  W.  580,  sister,  brother,  $5,000.00  recovered. 

Inability  to  make  arrangements  for  and  attend  the  funeral  of  a  relative,  not 
excessive.— West.  U.  Tel.  Co.  v.  Fuel,  165  Ala.  391,  51  South.  571,  husband, 
wife,  $1,000.00  recovered ;  West.  U.  Tel.  Co.  v.  Norris,  25  Tex.  Civ.  App.  43,  60 
S.  W.  982,  parents,  child,  $1,000.00  recovered  ;  West.  U.  Tel.  Co.  v.  Hill,  163 
Ala.  18,  50  South.  248,  23  L.  R.  A.  (N.  S.)  64S,  19  Ann.  Cas.  1058,  father,  child, 
$1,100.40  recovered. 

Inability  to  see  the  remains  of  relative  before  bunal,  not  excessive. — West. 


§    627)  MEASURE   OF  DAMAGES  810 

of  law,  by  which  the  damages  are  to  be  regulated."  '''  In  such 
cases  the  court  should  consider  all  the  circumstances  surrounding 
the  case  and  consider  therefrom  whether  the  verdict  is  fair  and 
reasonable;  and  it  will  be  presumed  that  the  verdict  is  fair  and 
reasonable,  unless  it  is  clearly  so  excessive  or  outrageous  with  refer- 
ence to  those  circumstances  as  to  demonstrate  that  the  jury  have 
acted  against  the  rules  of  law  or  have  allowed  their  passions  and 
prejudices  to  overcome  their  better  judgment.^^  So,  if  the  jury 
has  awarded  damages  which  are  clearly  or  grossly  excessive,'**  or 

U.  Tel.  Co.  V.  Porterfield  (Tex.  Civ.  App.)  84  S.  W.  850,  grandmother,  grandson, 
?500.00  recovered ;  West.  U.  Tel.  Co.  v.  Hamilton,  3G  Tex.  Civ.  App.  300,  81  S. 
W.  1052,  husband,  wife,  .$1.31G.OO  recovered. 

Where  friends  were  prevented  from  meeting  train  bearing  the  plaintiff  and 
the  corpse  of  a  relative  and  from  arrangino  for  the  funeral,  not  excessive. — 
West.  U.  Tel.  Co.  v.  Giffin,  27  Tex.  Civ.  App.  306,  G5  S.  W.  6G1.  relative,  $750.00 
recovered ;  West.  U.  Tel.  Co.  v.  Broesche,  72  Tex.  654,  10  S.  W.  734,  13  Am.  St. 
Rep.  843,  friends,  corpse  of  plaintiff's  wife,  .$1,160.00  recovered ;  W^est.  U.  Tel. 
Co.  V.  Long,  148  Ala.  202,  41  South.  965,  relative,  plaintiff  and  dead  child, 
$500.00  recovered. 

Being  deprived  of  the  consolation  of  a  relative  at  the  death  or  funeral  of 
another  relative.— West.  U.  Tel.  Co.  v.  Crocker,  135  Ala.  492,  33  South.  45,  59 
L.  R.  A.  398,  plaintiff's  mother-in-law,  plaintiff's  son,  who  was  especially  fond 
of  his  grandmother,  .$225.00  recovered;  West.  U.  Tel.  Co.  v.  Stratemeier,  11 
Ind.  App.  GOl,  39  N.  E.  527,  plaintiff's  daughter,  funeral  of  her  brother  to  com- 
fort plaintiff"  and  wife,  $400.00  recovered. 

Damages  recovered  for  mental  anguish  for  failing  to  promptly  transmit  tele- 
gram, not  excessive.— West.  U.  Tel.  Co.  v.  Hines,  22  Tex.  Civ.  App.  315,  54  S. 
W.  G27,  erroneously  announcing  death  of  mother,  $780.00  recovered ;  West.  U. 
Tel.  Co.  V.  Russell,  12  Tex.  Civ.  App.  82,  33  S.  W.  708,  father  failure  of  physi- 
cian to  reach  sick  child,  $1,500.25  recovered ;  W^est.  U.  Tel.  Co.  v.  Robinson.  97 
Tenn.  638,  37  S.  W.  545,  34  L.  R.  A.  431,  father,  in  consequence  of  nonarrival  of 
minister  to  baptize  dying  daughter,  $500.00  recovered ;  West.  U.  Tel.  Co.  v. 
Bell,  48  Tex.  Civ.  App.  151,  106  S.  W.  1147,  suffering  by  daughter  because 
compelled  to  allow  public  authorities  to  bury  her  mother,  $400.25  recovered  ; 
West.  U.  Tel.  Co.  v.  Taylor  (Ky.)  122  S.  W.  131,  telegram  erroneously  announc- 
ing death  of  both  parents  when  only  one  was  dead,  $450.00  recovered ;  Cum- 
berland, etc.,  Co.  v.  Quigley,  129  Ky.  788,  112  S.  W.  897,  19  L.  R.  A.  (N.  S.) 
575,  delay  in  shipping  remains  of  child  caused  by  failure  to  transmit  money 
sent  for  expenses,  $200.00  recovered;  West.  U.  Tel.  Co.  v.  Mcllvoy,  107  Ky. 
633,  55  S.  W,  428,  brother,  insane  brother,  who  would  take  food  and 
drink  only  from  him,  might  have  recovered  if  plaintiff  had  reached  him  in 
time,  $1,000.00  recovered ;  West.  U.  Tel.  Co.  v.  Patton  (Tex.  Civ.  App.)  55  S.  W. 
973,  telegram  erroneously  stating  wife  "no  better"  instead  of  "much  better," 
$1,000.00  recovered. 

7  7  Whipple  V.  Cumberland  Mfg.  Co.,  Fed.  Cas.  No.  17,516.  2  Story,  GGl. 

T8  Ottawa  V.  Sweely,  65  111.  434;  Harris  v.  Louisville,  etc.,  R.  Co.  (C.  C.)  35 
Fed.  116 ;  Walker  v.  Erie  R.  Co.,  63  Barb.  (N.  Y.)  260. 

■j^For  mental  anguish  .wffered  as  result  of  inahilitg  to  reach  father  before 
his  death,  excessive.— \Yest.  U.  Tel.  Co.  v.  Bouchell,  28  Tex.  Civ.  App.  23,  67 
S.  W.  159,  daughter,  father,  $1,250.00  reduced  to  .$.500.00. 

Inahilitij  to  reach  a  son  or  daughter  before  death,  excessive.— \\est.  U.  Tel. 
Co.  V.  Houghton,  82  Tex.  561,  17  S.  W.  846,  27  Am.  St.  Uep.  918,  15  L.  R.  A. 
129,  father,  son,  $4,500.25 ;  W^est.  U.  Tel.  Co.  v.  Mellon,  96  Tenn.  60,  33  S.  W. 


820  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  627 

which  are  the  result  of  passion  or  prejudice  as  to  the  company  ^°  or 
sympathy  for  the  plaintiff,"  or  which  are  due  to  the  instructions  of 
the  court  being  disregarded,^^  or  to  the  consideration  of  matters  not 
properly  attributable  to  the  negligence  of  the  company  or  which 
might  have  been  avoided  by  the  plaintiff,^^  or  to  erroneous  inclu- 

725,  father,  son,  $500.00 ;  West.  U.  Tel.  Co.  v.  Evans,  1  Tex.  Civ.  App.  297,  21 
S.  W.  266,  following  West.  U.  Tel.  Co.  v.  Houghton,  supra,  mother,  sou,  $5,- 
000.00. 

Inability  to  reach  a  hrother  before  death,  excessive. — West.  U.  Tel.  Co.  v. 
Dodson,  98  Miss.  745,  54  South.  844,  brother,  $1,500.00  reduced  to  $1,000.00. 

Inability  of  a  husband  to  reach  his  wife  before  death. — West.  U.  Tel.  Co.  v. 
Bickerstaff,  100  Ark.  1,  138  S.  W.  997,  Ann.  Cas.  1913B,  2-42,  $2,000.00  reduced 
to  $1,000.00. 

Inability  to  reach  a  dying  relative  before  final  unconsciousness,  excessive. — • 
West.  U.  Tel.  Co.  v.  Finer,  1  Tex.  Civ.  App.  301,  21  S.  W.  315,  son,  father,  $4,- 
750.00. 

Inability  to  be  present  at  the  funeral  of  a  parent,  excessive. — ^West.  U.  Tel. 
Co.  V.  North,  177  Ala.  319,  58  South.  299,  daughter,  mother,  $1,500.00  reduced 
to  $500.00. 

Inability  to  be  present  at  the  funeral  of  a  son,  excessive. — West.  U.  Tel.  Co. 
V.  Bowles  (Tex.  Civ.  App.)  76  S.  W.  456,  father,  $1,000.00  reduced  to  $500.00. 

Inability  to  be  present  at  the  funeral  of  a  brother,  excessive. — West.  U.  Tel. 
Co.  V.  Weniski,  84  Ark.  457,  106  S.  W.  486,  sister,  $1,854.00. 

Inability  to  make  arrangements  for  the  funeral  of  a  relative,  excessive. — ■ 
Maley  v.  West.  U.  Tel.  Co.,  151  Iowa,  228,  130  N.  W.  1086,  49  L.  R.  A.  (N.  S.) 
327,  husband,  wife,  $600.00  reduced  to  $300.00. 

Inability  to  see  the  remains  of  a  relative  before  burial,  excessive. — West.  U. 
Tel.  Co.  V.  Rhine,  90  Ark.  57,  117  S.  W.  1069,  mother,  son,  $750.00  reduced  to 
$400.00. 

Being  deprived  of  the  consolation  of  a  relative  at  the  death  or  funeral  of  an- 
other relative,  excessive. — West.  U.  Tel.  Co.  v.  Garlington,  101  Ark.  487,  142 
S.  W.  854,  49  L.  R.  A.  (N.  S.)  300,  plaintiff's  son,  funeral  of  another  son  to  com- 
fort mother,  $500.00  reduced  to  $100.00. 

Other  cases  ivhere  damages  held  to  be  excessive  for  mental  anguish  suffered 
as  the  result  of  failure  to  promptly  transmit  telegrams. — Newport  News,  etc., 
R.  Co.  V.  Griffin,  92  Tenn.  694,  22  S.  W.  737,  son  delayed  in  reaching  dying 
father,  although  he  did  reach  him  before  death,  $900.00 ;  West.  U.  Tel.  Co.  v. 
Collins,  156  Ala.  333,  47  South.  61,  the  inconvenience  and  annoyance  of  hack 
ride  of  twenty  miles,  $345.00 ;  Cloy  v.  West.  U.  Tel.  Co.,  78  S.  C.  109,  58  S.  B. 
972,  suffering  of  husband  because  of  wife's  being  compelled  to  drive  alone  at 
night  several  miles  through  forests  to  her  father's  home,  $850.00 ;  West.  U.  Tel. 
Co.  V.  Berdine,  2  Tex.  Civ.  App.  517,  21  S.  W.  982,  suffering  because  of  delay  in 
securing  physician  for  sick  child,  $1,999.99. 

8  0  West.  U.  Tel.  Co.  v.  Houghton,  82  Tex.  561,  17  S.  W.  846,  27  Am.  St. 
Rep.  918,  15  L.  R.  A.  129 ;  West.  IT.  Tel.  Co.  v.  Frith,  105  Tenn.  167,  58  S.  W. 
118 ;   West.  U.  Tel.  Co,  v.  Evans,  1  Tex.  Civ.  App.  297,  21  S.  W,  266. 

81  West.  U.  Tel.  Co.  v.  Berdine,  2  Tex.  Civ.  App.  517,  21  S.  W.  982. 

82  Barnes  v.  West.  U.  Tel.  Co.,  24  Nev.  125,  50  Pac.  438,  77  Am.  St.  Rep.  791. 
8  3  Newport  News,  etc.,  R.  Co.  v.  Griffin,  92  Tenn.  694,  22  S.  W.  737,  $900.00 

held  excessive ;  West.  U.  Tel.  Co.  v.  Mellon,  96  Tenn.  66,  33  S.  W.  725,  $500.00 
held  excessive;  West.  U.  Tel.  Co.  v.  Bowles  (Tex.  Civ.  App.)  76  S.  W.  456, 
$1,000.00  reduced  to  $500.00;  West.  U.  Tel.  Co.  v.  Berdine,  2  Tex.  Civ.  App. 
517,  21  S.  W.  982,  $1,999.99  for  twelve  hours  delay  in  the  arrival  of  a  doctor, 
where  plaintiff  might  have  procured  another  doctor. 


§    628)  MEASURE  OF  DAMAGES  821 

sion  of  punitive  damages,^*  a  new  trial  will  be  awarded,^'  unless  a 
remittitur  of  the  excessive  part  will  be  consented  to.^®  On  the 
other  hand,  the  amount  of  damages  awarded  by  the  jury  may  be 
so  obviously  inadequate  that  a  new  trial  should  be  granted." 

§  628.  Nominal  damages. — Under  the  rule  of  the  common  law, 
only  actual  damages  could  be  recovered  where  an  actual  loss  had 
been  sustained,  but  it  is  now  well  settled  that,  where  there  is  an 
infringement  of  a  legal  right,  nominal  damages  may  be  awarded, 
although  there  is  no  evidence  of  actual  damages  having  been  sus- 
tained.^^ Damages  are  not  always  merely  pecuniary,  but  an  injury 
imports  damages  where  a  person  is  thereby  deprived  of  his  rights.®'' 
Where  the  evidence  shows  that  a  person's  legal  rights  have  been 
violated,  the  claim  to  damages  accrues;  and  the  fact  that  the  pre- 
cise nature  and  extent  of  the  damages  is  not  capable  of  being  ex- 
actly ascertained  will  not  serve  to  divest  him  of  his  rights  to  re- 
cover,^" nor  will  such  rule  be  affected  by  the  fact  that  the  damages 
are  so  small  that  they  cannot  be  readily  estimated.®^  In  such  cases, 
if  the  plaintiff  has  suffered  some  loss,  but  it  is  so  small  that  the  jury 
cannot  ascertain  the  amount,  but  nevertheless  renders  a  verdict  for 
the  defendant,  the  court  may  permit  the  plaintiff  to  have  a  verdict 
for  nominal  damages.''^  The  rule  in  these  particulars  will  not  be 
affected  by  the  fact  that  the  plaintiff  has  been  benefited  by  the 
wrong;  ^^   nor  by  the  fact  that  the  loss  has  been  subsequently  re- 


84  Cloy  V.  West.  U.  Tel.  Co.,  78  S.  C.  109,  58  S.  E.  972. 

85  West.  U.  Tel.  Co.  v.  Berdine,  2  Tex.  Civ.  App.  517,  21  S.  W.  982;  West. 
U.  Tel.  Co.  V.  Weniski,  84  Ark.  457,  106  S.  W.  486. 

86  West.  U.  Tel.  Co.  v.  Hlller,  93  Miss.  658,  47  South.  377;  West.  U.  Tel. 
Co.  V.  Rhine,  90  Ark.  57,  117  S.  W.  1069 ;  West.  U.  Tel.  Co.  v.  Frith,  105  Teun. 
167,  58  S.  W.  lis ;  West.  U.  Tel.  Co.  v.  Bowles  (Tex.  Civ.  App.)  76  S.  W.  456 ; 
West.  U.  Tel.  Co.  v.  Garlington,  101  Ark.  487,  142  S.  W.  854,  49  L.  R.  A.  (N.  S.) 
300 ;  West.  U.  Tel.  Co.  v.  Dodson,  98  Miss.  745,  54  South.  844 ;  West.  U.  Tel. 
Co.  v.  Walter,  106  Miss.  59,  63  South.  194 ;  West.  U.  Tel.  Co.  v.  North,  177 
Ala.  319,  58  South.  299 ;  Maley  v.  West.  U.  Tel.  Co.,  151  Iowa,  228,  180  N.  W. 
1086,  49  L.  R.  A.  (N.  S.)  327. 

8  7  Prewitt  v.  Southwestern  Tel.  Co.,  46  Tex.  Civ.  App.  123,  101  S.  W.  812. 

8  8  See  §§  225,  226.  See  Stein  v.  Burden,  24  Ala.  130,  60  Am.  Dec.  453; 
Thompson  v.  New  Orleans,  etc.,  R.  Co.,  50  Miss.  315,  19  Am.  Rep.  12 ;  New 
York  Rubber  Co.  v.  Rothery,  132  N.  Y.  293,  30  N.  E.  841,  28  Am.  St.  Rep.  575. 

8  9  Ashby  V.  White,  2  Ld.  Raym.  938,  3  Ld.  Raym.  320.     See,  also,  §  525. 

00  Seaboard  Mfg.  Co.  v.  Woodson,  98  Ala.  378,  11  South.  733 ;  Taylor  v. 
Bradley,  39  N.  Y.  129,  100  Am.  Dec.  415.     See,  also,  §  525. 

91  Glass  V.  Garber,  55  Ind.  336;  Seneca  Road  Co.  v.  Auburn,  etc.,  R.  Co., 
5  Hill.  (N.  Y.)  170.     See,  also,  §  525. 

02  Foize  V.  Thompson,  1  Taunt.  121.     See,  also,  §  525. 

03  Watts  V.  Weston,  02  Fed.  136,  10  C.  C.  A.  302;  WilUams  v.  Brown,  76 
Iowa,  643,  41  N.  W.  377. 


822 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  628 


paired;^*  nor  that  the  action  is  brought  in  contract  or  in  tort.°^ 
In  actions  against  telegraph  companies,  the  cost  of  sending  the 
message,  if  it  has  been  paid,  is  always  recoverable,  although  no 
substantial  damages  are  proven,  provided  a  breach  of  the  com- 
pany's duty  is  shown,  but  not  otherwise."®  There  cannot  be  an  in- 
fringement of  the  sender's  legal  rights  unless  the  company  is  guilty 
of  a  breach  of  some  of  its  duties,  and  it  is  error  for  the  court  to  in- 
struct the  jury  that  the  plaintifif  is,  in  any  event,  entitled  to  recover 
the  cost  of  sending  the  message,  since  this  fact  depends  upon  the 
proof  of  the  negligence  of  the  company. '''' 

94  Dow  V.  Humbert,  91  U.  S.  294,  23  L.  Ed.  368. 

9  5  Havens  v.  Hartford,  etc..  R.  Co.,  28  Conn.  69;  Wilde  v.  Orleans,  12  La. 
Ann.  15. 

96  West.  U.  Tel.  Co.  v.  Lawson,  66  Kan.  660,  72  Pac.  283 ;  Keiinon  v.  West. 
U.  Tel.  Co.,  126  N.  C.  232,  35  S.  E.  468;  Thompson  v.  West.  U.  Tel.  Co.,  106 
N.  C.  549,  11  S.  E.  269.     See  §  525. 

9  7  Thompson  v.  West.  U.  Tel.  Co.,  106  N.  C.  549,  11  S.  E.  269. 


§    629)  STATUTORY  PENALTY  823 


CHAPTER  XXV 

STATUTORY  PENALTY, 

§  629.    Penal  statutes— object  and  puiTose. 

630.  Construction  of  statutes— in  general— penal. 

631.  Same  continued— intention  of  statute— must  not  be  defeated  by  con- 

struction. 

632.  A  penalty— not  damages— for  person  injured. 

633.  Who  maintain  suit. 

634.  Extraterritorial  effect— not  any. 

635.  Constitutionality  of  statutes. 

636.  Discrimination,  statutes  relating  to, 

637.  Character  and  form  of  message — "futures." 

638.  Same  continued— form— cipher  telegrams. 

639.  Same  continued — written  on  message  blank— waiver  of  right. 

640.  Breach  of  duty— proof  of. 

641.  Same  continued — amount  of  proof. 

642.  Complaint  and  proof  must  fall  under  statute. 

643.  Complaint — allegations  therein. 

644.  Actual  damages— need  not  prove. 

645.  Same  continued — does  not  bar  action  for  damages. 
G46.     Actions  survive. 

647.  Connecting  line — liable. 

648.  Defenses— office  hours. 

649.  Same  continued— free  delivery  limits. 

650.  Same  continued— not  under  operation  of  statute— contributory  negli- 

gence. 

651.  Same  continued — harmless  errors. 

652.  Same  continued— Sunday  dispatches. 

653.  Stipulations— time  for  presenting  claim— effect  of. 

654.  Accord  and  satisfaction. 

655.  Prepayment  of  charges. 

656.  Repeal  of  statute— effect  of. 

§  629.  Penal  statutes— object  and  purpose. — We  have  already 
made  a  somewhat  lengthy  discussion  in  regard  to  the  rights  to  re- 
cover from  a  telegraph  company  damages  actually  sustained  as  a 
result  of  errors  negligently  made  in  the  transmission  or  delivery  of 
a  message  concerning  business  transactions,  and  the  inability  to 
recover  any  other  damages  in  the  absence  of  proof  of  some  loss. 
We  have  also  discussed  the  right  to  recover  damages  from  these 
companies  for  mental  suffering  and  anguish  in  consequence  of  a 
failure  to  promptly  deliver  messages  containing  announcements  of 
certain  affairs,  and  the  unsoundness  of  the  doctrine  upon  which  ac- 
tions brought  for  this  purpose  were  maintained ;  and  we  have  else- 
where commented  somewhat  upon  the  inadequacy  of  the  common- 


824  TELEGRAPH   AND   TELEPHONE   COMPANIES  (§    629" 

law  remedies  to  recover  damages  for  every  w^rong  or  failure  of  duty 
of  these  companies,  on  account  of  their  peculiar  nature,  and  also 
made  some  suggestions  as  to  how  this  inadequacy  could  be  and  was 
to  a  certain  extent  overcome  by  statutes  amending  the  common- 
law  rule.  So,  we  shall  now  discuss  statutes  of  this  nature  which 
have  been  adopted  in  some  of  the  states  of  the  Union.  On  account 
of  the  inadequacy  of  the  common-law  remedy  to  enforce  the  duty 
of  these  companies,  in  every  particular,  with  respect  to  the  trans- 
mission and  delivery  of  messages — particularly  in  cases  in  which, 
from  their  nature,  substantial  damages  are  not  recoverable — stat- 
utes have  been  adopted  in  many  states  providing  for  the  recovery 
of  a  fixed  money  penalty  from  telegraph  companies,^  and  in  some 
cases  expressly  including  telephone  companies  also,"  for  a  negli- 
gent failure  to  properly  discharge  their  duty.  The  duty  designed 
to  be  enforced  by  these  statutes  is  threefold  in  its  nature :  First,  to 
transmit  messages  tendered  for  that  purpose  with  the  charges  es- 
tablished by  the  rules  of  the  company ;  second,  to  receive  and  trans- 
mit such  messages  with  impartiality  as  to  the  order  of  transmis- 
sion; and,  third,  to  transmit  and  deliver  such  messages  in  good 
faith  and  with  due  diligence.^ 

1  State  V.  West.  U.  Tel.  Co.,  76  Ark.  124,  88  S.  W.  834 ;  Thurn  v,  Alta  Tel. 
Co.,  15  Cal.  472 ;  West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  18  S.  E.  979,  44 
Am.  St.  Rep.  93;  West.  U.  Tel.  Co.  v.  Braxtan,  165  Ind.  165,  74  N.  E.  985; 
West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E.  679;  Weaver  v.  Grand 
Rapids,  etc.,  R.  Co.,  107  Mich.  300,  65  N.  W.  225 ;  Connell  v.  West.  U.  Tel.  Co., 
108  Mo.  459,  18  S.  W.  8S3 ;  Pollard  v.  Mo.,  etc.,  Tel.  Co.,  114  Mo.  App.  533,  90  S. 
W.  121  ;  Gifford  v.  Glenn  Tel.  Co.,  54  Misc.  Rep.  468,  106  N.  Y.  Supp.  53 ;  Hearn 
V.  West.  U.  Tel.  Co.,  36  Misc.  Rep.  557,  73  N.  Y.  Supp.  1077;  Mayo  v.  West.  U. 
Tel.  Co.,  112  N.  C.  343,  16  S.  E.  1006 ;  West.  U.  Tel.  Co.  v.  Hughes,  104  Va. 
240,  51  S.  E.  225 ;  West.  U.  Tel.  Co.  v.  Powell,  94  Va.  268,  26  S.  E.  828 ;  Stafford 
V.  West.  U.  Tel.  Co.  (C.  C.)  73  Fed.  273;  Osborne  v.  West.  U.  Tel.  Co.,  163 
Mich.  545,  128  N.  W.  745 ;  Tel.  Co.  v.  Tel.,  etc.,  Co.  125  Tenn.  270,  141  S.  W. 
845,  43  L.  R.  A.  (N.  S.)  550.  See  Postal  Tel.  Cable  Co.  v.  Shannon,  91  Miss. 
•170,  44  South.  809;  West.  U.  Tel.  Co.  v.  Morgan,  92  Miss.  108,  45  South.  427. 
Statute  of  Mississippi  re-enacted  by  Laws  of  1908,  c.  76,  remedying  the  Act 
of  1906,  c.  101,  and  considered  by  Postal  Tel.  Cable  Co.  v.  Shannon,  supra. 

2  Phillips  V.  Southwestern  Tel.,  etc.,  Co.,  72  Ark.  478,  81  S.  W.  605 ;  Cum- 
berland Tel.,  etc.,  Co.  v.  Sanders,  83  Miss.  357,  35  South.  653 ;  Pollard  v.  Mo. 
etc.,  R.  Co.,  114  Mo.  App.  533,  90  S.  W.  121 ;  Cumberland  Tel.  etc.,  Co.  v.  Kelly, 
160  Fed.  316,  87  C.  C.  A.  268,  15  Ann.  Cas.  1210 ;  Central  U.  Tel.  Co.  v.  Fehr- 
ing,  146  Ind.  189,  45  N,  E.  64. 

3  Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  607.  The  object  of  some  is 
merely  to  prevent  partiality  or  discrimination.  State  v.  West.  U.  Tel.  Co.,  76 
Ark.  124,  88  S.  W.  834 ;  Weaver  v.  Grand  Rapids,  etc.,  R.  Co.,  107  Mich.  300, 
65  N.  W.  225  ;  Hearn  v.  West.  U.  Tel.  Co.,  36  Misc.  Rep.  557,  73  N.  Y.  Supp.  1077  ; 
Wichelman  v.  West.  U.  Tel.  Co.,  30  Misc.  Rep.  450,  62  N.  Y.  Supp.  491 ;  Tel., 
etc.,  Co.  V.  Murphy,  100  Ark.  546,  140  S.  W.  720 ;  Tel.  Co.  v.  Tel.,  etc.,  Co.,  125 
Tenn.  270,  141  S.  W.  845,  43  L.  R.  A.  (N.  S.)  550.  Others  apply  only  to  will- 
ful or  intentional  acts.     State  v.  West.  U.  Tel.  Co.,  76  Ark.  124,  88  S.  W.  834 ; 


§    630)  STATUTORY  PENALTY  825 

§  630.  Construction  of  statutes — in  general — penal. — The  object 
of  these  statutes  is  to  fix  a  penalty  upon  telegraph  and  telephone 
companies  for  a  breach  of  duty  which  they  owe  to  the  public  gen- 
erally, and  not  to  assess  a  certain  fixed  amount  of  damages  for  the 
nonperformance  of  a  contract  to  properly  transmit  a  dispatch.* 
They,  then,  being  in  the  nature  of  penal  statutes,  or  enacted  for 
the  purpose  of  fixing  a  penalty  on  these  companies  for  a  breach  of 
public  duty,  must  be  strictly  construed.^  The  word  "penalty" 
means  a  fine  or  punishment  imposed  upon  any  one  for  a  violation 
of  some  duty  which  the  wrongdoer  is  under  obligations  to  perform, 
and  all  statutes  which  encroach  upon  the  personal  or  property  rights 
of  any  person  operate  in  the  nature  of  a  punishment  and  must 
therefore  be  strictly  construed.  So  each  statute  must  be  considered 
separately  in  its  own  light,  and  only  that  which  is  expressly  stated 
therein  can  be  enforced.*'  It  is  not  our  purpose,  however,  to  be 
understood  as  saying  that  the  cause  of  action  is  made  out  altogether 
by  one  statute,  but  that  only  such  construction  can  be  placed  on 
each,  separately,  as  is  expressly  stated  in  it.  It  is  often  the  case 
that  one  statute  makes  out  the  cause  of  action,  while  another  im- 
poses the  penalty  for  the  violation  of  the  first.  To  be  more  explicit 
in  that  which  has  been  said,  a  statute  which  provides  that,  on  fail- 

Frauenthal  v.  West.  U.  Tel.  Co.,  50  Ark.  78,  6  S.  W.  236.  See  State  v.  West. 
U.  Tel.  Co.,  101  Ark.  600,  142  S.  W.  1149 ;  West  U.  Tel.  Co.  v.  Braxtan,  105 
Ind.  165,  74  N.  E.  9S5 ;  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E. 
679 ;  Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599. 

i  Frauenthal  v.  West.  U.  Tel.  Co.,  50  Ark.  78,  6  S.  W.  236;  West.  U.  Tel.  Co. 
V.  Pendleton,  95  Ind.  12,  48  Am.  Rep.  692. 

5  State  V.  West.  U.  Tel.  Co.,  76  Ark.  124,  88  S.  W.  834 ;  Brooks  v.  West.  U. 
Tel.  Co.,  56  Ark.  224,  19  S.  W.  572 ;  Frauentlial  v.  West.  U.  Tel.  Co.,  50  Ark. 
78,  6  S.  W.  2.36 ;  West.  U.  Tel.  Co.  v.  Mossier,  95  Ind.  29 ;  West.  U.  Tel.  Co.  v. 
Eountree,  92  Ga.  611,  18  S.  E.  979,  44  Am.  St.  Rep.  93 ;  West.  TJ.  Tel.  Co.  v. 
Axtell,  69  Ind.  199;  Cumberland  Tel.,  etc.,  Co.  v.  Sanders.  83  Miss.  357,  35 
South.  653 ;  Weaver  v.  Grand  Rapids,  etc.,  Co.,  107  Mich.  300,  65  N.  W.  225 ; 
Marshall  v.  West.  U.  Tel.  Co.,  79  Miss.  154,  21  South.  614,  89  Am.  St.  Rep. 
585 ;  Hearn  v.  West.  U.  Tel.  Co.,  36  Misc.  Rep.  557,  73  N.  Y.  Supp.  1077 ;  Wich- 
elman  v.  West.  U.  Tel.  Co.,  30  Misc.  Rep.  450,  65  N.  T.  Supp.  491 ;  Conuell  v. 
West.  U.  Tel.  Co.,  108  Mo.  459,  IS  S.  W.  883 ;  Dudley  v.  West.  U.  Tel.  Co.,  54 
Mo.  App.  391 ;  Butner  v.  West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087 ;  Bradshaw 
V.  W' est.  U.  Tel.  Co.,  150  Mo.  App.  711,  131  S.  W.  912 ;  Wagner  v.  Tel.  Co.,  152 
Mo.  App.  3G9,  133  S.  W.  91 ;  Grant  v.  Tel.  Co.,  154  Mo.  App.  279,  133  S.  W. 
673 ;  Wilkinson  v.  Tel.  Co.,  163  Mo.  App.  71,  145  S.  W.  520 ;  Moore  v.  Tel.  Co.. 
164  Mo.  App.  165,  148  S.  W.  157 ;  Elliott  v.  Tel.  Co.,  175  Mo.  App.  213,  157  S. 
W.  670 ;  Adcox  v.  Tel.  Co.,  171  Mo.  App.  331,  157  S.  W.  989 ;  INIeyers  v.  Tel. 
Co.,  82  Misc.  Rep.  266,  143  N.  Y.  Supp.  574;  Tel.,  etc.,  Co.  v.  Hartley,  127 
Tenn.  184,  154  S.  W.  531 ;  Brown  v.  West.,  etc..  Coal  Co.,  143  Iowa.  662,  120 
N.  W.  732,  28  L.  R.  A.  (N.  S.)  1260 ;  Herbert  v.  Lake  Charles,  etc.,  W.  Co.,  Ill 
La.  522,  35  South.  731,  100  Am.  St.  Rep.  505,  64  L.  R.  A.  101.     See  chapter  IX. 

6  Connell  v.  West.  U.  Tel.  Co.,  110  Mo.  34,  22  S.  W.  345,  20  L.  R.  A.  172,  38 
Am.  St.  Rep.  575  ;  see  chapter  IX. 


826  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  631 

ure  to  deliver  a  message  "within  a  reasonable  time,"  ^  or  "with  due 
diligence,"  ^  the  company  shall  be  liable  for  a  certain  fixed  penalty, 
a  recovery  of  the  penalty  could  not  be  had  by  showing  that  the 
company  negligently  or  incorrectly  transmitted  the  message;  or 
where  it  provides  that  the  penalty  shall  be  imposed  where  there  is 
a  negligent  transmission,  and  the  action  is  to  recover  the  penalty  on 
an  oral  or  telephone  message,^  or  the  failure  to  promptly  deliver  ^<^ 
a  written  one,  the  penalty  cannot  be  recovered ;  neither  can  there 
be  a  recovery  by  the  addressee  where  the  statute  provides  that  the 
sender  shall  maintain  such  suits ;  but  the  rule  is  otherwise  if  it 
provides  that  the  party  aggrieved  may  recover.^^ 

§  631.  Same  continued — intention  of  statute — must  not  be  de- 
feated by  construction. — It  is  generally  held  that  these  statutes 
must  be  strictly  construed,  yet  that  construction  must  not  be  placed 
on  them  which  will  defeat  the  manifest  purpose  of  the  legislature 
in  enacting  them.^^  There  are  different  degrees  of  strictness  to  be 
placed  on  penal  statutes  ;^^    and  it  seems  that,  on  account  of  the 

-  Wilkins  v.  West,  U.  Tel.  Co.,  68  Miss.  6,  8  South.  678.    See  chapter  IX. 

8  West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  IS  S.  E.  979,  44  Am.  St.  Rep.  93. 
See,  also,  Wolf  v.  West.  U.  Tel.  Co.,  94  Ga.  434,  19  S.  E.  717.     See  chapter  IX. 

9  Pollard  V.  Mo.,  etc.,  Tel.  Co.,  114  Mo.  App.  533,  90  S.  W.  121 ;  Cumberland 
Tel.,  etc.,  Co.  v.  Sanders,  S3  Miss.  357,  35  South.  653.     See  chapter  IX. 

lowest.  U.  Tel.  Co.  v.  Pearce,  82  Miss.  487,  34  South.  152;  West.  U.  Tel. 
Co.  V.  Pallotta,  SI  Miss.  216,  32  South.  310 ;  West.  U.  Tel.  Co.  v.  Hall,  79  Miss. 
623,  31  South.  202 ;  Marshall  v.  West.  U.  Tel.  Co.,  79  Miss.  154,  27  South.  614, 
S9  Am.  St.  Rep.  5S5 ;  entire  failure  to  transmit,  Hilley  v.  West.  U.  Tel.  Co.,  S5 
^Nliss.  67,  37  South.  556 ;  delay  in  delivering  after  the  transmission,  West.  U. 
Tel.  Co.  V.  Pearce,  supra ;  Hilley  v.  West.  U.  Tel.  Co.,  supra ;  West.  U.  Tel.  Co. 
V.  Pallotta,  supra ;  West.  U.  Tel.  Co.  v.  Hall,  supra ;  Marshall  v.  West.  U.  Tel. 
Co.,  supra.  Statutes  relating  to  transmission  do  not  apply  to  defaults  in  de- 
livery. Connell  v.  West.  U,  Tel.  Co.,  108  Mo.  459,  IS  S.  W.  SS3 ;  Brooks  v. 
West.  U.  Tel.  Co.,  56  Ark.  224,  19  S.  W.  572 ;  Rixke  v.  West.  U.  Tel.  Co.,  96 
Mo.  App.  406,  70  S.  W.  265 ;  Dudley  v.  West.  U.  Tel.  Co.,  54  Mo.  App.  391,  dis- 
approving Brashears  v.  West.  U.  Tel.  Co.,  45  Mo.  App.  433 ;  Butner  v.  West.  U. 
Tel.  Co.,  2  Okl.  2.34,  37  Pac.  1087 ;  Plearn  v.  West.  U.  Tel.  Co.,  36  Misc.  Rep. 
557,  73  N.  Y.  Supp.  1077.  But  see,  contrary.  West.  U.  Tel.  Co.  v.  Braxtan,  165 
Ind.  165.  74  X.  E.  985 ;  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  X.  E. 
679 ;  West.  U.  Tel.  Co.  v.  Gougar,  84  Ind.  176 ;  Parker  v.  West.  U.  Tel.  Co.,  87 
Mo.  App.  553.    See  West.  U.  Tel.  Co.  v.  Powell,  94  Va.  268,  26  S.  E.  828. 

1 1  See  §  633. 

12  ArA-rtJuas.— Frauenthal  v.  West.  U.  Tel.  Co.,  50  Ark.  78,  6  S.  W.  236. 
Califarnia.—ThviTn  v.  Alta  Tel.  Co.,  15  Cal.  473. 

Georgia.— I^augley  v.  West.  U.  Tel.  Co.,  88  Ga.  777,  15  S.  E.  291 ;  Greenberg 
V.  West.  U.  Tel.  Co.,  89  Ga.  754,  15  S.  E.  651 ;  Moore  v.  West.  U.  Tel.  Co.,  87 
Ga.  613,  13  S.  E.  639.  Compare  Horn  v.  West.  U.  Tel.  Co.,  88  Ga.  538,  15 
S.   E.  16. 

Indiana.— West.  U.  Tel.  Co.  v.  Axtell,  69  Ind.  199 ;  Hadley  v.  West.  U.  Tel. 

13  Lnited  States  v.  Hartwell,  6  Wall.  395,  IS  L.  Ed.  830 ;  State  v.  McCrystol, 
43  La.  Ann.  907,  9  South.  022 ;  State  v.  Archer,  73  Md.  44,  20  Atl.  172. 


§    631)  STATUTORY   PENALTY  827 

objects  for  which  these  were  enacted,  the  most  strict  degree  should 
not  be  insisted  upon  by  the  courts.^*  It  is  the  object  in  the  con- 
struction of  penal,  as  all  other  statutes,  to  ascertain  the  true  legis- 
lative intent;  ^^  and,  while  the  courts  will  not  apply  such  statute 
to  cases  which  are  not  within  the  obvious  meaning  of  the  language 
employed  by  the  legislature,  even  though  the  cases  may  be  within 
the  mischief  intended  to  be  remedied, ^^  they  will  not,  on  the  other 
hand,  apply  the  rule  of  strict  construction  with  such  technicalities 
as  to  defeat  the  purpose  for  which  the  statute  was  enacted.^^  As 
said  at  first,  the  object  of  these  statutes  is  to  provide  a  remedy  for 
the  enforcement  of  duties  and  obligations  which  these  companies 
owe  to  the  public  generally,  and  which  are  not  recognized  by  the 
common-law  remedies ;  on  account  of  this,  and  for  the  further  fact 
that  it  has  become  absolutely  necessary  that  some  remedy  should 
be  provided  for  in  order  that  these  companies  may  not  become 
derelict  in  their  duties  toward  the  public,  these  statutes  should  not 
be  construed  in  the  strictest  degree,  and  the  purpose  and  inten- 
tion of  the  legislature  is  that  they  shall  not  be.^^  Thus,  where  a 
statute  provides  that,  on  failure  of  a  telegraph  company  to  correctly 
transmit  and  promptly  deliver  all  messages  tendered  to  it  for  trans- 
mission, the  latter  will  be  liable  to  a  penalty  to  the  party  aggrieved, 
a  construction  of  this  statute  in  its  strictest  terms  would  mean 
that  the  message  should  have  been  delivered  to  the  company  in 
writing,  and  the  same  has  been  so  held ;  ^^   but  the  circumstances  of 


Co.,  115  Ind.  191,  15  N.  E.  845;  West.  U.  Tel.  Co.  v.  Roberts,  S7  lud.  377; 
West.  U.  Tel.  Co.  v.  Kilpatrick,  97  Ind.  42. 

loiva.— Taylor  v.  West.  U.  Tel.  Co.,  95  Iowa,  740,  64  N.  W.  6G0. 

Mississipin.—Wilkms  v.  West.  U.  Tel.  Co.,  68  Miss.  6,  8  South.  078 ;  Cum- 
berland, etc.,  Tel.  Co.  v.  Sanders,  8.3  Miss.  357,  35  South.  653. 

i^outh  Dakota.— Kirhy  v.  West.  U.  Tel.  Co.,  4  S.  D.  463,  57  N.  W.  202. 

Missouri.— Thompson  v.  West.  U.  Tel.  Co.,  32  Mo.  App.  191. 

Virginia.— West.  U.  Tel.  Co.  v.  Powell,  94  Va.  268,  26  S.  E.  S29. 

14  Statute  construed  as  a  whole,  West.  U.  Tel.  Co.  v.  Braxtan,  165  Ind.  165. 
74  N.  E.  985 ;  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E.  679 ;  U.  S. 
Tel.  Co.  V.  West.  U.  Tel.  Co.,  56  Barb.  (N.  Y.)  46. 

15  Parlver  v.  West.  U.  Tel.  Co.,  87  Mo.  App.  5.53. 

16  Crosby  v.  Hawthorn,  25  Ala.  221;  Parkinson  v.  State,  14  Md.  184,  74  Am. 
Dec.  522;  State  v.  Walsh,  43  Minn.  444,  45  N.  W.  721;  Daggett  v.  State,  4 
Conn.  61,  10  Am.  Dec.  100;  United  States  v.  Wiltberger,  5  Wheat.  76,  5  L. 
Ed.  37. 

17  See  note  6. 

18  West.  U.  Tel.  Co.  v.  Wilson,  108  Ind.  308,  9  N.  E.  172 ;  West.  U.  Tel.  Co. 
V.  Meredith,  95  Ind.  93,  8  Am.  &  Eng.  Corp.  Cas.  54;  West.  U.  Tel.  Co.  v. 
Pendleton,  95  Ind.  12,  48  Am.  Rep.  692. 

19  Cumberland,  etc.,  Tel.  Co.  v.  Sanders,  83  Miss.  357,  35  South.  653;  Wilkius 
v.  West.  U.  Tel.  Co.,  68  Miss.  6,  8  South.  678;  Pollard  v.  Mo.,  etc.,  Tel.  Co., 
114  Mo.  App.  533,  90  S.  W.  121. 


828  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  632 

the  case  may  be  such  as  to  give  a  less  degree  of  strict  construction, 
so  as  to  warrant  a  recovery  of  the  penalty,  although  the  message 
was  telephoned  to  the  operator.-" 

§  632.  A  penalty — not  damages — for  person  injured. — The  pen- 
alty provided  by  these  statutes  is  different  from  those  imposed  for 
the  commission  of  a  crime.  In  these  latter  statutes,  the  wrong  or 
crime  is  one  committed  more  directly  against  the  state,  and  for  this 
reason  the  penalty  should  go  to  the  state.  In  those  statutes  enacted 
for  the  express  purpose  of  enforcing  the  duties  which  telegraph  and 
telephone  companies  owe  to  the  public,  the  wrong  inflicted  is  more 
of  a  personal  injury,  or  one  in  which  the  injured  party  is  more 
directly  concerned,  and,  for  this  reason,  the  penalty  is  one  to  be 
recovered  by  him.^^  It  must  be  understood  that  the  penalty  is  not 
in  the  nature  of  liquidated  damages,^^  or  a  compensation  to  be  re- 
covered for  the  loss  sustained  by  the  injured  person,  but  it  is  purely 
a  penalty.  It  is  imposed  particularly  as  a  punishment  on  the  com- 
pany for  a  breach  of  its  duty,^^  and  to  be  an  object  lesson  to  others, 
and,  at  the  same  time,  the  injured  person  is  pecuniarily  benefited 
for  the  wrong. 

§  633.  Who  maintain  suit. — As  will  be  seen  in  another  part  of 
this  work,  the  sender  under  the  English  rule  could  only  maintain 
an  action  against  a  telegraph  company  for  a  breach  of  a  contract 
of  sending,  since  the  privity  of  contract  only  existed  between  the 
sender  and  the  company.-*  This  rule  has  not  been  followed  in  our 
states,  but  the  sendee,  under  the  American  rule,  can  sue  as  well  as  the 
sender.^^  With  respect  to  who  shall  maintain  the  action,  under 
these  statutes,  the  statutes  themselves  must  be  referred  to  in  order 
to  ascertain  this  fact.'*'  While  the  statutes  are  similar  in  nature, 
yet  the  wording  of  each  is  not  always  the  same,  and  the  least  differ- 
ence in  the  wording  might  cause  quite  a  different  construction  to  be 
placed  on  each.  Thus  some  of  these  statutes  provide  that,  on  a 
failure  of  a  prompt  delivery,  the  sender  of  the  message  may  recover 
a  certain  penalty.    It  has  been  held,  under  these,  that  no  one  except 

20  West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  658,  13  South.  471,  30  Am.  St.  Rep. 
579. 

21  West.  U.  Tel.  Co.  v.  Pendleton,  95  Intl.  12,  48  Am.  Rep.  692,  reversed  on 
other  gromids  in  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed.  1187. 

22  Id.  See  Brown  v.  West.,  etc..  Coal  Co.,  143  Iowa,  662,  120  N.  W.  732,  28 
L.  R.  A.  (N.  S.)  1260;  Herbert  v.  Lake  Charles,  etc.,  W.  Co.,  Ill  La.  522,  25 
South.  731,  100  Am.  St.  Rep.  505,  64  L.  R.  A,  101 ;  Boyd  v.  Elec,  Co.,  40  Or. 
12G,  66  Pac.  576,  57  L.  R.  A.  619.    See,  also,  chapter  IX. 

23  Id. 

24  See  §  471  et  seq. 
2  5  See  §  473  et  seq. 

26  Thompson  v.  West.  U.  Tel.  Co.,  40  Misc.  Rep.  443,  82  N.  Y.  Supp.  675. 


R    534)  STATUTORY  PENALTY  829 

the  sender  could  maintain  the  action.^'^  In  other  statutes  it  is  pro- 
vided that  any  person  or  ''any  party  aggrieved"  by  such  failure  of 
duty  may  recover  the  penalty."  Under  these  provisions,  either  the 
sender  or  the  addressee  may  recover  the  penalty  when  the  default 
is  shown.2°  It  is  on  account  of  the  strict  construction  placed  on 
these  statutes  that  these  dififerent  rules  are  adhered  to.  If  the  stat- 
ute fails  altogether  to  provide  by  whom  the  action  may  be  brought, 
it  has  been  held  that  the  rules  applicable  in  an  ordinary  action  for 
damages  apply.^° 

§  634.  Extraterritorial  eflFect— not  any.— It  is  the  general  rule 
that,  when  a  liability  imposed  by  the  statute  of  a  state  is  in  its 
nature  a  penalty,  such  liability  cannot  be  enforced  beyond  the  state 
in  which  the  statute  was  enacted ;  or,  in  other  words,  such  statutes 
have  no  extraterritorial  ef^ect.^i  ^s  said,  these  statutes  are  penal, 
and,  independently  of  the  constitutional  question  in  this  connection, 
cannot  be  enforced  beyond  the  limits  of  the  state  enacting  them.^^ 
It  is  not  meant  by  this,  however,  that  these  statutes  can  only  be 

27  Thurn  v.  Alta  Tel.  Co.,  15  Cal.  472 ;  West.  U.  Tel.  Co.  v.  Brown,  108  Ind. 
538,  8  N.  E.  171 ;  "West.  U.  Tel.  Co.  v.  Kinney,  106  Ind.  4G8,  7  N.  B.  191 ;  West. 
U.  Tel.  Co.  V.  Reed,  96  Ind.  195 ;  Thompson  v.  West.  U.  Tel.  Co.,  40  Misc.  Rep. 
443,  82  N.  Y.  Supp.  675. 

2  8  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E.  679;  Hadley  v.  West. 
U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845. 

2»  West.  U.  Tel.  Co.  v.  Tyler,  90  Va.  297,  18  S.  E.  280,  44  Am.  St.  Rep.  910. 
The  state  need  not  be  made  a  party  to  the  suit.  West.  U.  Tel.  Co.  v.  Tyler, 
supra. 

3  0  Hadley  v.  West.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845. 

31  West.  U.  Tel.  Co.  v.  Carter,  156  Ind.  531,  60  N.  E.  .305 ;  West.  U.  Tel. 
Co.  V.  Reed,  96  Ind.  195 ;  Carnahan  v.  West.  U.  Tel.  Co.,  89  Ind.  526,  46  Am. 
Rep.  175 ;  Taylor  v.  West.  U.  Tel.  Co.,  95  Iowa,  740,  64  N.  W.  660 ;  Couuell 
V.  West.  U.  Tel.  Co.,  lOS  Mo.  459,  18  S.  W.  883 ;  Tel.  Co.  v.  Gilkison,  46  Ind. 
App.  29,  90  N.  E.  650 ;  Wagner  v.  Tel.  Co.,  152  Mo.  App.  369,  133  S.  W.  91 ; 
Tel.  Co.  V.  Davis,  114  Va.  154,  75  S.  E.  766. 

3  2  Ar/cati^as.— Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79. 

Georgia.— West.  U.  Tel.  Co.  v.  Michelson,  94  Ga.  436,  21  S.  E.  169. 

/nrfia/ia.— West.  U.  Tel.  Co.  v.  Carter,  156  Ind.  531,  60  N.  E.  305;  Rogers 
V.  West.  U.  Tel.  Co.,  122  Ind.  395,  24  N.  E.  157,  17  Am.  St.  Rep.  373 ;  West. 
U.  Tel.  Co.  V.  Reed,  96  Ind.  195 ;  Carnahan  v.  West.  U.  Tel.  Co.,  89  Ind.  526, 
47  Am.  Rep.  175.    But  see  West.  U.  Tel.  Co.  v.  Hamilton,  50  Ind.  181. 

/owa.— Taylor  v.  West.  U.  Tel.  Co.,  95  Iowa,  740,  64  N.  W.  660. 

Mississippi.— A\ex3inaeT  v.  West.  U.  Tel.  Co.,  66  Miss.  161,  5  South.  397,  14 
Am.  St.  Rep.  556,  3  L.  R.  A.  71. 

Missouri.— mxke  v.  West.  U.  Tel.  Co.,  96  Mo.  App.  406,  70  S.  W.  265;  Cou- 
nell  V.  West.  U.  Tel.  Co.,  108  Mo.  459,  18  S.  W.  883. 

New  Yorfc.— Hearn  v.  West.  U.  Tel.  Co.,  36  Misc.  Rep.  557,  73  N.  Y.  Supp. 

1077. 

Oklahoma.— Butner  v.  West.  U.  Tel.  Co.,  2  Okl.  234,  37  Pac.  1087. 
Tennessee— West.  V.  Tel.  Co.  v.  Mellon,  100  Tenn.  420,  45  S.  W.  443. 
Virginia.— Tel.  Co.  v.  Davis,  114  Va.  154,  75  S.  E.  766. 
United  States.— West.  U.  Tel.  Co.  v.  James,  162  U.  S.  650,  16  Sup.  Ct.  934. 


830  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  634 

enforced  where  the  company  has  failed  to  discharge  its  duty  with 
respect  to  the  delivery  of  such  messages  as  are  transmitted  wholly 
within  the  state ;  but  if  the  message  is  sent  from  one  state  into 
another,  and  the  wrong  has  been  committed  in  the  state  of  sending, 
the  penalty  may  be  recovered.^^  It  is  held  by  some  that  the  duty 
imposed  by  these  statutes  is  a  continuous  one,  and  is  not  one  per- 
formed by  the  company  by  merely  discharging  its  duty  with  respect 
to  messages  transmitted  within  the  state  of  this  enactment.^* 
Judge  Elliott  said,  while  discussing  this  point:  "The  duty  which 
the  statute  seeks  to  enforce  is  owing  here  in  Indiana  and  not  else- 
where ;  it  was  here  that  the  contract  was  made  which  imposed  the 
duty  on  the  telegraph  company,  and  it  was  here  that  the  failure 
occurred,  for  the  message  was  not  transmitted,  as  the  law  com- 
mands, in  good  faith  and  with  diligence  and  impartially.  The  duty 
which  the  company  failed  to  perform  was  not  a  duty  owing  in  Iowa, 
but  was  a  duty  owing  in  Indiana,  where  the  parties  executed  the 
contract  out  of  which  the  duty  arose.  The  duty  of  the  company 
did  not  end  at  the  state  line ;  it  extended  throughout  the  whole 
scope  of  the  undertaking  and  required  the  message  to  be  trans- 
mitted and  delivered  in  good  faith  and  with  reasonable  diligence  to 
the  person  to  whom  it  was  sent.  The  breach  of  duty,  no  matter 
where  the  specific  act  constituting  it  occurred,  was  a  breach  here 
and  not  elsewhere.  The  duty  is  a  general  and  a  continuous  one, 
and  if  not  performed,  irrespective  of  the  place  where  the  failure 
occurred,  is  a  breach  of  the  duty  at  the  place  of  the  creation."  ^^ 
But  this  decision  was  overruled. ^^  It  is  held  in  Georgia  that,  if  the 
nondelivery  to  the  sender  was  due  to  some  default  or  other  cause 
arising  beyond  the  limits  of  the  state  in  which  it  was  received  for 
transmission,  recovery  could  not  be  had.^^     In  Indiana  the  penalty 

40  L.  Ed.  1105 ;  West.  U.  Tel.  Co.  v.  Pendleton.  122  U.  S.  347,  7  Sup.  Ct.  112G, 
30  L.  Ed.  1187,  reversing  95  Ind.  12,  48  Am.  Rep.  692. 

In  Indiana  the  contract  of  sending  must  have  been  made  in  that  state. 
€arnahan  v.  West.  U.  Tel.  Co.,  supra;  Rogers  v.  West.  U.  Tel.  Co.,  supra; 
West.  U.  Tel.  Co.  v.  Reed,  supra.  And  the  breach  must  have  occurred  in  an- 
other state.    West.  U.  Tel.  Co.  v.  Carter,  supra. 

3  3  West.  U.  Tel.  Co.  v.  James,  162  U.  S.  650,  16  Sup.  Ct.  934,  40  L.  Ed.  1105; 
West.  U.  Tel.  Co.  v.  Crovo,  220  U.  S.  364,  31  Sup.  Ct.  399,  55  L.  Ed.  498.  See, 
also,  §  615. 

34  See  §§  375,  615. 

3  5  West.  U.  Tel.  Co.  v.  Pendleton,  95  Ind.  12,  48  Am.  Rep.  693. 

3  6  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed.  1187;  West.  U.  Tel.  Co.  v. 
Carter,  156  Ind.  531,  60  N.  E.  305. 

3  7  West.  U.  Tel.  Co.  v.  Howell,  95  Ga.  194,  22  S.  E.  286,  51  Am.  St.  Rep.  68, 
30  L.  R.  A.  158.  See  West.  U.  Tel.  Co.  v.  James.  162  U.  S.  650,  16  Sup.  Ct. 
934,  40  L.  Ed.  1105 ;  West.  U.  Tel.  Co.  v.  Crovo.  220  U.  S.  364,  31  Sup.  Ct.  399, 
55  L,  Ed.  498.    See  note  32,  supra,  for  other  cases. 


635)  STATUTORY   PENALTY 


831 


cannot  be  recovered  if  the  contract  of  sending  was  made  in  another 
state,  although  the  default  may  have  occurred  in  that  state. ^^ 

§  635.  Constitutionality  of  statutes.— The  principal  grounds 
upon  which  the  constitutionality  of  these  statutes  have  been  at- 
tacked is  that  to  enforce  such  would  be  an  interference  with  the 
exclusive  power  of  Congress  over  interstate  commerce.''"  One  rea- 
son why  it  was  claimed  that  they  were  in  violation  of  the  clause  of 
the  federal  constitution  wherein  the  control  of  interstate  commerce 
was  vested  in  Congress  was  that  they  applied  only  to  telegraph 
companies  and  thereby  denied  these  companies  the  equal  protec- 
tion of  the  law ;  but  it  has  been  held  that,  while  they  apply  to  these 
companies,  yet  they  apply  equally  to  all  companies  of  that  class.*'* 
Another  reason  for  claiming  that  they  were  in  violation  of  the 
federal  constitution  with  respect  to  interstate  commerce  was  that 
they  impaired  the  obligation  of  the  contract  of  sending,  in  that  they 
made  a  different  liability  from  that  assumed  in  the  contract;  but 
this  reason,  in  so  far  as  it  applied  to  persons  other  than  the  sender, 
has  been  held  unfounded."  So  it  is  generally  held,  both  by  the 
state  and  the  federal  courts,  that  these  statutes  are  not  in  conflict 
with  the  constitution  of  the  United  States,  in  so  far  as  they  inter- 

3  8  Rogers  V.  West.  U.  Tel.  Co.,  122  Ind.  395,  24  N.  E.  157,  17  Am.  St.  Rep. 
373.     See  Taylor  v.  West.  U.  Tel.  Co.,  95  Iowa,  740,  64  N.  W.  660. 

3  9  West.  U.  Tel.  Co.  v.  reudletoii,  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed. 
11S7,  reversing  95  Ind.  12,  48  Am.  Rep.  692 ;  Tel.  Co.  v.  Gllkison,  46  Ind.  App. 
29,  90  N.  E.  650. 

40  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N  E.  679;  West.  U.  Tel. 
Co.  V,  Mellon,  100  Tenn.  429,  45  S.  W.  443.  Elliott,  J.,  while  discussing  the 
Indiana  statute,  said :  "No  discrimination  is  made  in  favor  of  any  person,  or 
in  favor  of  any  article  of  commerce,  the  freedom  of  commercial  intercourse  is 
not  abridged,  and  no  new  duty  or  burden  is  imposed  upon  the  company.  The 
statute  secures  to  all  alike  the  privilege  of  demanding  that  the  duties  of  a 
corporation  be  performed  with  diligence,  impartiality  and  good  faith.  It  en- 
forces an  existing  duty,  and  provides  a  penalty,  but  it  confines  the  duty  to 
no  class  and  denies  the  penalty  to  none.  It  is  impossil)le  to  conceive  the 
slightest  restriction  upon  commercial  intercourse,  or  the  faintest  discrimina- 
tion in  favor  of  any  person  or  thing.  Granting  then  the  lack  of  power  in  the 
state  to  abridge  the  freedom  of  commercial  intercourse,  or  discriminate  in 
favor  of  the  products  of  one  state,  or  grant  commercial  rights  to  the  citizens 
of  some  particular  state  and  deny  them  to  otliers,  but  we  do  maintain  that 
the  sovereign  state  has  power  to  enact  laws  requiring  persons,  artititial  or 
natural,  doing  business  within  its  borders,  to  transact  that  business  with  fair- 
ness, diligence,  and  impartiality.  A  statute  operating  upon  persons  witliin 
the  state  declaring  an  existing  duty,  adding  neither  new  nor  additional  ones, 
usurps  no  function  of  the  federal  Congress,  and  infringes  no  constitutional 
provision."  West.  U.  Tel.  Co.  v.  Pendleton,  95  Ind.  12,  48  Am.  Rop.  694. 
See.  also,  Sherlock  v.  Ailing,  93  U.  S.  99,  23  L.  Ed.  819 ;  County  of  .Mobile  v. 
Kimball,  102  U.  S.  691,  26  L.  Ed.  238 ;  West.  U.  Tel.  Co.  v.  Com'l  :Milling  Co., 
218  U.  S.  406,  31  Sup.  Ct.  59,  54  L.  Ed.  10S8.  36  L.  R.  A.  (N.  S.)  220,  21  Ann. 
Cas.  815. 

41  West.  U.  Tel.  Co.  v.  James,  162  U.  S.  650,  16  Sup.  Ct.  934,  40  L.  Ed.  1105. 


832  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  636 

fere  with  Congress  in  the  control  of  interstate  commerce.'*^  How- 
ever, a  statute  which  imposes  an  excessive  penalty  upon  a  tele- 
phone company  for  refusing  to  furnish  its  facilities  to  patrons — 
who  are  in  arrears  for  services — cannot  be  enforced  since  it  is  vio- 
lative of  the  constitution,  in  that  it  would  be  depriving  the  company 
of  its  property  without  due  process  of  law.*^ 

§  636.  Discrimination,  statutes  relating  to.- — Where  telegraph 
companies  are  merely  directed  by  penal  statutes  to  receive  and 
transmit  messages  impartially  and  in  good  faith,  and  without  dis- 
crimination, it  is  intended  that  no  partiality  or  discrim.ination  shall 
be  shown  between  different  patrons  **  and  done  intentionally  and 
willfully.*^  Such  statutes  do  not  embrace  mere  negligent  acts  or 
omissions  of  a  telegraph  company,*^  such  as  a  failure  to  transmit, *'' 
or  a  delay  in  the  transmission  or  delivery  of  a  message,*^  or  an 

42  West.  U.  Tel.  Co.  v.  James,  162  U.  S.  650,  16  Sup.  Ct.  934,  40  L.  Ed.  1105. 
See  West.  U.  Tel.  Co.  v.  Lark,  95  Ga.  806,  23  S.  E.  118 ;  West.  U.  Tel.  Co.  v. 
Ferris,  103  Ind.  91,  2  N.  E.  240 ;  West.  U.  Tel.  Co.  v.  Mellon,  100  Tenn.  429, 
45  S.  W.  443;  West.  U.  Tel.  Co.  v.  Powell,  94  Va.  268,  26  S.  E.  828;  West. 
U.  Tel.  Co.  V.  Commerolal  Milling  Co.,  218  U.  S.  406,  31  Sup.  Ct.  59,  54  L.  Ed. 
1088,  36  L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas.  815;  West.  U.  Tel.  Co.  v.  Michel- 
son,  94  Ga.  436,  21  S.  E.  169;  West.  U.  Tel.  Co.  v.  Howell,  95  Ga.  194,  22 
S.  E.  286,  51  Am.  St.  Rep.  68,  30  L.  R.  A.  158 ;  Postal  Tel.  Cable  Co.  v.  State, 
110  Md.  608,  73  Atl.  679 ;  Louisville  v.  Wehmhoff,  116  Ky.  812,  76  S.  W.  876, 
79  S.  W.  201. 

4  3  Southwestern  Tel.  Co.  v.  Danaher,  238  U.  S.  482,  35  Sup.  Ct.  886,  59  L. 
Ed.  1419,  L.  R.  A.  1916A,  1208,  reversing  94  Avk.  533,  127  S.  W.  963,  30  L. 
R.  A.  (N.  S.)  1027;  Id.,  102  Ark.  547,  144  S.  W.  925.  See  Home  Tel.  Co.  v. 
People's  Tel.,  etc.,  Co.,  125  Tenn.  270,  141  S.  W.  845,  43  L.  R.  A.  (N.  S.)  550. 

44  Weaver  v.  Grand  Rapids,  etc.,  R.  Co.,  107  Mich.  300,  65  N.  W.  225; 
State  V.  West.  U.  Tel.  Co.,  76  Ark.  124,  SS  S.  W.  834 ;  Hearn  v.  West.  U.  Tel. 
Co.,  36  Misc.  Rep.  557,  73  N.  Y.  Supp.  1077 ;  Wichelman  v.  West.  U.  Tel.  Co., 
30  Misc.  Rep.  450,  62  N.  Y.  Supp.  491;  Tel.,  etc.,  Co.  v.  Garrigan,  107  Ark. 
611,  156  S.  W.  447 ;  Gifford  v.  Glen  Tel.  Co.,  54  Misc.  Rep.  468,  106  N.  Y.  Supp. 
53 ;    Petze  v.  West.  U.  Tel.  Co.,  128  App.  Div.  192,  112  N.  Y.  Supp.  516. 

45  State  V.  West.  U.  Tel.  Co.,  76  Ark.  124,  88  S.  W.  834 ;  Weaver  v.  Grand 
Rapids,  etc.,  R.  Co.,  107  Mich.  300,  65  N.  W.  225 ;  Wichelman  v.  West.  U.  Tel. 
Co.,  30  Misc.  Rep.  450,  62  N.  Y.  Supp.  491 ;  Vermilye  v.  Cable  Co.,  205  Mass. 
598,  91  N.  E.  904,  30  L.  R.  A.  (N.  S.)  472. 

46  State  V.  West.  U.  Tel.  Co.,  76  Ark.  124,  88  S.  W.  834 ;  Frauenthal  v.  West. 
U.  Tel.  Co.,  50  Ark.  78,  6  S.  W.  236;  Hearn  v.  West.  U.  Tel.  Co.,  36  Misc. 
Rep.  557,  73  N.  Y.  Supp.  1077;  Weaver  v.  Grand  Rapids,  etc.,  R.  Co.,  107 
Mich.  300,  65  N.  W.  225;  Tel.,  etc.,  Co.  v.  Murphy,  100  Ark.  546,  140  S.  W. 
720,  statutes  prescribing  penalties  for  discrimination  between  applicants  for 
service  do  not  apply  to  negligence  or  inattention  in  failing  to  repair  a  patron's 
telephone ;  West.  U.  Tel.  Co.  v.  Jones,  116  Ind.  361,  18  N.  E.  529 ;  West.  U. 
Tel.  Co.  V.  Swain,  109  Ind.  405,  9  N.  E.  927 ;  Hadley  v.  West.  U.  Tel.  Co.,  115 
Ind.  191,  15  N.  E.  845;  West.  U.  Tel.  Co.  v.  Steele,  108  Ind.  163,  9  N.  E.  78. 
But  see  West.  U.  Tel.  Co.  v.  Braxtan,  165  Ind.  165,  74  N.  E.  985 ;  West.  U. 
Tel.  Co.  V.  Ferguson,  157  Ind.  37,  60  N.  E.  679. 

4  7  Frauenthal  v.  West.  U.  Tel.  Co.,  50  Ark.  78,  6  S.  W.  236. 

48  Hearn  v.  West.  U.  Tel.  Co.,  36  Misc.  Rep.  557,  73  N.  Y.  Supp.  1077. 


«    538)  STATUTORY  PENALTY  833 

error  in  its  transmission/^  or  sometimes  to  a  positive  refusal  to 
accept  a  message  based  upon  good  reasons.'^"  But  it  has  been  held 
by  some  courts  that,  if  such  negligence  or  omission  is  within  the 
terms  of  such  statutes,  it  will  be  immaterial  whether  such  negli- 
gence or  omission  was  intentional  or  merely  negligent." 

§  637.  Character  and  form  of  message— "futures."— These  stat- 
utes generally  provide  that,  on  failure  to  transmit  or  deliver  any 
message,  the  company  will  be  liable  to  a  certain  penalty;  this 
means  any  and  all  messages  irrespective  of  the  form  or  character, 
provided  they  are  not  immoral,  libelous  or  fraudulent.  As  it  has 
been  said  elsewhere  in  this  work,  the  object  of  these  companies  is 
not  to  perpetrate  or  assist  in  the  perpetration  of  a  crime,  nor  to  do 
any  act  which  would  sabject  them  to  a  civil  action,  and,  of  course, 
it  follows  that  they  would  not  be  under  any  obligation  to  accept  a 
message, for  transmission  which,  to  do  so,  would  make  them  lia- 
ble to  a  civil  or  criminal  action.^^'  If,  then,  a  message  is  tendered 
for  transmission,  the  company  may  refuse  to  transmit  it,  where 
it  would  have  this  effect,  and  still  not  be  liable  for  the  statutory 
penalty.  It  is  not  every  message  whose  object  is  for  an  immoral 
or  illegal  purpose,  or  such  as  would  support  an  action  for  damages 
against  the  company,  that  can  be  rejected  by  the  company.  Thus, 
where  there  is  a  message  tendered  for  transmission  which  relates 
to  transactions  in  "futures,"  the  company  would  be  under  obliga- 
tions to  exercise  the  same  care  and  promptness  that  it  would  over 
any  other  message,^^  unless  there  should  be  a  statute  which  would 
make  it  illegal  for  such  messages  to  be  transmitted. 

§  638.  Same  continued — form — cipher  telegrams. — As  said, 
these  statutes  apply,  with  few  exceptional  cases,  to  all  messages, 
and  that  whether  they  are  intelligible  or  not.  Messages  are  often 
written  in  cipher,  the  meaning  of  which  is  generally  known  only  by 
the  sender  and  the  addressee.  Where  this  is  the  case,  the  com- 
pany, as  we  have  elsewhere  shown,  may  require  the  sender  to  in- 
form it  of  the  nature  of  the  message ;  or,  in  other  words,  the  sender 

49  Wichelman  v.  West.  U.  Tel.  Co.,  30  Misc.  Rep.  450,  62  N.  Y.  Supp.  491. 

Eo  state  V.  West.  U.  Tel.  Co.,  76  Ark.  124,  SS  S.  W.  834. 

51  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E.  679,  disapproving 
West.  U.  Tel.  Co.  v.  Jones,  116  Ind.  361,  18  N.  E.  529 ;  West.  U.  Tel.  Co.  v. 
Braxtan,  165  Ind.  165,  74  N.  E.  985 ;  Wood  v.  West.  U.  Tel.  Co.,  59  Mo.  App. 
236 ;    Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599. 

5  2  See  §  431.  But  see  West.  U.  Tel.  Co.  v.  Lillard,  86  Ark.  208,  110  S.  W. 
1035,   17  L.   R.   A.   (N.   S.)   830,   not  improper  message. 

5  3  See  §§  285,  429. 

Jones  Tel.(2d  Ed.) — 53 


834  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  639 

should  do  this  voluntarily  in  order  that  he  may  hold  the  company 
liable  for  any  mishaps  or  losses  sustained  in  its  transmission.^*  If 
the  company  has  no  information  of  the  nature  of  the  message,  it 
would  not  be  liable  for  all  the  consequences  arising  from  a  failure 
to  transmit  and  deliver  same.  But,  if  the  message  should  be  w^rit- 
ten  in  cipher  and  accepted  by  the  company,  for  transmission,  the 
latter  would  be  liable  for  the  statutory  penalty,  if  the  message  was 
not  sent  at  all,  although  the  company  may  not  have  had  knowledge 
of  its  purpose  or  contents.^ ^  While  the  company  may  have  refused 
to  accept  such  message,  yet,  on  the  acceptance  of  it,  the  duty  was 
then  assumed.  It  is  the  assumption  of  the  duty,  and  the  failure  to 
perform  same,  and  not  the  form  of  the  message,  that  makes  out  the 
case  for  the  statutory  penalty. 

§  639.  Same  continued — written  on  message  blank — waiver  of 
right. — One  of  the  stipulations  generally  provided  for  by  these 
companies  is  that  all  messages  must  be  written  on  the  blank  forms 
furnished  by  them.'^^  It  is  generally  held  by  the  courts  that  these 
stipulations  are  reasonable  and  are  therefore  enforceable.^'^  So, 
when  a  message  is  written  on  any  paper  other  than  these  forms, 
the  company's  operator  may  refuse  to  accept  same,  and,  in  doing  so, 
he  would  not  subject  the  company  to  the  statutory  penalty. ^^  If, 
however,  the  operator  accepts  such  message,  the  fact  that  it  was 
not  written  on  one  of  the  company's  blanks  will  be  no  defense  to  an 
action  to  recover  the  penalty. ^^  It  is  presumed,  in  such  cases,  that 
the  company  has  waived  the  right  acquired  under  the  stipulation. 
But  in  order  to  hold  the  company,  even  under  this  state  of  facts, 
the  operator  must  have  known  that  the  writing  was  a  message. 
Thus,  where  the  message  was  written  on  a  piece  of  memorandum 
paper  and  handed  to  the  operator  by  the  sender's  servant  in  such  a 
causal  way  as  not  to  indicate  that  it  was  a  message  for  transmis- 
sion, this  fact  will  be  a  good  defense  under  the  statute.®"  In  this 
instance,  there  would  not  be  a  presumption  of  a  waiver  of  the  right, 
unless  the  operator  knew  it  was  a  message. 

5  4  See  chapter  XX. 

5  5  Gray  v.  West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  14  L.  R.  A.  95,  27 
•Am.  St.  Rep.  259 ;    West.  U.  Tel.  Co.  v.  Lillard,  S6  Ark.  208,  110  S.  W.  1035, 
17  L.  R.  A.  (N.  S.)  836. 
5  0  See  §  277. 

67  Id. 

5  8  Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D.  623,  65  N.  W.  37,  30  L.  R.  A.  621,  624, 
46  Am.  St.  Rep.  765,  overruling  4  S.  D.  105,  55  N.  W.  759,  30  L.  R.  A.  612, 
46  Am.  St.  Rep.  705. 

5  9  West.  U.  Tel.  Co.  v.  Jones,  69  Miss.  658, 13  South.  471,  30  Am.  St.  Rep.  579. 

60  West.  U.  Tel.  Co.  v.  Liddell,  68  Miss.  1.  8  South.  510.  See,  also,  West. 
U.  Tel.  Co.  V.  Dozier,  67  Miss.  2S8,  7  South.  325. 


8    641)  STATUTORY  PENALTY  835 

§  640.  Breach  of  duty— proof  of.— Where  the  plaintiff  brings  an 
action  against  a  telegraph  company  to  recover  the  statutory  penalty 
imposed  for  a  failure  to  promptly  transmit  or  deliver  a  message,  he 
must  prove  the  breach  of  such  duty  in  order  to  recover.*'^  The 
statute  being  penal,  the  case  must  not  only  be  one  covered  by 
such,«2  ^nd  under  which  it  is  accurately  described,"  but  it  must 
also  be  proved  as  alleged  in  the  bill  of  complaint.^.*  In  actions 
brought  against  these  companies  to  recover  damages  as  a  result  of 
their  negligence,  a  prima  facie  case  is  made  out  when  it  is  shown 
that  the  message  was  accepted  by  the  company  and  that  it  was  de- 
layed in  transmission  or  delivery  an  unreasonable  time;^^  or  that 
the  message  as  received  by  the  addressee  was  not  the  same  as  that 
delivered  to  the  company.  The  same  rule  in  this  respect  as  in  other 
cases  against  these  companies  applies  in  actions  brought  to  recover 
the  statutory  penalty,  except  that  it  is  not  necessary  to  prove  any 
loss. 

§  641.  Same  continued — amount  of  proof. — It  has  been  held  in 
some  cases  that  the  plaintiff  must  prove  more  than  mere  negligence 
on  the  part  of  the  company,  by  showing  that  it  acted  in  bad  faith 
or  willfully.^°  It  will  be  found,  however,  in  the  examination  of  the 
cases  which  hold  such  a  rule,  that  there  are  only  particular  in- 
stances when  this  rule  will  apply.  Thus,  when  the  complaint  is 
that  the  company  unduly  postponed  the  message  in  order  to  send 
others,  or  that  the  message  was  not  accepted  or  would  not  be  ac- 

61  West.  U.  Tel.  Co.  v.  Wilson,  108  Ind.  308,  9  N.  E.  172;  West.  U.  Tel. 
Co.  V.  Ward,  23  Ind.  377,  85  Am.  Dec.  4G2 ;  West.  U.  Tel.  Co.  v.  Liddell,  68 
Miss.  1,  8  South.  510;  Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D.  623,  65  N.  W.  37, 
30  L.  R.  A.  621,  46  Am.  St.  Rep.  765;  Heam  v.  West.  U.  Tel.  Co.,  36  Misc. 
Rep.  557,  73  N.  Y.  Supp.  1077 ;  Tel.,  etc.,  Co.  v.  Murphy,  100  Ark.  5-lG,  140 
S.  W.  720 ;  Adcox  t.  Tel.  Co.,  171  Mo.  App.  331,  157  S.  W.  989,  plaintiff  must 
prove  payment  or  tender  charges. 

02  As  to  persons  entitled  to  enforce  liability,  see  Thompson  v.  West.  U.  Tel. 
Co.,  40  Misc.  Rep.  443,  82  N.  Y.  Supp.  675 ;  Hadley  v.  West.  U.  Tel.  Co.,  115 
Ind.  191,  15  N.  E.  845 ;  Thurn  v.  Alta  Tel.  Co.,  15  Cal.  472 ;  West.  U.  Tel.  Co. 
V.  Rountree,  92  Ga.  611,  IS  S.  E.  979,  44  Am.  St.  Rep.  93.    See,  also,  §  644. 

G3  See  following  sections. 

64  See  §  644. 

6  5  West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  604.  See  McCloud  v. 
Telephone  Co.,  170  Mo.  App.  624,  157  S.  W.  101,  as  to  sufficiency  of  delivery  to 
company. 

GO  West.  U.  Tel.  Co.  v.  Swain,  109  Ind.  405,  9  N.  E.  927;  West.  U.  Tel.  Co. 
V.  Brown,  108  Ind.  538,  8  N.  E.  171 ;  West.  U.  Tel.  Co.  v.  Steele,  108  Ind.  163, 
9  N.  E.  78 ;  Hadley  v.  West.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845 ;  West.  U. 
Tel.  Co.  V.  Jones,  116  Ind.  361,  18  N.  E.  529 ;  Weaver  v.  Grand  Rapids,  etc.,  R. 
Co.,  107  Mich.  300,  65  N.  W.  225.  See,  also,  Wichelman  v.  West.  U.  Tel.  Co.,  30 
Misc.  Rep.  450,  02  N.  Y.  Supp.  491.  See  Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41 
Ark.  79 ;  McCloud  v.  Telephone  Co.,  170  Mo.  App.  624,  157  S.  W.  101. 


836  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  642 

cepted,  it  must  be  shown  that  the  acts  of  the  company  were  willful 
or  in  bad  faith. ^^  The  contributory  negligence  of  the  sender  in  fail- 
ing to  give  a  sufficiently  definite  address,  although  it  might  be  such 
as  would  afford  a  good  ground  for  a  defense  to  an  action  for  failure 
to  deliver/^  is  not  a  defense  where  the  action  is  based  on  the  willful 
partiality  of  the  company.*^''  But  if  the  action  is  to  recover  the 
penalty  for  failure  to  transmit  or  deliver  a  message,  the  proof  of 
ordinary  negligence  on  the  part  of  the  company  is  sufficient.'^*' 

§  642.  Complaint  and  proof  must  fall  under  statute.— As  has 
been  elsewhere  said,  the  cause  of  complaint  must  fall  within 
the  statute.'^ ^  Thus  a  statute  providing  that  the  telegraph  com- 
pany shall  transmit  and  deliver  messages  with  "due  diligence," 
and  prescribing  a  penalty  for  a  failure  to  ciomply  with  the  terms 
of  the  statute,  relates  to  the  time  within  which  messages  must 
be  transmitted  and  delivered,  and  not  to  the  accuracy  and  correct-- 
ness  in  sending  and  transcribing  them,  and  the  company  is  not  lia- 
ble, by  virtue  of  the  terms  of  the  statute,  for  the  penalty  prescribed 
merely  because  it  makes  a  verbal,  though  material,  mistake  and 
error  in  transcribing  a  message  received  and  transmitted.^^  A  case 
is  not  made  out  by  showing  that  the  company  negligently  failed  to 
deliver  a  message,  when  the  statute  under  which  the  action  is 
brought  imposes  a  penalty  on  these  companies  for  negligence  or 
refusal  to  receive  and  transmit  messages  promptly.'''^  A  refusal  to 
transmit,  for  which  the  statute  provides  a  penalty,  is  not  shown  by 
proof  merely  of  a  refusal  to  deliver  after  the  message  has  been 
transmitted.'^*  Nor  is  the  intent  of  the  statute  complied  with  so  as 
to  justify  a  recovery  of  the  penalty  where  it  appears  that  the  com- 
er See  §  6.37.  See,  also,  Vermilye  v.  Postal  Tel.  Cable  Co.,  205  Mass.  598, 
91  N.  E.  904,  30  L.  R,  A.  (N.  S.)  472,  what  is  willful  within  statute. 

'88  West.  U.  Tel.  Co.  v.  Patrick,  92  Ga.  607,  IS  S.  E,  9S0,  44  Am.  St.  Rep.  90. 

6  0  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E.  679.     See,  also,  §  637. 

7  0  Burnett  v.  West.  U.  Tel.  Co.,  39  Mo.  App.  599;  Little  Rock,  etc.,  Tel.  Co. 
V.  Davis,  41  Ark.  79 ;  West.  U.  Tel.  Co.  v.  Lindley,  89  Ga.  484,  15  S.  E.  636 ; 
West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  G04. 

71  See  §  630. 

72  Wilkins  v.  West.  U.  Tel.  Co.,  68  Miss.  6,  8  South.  678 ;  West.  U.  Tel.  Co. 
V.  Rountree,  92  Ga.  611,  18  S.  E.  979,  44  Am.  St.  Rep.  93 ;  West.  U.  Tel.  Co.  v. 
Pallotta,  81  Miss.  216,  32  South.  310. 

7  3  Connell  v.  West.  U.  Tel.  Co.,  116  Mo.  34,  22  S.  W.  345,  20  L.  R.  A.  172,  38 
Am.  St.  Rep.  575.  See  West.  U.  Tel.  Co.  v.  Pearce,  82  Miss.  487,  34  South.  152 ; 
West.  U.  Tel.  Co.  v.  Hall,  79  Miss.  623,  31  South.  202 ;  West.  U.  Tel.  Co.  v. 
Pallotta,  81  Miss.  216,  32  South.  310 ;  Marshall  v.  West.  U.  Tel.  Co.,  79  Miss. 
154,  27  South.  614,  89  Am.  St.  Rep.  585 ;  Meyers  v.  Telephone  Co.,  82  Misc.  Rep. 
266,  143  N.  Y.  Supp.  574. 

74  Brooks  V.  W^est.  U.  Tel.  Co.,  56  Ark.  224,  19  S.  W.  572;  Dudley  v.  West.  U. 
Tel.  Co.,  54  Mo.  App.  391 ;  Rixke  v.  West.  U.  Tel.  Co.,  96  Mo.  App.  406,  70  S. 
W.  265.    Compare  West.  U.  Tel.  Co.  v.  Gougar,  84  Ind.  176.    See  §  630. 


§    54:3)  STATUTORY  PENALTY  837 

pany  made  a  hona  fide  effort  to  transmit  the  message  and  acted 
with  impartiality,  although  the  message  was  lost,  and  this,  too,  no 
matter  how  culpable  may  have  been  the  conduct  of  the  company 
by  reason  of  which  the  loss  occurred.''^  Where  the  statute  imposes 
a  penalty  for  the  incorrect  transmission  of  messages,  a  recovery 
cannot  be  had  on  the  proof  of  a  mere  delay  in  transmission.'^^ 

§  643.  Complaint — allegations  therein. — To  recover  the  statu- 
tory penalty,  the  complaint  must  aver  facts  which  bring  the  case 
presented  by  it  within  both  the  letter  and  spirit  of  the  statute.''^ 
Hence  the  penalty  cannot  be  recovered  under  the  statute  unless  the 
complaint  alleges  and  the  proof  shows  that  the  defendant  was  en- 
gaged in  business  of  telegraphing  for  the  public."  But  it  need  not 
also  appear  that  the  company  was  engaged  in  telegraphing  for 
hire.^"  In  a  suit  before  a  justice  of  the  peace  to  recover  the  penalty, 
it  was  held  that  the  complaint  must  aver  and  the  evidence  must 
prove  that  the  sender  of  the  message  had  paid  or  tendered  the  usual 
charges  at  the  time  of  sending  it.  "Under  the  provisions  of  the 
statute  *  *  *  it  is  not  every  telegraph  company  which  is  sub- 
ject to  such  penalty  for  such  failure,  but  it  is  a  telegraph  company 
which  has  'a  line  of  wire  wholly  or  partly  in  this  state'  that  is  made 
amenable  to  the  penalty  prescribed  by  our  statute  for  the  failure  to 
transmit  a  message,  'on  payment  or  tender  of  the  usual  charge.' "  ^° 
It  was  held  that  the  averment  in  the  complaint  that  defendant  "was 
engaged  in  the  business  of  transmitting  telegraphic  messages  for 

7  5  Fraueiithal  v.  West.  U.  Tel.  Co.,  50  Ark.  78,  6  S.  W.  2.36;  Baltimore,  etc., 
Tel.  Co.  V.  State  (Ark.)  6  S.  W.  513 ;  Weaver  v.  Grand  Rapids,  etc.,  R.  Co.,  107 
Mich.  300,  65  N.  W.  225.    See  §  630. 

76  West.  U.  Tel.  Co.  v.  McLaurin,  70  Miss.  26,  13  South.  36;  West.  U.  Tel. 
Co.  V.  McCormick  (Miss.)  27  South.  606.    See  §  630. 

7  7  Greenberg  v.  West.  U.  Tel.  Co.,  89  Ga.  754,  15  S.  E.  651 ;  West.  U.  Tel.  Co. 
V.  Kinney,  106  Ind.  468,  7  N.  E.  191 ;  Reese  v.  West.  U.  Tel.  Co.,  123  Ind.  294, 
24  N.  E,  163,  7  L.  R.  A.  583 ;  West.  U.  Tel.  Co.  v.  Mossier,  95  Ind.  29 ;  West.  U. 
Tel.  Co.  V.  Axtell,  69  Ind.  199 ;  Rixke  v.  West.  U.  Tel.  Co.,  96  llo.  App.  406,  70 
S.  W.  265 ;  Pollard  v.  Missouri,  etc.,  Tel.  Co.,  114  Mo.  App.  533,  90  S.  W.  121 ; 
Wood  V.  West.  U.  Tel.  Co.,  59  Mo.  App.  236 ;  Mayo  v.  West.  U.  Tel.  Co.,  112  N. 
C.  343,  16  S.  E.  1006 ;  West.  U.  Tel.  Co.  v.  Powell,  94  Va.  268,  26  S.  E.  828 ; 
Bradshaw  v.  Telephone  Co.,  150  Mo.  App.  711,  131  S.  W.  912 ;  Elliott  v.  Tele- 
phone Co.,  175  Mo.  213,  157  S.  W.  670 ;  Durant  v.  West.  U.  Tel.  Co.,  94  Ga.  442, 
20  S.  E.  1,  complaint  may  be  amended;  Conyers  v.  Postal  Tel.  Cable  Co.,  92 
Ga.  619,  19  S.  E.  253,  44  Am.  St.  Rep.  100 ;  Chandler  v.  West.  U.  Tel.  Co.,  94 
Ga.  422,  21  S.  E.  832 ;  need  not  follow  the  exact  language  of  the  statute.  West. 
U.  Tel.  Co.  V.  Walker,  102  Ind.  599,  2  N.  E.  137 ;  West.  U.  Tel.  Co.  v.  Griffin,  1 
Ind.  App.  46,  27  N.  E.  113 ;  West.  U.  Tel.  Co.  v.  Meredith,  95  Ind.  93. 

7  8  West.  U.  Tel.  Co.  v.  Trissal,  98  Ind.  566;  West.  U.  Tel.  Co.  v.  Ferguson, 
57  Ind.  499 ;  West.  U.  Tel.  Co.  v.  Adams,  87  Ind.  598,  44  Am.  Rep.  776 ;  West 
U.  Tel.  Co.  V.  Axtell,  09  Ind.  199. 

7  0  West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  E.  604. 

80  West.  U.  Tel.  Co.  v.  Ferguson,  57  Ind.  495. 


838 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  644 


hire"  was  insufficient  as  being  equivalent  to  an  averment  that  the 
defendant  was  "engaged  in  telegraphing  for  the  public,"  as  re- 
quired by  the  statute.®^  The  court  said:  "A  statute  so  highly 
penal  must  be  construed  strictly.  The  party  claiming  under  it  must 
bring  his  case  clearly  within  the  letter  and  spirit  of  the  act.  Keep- 
ing in  mind  the  main  purpose  of  the  statute,  its  highly  penal  nature, 
and  the  rule  of  strict  construction,  we  cannot  hold  that  the  words 
'engaged  in  the  business  of  transmitting  telegraphic  messages  for 
hire'  are  equivalent  to  the  words  'engaged  in  telegraphing  for  the 
public'  *  *  *  A  court  cannot  create  a  penalty  by  construction, 
but  must  avoid  it  by  construction,  unless  it  is  brought  within  the 
letter  and  the  necessary  meaning  of  the  act  creating  it."  *-  But  the 
complaint  need  not  negative  the  exceptions  in  the  proviso,  nor  any 
facts  of  excuse  ;^^  these  must  come  from  the  defense.^*  The  ex- 
culpatory matter  set  forth  in  the  statute  need  not  be  mentioned  in 
the  complaint,  although  available  for  the  defense. ^^  No  actual 
damages  need  to  be  alleged  and  proved  to  recover  the  penalty  under 
the  statute. ^^  "The  statute  fixes  the  amount  or  penalty  to  be  re- 
covered, whether  the  actual  damages  be  great  or  small."  ®^  A  dif- 
ferent rule  prevailed  under  the  common  law,  where  it  was  necessary 
to  allege  and  prove  actual  damages,  otherwise  nominal  damages 
could  only  be  recovered. ^^ 

§  644.  Actual  damages — need  not  prove. — The  penalty  imposed 
by  these  statutes,  as  said,  is  a  punishment  inflicted  for  a  violation 
of  the  company's  duties,  and  is  not  in  any  sense  a  compensation  as 
liquidated  damages  to  the  injured  person.^"  It  has  no  reference  to 
the  actual  loss  sustained  by  him  who  sues  for  the  recovery  of  the 


81  West.  U.  Tel.  Co.  v.  Axtell,  69  Ind.  199. 

8  2  Id. 

S3  West.  U.  Tel.  Co.  v.  Gougar,  84  Ind.  176;  West.  U.  Tel.  Co.  v.  Burskirk, 
107  lud.  549,  8  N.  E.  557 ;  West.  U.  Tel.  Co.  v.  Lindley,  62  Ind.  371.  See  Reese 
V.  West.  U.  Tel.  Co.,  12.3  Ind.  294,  24  N.  E.  163,  7  L.  R.  A.  583. 

8  4  West.  U.  Tel.  Co.  v.  Troth,  43  Ind.  App.  7,  84  N.  E.  727;  West.  U.  Tel.  Co. 
V.  Scircle,  103  Ind.  227,  2  N.  E.  604 ;  Elliott  v.  Telephone  Co.,  175  Mo.  App.  213, 
157  S.  W.  670. 

8  5  West.  U.  Tel.  Co.  v.  Gouger,  84  Ind.  176;  West.  U.  Tel.  Co.  v.  Ward,  23 
Ind.  377,  85  Am.  Dee.  462 ;  West.  U.  Tel.  Co.  v.  Lewelling,  58  Ind.  367 ;  West. 
U.  Tel.  Co.  V.  Meek,  49  Ind.  53 ;  West,  U.  Tel.  Co.  v.  Buchanan,  35  Ind.  429,  9 
Am.  Rep.  744. 

8  6  West.  U.  Tel.  Co.  v.  Buchanan,  35  Ind.  429,  9  Am.  Rep.  744;  Little  Rock, 
etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79. 

8  7  Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79. 

88  1  Sutherland  on  Damages,  §  10;  Hibbard  v.  West.  U.  Tel.  Co.,  33  Wis. 
565,  14  Am.  Rep.  775. 

8  9  West.  U.  Tel.  Co.  v.  Pendleton,  95  Ind.  12,  48  Am.  Rep.  692,  reversed  on 
other  grounds  in  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed.  1187. 


§    645)  STATUTORY   PENALTY  839 

penalty,  but  is  a  means  of  punishing  ^°  the  company  for  its  negli- 
gent acts  and  is  only  recoveral^le  by  the  person  ^^  injured  by  the 
negligence  committed.  As  it  is  not  damages,  or  in  any  sense  such, 
it  is  not  necessary  to  show  that  it  is  to  be  recovered  as  damages ; 
nor  is  it  necessary  to  prove  that  any  actual  damages  have  been  sus- 
tained in  order  to  recover  the  penalty.^-  While  it  is  not  necessary 
to  prove  actual  damages,  yet  if  such  is  shown  it  will  not  affect  the 
right  to  recover  the  penalty. ^^  When  the  negligence  has  been  suf^- 
ciently  shown,  the  company  will  be  liable  for  the  penalty,  although 
no  loss  has  been  sustained.  The  object  of  these  statutes  is  to  en- 
force the  duties  and  obligations  which  these  companies  owe  to  the 
public  generally;  and  when  it  is  shown  that  they  have  failed  to 
properly  and  promptly  discharge  them,  the  penalty  may  be  re- 
covered. 

§  645.  Same  continued — does  not  bar  action  for  damages. — An 
action  brought  to  recover  the  statutory  penalty  is  based  on  a  sepa- 
rate and  distinct  ground  from  that  brought  for  the  recovery  of  dam- 
ages. One  is  maintainable  on  the  ground  that  the  company  has 
failed  to  discharge  its  duty  toward  the  public  by  neglect,  refusal  or 
failure  as  to  time  and  the  other  is  brought  to  recover  damages  sus- 
tained as  a  result  of  the  negligence  in  transmission,  by  being  inac- 
curate, or  that  the  message  is  unreasonably  delayed  in  delivery. ^^ 
One  is  criminal  in  nature  but  civil  in  form,  and  the  other  is  civil 
both  in  nature  and  in  form.  They,  being  founded  on  different 
grounds,  may  be  instituted  separately;  and  an  action  in  one  will 
not  bar  an  action  in  the  other.**^    While  these  two  actions  are  sepa- 

0  0  West.  U.  Tel.  Co.  v.  Axtell,  69  Ind.  199.  See,  also,  Carnatian  v.  West,  U. 
Tel.  Co.,  89  Ind.  .526,  46  Am.  Rep.  175. 

siHadley  v.  West.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845;  Thurn  v.  Alta 
Tel.  Co.,  15  Cal.  472 ;  Thompson  v.  West.  U.  Tel.  Co.,  40  Misc.  Rep.  443,  82  N. 
Y.  Supp.  675. 

92  West.  U.  Tel.  Co.  v.  Axtell,  69  Ind.  199;  Little  Rock,  etc.,  Tel.  Co.  v.  Da- 
vis, 41  Ark.  79;  West.  U.  Tel.  Co.  v.  Buchanan,  35  Ind.  429,  9  Am.  Rep.  744; 
West.  U.  Tel.  Co.  v.  Allen,  66  Miss.  549,  6  South.  461. 

93  Little  Rock,  etc.,  Tel.  Co.  v.  Davis,  41  Ark.  79;  West.  U.  Tel.  Co.  v.  Cobhs, 
47  Ark.  344,  1  S.  W.  558,  58  Am.  Rep.  756 ;  West.  U.  Tel.  Co.  v.  Pendleton,  95 
Ind.  12,  48  Am.  Rep.  698 ;  West.  U.  Tel.  Co.  v.  Adams,  87  Ind.  598,  44  Am.  Rep. 
776 ;  West.  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E.  679 ;  West.  U.  Tel. 
Co,  V.  Allen,  66  Miss.  549,  6  South.  461 ;  Jacobs  v.  Postal  Tel,  Cable  Co.,  76 
Miss.  278,  24  South.  535. 

94  West.  U.  Tel.  Co.  v.  Lindley,  89  Ga.  484,  15  S.  E.  636 ;  West.  U,  Tel,  Co. 
V.  Pendleton,  95  Ind.  12,  48  Am.  Rep.  692;  Hadley  v.  West.  U.  Tel.  Co.,  115 
Ind.  191,  15  N.  E.  845 ;  Carnahan  v.  West.  U.  Tel.  Co.,  89  Ind.  526,  46  Am.  Rep. 
175 ;  Wilkins  v.  West.  U.  Tel.  Co.,  68  Miss.  6,  8  South.  678.  See,  also,  Stafford 
V,  West.  U.  Tel.  Co.  (C.  C.)  73  Fed.  273. 

05  West  U.  Tel.  Co.  v.  Ferguson,  157  Ind.  37,  60  N.  E.  679;  Wilkins  v.  West. 
U.  Tel.  Co.,  68  Miss.  6,  8  South,  678.    See  West.  U.  Tel.  Co.  v.  Lindley,  89  Ga. 


840  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  646 

rate  and  distinct  and  are  based  on  different  grounds,  yet  the  same 
act  of  the  company  may  be  the  cause  of  both  of  the  actions.  F6r 
instance,  if  the  statute  provides  that  on  failure  to  promptly  deliver 
a  message  the  company  will  be  liable  for  a  certain  penalty,  under 
this,  if  the  company  has  failed  to  discharge  its  duty,  it  will  be  liable 
for  the  penalty ;  and  if  the  plaintiff  has  sustained  a  loss  in  conse- 
quence of  such  delay,  he  may  also  recover  the  actual  loss  sustained 
thereby.  As  will  be  seen,  the  delay,  in  this  instance,  is  the  cause 
of  both  actions,  but  one  is  founded  upon  the  statutory  remedy  for 
the  enforcement  of  its  duty  with  respect  to  the  promptness  as  to 
time  in  the  delivery  and  the  other  is  founded  on  the  fact  of  its  vio- 
lating its  common-law  duties  or  obligations  and  those  assumed 
when  the  rights  and  benefits  of  a  corporation  were  acquired.  In 
some  jurisdictions  it  is  held  that  an  action  for  the  recovery  of  the 
penalty  and  a  suit  to  recover  the  damages  sustained  as  a  conse- 
quence of  such  act  may  be  asserted  in  one  suit.^^  It  has  been  held 
that,  under  these  statutes,  parties  who  have  signed  a  dispatch 
jointly  may  bring  a  joint  suit  to  recover  the  penalty  for  a  failure 
to  transmit  the  same.^'' 

§  646.  Actions  survive. — In  actions  brought  to  recover  the  statu- 
tory penalty,  the  recovery  is  not  based  upon  any  injury  to  the  per- 
son of  the  plaintiff.  It  is  an  action  to  enforce  a  right  created  by 
statute  and  does  not  belong  to  the  class  of  actions  where  redress  is 
sought  for  a  personal  injury.  As  is  known,  all  actions  for  personal 
injuries  die  with  the  person,  unless  the  rule  is  otherwise  changed 
by  statute.  In  these  cases,  brought  for  the  recovery  of  the  statu- 
tory penalty,  the  right  of  action  does  not  die  with  the  person  in- 
jured by  such  act  of  the  company,  but  survives.®^  Under  the  com- 
mon-law practice,  the  remedy  in  such  cases  as  these  would  be  an 
action  of  debt.''^  There  may  be  statutes,  however,  which  provide 
that  these  actions  shall  not  survive;  when  this  is  the  case,  of  course, 
there  can  be  no  recovery  after  the  death  of  the  person  injured  by 
the  act  of  the  company. 

§  647.  Connecting  line — liable. — As  it  has  been  seen  at  other 
places,  it  is  the  duty  of  the  connecting  line  to  receive  all  messages 

484,  15  S.  E.  636,  holding  that  the  penalty  and  damages  may  be  recovered  in 
the  same  action. 

06  West.  U.  Tel.  Co.  v.  McLanrin,  70  Miss.  26,  13  South.  36;  West.  U.  Tel. 
Co.  V.  McCormick  (Miss.)  27  South.  606. 

9  7  West.  U.  Tel.  Co.  v.  Huff,  102  Ind.  535,  26  N.  E.  85. 

9  8  West.  U.  Tel.  Co.  v.  Scircle,  103  Ind.  227,  2  N.  B.  604. 

99  1  Chitt.  PI.  125;  Washington  v.  Eaton,  4  Cranch  C.  C.  352,  Fed.  Cas.  No. 
17,228 ;  United  States  v.  Colt,  1  Pet.  C.  C.  145,  Fed.  Cas.  No.  14,839 ;  Bogart  v. 
City,  1  Ind.  38. 


§    648)  STATUTORY  PENALTY  841 

which  may  be  tendered  it  by  an  initial  line.i°°  The  same  care  and 
diligence  must  be  exercised  by  this  line  as  is  imposed  on  the  first 
line,  and  any  damages  arising  as  a  result  of  the  company's  failure 
to  properly  discharge  these  duties  will  subject  it  to  liability  there- 
for.^" ^  These  statutes  which  place  a  penalty  on  telegraph  compa- 
nies for  a  failure  to  perform  properly  the  duties  which  they  owe  to 
the  public  apply  to  all  telegraph  companies  doing  a  public  business, 
and  it  matters  not  with  whom  they  do  business.  As  said,  they  may 
either  transact  business  with  respect  to  the  transmission  of  news, 
either  with  a  private  person,  or  with  another  company.  It  is  not 
only  a  privilege,  but  it  is  a  duty  for  them  to  transact  such  business, 
where  the  messages  are  such  as  may  be  sent  without  subjecting 
them  to  an  action.  So  it  has  been  held  that  these  statutory  penalties 
may  be  enforced  against  connecting  telegraph  lines  where  the  initial 
company  would  be  liable  for  the  same  act.^°'  The  claim  by  the 
connecting  line  that  it  acted  merely  as  the  agent  for  the  first  com- 
pany is  no  defense  to  an  action  to  recover  the  penalty. ^''^  But  in 
such  cases,  if  the  statute  provides  that  the  sender  shall  maintain 
the  suit,  it  seems  that  the  initial  line  must  be  the  party  to  recover 
the  penalty  ;^°*  in  other  words,  the  original  sender  of  the  message 
cannot  recover  the  penalty  from  the  connecting  line.^*'^  But  if  the 
statute  provides  that  the  penalty  may  be  recovered  either  by  the 
sender  or  the  addressee,  the  latter  may  maintain  a  suit  to  recover 
same.^°^  The  various  statutes  enacted  in  the  several  states  are  so 
dift"erent  in  wording  that  each  should  be  referred  to  in  order  that 
the  proper  construction  may  be  placed  on  each. 

§  648.  Defenses — office  hours. — Telegraph  companies  may  set 
up  the  same  defenses  in  actions  brought  to  recover  the  statutory 
penalty  as  are  available  in  ordinary  actions  to  recover  damages 
resulting  from  their  negligence. ^°''     It  has  been  seen  that  they  may 

100  See  §  447  et  seq.  loi  See  §§  305,  447,  et  seq. 

102  United  States  Tel.  Co.  v.  West.  U.  Tel.  Co.,  5G  Barb.  (N.  Y.)  46;  People 
V.  West.  U.  Tel.  Co.,  16G  111,  15,  46  N.  E.  731,  36  L.  R.  A.  637.  The  two  com- 
panies cannot  be  bekl  jcnntly  liable  unless  the  default  was  joint.  Chandler 
V.  West.  U.  Tel.  Co.,  94  Ga,  422,  21  S.  E.  S32. 

10  3  Conyers  v.  Postal  Tel.  Cable  Co.,  92  Ga.  619,  19  S.  E.  253,  44  Am.  St. 
Rep.  100. 

104  United  States  Tel.  Co.  v.  West.  U.  Tel.  Co.,  56  Barb.  (N.  Y.)  46. 

105  Thurn  v.  Alta  Tel.  Co.,  15  Cal.  473. 

106  Conyers  v.  Postal  Tel.  Cable  Co.,  92  Ga.  619,  19  S.  E.  256,  44  Am.  St 
Rep.  100. 

107  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172;  Given  v.  West. 
U.  Tel.  Co.  (C.  C.)  24  Fed.  119.  See  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228, 
48  Am.  Rep.  713 ;  West.  U.  Tel.  Co.  v.  Yopst  (Ind.)  11  N.  E.  16 ;  West.  U. 
Tel.  Co.  V.  Greer,  115  Tenn.  368,  S9  S.  W.  327,  1  L.  R.  A.  (N.  S.)  525.  But  see 
Mathis  V.  West.  U.  Tel.  Co.,  94  Ga.  338,  21  S.  E.  564,  1039,  47  Am.  St.  Rep.  167. 


842 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  649 


regulate  their  office  hours  and  provide  that  all  messages  shall  be 
tendered  for  transmission  within  such  hours,  both  at  the  receiving 
and  terminal  offices. ^°^  As  a  result  of  such  regulations,  they  are 
not  liable  to  deliver  the  message  immediately  on  its  receipt  if  the 
terminal  office  should  be  closed ;  it  would  only  be  liable  for  such 
delay  when  the  message  was  transmitted  during  the  office  hours 
of  both  the  receiving  and  terminal  offices. ^°''  The  same  rule  applies 
notwithstanding  the  fact  that  the  action  was  brought  to  recover 
the  statutory  penalty. ^^°  For  the  reason  that  one  is  maintainable 
under  a  common-law  remedy  and  the  other  under  a  statutory  rem- 
edy in  which  a  penalty  is  imposed  on  the  wrongdoer  does  not 
change  the  rule  that  the  same  defense  is  available  under  each  case. 
When  the  action  is  brought  under  the  same  statute,  that  is,  one 
providing  for  a  penalty  when  the  message  is  not  promptly  trans- 
mitted, it  may  be  shown  that  the  delay  was  caused  by  a  derange- 
ment of  its  lines  due  to  an  unavoidable  casualty  and  that  the  mes- 
sage was  sent  within  a  reasonable  time  after  the  difficulty  was  re- 
moved. 

§  649.  Same  continued — free  delivery  limits. — ^Another  regula- 
tion of  telegraph  companies  is  that  they  will  deliver  all  messages 
within  a  certain  radius  of  the  terminal  office  free  of  any  extra 
charge. ^^^  It  is  the  duty,  as  has  been  said,  for  them  to  deliver  all 
messages  within  a  reasonable  distance  from  their  central  offices, 
but  they  may  prescribe  the  distance,  provided  it  be  reasonable. 
This  being  a  reasonable  regulation  for  these  companies  to  enforce, 
it  does  not  become  their  duty  to  deliver  a  message  beyond  the  free 
delivery  limit,  unless  it  has  become  additionally  compensated  for 
such  services.  If  they  should  fail  to  make  such  delivery,  they  would 
not  be  liable  for  any  damages  resulting  from  the  failure  to  de- 
liver same.  There  are  some  statutes  which  provide  that,  on  fail- 
ure to  deliver  a  message,  or  where  it  has  been  unreasonably  delayed 
in  delivery,  a  penalty  may  be  recovered.^^^  In  an  action  to  recover 
this  penalty,  the  defense  that  the  addressee  resides  beyond  the  free 


108  See  §  347  et  seq. 

109  Id. 

110  West.  U.  Tel.  Co.  v.  Harding,  103  Ind.  505,  3  N.  E.  172. 

111  See  §  302  et  seq.;    §  344. 

112  Such  statutes  do  not  apply  to  deliveries  beyond  the  free  delivery  limit, 
West.  U.  Tel.  Co.  v.  Powell,  94  Va.  268,  26  S.  E.  S2S ;  nor  do  they  apply  to  a 
nonresident  temporarily  within  such  limits,  West.  U.  Tel.  Co.  v.  Timmons, 
93  Ga.  345,  20  S.  E.  649;  West.  U.  Tel.  Co.  v.  Murphey,  96  Ga.  768,  22  S.  E. 
297 ;  although  he  has  given  to  the  company  an  address  within  such  limits  at 
which  he  can  be  found.  West.  U.  Tel.  Co.  v.  Timmons,  supra.  See  West.  U. 
Tel.  Co.  V.  Mansfield,  93  Ga.  349,  20  S.  E.  650. 


I 


S    651)  STATUTORY  PENALTY  8:i3 

delivery  limit  may  be  set  up  as  a  good  defense  for  not  delivering 
the  message/^^ 

§  650.     Same  continued— not  under  operation  of  statute — con- 
tributory  negligence.— It   is   hardly   necessary    to   enter   into    any 
lengthy  discussion  of  the  available  defenses  in  actions  brought  to 
recover  the  statutory  penalty  imposed  on  these  companies  for  fail- 
ing to  discharge  their  public  duties,  since  the  same  defense  may  be 
used  in  these  cases  as  may  be  set  up  in  ordinary  actions  brought  to 
recover  damages  for  some  negligent  act,  and  which  have  been  dis- 
cussed heretofore.^'*    But  having  entered  into  the  subject,  we  shall 
say  a  few  things  about  each  defense.    As  has  been  said,  the  cause 
of  the  action  must  be  one  covered  by  the  statute ;  "'    and  should 
the  action  not  be  covered  by  such  statute,  or  if  the  proof  fails  to  sus- 
tain an  action  which  is  brought  thereunder,''"  this  may  be  used  as  a 
defense  in  an  action  to  recover  the  penalty.    Penalties  are  not  given 
as  a  matter  of  favor,  and  one  who  claims  a  penalty  must  bring  him- 
self fully  and  clearly  within  the  law.    The  plaintiff  in  the  case  must 
not  be  guilty  of  any  act  which  contributed  directly  to  the  cause  of 
complaint,  and  if  the  company  should  show  that  he  was  guilty  of 
contributory  negligence,  the  penalty  cannot  be  recovered.     Thus, 
where  the  action  is  brought  under  a  statute  which  provides  for  the 
recovery  of  a  penalty  in  case  a  message  is  not  promptly  delivered, 
it  may  be  shown  as  a  defense  that  the  plaintiff  failed  to  give  the 
proper  address,"^   or  that  he  failed  to  give  the   Christian   name, 
street,  and  number  of  the  sendee  in  a  city  of  12,000  inhabitants."^ 

§  651.  Same  continued — harmless  errors. — Where  the  error 
made  in  transmission  is  harmless  and  is  due  to  mere  inadvertence 
the  penalty  cannot  be  recovered. "»  Thus,  under  the  Mississippi 
statute,  the  penalty  is  recoverable  where  there  is  a  failure  to  "trans- 
mit correctly,"  yet  it  has  been  held  that,  if  there  is  no  harm  caused 

113  West.  U.  Tel.  Co.  v.  Lindley,  62  Ind.  371.  See,  also,  Horn  v.  West.  U. 
Tel.  Co.,  88  Ga.  538,  15  S.  E.  16. 

114  See  cases  cited  in  note  107,  supra, 
lie  See  §  644. 

116  West.  U.  Tel.  Co.  v.  Trissal,  98  Ind.  566.  Evidence  held  sufficient  to 
sustain  verdict  for  penalty.  See  West.  U.  Tel.  Co.  v.  Lindley,  89  Ga.  484,  15 
S.  E.  636;  Bradshaw  v.  Telephone  Co.,  150  Mo.  App.  711,  131  S.  W.  912; 
Keeting  v.  Telephone  Co.,  167  Mo.  App.  601,  152  S.  W.  95 ;  Neet  v.  Telephone 
Co.,  170  Mo.  App.  603,  157  S.  W.  113.  See  Telephone,  etc.,  Co.  v.  Hartley, 
127  Tenn.  184,  154  S.  W.  531 ;  Wilkinson  v.  Telephone  Co.,  163  Mo.  App.  71, 
145  S.  W.  520. 

117  West.  U.  Tel.  Co.  v.  Patrick,  92  Ga.  607,  IS  S.  E.  980,  90  Am.  St.  Rep.  90. 

118  West.  U.  Tel.  Co.  v.  McDaniel,  103  Ind.  294,  2  N.  E.  709. 

110  West.  U.  Tel.  Co.  v.  Clarke,  71  Miss.  157,  14  South.  452.  See,  also, 
West.  U.  Tel.  Co.  v.  Rountree,  92  Ga.  611,  18  S.  E,  979,  44  Am.  St.  Rep.  93; 
Wolf  V.  West.  U.  Tel.  Co.,  94  Ga.  434,  19  S.  E.  717. 


8U 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  652 


by  the  error,  the  penalty  cannot  be  recovered.  As  was  said  by 
Judge  Campbell,  while  rendering  an  opinion  on  this  point:  "Can  it 
be  supposed  that  for  changing  my  signature  or  address  from  Camp- 
bell to  Camel,  or  Campel  or  Cambelle,  or  Camwell,  according  to 
the  form  of  writing  it  sometimes  meets  with,  in  a  message  sent  by 
me  or  to  me  and  promptly  delivered,  and  accomplishing  its  purpose, 
and  doing  no  harm,  the  penalty  would  be  incurred?  To  so  hold 
would  impute  to  the  legislature  a  spirit  of  injustice  and  cruelty  that 
would  seriously  reflect  on  its  attempt  to  legislate  in  this  matter  for 
the  public  interest.  To  limit  the  operation  of  the  section  as  we  do, 
is  to  secure  all  by  it  that  will  subserve  the  interest  of  the  public, 
which  is  the  object  of  the  law."  ^^° 

§  652.  Same  continued — Sunday  dispatches. — It  is  held,  in  the 
Indiana  and  Missouri  courts,  that  the  penalty  cannot  be  recovered 
by  one  who  delivers  his  message  for  transmission  on  Sunday.  In 
so  holding,  the  court  in  one  case  said :  "A  penalty  cannot  be  re- 
covered for  failure  to  perform  an  illegal  contract.  The  statute  does 
not  apply  to  contracts  which  are  without  legal  force.  The  evident 
intention  of  the  legislature  was  to  secure  the  performance  of  such 
contracts  as  imposed  binding  obligations  upon  the  telegraph  com- 
panies. The  statute  is  a  highly  penal  one,  and  we  cannot  extend 
its  operation  by  a  liberal  construction. ^^^  We  certainly  cannot 
bring  within  its  provisions  a  case,  such  as  the  present,  where  there 
is,  in  legal  effect,  no  contract  at  all.  Courts  cannot  declare,  as  a 
matter  of  law,  that  the  business  of  telegraphing  is  a  work  of  neces- 
sity. There  are,  doubtless,  many  cases  in  which  the  sending  and 
delivery  of  a  message  would  be  a  work  of  necessity  within  the 
meaning  of  our  statute.  But  we  cannot  judicially  say  that  all  con- 
tracts for  transmission  of  telegraphic  messages  are  to  be  deemed 
within  the  statutory  exception.  Whether  the  contract  is  within 
the  exception  must  be  determined,  as  a  question  of  fact,  from  the 
evidence  in  each  particular  case."  ^^^  A  different  ruling  obtains  in 
Mississippi,  where  it  was  held  that  the  penalty  could  be  recovered, 
although  the  message  was  delivered  on  Sunday  for  transmission, 
regardless  of  the  fact  of  its  being  or  not  being  about  a  matter  of 
necessity,  within  the  exception  of  the  Sunday  law.^^^ 

§  653.  Stipulations — time  for  presenting  claim — effect  of. — 
Telegraph  companies  may  adopt  and  enforce  stipulations  wherein 
it  is  provided  that  all  claims  must  be  presented  within  a  certain 


12  0  West.  U.  Tel.  Co.  v.  Clarke,  71  Miss.  157,  14  South.  452. 

121  West  U.  Tel.  Co.  v.  Axtell,  69  Ind.  199. 

122  Id.  123  Id. 


§    653)  STATUTORY   PENALTY  845 

time,  otherwise  the  plaintiff  will  be  barred  from  recovery.  The  rea- 
son for  this  rule  has  already  been  discussed.^^'*  Where  the  lan- 
guage of  these  stipulations  makes  them  applicable  to  actions  for  pen- 
alties, it  is  as  effective  in  such  actions  as  for  the  recovery  of  dam- 
ages,^^^  and  the  same  reasons  why  they  should  be  enforced  with  re- 
spect to  the  recovery  of  damages  are  applicable  for  the  recovery  of 
the  statutory  penalty.  It  has  been  held,  with  few  exceptions,  that 
a  stipulation  requiring  "all  claims  for  damages"  to  be  presented 
within  a  certain  time  embraces  a  claim  for  the  penalty. ^^^  Judge 
Elliotte,  in  an  opinion  on  this  point,  said:  "We  think  that  in  order 
to  carry  into  effect  the  evident  intention  of  the  parties,  and  to  give 
the  clause  the  meaning  which  the  context  shows  it  should  have,  it 
must  be  held  that  all  claims  which  will  confer  a  right  to  a  recovery 
in  money  for  a  breach  of  contract  or  of  duty,  must  be  presented 
within  sixty  days.  In  a  broad  sense  the  word  'damages'  means  that 
which  is  assessed  in  the  plaintiff's  favor  as  the  amount  of  his  recov- 
ery, and  that  statutory  penalty  is  in  this  sense  'damages.'  "  ^-^  The 
correctness  of  this  holding  has  been  denied  in  other  cases. ^^^  In 
Georgia  these  stipulations  are  held  void  so  far  as  they  apply  to  the 
claim  for  the  statutory  penalty. ^-^  After  giving  considerable  study 
to  the  subject,  we  have  arrived  at  the  conclusion  that  the  proper 
view  in  which  the  matter  should  be  considered  is  that,  where  these 
stipulations  provide  that  all  claims  for  damages  shall  be  presented 
within  a  certain  time,  they  embrace  claims  for  statutory  penalties 
as  well  as  claims  for  actual  damages  sustained. 

124  See  §  386  et  seq. 

12  5  West.  U.  Tel.  Co.  v.  Topst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224; 
West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am.  Rep,  713 ;  Albers  v.  West.  U. 
Tel.  Co.,  98  Iowa,  51,  66  N.  W.  1040;  Montgomery  v.  West.  U.  Tel.  Co.,  50 
Mo.  App.  591 ;  Barrett  v.  West.  U.  Tel.  Co.,  42  Mo.  App.  546 ;  Kirby  v.  West. 
U.  Tel.  Co.,  7  S.  D.  623,  65  N.  W.  37,  30  L.  R.  A.  621,  624,  46  Am.  St.  Rep.  765 ; 
West.  U.  Tel.  Co.  v.  Powell,  94  Va.  268,  26  S.  E.  828. 

126  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am.  Rep.  713;  West.  U. 
Tel.  Co.  V.  Yopst,  118  Ind.  248,  20  N.  E.  222,  3  L.  R.  A.  224 ;  Clement  v.  West. 
U.  Tel.  Co.,  77  Miss.  747,  27  South.  603 ;  West.  U.  Tel.  Co.  v.  Meredith,  95  Ind. 
93 ;  Kendall  v.  West.  U.  Tel.  Co.,  56  Mo.  App.  192 ;  Barrett  v.  West.  U.  Tel. 
Co.,  42  Mo.  App.  542;  Montgomery  v.  West.  U.  Tel.  Co.,  50  Mo.  App.  591; 
West.  U.  Tel.  Co.  v.  Greer,  115  Tenn.  368,  89  S.  W.  327,  1  L.  R.  A.  (N.  S.)  525 ; 
Kirby  v.  West.  U.  Tel.  Co.,  7  S.  D.  623,  65  N.  W.  37,  46  Am.  St.  Rep.  765,  30 
L.  R.  A.  621,  624 ;    West.  U.  Tel.  Co.  v.  Towell,  94  Va.  208,  26  S.  E.  828. 

127  West.  U.  Tel.  Co.  v.  Jones,  95  Ind.  228,  48  Am.  Rep.  713. 

128  West.  U.  Tel.  Co.  v.  James,  90  Ga.  254,  16  S.  E.  83;  West.  U.  Tel.  Co. 
V.  Cobbs,  47  Ark.  344,  1  S.  W.  558,  58  Am.'  Rep.  756 ;  W>st.  U.  Tel.  Co.  v. 
Cooledge,  86  Ga.  104,  12  S.  E.  264.  But  see  West.  U.  Tel.  Co.  v.  Jones,  95 
Ind.  228,  48  Am.  Rep.  713. 

i2!>Mathis  V.  West.  U.  Tel.  Co.,  94  Ga.  338,  21  S.  E.  564,  1039,  47  Am.  St. 
Rep.  167 ;    Meadors  v.  West.  U.  Tel.  Co.,  90  Ga.  788,  23  S.  E.  837. 


846  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  654 

§  654.  Accord  and  satisfaction. — It  is  a  general  rule  that,  where 
there  is  an  agreement  to  satisfy  all  claims  which  may  be  pending 
and  an  execution  of  such  agreement,  this  fact  will  bar  all  actions 
afterward  brought  to  recover  such  claims,  unless  there  was  fraud 
of  some  kind  perpetrated.  The  agreement  must  be  made  in  good 
faith  and  cover  all  the  claims  demanded,  and  the  same  must  be 
satisfied  according  to  the  agreement.  As  has  been  said,  the  penalty 
provided  for  in  these  statutes  is  not  an  award  of  liquidated  dam- 
ages, but  is  a  punishment  imposed  on  these  companies  for  a  viola- 
tion of  some  of  the  duties  which  they  owe  to  the  public  generally, 
and  is  recoverable  only  by  the  person  against  whom  the  duties  are 
particularly  violated.  There  can  be  an  accord  and  satisfaction 
executed  in  such  a  manner  as  to  bar  the  plaintiff  from  recovering 
the  penalty.  Thus,  if  the  company  should  voluntarily  tender  or 
pay  to  the  plaintiff  the  price  paid  for  transmission  and  such  dam- 
ages as  may  have  been  sustained  by  the  act  of  the  company,  and  it 
also  appears  that  these  payments  were  made  in  full  settlement  for 
all  claims  which  he  may  have  had  against  the  company,  he  will  be 
barred  from  afterward  recovering  the  statutory  penalty.  But  un- 
less the  fact  appears  that  the  voluntary  payment  of  the  damages 
which  may  have  been  sustained,  and  the  price  for  transmission, 
were  paid  by  way  of  accord  and  satisfaction,  he  will  not  be  barred 
in  afterward  recovering  the  penalty.^^° 

§  655.  Prepayment  of  charges. — Some  of  the  statutes  which 
impose  a  penalty  for  the  violation  of  these  companies'  duties  ex- 
pressly state  that  the  charges  for  transmission  of  the  messages 
must  be  prepaid;  when  this  is  the  case  there  can  be  no  recovery 
of  the  penalty  when  it  is  shown  that  the  charges  have  not  been 
paid.^^^  If  the  message  was  sent  without  charges  because  of  the 
sender's  connection  with  the  company,  or  for  other  reasons,  the 
penalty  is  not  recoverable,  although  the  message  was  marked  "pre- 
paid." ^^^  Where  the  sender  tenders  the  amount  of  the  charges  and 
then  withdraws  them,  observing  that  the  addressee  ought  to  pay 
the  charges,  the  tender  amounts  to  nothing  and  the  penalty  is  not 

130  West.  U.  Tel.  Co.  v.  Taylor,  84  Ga.  419,  11  S.  E.  396,  8  L.  R.  A.  189; 
West.  U.  Tel.  Co.  v.  Moss,  93  Ga.  494,  21  S.  E.  63;  West.  U.  Tel.  Co.  v. 
Brightwell,  94  Ga.  434,  21  S.  E.  518;  West.  U.  Tel.  Co.  v.  Buchanan,  35 
Ind.  429,  9  Am.  Rep.  744. 

131  West.  U.  Tel.  Co.  v.  Mossier,  95  Ind.  32;  West.  U.  Tel.  Co.  v.  Ferguson, 
57  Ind.  495 ;  Langley  v.  West.  L'.  Tel.  Co.,  88  Ga.  777,  15  S.  E.  291 ;  Wood  v. 
West.  U.  Tel.  Co.,  59  Mo.  App.  236. 

132  This  is  under  the  Georgia  statute.  West.  U.  Tel.  Co.  v.  Ryals,  94  Ga. 
336,  21  S.  E.  573. 


^    656)  STATUTORY   PENALTY  847 

recoverable. ^^^  But  if  the  message  is  paid  for,  the  fact  that  the 
operator  returns  the  money  to  the  person  paying  and  substitutes  a 
free  or  a  "collect"  message  for  the  prepaid  one  without  the  sender's 
knowledge,  the  company  will  be  liable  for  the  penalty. ^^* 

§  656.  Repeal  of  statute — effect  of. — The  general  rule  is  that  the 
repeal  of  a  statute  prescribing  a  penalty  in  a  civil  action  takes  away 
the  right  of  recovery,^^^  whether  an  action  has  been  begun  ^^®  or 
not ;  "^  since  there  is  no  vested  right  in  the  penalty  entitling  its 
actual  recovery  by  final  judgment. ^^^  The  same  rule  applies  to 
statutes  which  impose  a  penalty  on  telegraph  companies  for  failing 
to  perform  the  duties  which  they  owe  to  the  public  ;^^*  but  in 
Indiana  the  right  to  recover  an  accrued  penalty  for  the  delaying  of 
a  telegram  is  by  special  provision  of  the  statute  saved  to  the  person 
injured  by  the  delay,  notwithstanding  the  repeal  of  the  statute 
prescribing  it.^*°  In  some  cases,  where  the  right  to  recover  a  pen- 
alty is  destroyed  by  the  repeal  of  the  statute  giving  it,  there  may 
still  be  a  recovery  for  the  violation  of  the  statute  on  common-law 
grounds.  Thus,  where  a  statute  prohibits  an  act,  and  a  violation 
of  its  provisions  is  such  an  act  of  negligence  as,  on  common-law 
principles,  subjects  the  offender  to  a  civil  action  for  damages  on 
account  of  the  loss  or  injury  thereby  caused,  the  repeal  of  the  stat- 
ute, while  it  destroys  the  right  to  recover  the  penalty,  does  not 
take  way  or  impair  a  right  of  action  which  has  already  accrued  by 
reason  of  such  negligence.^*^  Applying  this  rule  to  those  statutes 
which  we  have  been  discussing,  the  repeal  of  the  statute  will  not 
impair  the  right  to  recover  the  actual  damages  sustained  by  reason 
of  the  negligent  act  of  the  company. 

13  3  West.  U.  Tel.  Co.  v.  Power,  93  Ga.  54.3,  21  S.  E.  51. 

134  West.  U.  Tel.  Co.  v.  Moss,  93  Ga.  494,  21  S.  E.  63. 

135  Pope  V.  Lewis,  4  Ala.  487;  Victory  Webb  Printing  Co.  v.  Beecher,  26 
Hun  (N.  Y.)  48 ;  Wood  v.  Kennedy,  19  Ind.  68 ;  Hunt  v.  Jennings,  5  Blackf . 
(Ind.)  195,  33  Am.  Dec.  465 ;  Welch  v.  Wadsworth,  30  Conn.  149,  79  Am.  Dec. 
239;  Gregory  v.  German  Bank,  3  Colo.  332,  25  Am.  Eep.  760;  Musgrove  v. 
Vicksburg,  etc.,  R.  Co.,  50  Miss.  677. 

136  Bay  City,  etc.,  R.  Co.  v.  Austin,  21  Mich.  390;  Van  Dj'ck  v.  McQuade, 
86  N.  Y.  38;   Rood  v.  Chicago,  etc.,  R.  Co.,  43  Wis.  147. 

137  Comm.  V.  Standard  Oil  Co.,  101  Pa.  119 ;  Smith  v.  Banker,  3  How.  Prac. 
(N.  Y.)  142. 

138  Com.  V.  Welch,  2  Dana  (Ky.)  330;    State  v.  Bank,  1  Stew.  (Ala.)  347. 

139  lladley  v.  West.  U.  Tel.  Co.,  115  Ind.  191,  15  N.  E.  845. 

140  West.  U.  Tel.  Co.  v.  Brown,  108  Ind.  538,  8  N.  E.  171. 

141  Grey  v.  Mobile  Trade  Co.,  55  Ala.  387,  28  Am.  Rop.  729;  Gorman  v. 
McArdle,  67  Hun,  484,  22  N.  Y.  Supp.  479;  Vanderkar  v.  Rensselaer,  etc.,  E. 
Co.,  13  Barb.  (N.  Y.)  393. 


848  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  657 

CHAPTER  XXVI 

TAXATION. 

§  657.  Introduction. 

658.  Power  of  state  to  tax. 

659.  How  assessments  may  be  made. 

660.  Methods  of  taxation. 

661.  Classification — discretion  of  legislature. 

662.  Discrimination. 
66.3.  Lien  of  assessment. 

664.  Interstate  commerce — obstruction  of. 

665.  Property   of  telegraph  and   telephone   companies  used  In   Interstate 

commerce — subject  to  state  taxes. 

666.  Taxation  on  capital  stock  in  proportion  to  length  of  line  in  state. 

667.  Mileage  basis  of  valuation. 

668.  Assessment  of  telegraph  lines  for  taxation — New  York  state, 

669.  License  tax — cannot  be  imposed. 

670.  Distinction  between  property  tax  and  privilege  tax. 

671.  Excise  tax. 

672.  Taxation  on  gross  receipts — interstate  business. 

673.  Same  on  message. 

674.  Foreign  companies. 

675.  Power  of  a  municipality  to  Impose  tax. 

676.  Special  franchise  taxes. 

677.  Where  rights  of  being  a  corporation  are  derived  from  the  United 

States. 

678.  Lines  on  railroads. 

679.  Same — suits  to  collect. 

680.  Interest  when  payment  of  taxes  Is  delayed. 
6S0a.  Special  assessment  for  improvements. 

§  657.  Introduction. — We  propose  to  discuss,  in  this  chapter, 
the  right  to  tax  telegraph,  telephone,  and  electric  companies ;  and, 
in  treating  the  subject,  we  shall  discuss  the  rights  of  the  several 
states  to  make  such  imposition,  then  the  rights  as  derived  under 
the  federal  constitution.  These  rights  might  be  more  appropriately- 
discussed  under  two  separate  chapters;  but,  as  the  subject  of  taxa- 
tion has  been  more  thoroughly  discussed  in  a  general  way  by  other 
text-writers,  we  shall  be  brief  in  our  treatment  of  the  subject — 
applying  the  law  thereunder,  particularly  to  telegraph,  telephone 
and  electric  companies — and  embrace  the  entire  subject  under  one 
chapter.  Telegraph  and  telephone  companies  occupy  the  same 
relation  to  commerce  as  a  carrier  of  messages  that  a  railroad  com- 
pany does  as  a  carrier  of  goods ;  ^  and  while  the  nature  of  the  busi- 

1  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067 ;  Pensacola  Tel. 
Co.  V.  West.  U.  Tel.  Co.,  9G  U.  S.  1,  24  L.  Ed.  70S ;  Postal  Tel.  Co.  v.  Richmond, 
99  Va.  102,  37  S.  E.  789,  86  Am.  St.  Rep.  881. 


§   658)  TAXATION  849 

ness  of  these  companies  is  quite  different,  yet  the  relation  which 
each  bears  toward  commerce  is  the  same,  and  the  law  with  respect 
to  taxation,  unless  otherwise  expressed,  is  applicable  to  both.  The 
cases  against  telegraph  and  telephone  companies,  with  respect  to 
taxation,  are  not  so  numerous  as  those  which  have  been  maintained 
against  common  carriers  of  goods ;  and  for  this  reason  we  shall,  in 
many  instances,  refer  the  reader  to  such  as  may  have  been  brought 
against  the  latter  companies,  where  the  same  questions  are  in- 
volved. 

§  658.  Power  of  state  to  tax. — It  is  a  sovereign  power  of  the 
state  to  tax  property  of  every  description  belonging  to  telegraph, 
telephone,  and  electric  companies,  found  within  the  state,  and 
over  purely  domestic  or  intrastate  telegraph  and  telephone  mes- 
sages the  power  of  the  state  is  supreme;  ^  but  over  those  engaged 
in  interstate  commerce  the  power  of  the  state  is  necessarily  abridg- 
ed by  the  commerce  clause  of  the  federal  constitution.^'  The  prop- 
erty of  these  companies  engaged  in  interstate  commerce  which  is 
not  used  in  its  business  of  conducting  commerce  between  the  states 

2  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961.  31  L.  Ed. 
790 ;  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067 ;  Postal  Cable 
Tel.  Co.  V.  Adams,  71  Miss.  555,  14  South.  36,  42  Am.  St.  Rep.  483 ;  So.  Express 
Co.  V.  Mobile,  49  Ala.  404 ;  State  v.  West.  U.  Tel.  Co.,  73  Me.  518 ;  State  v. 
West.  U.  Tel.  Co.,  165  Mo.  502,  65  S.  W.  775 ;  Western  Union  Tel.  Co.  v.  Mis- 
souri ex  rel.  Gottlieb,  190  U.  S.  412,  23  Sup.  Ct.  730,  47  L.  Ed.  1116 ;  People  v. 
Gold,  etc.,  Tel.  Co.,  98  N.  Y.  67 ;  Com.  v.  West.  U.  Tel.  Co.,  2  Dauph.  Co.  Rep. 
(Pa.)  40 ;  West.  U.  Tel.  Co.  v.  Trapp,  186  Fed.  114,  108  C.  C.  A.  226 ;  West.  U. 
Tel.  Co.  V.  Taggart,  163  U.  S.  1,  16  Sup.  Ct.  1054,  41  L.  Ed.  49 ;  Massachusetts 
V.  West.  U.  Tel.  Co.,  141  U.  S.  40,  11  Sup.  Ct.  889,  35  L.  Ed.  628. 

Tax  on  dividends. — See  Atlantic,  etc.,  Tel.  Co.  v.  Com.,  66  Pa.  57. 

Electric  companies  are  subject  to  taxation.  Com.  v.  New  Castle  Elec.  Co.,  11 
Pa.  Dist.  Co.  R.  389,  tax  on  gross  receipts ;  State  v.  Anderson,  97  Wis.  114,  72 
N.  W.  386,  overruling  State  v.  Anderson,  90  AVis.  550,  63  N.  W.  746,  where  an 
electric  light  company  transfers  its  property  to  a  street  railroad  company.  Is 
thereafter  taxable  to  the  street  railroad  company. 

Electrical  appliances  considered  personalty  for  taxes. — People  v.  Feitner,  99 
App.  Div.  274,  90  N.  Y.  Supp.  904,  affirmed  in  181  N.  Y.  549,  74  N.  E.  1124 ; 
Shelby ville  Water  Co.  v.  People,  140  111.  545,  30  N.  E.  678,  16  L.  R.  A.  505  ; 
Newport  111.  Co.  v.  Newport  Tax  Assessors,  19  R.  I.  632,  36  Atl.  426,  36  L.  R. 
A.  266.  But  see  Herkimer  Co.  Lt.,  etc.,  Co.  v.  Johnson,  37  App.  Div.  257,  55 
N.  Y.  Supp.  924;  People  v.  Feitner,  supra;  Newport  111.  Co.  v.  Newport  Tax 
Assessors,  supra.  See  People  v.  N.  Y.  Tax,  etc.,  Com'rs,  58  Misc.  Rep.  249,  110 
N.  Y.  Supp.  833;  So.  Elec.  Lt.,  etc.,  Co.  v.  Philadelphia,  191  Pa.  170,  43  Atl. 
123 ;  Lancaster  v.  Edison  Elec.  111.  Co.,  8  Pa.  Co.  Ct.  R.  631. 

3  Ratterman  v.  West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32  L.  Ed. 
229 ;  West.  U.  Tel.  Co.  v.  Seay,  132  U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed.  409, 
reversing  SO  Ala.  273,  60  Am.  Rep.  99 :  West.  U.  Tel.  Co.  v.  Pendleton,  122  U. 
S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed.  1187 ;  West.  U.  Tel.  Co.  v.  Tex.,  105  U.  S. 
460,  26  L.  Ed.  1067.  See  Great  Northwestern  Tel.  Co.  v.  Fortier,  12  Quebec 
K.  B.  405,  as  to  interprovincial  lines  in  Canada. 
Jones  Tel.(2d  Ed.) — 54 


850  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  659 

is,  of  course,  subject  to  taxation  by  the  state  to  the  same  extent 
and  in  the  same  manner  as  the  same  property  of  natural  persons 
or  other  corporations.*  For  instance,  if  these  companies  are  the 
owners  of  real  property  ^ — such  as  houses  and  lots — which  is  not 
used  in  connection  with  their  business  as  a  carrier  of  interstate 
messages,  this  property  is  subject  to  state  taxation  to  the  same 
extent  as  if  it  belonged  to  an  individual,  and  the  power  to  tax  is  not 
affected  by  the  clause  in  the  federal  constitution.''  So  it  is  seen 
that  the  federal  constitution  exerts  a  very  important  influence  upon 
the  subject  of  taxation,  and  for  this  reason  we  shall  attempt  to 
discuss  the  subject  separately,  and  take  up,  first,  the  power  of  the 
state  to  tax. 

§  659.  How  assessments  may  be  made. — The  legislature  of  the 
state,  except  where  it  is  limited  by  the  constitution,  is  invested 
with  the  supreme  power  over  the  subject  of  taxation.  The  taxes 
are  levied  by  the  legislature,  and  the  mode  of  assessing  property 
must  be  prescribed  by  statute.'  The  best  method  of  taxing  the 
property  of  telegraph  and  telephone  companies,  where  it  forms  a 
part  of  its  lines,  is  to  regard  it  as  a  unit  and  assess  the  property  as 
an  entity,®  since  any  other  method  would  divide  or  cut  up  the  prop- 
erty into  fragmentary  parts  and  lead  to  confusion  and  injustice. 
Some  of  the  courts  have  held  that  this  is  the  only  method  which 
can  be  exercised  by  the  legislature ;  ^  but  it  seems  that,  where  the 
legislature  is  not  restricted  by  constitutional  provisions,  it  ought 

4  Leloup  V.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311.  See  State 
V.  Northwestern  Tel.  Exch.  Co.,  96  Minn.  389,  104  N.  W.  1086  ;  People  v.  Dolan, 
126  N.  Y.  166,  27  N.  E.  269,  12  L.  R.  A.  251 ;  West.  U.  Tel.  Co.  v.  State,  9  Baxt. 
(Tenn.)  509,  40  Am.  Rep.  90,  holding  the  payment  of  a  privilege  tax  does  not 
exempt  a  telegraph  company  from  taxation  on  its  property. 

5  Poles  real  property. — The  following  cases  hold  that  the  poles,  wires,  con- 
duits, and  instruments  of  telegraph  and  telephone  companies  are  assessable  as 
real  estate:  West.  U.  Tel.  Co.  v.  State,  9  Baxt.  (Tenn.)  509,  40  Am.  Rep.  90;  In 
re  Canadian  Pacific  Tel.  Co.,  25  Ont.  App.  351 ;  Bell  Tel.  v.  Ascot.  Pt,  16  Que- 
bec Sup.  Ct.  436.  But  see  Portland  v.  New  England  Tel.,  etc.,  Co.,  103  Me. 
240,  68  Atl.  1040 ;  People  v.  Hall,  57  Misc.  Rep.  308,  109  N.  Y.  Supp.  402.  See, 
also,  cases  in  note  2,  supra. 

6  See  cases  in  note  2,  supra. 

7  See  Wisconsin  Cent.  R.  v.  Taylor  Co.,  52  Wis.  37,  8  N.  W.  833 ;  State  v. 
Central,  etc.,  Co.,  21  Nev.  260,  30  Pac.  6S9 ;  North  Missouri,  etc.,  Co.  v.  Ma- 
guire,  20  Wall.  46,  22  L.  Ed.  287 ;  Cooley  Const.  Lim.  (5th  Ed.)  637 ;  Meriwether 
V.  Garrett,  102  U.  S.  472,  26  L.  Ed.  197. 

8  See  §  666  et  seq. 

9  See  Applegate  v.  Ernst,  3  Bush  (Ky.)  648,  96  Am.  Dec.  272.  See,  also, 
Graham  v.  Mt.  Sterling  Coal  Co..  14  Bush  (Ky.)  425,  29  Am.  Rep.  412 ;  Frank- 
lin Co.  V.  Nashville,  etc.,  Co.,  12  Lea  (Tenn.)  521. 


§    661)  TAXATION  851 

to  be  the  sole  judge  of  the  method  which  should  be  pursued  in  such 
matters. ^° 

§  660.  Methods  of  taxation. — The  four  principal  methods  of 
taxation  are:  (1)  On  the  capital  stock ;^^  (2)  on  the  corporate 
property;  ^^  (3)  on  the  franchise;  ^^  (4)  on  the  business  done  by 
the  corporation.^*  As  was  said,  the  legislature  has  the  power  to 
levy  taxes  and  prescribe  the  method  by  which  the  assessments  shall 
be  made.  This  power  is  supreme  so  far  as  the  property  subject  to 
taxation  is  exclusively  within  the  control  of  the  jurisdiction  of  the 
states ;  and  where  a  method  is  prescribed  by  statute  for  the  assess- 
ment of  the  taxes,  none  other  can  be  pursued. ^^  While  the  courts 
may  declare  a  statute  invalid  where  it  conflicts  with  the  constitu- 
tion, they  cannot  supervise  or  control  legislative  discretion,  nor 
can  they  dictate  the  policy  to  be  pursued. ^° 

§  661.  Classification — discretion  of  legislature. — The  discretion- 
ary powers  of  the  legislature  are  very  broad  and  comprehensive, 
and  no  matter  how  unjustly  they  may  be  exercised,  the  courts  can- 
not, so  long  as  the  constitutional  powers  are  not  transcended,  in- 
terfere with  them.  The  question  always  is  as  to  whether  it  has 
these  powers ;  and  if  it  be  clear  that  the  same  may  be  exercised, 
the  courts  cannot  alter,  amend  or  annul  the  statute;  otherwise 
they  may.  Different  methods  may  be  prescribed,  under  the  legisla- 
tive discretionary  powers,  for  assessing  corporations  of  different 

10  See  Wilson  v.  Weber,  96  111.  454;  State  v.  I.  0.  E.  Co.,  27  111.  64,  79  Am. 
Dec.  396 ;  Sangamon,  etc.,  Co.  v.  Morgan,  14  111.  163,  56  Am.  Dec.  497. 

1 1  No  state  can  impose  taxes  on  the  capital  stock  as  a  whole  unless  the 
company  is  organized  under  its  own  laws.  West.  U.  Tel.  Co.  v.  Lieb,  76  111. 
172 ;  Riley  v.  West.  U.  Tel.  Co.,  47  Ind.  511.  See  State  v.  West.  U.  Tel.  Co., 
165  Mo.  502,  65  S.  W.  775 ;  West.  U.  Tel.  Co.  v,  Atty.  Gen.,  125  U.  S.  530.  S 
Sup.  Ct.  961,  31  L.  Ed.  790 ;  West.  U.  Tel.  Co.  v.  Taggart,  163  U.  S.  1,  16  Sup. 
Ct.  1054,  41  L.  Ed.  49.  But  see  Com.  v.  Louisville  Gas  Co.,  135  Ky.  .324,  122 
S.  W.  164;  People  v.  Assor.,  19  App.  Div.  599,  46  N.  Y.  Supp.  3SS,  affirmed 
156  N.  Y.  417,  51  N.  E.  269,  42  L.  R.  A.  290. 

12  §  666  et  seq. 

13  Stockton,  etc..  Elect.  Co.  v.  San  .Toaquin  County,  14S  Cal.  313,  S3  Pac.  54, 
5  L.  R.  A.  (N.  S.)  174,  7  Ann.  Cas.  511 ;  Elect.,  etc.,  Co.  v.  Judson,  21  Wash.  49, 
56  Pac.  829,  57  L.  R.  A.  7S.  Compare,  People  v.  Assor.,  19  App.  Div.  599,  46  N. 
Y.  Supp.  388,  affirmed,  156  N.  Y.  417,  51  N.  E.  269,  42  L.  R.  A.  290.    See  §  076. 

14  See  §  665  et  seq.  See,  also,  Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S. 
G92,  14  Sup.  Ct.  1094,  38  L.  Ed.  871 ;  West.  U.  Tel.  Co.  v.  Board  of  Assessment, 
332  U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed.  409;  Atlanta,  etc.,  Tel.  Co.  v.  Savan- 
nah, 133  Ga.  66,  65  S.  El  184 ;  West.  U.  Tel.  Co.  v.  Wakefield,  69  Neb.  272,  95 
N.  W.  659;  Postal  Tel.  Cable  Co.  v.  Richmond,  99  Va.  102,  37  S.  E.  789,  86 
Am.  St.  Rep.  877. 

ifi  See  Louisville,  etc.,  Co.  v.  Warren  County,  5  Bush    (Ky.)  243. 

18  See  Legal  Tender  Cases,  12  Wall.  457,  20  L.  Ed.  287.  State  v.  Hay  worth, 
122  Ind.  462,  23  N.  E.  946,  7  L.  R.  A.  240;  City  of  Dubuque  v,  Chicago,  etc., 
Co.,  47  Iowa,  196. 


852  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  662 

classes,  and  a  statute  which  provides  different  methods  for  this 
purpose  cannot  be  successfully  assailed  upon  the  ground  that  it 
provides  a  method  for  assessing  telegraph,  telephone,  and  electric 
companies  different  from  that  for  assessing  other  corporations." 
Classification  of  different  corporations  may  be  made,  and  if  these 
companies  are  put  in  a  separate  and  distinct  class  from  others,  a 
method  of  assessing  them  may  be  prescribed  different  from  that 
prescribed  in  the  assessment  of  other  corporations  of  a  different 
class.  But  if  the  constitution  provides  that  taxes  shall  be  equal 
and  uniform,  the  mode  of  assessing  these  companies  must  be 
uniform;  that  is,  one  company  of  the  same  class  and  character 
cannot  be  assessed  differently  from  another  of  precisely  the  same 
class  and  character.^^ 

§  662.  Discrimination. — Where  the  state  constitution  provides 
that  taxes  shall  be  equal  and  uniform,  no  material  and  unjust  dis- 
crimination can  be  made  against  the  property  of  telegraph,  tele- 
phone, and  electric  companies,  independent  of  any  federal  rule  or 
regulation.  These  requirements  are  violated  by  imposing  a  heavier 
burden  upon  these  companies  than  that  imposed  upon  the  property 
of  railroad  companies  or  other  corporations,  or  that  on  the  prop- 
erty of  natural  persons.  The  word  "person,"  in  our  constitution, 
comprehends  corporations ;  and  when  it  provides  that  as  to  the  prop- 
erty of  all  persons  taxation  shall  be  equal  and  uniform,  it  is  meant  by 
this  that  the  property  of  corporations  must  be  taxed  equally  and  uni- 
formly, not  only  with  respect  to  that  belonging  to  other  corporations 
pi  the  same  or  different  class,  but  also  with  respect  to  that  belonging  to 
private  persons.  The  burden,  as  we  understand  it,  must  be  palpably 
and  materially  greater  than  that  imposed  on  other  property,  since 
in  all  systems  of  taxation  there  is  some  inequality. 

§  663.  Lien  of  assessment. — The  statutes  which  provide  the 
method  of  assessing  property  generally  provide  that  the  property 
shall  be  subject  to  a  lien  thereon  for  its  taxes.  The  tax  lien  owes 
its  existence  wholly  to  the  statute,  and  is  not  created  by  implication. 
The  extent,  duration  and  the  property  subject  to  such  lien  must 
be  determined  by  the  statute  creating  it.  These  statutes  generally 
provide  that  the  lien  for  taxes  shall  have  a  priority  over  all  other 
claims  against  the  property.  As  it  has  been  said,  the  property  of 
telegraph  and  telephone  companies  may   be   assessed  as  a  unit. 

17  West.  U-  Tel.  Co.  v.  Poe,  64  Fed.  9,  16  C.  C.  A.  683,  overruling  (C.  C.)  61 
Fed.  449. 

18  See  Worth  v.  Whittington,  etc.,  Co.,  89  N.  C.  291,  45  Am.  Rep.  679;  New 
Orleans  v.  Kaufman,  29  La.  Ann.  283,  29  Am.  Rep.  328 ;  Pittsburg,  etc.,  R.  Co. 
V.  State,  49  Ohio  St.  189,  30  N.  E.  435,  16  L.  R.  A.  380. 


8  664)  TAXATION  853 

When  this  method  is  prescribed  by  statute,  the  conclusion  is  that 
the  lien  for  taxes  assessed  attaches  to  the  entire  property.  This 
fact,  however,  may  be  controlled  by  statutory  provisions,  but  if 
there  is  no  other  method  prescribed  by  the  statute,  the  entire  prop- 
erty will  be  subject  to  the  lien  for  taxes.  It  must  be  understood, 
however,  that  only  such  property  of  the  company  as  is  within  the 
jurisdiction  of  the  state  is  subject  to  such  lien,  since  the  provisions 
of  any  statute  can  have  no  efifect  beyond  the  boundaries  of  the  state 
creating  it. 

§  664.  Interstate  commerce — obstruction  of. — A  state  unques- 
tionably has  the  right  to  tax  all  property  of  telegraph,  telephone, 
and  electric  companies  over  which  it  has  jurisdiction  and  which  is 
not  used  in  interstate  commerce,  but  when  it  attempts  to  tax  that 
property  used  exclusi-^'ely  in  carrying  on  commerce  between  the 
states,  an  infringement  of  the  commerce  clause  of  the  federal  con- 
stitution is  then  made.  While  this  is  the  rule,  yet  it  is  very  difficult 
in  applying  it  to  every  particular  case.  The  powers  of  the  state  to 
tax  property  cannot  be  exercised  so  as  to  obstruct  commerce  be- 
tween the  states,  or  to  defeat  or  restrain  the  power  of  the  federal 
Congress  to  regulate  commerce. ^^     The  power,  as  may  have  been 

19  In  the  case  of  Brown  v.  Maryland,  12  Wheat.  419,  6  L.  Ed.  67S,  Chief 
Justice  Marshall,  speaking  of  the  taxing  power,  said:  "We  admit  this  power 
to  be  sacred,  but  cannot  admit  that  it  may  be  so  used  as  to  obstruct  the  free 
exercise  of  power  given  Congress.  We  cannot  admit  that  it  may  be  used  so 
as  to  obstruct  or  defeat  the  power  to  regulate  commerce.  It  has  been  ob- 
served that  the  power  remaining  with  the  states  may  be  exercised  as  to  come 
in  conflict  with  those  vested  in  Congress.  When  this  happens,  that  which  is 
not  supreme  must  yield  to  that  which  is  supreme.  This  great  and  universal 
truth  is  inseparable  from  the  nature  of  things,  and  the  constitution  has  ap- 
plied it  to  the  often  interfering  powers  of  the  general  and  state  governments, 
as  vital  principles  of  perpetual  operation.  It  results,  necessarily,  from  this 
principle,  that  the  taxing  power  of  the  state  must  have  some  limits."  In  the 
State  Freight  Tax  Case,  15  Wall.  232,  21  L.  Bd.  146,  Justice  Wayne  expressed 
the  same  general  doctrine  in  this  language:  "While  on  the  other  hand  it  is 
of  the  utmost  importance  that  the  states  should  possess  the  power  to  raise 
revenue  for  all  the  purposes  of  a  state  government,  by  any  means  and  in  the 
manner  not  inconsistent  with  the  powers  which  the  people  of  the  state  have 
conferred  upon  the  general  government,  it  is  equally  important  that  the  domain 
oi'  the  latter  should  be  preserved  from  invasion  and  that  the  state  legislation 
should  be  sustained  which  defeats  the  avowed  purpose  of  the  federal  consti- 
tution, or  which  assumes  to  regulate  or  control  subjects  committed  by  the 
constitution  exclusively  to  the  regulation  of  Congress."  See,  also,  Osboru  v. 
State,  33  Fla.  1G2,  14  South.  5SS,  25  L.  R.  A.  120,  30  Am.  St.  Rep.  99.  The 
fact  that  a  telephone  company  has  extended  its  line  through  different  states 
and  is  engaged  in  interstate  commerce  will  not  relieve  it  from  the  operation  of 
state  statute,  upon  business  conducted  wholly  within  that  state,  nor  justify 
its  refusal  of  a  telephone  and  the  best  telephonic  connections  and  facilities  to 
persons  doing  business  in  such  state,  on  the  terms  prescribed  by  such  statute. 
Central  U.  Tel.  Co.  v.  Falley,  US  Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep.  114. 


854  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  664 

seen,  to  tax  property  used  in  interstate  commerce  is  within  the  ex- 
clusive control  of  Congress,  and  if  there  is  a  state  tax  which  so 
operates  as  to  regulate  or  control  commerce  between  the  states 
there  is  an  invasion  of  the  domain  of  the  federal  government.^" 

Messages  sent  over  such  telephones  are  commerce  between  the  states,  and 
cannot  be  prohibited  by  injunction  in  either  state  against  persons  or  corpora- 
tions engaged  in  sending  such  messages  because  they  do  not  pay  the  taxes 
assessed  against  them  by  such  state.  In  re  Pennsylvania  Telephone  Com- 
pany, 48  N.  J.  Eq.  91,  20  Atl.  846,  27  Am.  St.  Rep.  462. 

A  state  statute  making  it  the  duty  of  every  telegraph  and  telephone  com- 
pany to  deliver  with  promptness  every  message  received  to  the  person  to 
whom  it  is  addressed,  if  the  regulation  of  the  company  require  such  delivery, 
or  to  forward  it  promptly  as  directed,  and  providing  a  penalty  for  every 
failure  to  deliver  or  forward  such  message  as  promptly  as  practicable,  such 
penalty  to  be  paid  to  the  person  sending  the  message,  or  to  whom  it  is  ad- 
dressed, as  imposing  a  burden  upon,  or  as  a  regulation  of,  interstate  com- 
merce, when  applied  to  the  failure  of  an  interstate  telegraph  company  to  de- 
liver a  message  in  that  state  sent  from  another  state  and  delivered  in  the  for- 
mer state.  West.  U.  Tel.  Co.  v.  Tyler,  90  Va.  297,  18  S.  E.  280,  44  Am.  St.  Rep. 
910 ;  Gray  v.  Tel.  Co.,  108  Tenn.  39,  64  S.  W.  1063,  56  D.  R.  A.  301,  91  Am.  St. 
Rep.  700.  But  see  Marshall  v.  West.  U.  Tel.  Co.,  79  Miss.  154,  27  South.  614, 
89  Am.  St.  Rep.  585.  They  may  enact  laws  subjecting  telegraph  companies  to 
penalties  for  acts  of  negligence  occurring  entirely  within  the  limits  of  that 
state,  although  such  acts  may  be  committed  in  dealing  with  message  to  be 
transmitted  to  points  in  other  states.  West.  U.  Tel.  Co.  v.  Howell,  95  Ga.  194, 
22  S.  E.  286,  30  L.  R.  A.  158,  51  Am.  St.  Rep.  68. 

A  statute  prohibiting  all  persons  from  engaging  in  the  business  of  transmit- 
ting money  to  any  race  track  or  other  place,  to  be  there  bet  on  any  horse  race 
trial  of  speed,  skill,  or  endurance,  etc.,  whether  within  or  without  the  state, 
and  also  from  keeping  any  place  in  which  such  business  is  permitted  or  car- 
ried on,  is  valid  and  not  unconstitutional  as  a  regulation  of  interstate  com- 
merce as  applied  to  the  agent  of  the  telegraph  company  who  is  engaged  in 
such  business,  and  transmits  money  to  another  state  by  telegraph  to  be  there 
bet  upon  the  result  of  horse  races:  State  v.  Harbourna,  70  Conn.  484,  40  Atl. 
179,  40  L.  R.  A.  607,  66  Am.  St.  Rep.  126 ;  Lacey  v.  Palmer,  93  Va.  159,  24  S. 
E.  930,  31  L.  R.  A.  822,  57  Am.  St.  Rep.  795.  And  statutes  providing  the  time 
in  which  suits  are  to  be  brought  against  telegraph  companies  for  losses  oc- 
curring in  failing  to  transmit  or  deliver  messages  promptly  are  not  unconsti- 
tutional when  applied  to  interstate  commerce.  Burgess  v.  West.  U.  Tel.  Co., 
92  Tex.  125,  46  S.  W.  794,  71  Am.  St.  Rep.  833. 

2  0  San  Francisco  v.  West.  U.  Tel.  Co.,  96  Cal.  140,  31  Pac.  10,  17  L.  R.  A. 
301;  Pensacola  Tel.  Co.  v.  West.  U.  Tel.  Co.,  96  U.  S.  1,  24  L.  Ed.  708;  West. 
U.  Tel.  Co.  V.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067. 

A  revenue  law  (Gen.  St.  1888,  c.  92,  art.  4,  §  4)  providing  that,  at  a  certain 
time  in  each  year,  the  managing  officer  of  "any  telegraph  company,  working, 
operating  or  controlling  any  telegraph  line  in  this  state,"  shall  "pay  to  the 
treasurer  a  tax  equal  to  one  dollar  per  mile  for  the  line  of  poles  and  first  wire, 
and  fifty  cents  per  mile  for  each  additional  wire"  imposed  a  tax  on  the  busi- 
ness, not  on  the  property,  of  the  companies  affected,  and  those  companies  are 
agencies  of  interstate  commerce,  the  law  is  invalid  as  being  an  attempted  exer- 
cise of  a  power  belonging  exclusively  to  the  federal  legislature.  Com.  v.  Smith, 
92  Ky.  38,  17  S.  W.  187,  36  Am.  St.  Rep.  578.  But  a  state  tax  imposed  upon 
telegraph  companies  operating  within  the  state,  in  lieu  of  all  other  taxes,  as 
a  privilege  tax,  its  amount  being  graduated  according  to  the  amount  and 


§   665)  TAXATION  855 

So  it  follows  that,  if  a  state  tax  operates  so  as  to  obstruct  such 
commerce,  the  statute  imposing  such  tax  is  invalid,  since  no  state 
can  obstruct  or  hinder  interstate  commerce.  The  general  principle 
in  regard  to  this  subject  is  easily  understood,  but  it  is  very  difficult 
to  apply  it  to  the  different  cases,  and  it  is  well  to  say  that  each  case 
must  be  considered  in  its  own  light  in  order  to  ascertain  as  to 
whether  the  principles  are  applicable  thereto. 

§  665.  Property  of  telegraph  and  telephone  companies  used  in 
interstate  commerce — subject  to  state  taxes. — When  property  of 
telegraph,  telephone,  or  electric  companies  is  used  in  interstate 
commerce,  this  fact  does  not  relieve  it  from  state  taxes. ^^  The 
property  of  telegraph  and  telephone  companies  having  its  situs 
within  the  state  imposing  the  taxes  may  be  taxed  by  the  state  al- 
though it  is  used  exclusively  for  interstate  commerce,  but  the  busi- 
ness of  interstate  commerce  itself  cannot  be  burdened  with  such 
taxes. ^^     "Its  property  in  the  state  is  subject  to  taxation  the  same 

value  of  the  property  measured  by  miles,  if  reasonable  in  amount,  and  espe- 
cially if  less  than  the  ad  valorem  state  tax,  is  valid,  and  not  an  interference 
with  interstate  commerce  when  imposed  upon  a  foreign  telegraph  company 
operating  its  lines  in  and  across  the  state,  although  such  company  is  engaged 
in  sending  interstate  messages.  Postal  Tel.,  etc.,  Co.  v.  Adams,  71  Miss.  555, 
14  South.  36,  42  Am.  St.  Rep.  476 ;  Postal  Tel.  Co.  v.  Richmond,  99  Va.  102, 
37  S.  E.  789,  86  Am.  St.  Rep.  877. 

21  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067;  West.  U.  Tel. 
Co.  V.  Atty.  Gen.,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L.  Ed.  790;  Le- 
loup  V.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311;  Postal  Tel. 
Cable  Co.  v.  Adams,  71  Miss.  555,  14  South.  36,  42  Am.  St.  Rep.  476.    See  §  658. 

In  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  S  Sup.  Ct.  961,  31  L. 
Ed.  790,  the  court  said:  "While  the  state  could  not  interfere  by  any  specific 
statute  to  a  corporation  from  placing  its  lines  along  their  post  roads  or  stop 
the  use  of  them  after  they  were  placed  there,  nevertheless  the  company  re- 
ceiving the  benefits  of  the  laws  of  the  state  for  the  protection  of  its  property 
and  its  rights  is  liable  to  be  taxed  upon  its  real,  and  personal  property  as 
any  other  person  would  be.  It  never  could  have  been  intended  by  the  Con- 
gress of  the  United  States,  in  conferring  upon  a  corporation  of  one  state  the 
authority  to  enter  the  territory  of  another  state,  and  erect  its  poles  and  lines 
therein,  to  establish  the  proposition  that  such  a  company  owed  no  obedience  to 
the  laws  of  the  state  into  which  it  thus  entered,  and  was  under  no  obligation 
to  pay  its  fair  proportion  of  the  taxes  necessary  to  its  support." 

In  another  case  the  court  said:  "The  Western  Union  Telegraph  Company, 
having  accepted  restrictions  and  obligations  of  this  provision  by  Congress,  oc- 
cupies in  Texas  the  position  of  an  instrument  of  foreign  and  interstate  com- 
merce, and  of  a  government  agent  for  the  transmission  of  messages  on  public 
business.  Its  property  in  the  state  is  subject  to  taxation  the  same  as  other 
property,  and  it  may  undoubtedly  be  taxed  in  a  proper  way  on  account  of  its 
occupation  and  business."  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26  L. 
Ed.  1067.  See,  also.  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup. 
Ct.  961,  31  U  Ed.  790. 

2  2  Pullman  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct.  876, 
35  L.  Ed.  613 ;    Dubuque  v.  I.  C.  R.  Co.,  39  Iowa,  50 ;    West.  U.  Tel.  Co.  v. 


856  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  665 

as  other  property;  and  it  may  undoubtedly  be  taxed  in  a  proper 
way  on  account  of  its  occupation  and  its  business."  ^^  The  exemp- 
tion of  interstate  and  foreign  commerce  from  state  regulation  does 
not  prevent  the  state  from  taxing  the  property  of  those  engaged 
in  such  commerce  located  within  the  state,  as  the  property  of  other 
citizens  is  taxed,  nor  from  regulating  matters  of  local  concern  which 
may  incidentally  affect  commerce.^*  Thus  a  statute  is  held  valid 
which  authorizes  the  taxation  by  several  towns  of  the  state  of  the 
portions  of  telegraph  lines  in  such  towns,  including  the  interest 
on  the  value  of  land  occupied  by  the  line,  aH  poles,  insulators,  wires 

Taggart,  141  Ind.  281,  40  N.  E.  1051,  60  L.  R.  A.  671,  note ;  Osborne  v.  State, 
33  Fla.  162,  14  South.  5S8,  25  L.  R.  A.  120,  39  Am.  St,  Rep.  99 ;  Postal  Tel. 
Cable  Co.  v.  Richmond,  99  Va.  102,  37  S.  E.  7S9,  86  Am.  St.  Rep.  877;  South- 
ern Express  Co.  v.  Mobile,  49  Ala.  404;  State  v.  West.  U.  Tel.  Co.,  73  Me. 
518 ;  State  v.  West.  U.  Tel.  Co.,  165  Mo.  502,  65  S.  W.  775 ;  People  v.  Gold, 
etc.,  Tel.  Co.,  98  N.  Y.  67;  Com.  v.  West.  U.  Tel.  Co.,  2  Dauph.  Co.  Ct.  Rep. 
(Pa.)  40;  West.  U.  Tel.  Co.  v.  Taggart,  163  U.  S.  1,  16  Sup.  Ct.  1054,  41  L. 
Ed.  49;  Postal  Tel.  Cable  Co.  v.  Adams,  155  U.  S.  688,  15  Sup.  Ct.  268,  39 
L.  Ed.  311 ;  Massachusetts  v.  West.  U.  Tel.  Co.,  141  U.  S.  40,  11  Sup.  Ct.  889, 
35  L.  Ed.  628;  West.  U.  Tel.  Co.  v.  Atty.  Gen.,  125  U.  S.  530,  8  Sup.  Ct. 
961,  31  L.  Ed.  790;  Postal  Tel.  Cable  Co.  v.  City  of  Cordele,  139  Ga.  126, 
76  S.  E.  744,  Ann.  Cas.  1914A,  984,  holding  that  a  municipal  ordinance  im- 
posing a  tax  of  $100.00  on  every  telegraph  company  doing  business  in  the 
city,  or  in  lieu  thereof  requiring  each  of  such  companies  to  pay  ?2.00  for 
each  and  every  pole  used  within  the  city  limits,  is  void  as  being  an  unlawful 
interference  with  interstate  commerce. 

2  3  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L. 
Ed.  790 ;  Atty.  Gen.  v.  Western  Union  Tel.  Co.  (C.  C.)  33  Fed.  129 ;  Id.,  141 
U.  S.  40,  11  Sup.  Ct.  889,  35  L.  Ed.  628 ;  Taylor  v.  Secor,  92  U.  S.  575,  23  L. 
Ed.  663;  West.  U.  Tel.  Co.  v.  State,  9  Baxt.  (Tenn.)  509,  40  Am.  Rep.  99; 
Postal  Tel.  Cable  Co.  v.  Adams,  71  Miss.  555,  14  South.  36,  42  Am.  St.  Rep.  476. 

2  4  Leloup  V.  Mobile.  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311.  affirming 
West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  901,  31  L.  Ed.  790. 

The  grant  by  the  United  States  to  construct  and  operate  lines  along  any 
military  or  post  roads  is  not  such  a  grant  of  a  franchise  as  to  exempt  a  tele- 
graph company  from  taxes  imposed  by  a  state  in  which  its  lines  are  con- 
structed. State  V.  West.  U.  Tel.  Co.,  165  Mo.  502,  65  S.  W.  775 ;  Atty.  Gen. 
V.  West.  U.  Tel.  Co.,  141  U.  S.  40,  11  Sup.  Ct.  889,  35  L.  Ed.  628 ;  Ratterman 
V.  West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32  L.  Ed.  229 ;  West.  U. 
Tel.  Co.  V.  Massachusetts,  125  U.  S.  539,  8  Sup.  Ct.  961,  31  L.  Ed.  790 ;  Atty. 
Gen.  V.  West.  U.  Tel.  Co.  (C.  C.)  33  Fed.  129.  A  tax  based  upon  the  capital 
or  property  is  not  invalidated  because  no  deduction  in  the  valuation  is  made 
on  account  of  the  valuation  of  the  federal  franchise.  West.  U.  Tel.  Co.  v. 
Taggart,  163  U.  S.  1,  16  Sup.  Ct.  10.54,  41  L.  Ed,  49;  West.  U.  Tel.  Co.  v. 
Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L.  Ed.  790.  But  this  rule 
does  not  authorize  the  imposition  independently  of  the  capital  and  property. 
West.  U.  Tel.  Co.  v.  Visalia,  149  Cal.  744,  87  Pac.  1023;  West.  U.  Tel.  Co.  v. 
Lakin,  58  Wash.  326,  101  Pac.  1094,  17  Ann.  Cas.  718;  San  Francisco  v. 
West.  U.  Tel.  Co.,  96  Cal.  140.  31  Pac.  10,  17  L.  R.  A.  301.  A  municipality 
does  not  grant  any  new  franchise  subject  to  taxation.  West.  U.  Tel.  Co.  v. 
Visalia,  supra.  The  state  cannot  enjoin  a  company  from  transacting  business 
until  its  delinquent  taxes  are  paid,  where  its  lines  are  located  upon  military 


§   667)  TAXATION  857 

and  apparatus,  although  such  lines  may  run  into  other  states.-^ 
And  the  fact  that  the  company  has  paid  a  privilege  tax  does  not 
release  it  from  liability  for  taxes  assessed  on  its  property,  such  as 
its  poles,  wires  and  other  instruments.^*^ 

§  666.  Taxation  on  capital  stock  in  proportion  to  length  of  line 
in  state. — It  has  been  held  by  courts  of  last  resort  that  the  taxing 
officers  may  take  into  consideration  the  lines  of  wires  extending  into 
and  through  other  states,  in  determining  the  value  of  the  entire 
line.^^  A  Massachusetts  statute  '^  provided  that  every  telegraph 
company  owning  a  line  in  the  state  should  be  taxed  on  such  pro- 
portion of  the  whole  value  of  its  capital  stock  as  the  length  of  its 
line  in  the  state  bears  to  the  whole  length  of  its  line  everywhere, 
after  deducting  the  value  of  any  property  owned  by  it  subject  to 
local  taxation  in  the  cities  and  towns  of  the  state.  It  was  held  that 
such  tax  was  not  in  violation  of  the  interstate  commerce  clause  of 
the  constitution.  In  rendering  an  opinion  on  this  statute,  the  court 
said :  "The  statute  *  *  *  intended  to  govern  the  taxation  of 
all  corporations  doing  business  within  its  territory,  whether  organ- 
ized under  its  own  laws  or  under  those  of  some  other  state ;  and 
the  rule  adopted  to  ascertain  the  amount  of  the  capital  engaged  in 
that  business  within  its  boundaries  on  which  the  tax  should  be 
assessed  is  not  an  unfair  or  unjust  one,  and  the  details  of  the 
method  by  which  this  was  determined  have  not  exceeded  the  fair 
range  of  legislative  discretion."  ^^ 

§  667.  Mileage  basis  of  valuation. — It  has  also  been  decided  that 
the  taxing  officers  may  make  a  valuation  upon  the  mileage  basis, 
although  the  property  may  be  used  for  interstate  commerce.  Thus 
a  state  privilege  tax  of  a  certain  amount  per  mile  of  wires  operating 
within  the  state,  imposed  on  all  telegraph,  telephone  or  electric 
companies  therein  operating,  in  lieu  of  all  other  state,  county  and 
municipal  taxes,  and  amounting  to  less  than  the  ordinarv  ad 
valorem  tax,  is  substantially  a  mere  tax  on  property,  to  which  a 

or  post  roads  of  the  United  States.  West.  U.  Tel.  Co.  v.  Massachusetts,  125 
U.  S.  530,  8  Sup.  Ct.  961,  31  L.  Ed.  790. 

2  5  People  V.  Tierney,  57  Hun,  357,  10  N.  Y.  Supp.  940;  People  v.  Dolan, 
126  N.  Y.  106,  27  N.  E.  269,  12  L.  R.  A.  251. 

2G  West.  U.  Tel.  Co.  v.  State,  9  Baxt.  (Tenn.)  509,  40  Am.  Rep.  99. 

27  West.  U.  Tel.  Co.  v.  Atty.  Gen.,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L.  Ed. 
790;  Pittsburg,  etc.,  Co.  v.  Backus,  1.54  U.  S.  421,  14  Sup.  Ct.  1114,  38  L.  Ed. 
1031;  Columbus,  etc.,  R.  Co.  v.  Wright,  151  U.  S.  470,  14  Sup.  Ct.  396,  38 
L.  Ed.  238 ;  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961, 
31  L.  Ed.  790.     See  cases  in  note  22,  supra. 

2spub.   St.  1882,  c.  13,  §§  38-40. 

2  9  West.  U.  Tel.  Co.  v.  Massachusetts,  141  U.  S.  40,  11  Sup.  Ct.  889,  35  L. 
Ed.  628. 


858  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  668 

foreign  corporation  operating  within  the  state  is  subject,  notwith- 
standing it  is  engaged  in  interstate  commerce.^*'  But  a  general 
license  tax,  imposed  upon  a  telegraph  company,  affects  its  entire 
business,  interstate  as  well  as  domestic  or  internal,  and  is  uncon- 
stitutional.  So  there  is  a  distinction  between  such  cases  when  the 
taxes  are  imposed  upon  the  business  of  interstate  commerce  itself 
and  those  which  may  be  laid  upon  the  property  within  the  state 
employed  in  such  business.^^ 

§  668.  Assessment  of  telegraph  lines  for  taxation — New  York 
state. — A  statute  ^^  in  New  York  provides  that  telegraph  lines  shall 
be  assessed  "in  the  manner  provided  by  law  for  the  assessment  of 
lands,"  and  that  the  word  "line"  shall  include  "the  interest  in  the 
land  on  which  the  poles  stand,  the  right  or  license  to  erect  such 
poles  on  land,  and  all  poles,  arms,  insulators,  wires,  apparatus,  in- 
struments, or  other  things  connected  with  or  used  as  a  part  of  such 
line."  It  is  held  that,  in  making  the  assessment,  the  property  is 
not  to  be  regarded  as  a  whole,  nor  as  a  complete  telegraph  line  in 
operation,  but  that  the  true  value  is  obtained  by  taking  the  cost  of 
production  of  poles,  wires  and  other  apparatus,  which  are  in  their 
nature  personalty,  and  adding  thereto  the  value  of  the  company's 
interest  in  the  land  on  which  the  poles  stand,  and  the  right  to  erect 
the  poles  thereon. ^^  In  the  same  case  it  is  held  that,  in  arriving  at 
the  value  of  the  interest  in  the  land  on  which  the  poles  stand  and  of 
the  right  to  erect  such  poles,  it  is  to  be  considered  that,  so  far  as  the 
line  is  erected  upon  the  highway,  the  only  interest  that  the  com- 
pany has  is  a  mere  license,  revocable  at  the  will  of  the  legislature, 
of  which  license  any  other  company  may  avail  itself.  The  expense 
which  the  company  incurred  in  obtaining  the  interest  is  the  correct 
criterion  by  which  to  judge  of  its  value. ^* 

§  669.  License  tax — cannot  be  imposed. — A  license  tax  is  a  tax 
imposed  as  a  condition  of  permitting  business  to  be  conducted 
within  the  state  imposing  such  tax,  and  is  therefore  a  tax  upon  in- 

30  West.  U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L. 
Ed.  790;  Pullman,  etc.,  Co.  v.  Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct.  876,  35 
L.  Ed.  613 ;  Maine  v.  Grand  Trunk,  etc.,  Co.,  142  U.  S.  217,  12  Sup.  Ct.  121, 
35  L.  Ed.  994. 

siLeloup  V.  Port  of  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311; 
Postal  Tel.  Cable  Co.  v.  Mayor,  etc.,  139  Ga.  126,  76  S.  E.  744,  Ann.  Gas. 
1914A,  984. 

3  2  Laws  1886,  c.  659. 

8  3  People  V.  Dolan,  126  N.  Y.  166,  27  N.  E.  269,  12  L.  R.  A.  251.  See,  Ken- 
tucky Elec.  Co.  T.  Buechel,  146  Ky.  660,  143  S.  W.  58,  38  L.  R.  A.  (N.  S.)  907, 
Ann.  Cas.  1913C,  714,  lines  not  exempt  although  plant  may  be  as  manufactur- 
ing plant  under  statute. 

34  Id. 


§   669)  TAXATION  859 

terstate  commerce,  and  for  this  reason  is  invalid.  Thus,  where  a 
telegraph  company  is  carrying  on  the  business  of  transmitting  mes- 
sages between  the  different  states,  and  has  accepted  and  is  acting 
under  the  telegraph  laws  passed  by  Congress, ^^  no  state  within 
which  it  sees  fit  to  establish  an  office  can  impose  upon  it  a  license 
tax,  or  require  it  to  take  out  a  license  for  the  transaction  of  such 
business. ^°     Such  tax  is  not  a  tax  upon  the  property  of  these  com- 

35  July  24,  1866,  c.  230,  14  Stat.  221  (U.  S.  Comp.  St.  1913,  §§  10072-10077). 

36Leloup  V.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311.  The 
Western  Union  Telegraph  Company  established  an  office  in  the  city  of  Mobile 
and  was  required  to  pay  a  license  tax  under  a  city  ordinance  imposing  an 
annual  tax  of  two  hundred  and  twenty-five  dollars  on  every  telegraph  com- 
pany in  the  city.  The  agent  of  the  company  was  fined  for  nonpayment  of  the 
tax.  In  an  action  to  recover  the  amount  of  the  fine,  it  was  held,  reversing 
the  decision  of  the  state  supreme  court,  that  such  tax  affected  the  entire  busi- 
ness of  the  company,  interstate  as  well  as  domestic,  and  was  constitutional. 
The  state  court  relied  mainly  on  the  case  of  Osborne  v.  Mobile,  16  Wall.  479, 
21  L.  Ed.  470,  which  held  that  an  ordinance  of  the  city  of  Mobile  was  not 
unconstitutional  which  required  every  express  company  or  railroad  company 
doing  business  there,  and  having  a  business  extending  beyond  the  limits  of 
the  state,  to  pay  an  annual  tax  of  five  hundred  dollars ;  if  the  business  was 
confined  within  the  limits  of  the  state,  a  tax  of  one  hundred  dollars ;  if  con- 
fined within  the  city,  of  fifty  dollars.  The  decision  of  the  state  court,  how- 
ever, was  reversed. 

A  license  tax  imposed  by  a  city  upon  telegraph  companies  in  the  following 
terms :  "Telegraph  companies  each,  for  business  done  exclusively  within  the 
city  of  Charleston,  and  not  including  any  business  done  to  or  from  points 
without  the  state,  and  not  including  any  business  done  for  the  government 
of  the  United  States,  its  officers  or  agents,  $500,"  is  not  invalid  as  applied 
to  a  company  partly  engaged  in  transmitting  interstate  messages,  and  which 
has  accepted  the  provisions  of  Act  July  24,  1866,  c.  230,  14  Stat.  221  (U.  S. 
Comp.  St.  1913,  §§  10072-10077),  and  thereby  become  an  agency  of  the  United 
States  (C.  C.)  .56  Fed.  419;  affirming  Postal  Tel.  Cable  Co.  v.  City  Council  of 
Charleston,  153  U.  S.  692, 14  Sup.  Ct.  1049,  .38  L.  Ed.  871.  A  contention  that  a 
telegraph  company  seeking  to  enjoin  collection  of  the  tax  is  not  within  the  scope 
of  the  ordinance  because  it  in  fact  does  no  business  "exclusively  within  the 
city,"  and  that  its  city  offices  are  merely  initial  points  for  sending  messages  to 
points  outside  the  city,  cannot  be  considered,  for,  if  the  state  has  power  to 
tax  business  done  within  the  limit,  the  exercise  of  that  power  cannot  be  cor- 
rected by  the  federal  court. 

A  similar  tax  was  sustained  in  West.  U.  Tel.  Co.  v.  City  of  Fremont,  39  Neb. 
692,  58  N.  W.  415,  26  L.  R.  A.  098.  The  ordinance  levying  the  tax  was  as 
follows:  "Section  1.  That  there  is  hereby  levied  a  license  tax  on  each  and 
every  occupation  and  business  within  the  limits  of  this  city,  in  this  section 
hereinafter  enumerated,  to  raise  a  revenue  thereby  in  the  several  different 
sums  of  the  several  different  businesses  and  occupations,  respectively,  as 
follows:  No.  1.  The  sum  of  one  hundred  dollars  per  year  on  the  business 
and  occupation  of  receiving  messages  in  this  city  from  persons  in  this  city  and 
transmitting  the  same  by  telegraph  from  this  city  within  this  state  to  per- 
sons and  places  within  this  state,  and  receiving  in  this  city  messages  by  tele- 
graph transmitted  within  this  state  from  persons  and  places  in  this  state 
to  persons  within  this  city  and  delivering  the  same  to  persons  in  this  city, 
excepting  the  receipt,  transmission  and  delivery  of  any  such  message  to  and 


860  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  670 

panics,  nor  is  it  the  exaction  of  a  fee  for  the  privilege  of  becoming  a 
corporation.  If,  however,  the  license  tax  is  only  imposed  on  "each 
and  every  person  or  company  engaging  in  the  business  of  sending 
and  receiving  telegraphic  messages  to  and  from  points  within  the 
state  *  *  *  and  keeping  an  office  or  place  of  business"  therein, 
the  rule  would  be  otherwise."  In  this  case  the  license  tax  may  be 
enforced  without  interfering  with  interstate  commerce  or  the  rights 
of  the  general  government  secured  to  it  under  the  act  of  Congress.^^ 
So  it  has  been  held  that  an  annual  charge  of  five  dollars  per  pole 
upon  the  poles  of  a  telegraph  company  already  established,  under 
an  express  provision  by  ordinance  imposed  by  a  municipality  as  a 
"consideration  for  the  privilege,"  is  not  a  tax,  either  on  property  or 
as  a  license ;  nor  is  it  an  exercise  of  the  police  power,  as  it  involves 
no  consideration  of  public  order,  health,  morals,  or  convenience, 
and  cannot  therefore  be  sustained,^^  although  it  may  be  enforced  if 
the  ordinance  imposing  it  is  a  police  regulation. ^° 

§  670.  Distinction  between  property  tax  and  privilege  tax. — As 
it  has  been  seen,  a  state  may  impose  a  tax  upon  property  within  the 
state,  although  it  may  be  used  for  interstate  commerce,  but  a  privi- 

from  any  department,  agency,  or  agent  of  the  United  States  and  excepting 
tlie  receipt,  transmission  and  delivery  of  any  such  message  are  interstate 
commerce;  the  business  and  occupation  of  receiving,  transmitting  and  de- 
livering of  the  messages  herein  excepted  is  not  taxed  hereby."  The  court 
held  the  following  propositions:  1.  State  and  municipal  authorities  are 
powerless  to  impose  a  tax  upon  messages  to  or  from  other  states,  since  such 
a  tax  would  be  in  conflict  with  that  clause  of  the  federal  Constitution  which 
gives  to  Congress  the  exclusive  power  to  regulate  commerce  among  the  several 
states.  2.  Where  a  telegraph  company  is  engaged  in  both  interstate  and  in- 
trastate business,  an  ordinance  levying  an  occupation  tax  on  that  portion  of 
such  business  which  is  carried  on  wholly  within  the  state  is  not  repugnant 
to  section  8,  art.  1,  of  the  Constitution  of  the  United  States,  since  it  in  no 
way  interferes  with,  or  regulates,  interstate  commerce. 

3  7Leloup  V.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311;  Postal 
Tel.  Cable  Co.  v.  Charleston,  153  U.  S.  692,  14  Sup..  Ct.  1049,  38  L.  Ed.  871; 
West.  U.  Tel.  Co.  v.  Freemont,  39  Neb.  692,  58  N.  W.  415,  26  L.  R.  A.  698. 

3  8  Leloup  V.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  13S3,  32  L.  Ed.  311. 

8  9  New  Orleans  v.  Great  South.  Tel.,  etc.,  52  La.  Ann.  1082,  27  South.  590, 
78  Am.  St.  Rep.  387. 

40  West.  U.  Tel.  Co.  v.  Philadelphia,  12  Atl.  144,  9  Sadler  (Pa.)  300. 

The  power  of  a  municipality  to  charge  license  fees  to  railway  companies, 
telegraph  and  telephone  companies,  and  other  public  institutions  cannot  be 
questioned,  so  long  as  such  license  is  a  police  regulation,  and  tends  to  ac- 
complish the  object  sought.  See,  on  this  subject.  Mayor  of  Mobile  v.  Yuille, 
3  Ala.  137,  36  Am.  Dec.  441 ;  Chicago  Packing  &  Provision  Co.  v.  Chicago.  88 
111.  221,  30  Am.  Rep.  545;  State  v.  Herod,  29  Iowa,  123;  Boston  v.  Schaffer, 
26  Mass.  (9  Pick.)  415;  Van  Baalen  v.  People,  40  Mich.  258;  State  v.  Cas- 
sidy,  22  Minn.  312,  21  Am.  Rep.  765 ;  New  York  City  v.  Second  Ave.  R.  Co., 
32  N.  Y.  261 ;  Mays  v.  Cincinnati,  1  Ohio  St.  268 ;  Munn  v.  Illinois,  94  U.  S. 
113,  24  L.  Ed.  77.     See,  also,  §  675  et  seq. 


§   670)  TAXATION  861 

lege  tax,  as  said,  is  not  a  property  tax.  Whether  the  tax  is  laid 
upon  property  or  imposed  as  a  condition  or  privilege  of  conducting 
business  within  the  state  is  a  question  to  be  determined  from  the 
operation  and  practical  effect  of  the  statute,  and  not  from  its  mere 
form."  The  distinction  between  a  privilege  tax  and  property  tax 
is  a  subtle  one,  and  it  is  not  by  any  means  easy  to  draw  the  line 
which  separates  them.*^ 

41  New  Orleans  v.  Great  South.  Tel.,  etc.,  Co.,  52  La.  Ann.  10S2,  27  Soutli. 
590,  78  Am.  St.  Rep.  387. 

The  nature  and  object  of  a  license  and  a  tax  are  entirely  different;  the 
object  of  a  tax  is  the  revenue,  the  object  of  a  license  is  a  regulation ;  and  the 
fact  that  the  license  fee  is  payable  into  the  treasury  of  the  municipality  does 
not  make  such  license  a  tax  where  the  fee  is  unreasonable,  and  tends  to 
promote  the  object  of  the  ordinance.  East  St.  Louis  v.  Wehrung,  46  111.  392 ; 
State  V.  Herod,  29  Iowa.  123.  If  the  license  is  unreasonable,  and  more  than 
sufficient  to  effect  the  osteusive  regulative  purposes,  it  will  be  a  tax,  and  not 
a  license.  New  Orleans  v.  Great  South.  Tel.,  etc.,  Co.,  52  La.  Ann.  1082,  27 
South.  590,  78  Am.  St.  Rep.  387. 

4  2  The  question  received  consideration  in  the  case  of  the  Postal,  etc.,  v. 
Adams,  155  U.  S.  688,  15  Sup.  Ct.  268,  39  L.  Ed.  311,  where  it  was  held  that  a 
tax  of  a  designated  sum  per  mile  of  telegraph  wire  in  the  state  was  a  tax 
on  property  and  not  a  mere  privilege  tax.  The  court  used  this  language: 
"As  pointed  out  by  Mr.  Justice  Field  in  Horn  Silver  Min.  Co.  v.  New  York, 
143  U.  S.  305,  12  Sup.  Ct.  403  [36  L.  Ed.  164]  the  right  of  the  state  to  tax  the 
franchise  or  privilege  of  being  a  corporation  as  personal  property  has  been 
repeatedly  recognized  by  this  court,  and  this  whether  the  corporation  be 
domestic  or  foreign  corporation,  doing  business  by  permission  within  the 
state.  But  a  state  cannot  exclude  from  its  limits  a  corporation  engaged  in 
interstate  or  foreign  commerce,  or  a  corporation  in  the  employment  of  the 
general  government,  either  directly  in  terms  or  indirectly  by  the  imposition 
of  inadmissible  conditions.  Nevertheless  the  state  may  subject  it  to  such 
property  taxation  as  only  incidentally  affects  its  occupation,  as  all  business, 
whether  of  individuals  or  corporations,  is  rffected  by  common  governmental 
burdens.  Ashley  v.  Ryan,  153  U.  S.  436,  14  Sup.'  Ct.  865  [38  L.  Ed.  773], 
and  cases  cited.  Doubtless  no  state  could  add  to  the  taxation  of  property 
.  according  to  the  rule  of  ordinary  property  taxation  the  bui-den  of  a  license 
or  other  tax  or  the  privilege  of  using,  constructing  or  operating  an  instru- 
mentality of  interstate  or  international  commerce  or  for  the  carrying  on  of 
such  commerce;  but  the  value  of  property  results  from  the  use  to  which  it 
is  put  and  varies  with  the  profitableness  of  that  use,  and  by  whatever  name 
the  exaction  may  be  called,  if  it  amounts  to  no  more  than  the  ordinary  tax 
upon  property,  or  a  just  equivalent  therefor,  ascertained  by  reference  thereto, 
it  is  not  open  to  attack  as  inconsistent  with  the  constitution.  Cleveland,  etc., 
R.  Co.  V.  Backus,  154  U.  S.  439,  14  Sup.  Ct.  1122  [38  L.  Ed.  1041].  The  method 
of  'taxation  by  a  tax  on  privileges'  has  been  determined  by  the  Supreme  Court 
of  Mississippi  to  be  in  harmony  with  the  constitution  of  that  state,  and  that 
'where  the  particular  arrangement  of  taxation  provided  by  legislative  wisdom 
may  be  accounted  for  on  the  assumption  of  compromising  or  commuting  for  a 
just  equivalent,  according  to  the  determination  of  the  legislature,  in  the 
general  scheme  of  taxation,  it  will  not  be  condemned  by  the  courts  as  viola- 
tive of  the  state  constitution."  Vicksburg  Bank  v.  Won-ell,  67  INIiss.  47.  7 
South.  219.  In  that  case  privilege  taxes  imposed  on  bank  of  deposit  or  dis- 
count, which  varied  with  the  amount  of  capital  stock  or  assets,  and  were 


862  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  671 

§  671.  Excise  tax. — It  has  been  held  by  a  divided  opinion  of  the 
United  States  Supreme  Court,  that  an  excise  tax  could  be  imposed 
upon  a  railroad  company  carrying  on  interstate  commerce.  In  this 
decision,  the  cases  denying  the  power  of  a  state  to  levy  a  privilege 
tax  are  not  denied  expressly,  but  it  is  held  therein  that  a  state  is  not 
precluded  from  levying  an  excise  tax."  No  case  against  a  tele- 
graph company,  to  our  knowledge,  has  been  tested  with  respect  to 
this  question,  but  we  presume  the  same  ruling  would  be  held.  The 
distinction  drawn  between  the  excise  tax  as  given  in  the  case  cited 
and  the  privilege  tax  is  not  very  clear,  and  it  seems  that  the  rea- 
sons given  by  the  minority  of  judges  who  sat  upon  this  case  are 
the  more  plausible.** 

declared  to  be  in  lieu  of  all  other  taxes,  state,  county  or  municipal,  upon  the 
shares  and  assets  of  said  hank,  came  under  review,  and  it  was  decided  that 
the  privilege  tax,  to  be  effectual  as  a  release  from  liability  for  all  other  taxes, 
must  be  measured  by  the  capital  stock,  and  the  entire  assets  or  wealth  of  the 
bank,  and  that  real  estate  bought  with  funds  of  the  bank  was  exempt  from 
the  ordinary  ad  valorem  taxes,  but  was  part  of  the  assets  of  the  bank  to 
be  considered  in  fixing  the  basis  of  its  privilege  tax." 

43  In  the  case  of  Maine  v.  Grand  Trunk,  etc.,  Co.,  142  U.  S.  217,  12  Sup.  Ct. 
363,  35  L.  Ed.  994,  the  court  said:  "The  tax  for  the  collection  of  which  this 
action  is  brought  is  an  excise  tax  upon  the  defendant  corporation  for  the 
I>rivilege  of  exercising  its  franchises  within  the  state  of  Maine.  It  is  so  de- 
clared in  the  statute  which  imposes  it;  and  that  a  tax  of  this  character  is 
within  the  power  of  the  state  to  levy  there  can  be  no  question.  The  designa- 
tion does  not  always  indicate  merely  an  inland  imposition  or  duty  on  the  con- 
sumption of  commodities,  but  often  denotes  an  impost  for  a  license  to  pursue 
certain  callings,  or  to  deal  in  special  commodities,  or  to  exercise  particular 
franchises.  It  is  used  more  frequently,  in  this  country,  in  the  latter  sense 
than  in  any  other.  The  privilege  of  exercising  the  franchises  of  a  corpora- 
tion within  a  state  is  generally  one  of  value,  and  often  of  great  value,  and 
the  subject  of  earnest  contention.  It  is  natural,  therefore,  that  the  corporation 
should  be  made  to  bear  some  proportion  of  the  burdens  of  government.  As 
the  granting  of  the  privilege  rests  entirely  in  the  discretion  of  the  state, 
whether  the  corporation  be  of  domestic  or  foreign  origin,  it  may  be  conferred 
upon  such  conditions,  pecuniary  or  otherwise,  as  the  state,  in  its  judgment, 
may  deem  most  conducive  to  its  interest  or  policy.  It  may  require  the  pay- 
ment into  its  treasury  each  year  of  a  specific  sum,  or  may  apportion  the 
amount  exacted  according  to  the  value  of  the  business  permitted,  as  disclosed 
by  its  gains  or  receipts  of  the  present  or  past  years.  The  character  of  the 
tax,  or  its  validity,  is  not  determined  by  the  mode  adopted  in  fixing  its 
amount  for  any  specific  period,  or  the  times  of  its  payment.  The  whole  field 
of  inquiry  into  the  extent  of  revenue  from  sources  at  the  command  of  the  cor- 
poration is  open  to  the  consideration  of  the  state  in  determining  what  may 
be  justly  exacted  for  the  privilege.  The  rule  of  apportioning  the  charge  of 
the  receipts  of  the  business  would  seem  to  be  eminently  reasonable,  and  likely 
to  produce  the  most  satisfactory  results,  both  to  the  state  and  to  the  corpora- 
tion taxed." 

4i  Mr.  Justice  Bratley,  who  wrote  the  minority  opinion  (concurred  in  by 
Harland,  Lamar,  and  Brown,  J  J.),  said:  "But  passing  this  by,  the  decisions 
of  this  court  for  a  number  of  years  past  have  settled  the  principle  that  taxa- 
tion (which  is  a  mode  of  regulation)  of  interstate  commerce,  or  of  the  revenues 


§   672)  TAXATION  863 

§  672.     Taxation  on  gross  receipts — interstate  business. — It  is  a 

general  rule,  upheld  by  all  the  courts,  that  a  tax  cannot  be  imposed 
on  the  business  of  interstate  commerce,*^  but  it  is  sometimes  diffi- 
cult to  give  practical  effect  to  the  general  rule.  A  tax  cannot  be 
laid  on  the  gross  receipts  of  an  interstate  company,  as  this  is  a  tax 
upon  the  business  of  interstate  commerce.*®     But  it  has  been  held 

derived  therefrom  (which  is  the  same  thing),  is  contrary  to  the  Constitution. 
Going  no  further  baclv  than  Pickard  v.  Pullman,  etc.,  Car  Co.,  117  U.  S.  34.  6 
Sup.  Ct.  63.5  [29  L.  Ed.  7S5],  we  find  that  principle  laid  down.  There  a  privi- 
lege tax  was  imposed  upon  Pullman's  Palace  Car  Company,  by  general  legisla- 
tion, it  is  true,  but  applied  to  the  company,  of  $50  per  annum  on  every  sleep- 
ing car  going  through  the  state.  It  was  known,  and  appears  by  the  record, 
that  every  sleeping  car  going  through  the  state  carried  passengers  from  Ohio 
and  other  Northern  states  to  Alabama,  and  vice  versa,  and  we  held  that  Ten- 
nessee had  no  right  to  tax  those  cars.  It  was  the  same  thing  as  if  they  had 
taxed  the  amount  deriveri  from  the  passengers  in  the  cars.  So,  also,  in  the 
case  of  Leloup  v.  Port  of  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383  [32  L.  Ed.  311], 
we  held  that  the  receipts  derived  by  the  telegraph  company  from  the  mes- 
sages sent  from  one  state  to  another  could  not  be  taxed.  So  in  the  case  of 
Norfolk,  etc.,  R.  Co.  v.  Pennsylvania,  136  U.  S.  114,  10  Sup.  Ct.  958,  [34  L.  Ed. 
394],  where  the  railroad  was  a  link  in  a  through  line  by  which  passengers  and 
freight  were  carried  into  other  states,  the  company  was  held  to  be  engaged  in 
the  business  of  interstate  coumierce,  and  could  not  be  taxed  for  the  privilege 
of  keeping  an  office  in  the  state.  And  in  the  case  of  Crutcher  v.  Kentucky,  141 
U.  S.  47,  11  Sup.  Ct.  851,  [35  L.  Ed.  649],  we  held  that  the  taxation  of  an  ex- 
press company  for  doing  an  express  business  between  different  states  was 
unconstitutional  and  void.  And  in  the  case  of  Philadelphia,  etc..  Steamship 
Co.  V.  Pennsylvania,  122  U.  S.  326,  7  Sup.  Ct.  1118,  [30  L.  Ed.  1200].  we  held 
that  a  tax  upon  the  gross  receipts  of  the  company  was  void,  because  they  were 
derived  from  interstate  and  foreign  commerce.  A  great  many  other  cases 
might  be  referred  to  showing  that  in  the  decisions  and  opinions  of  this  court 
this  kind  of  taxation  is  unconstitutional  and  void.  We  think  that  the  present 
decision  is  a  departure  from  the  line  of  these  decisions.  The  tax,  it  is  true,  is 
called  a  'tax  on  franchise.'  It  is  so  called,  but  what  is  it  in  fact?  It  is  a  tax 
on  the  receipts  of  the  company  derived  from  international  transportation. 
This  court  and  some  of  the  state  courts  have  gone  a  great  length  in  sustain- 
ing various  forms  of  taxes  upon  corporations.  The  train  of  reasoning  upon 
which  it  is  founded  may  be  questionable.  A  corporation,  according  to  this 
class  of  decisions,  may  be  taxed  several  times  over.  It  may  be  taxed  for  its 
charter,  for  its  franchises,  for  the  privilege  of  carrying  on  its  business,  it  may 
be  taxed  on  its  capital,  and  it  may  be  taxed  on  its  property.  Each  of  these 
taxations  may  be  carried  to  the  full  amount  of  the  property  of  the  company." 

45  Leloup  V.  Port  of  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311; 
Ratterman  v.  West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32  L.  Ed.  229 ; 
West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  (15  Otto.)  460,  26  L.  Ed.  1067 ;  Pensacola 
Tel.  Co.  V.  West.  U.  Tel.  Co.,  96  U.  S.  (6  Otto.)  1,  24  L.  Ed.  708 ;  Gibbons  v. 
Ogden,  22  U.  S.  (9  Wheat.)  1,  6  L.  Ed.  23 ;  Smith  v.  Turner,  48  U.  S.  (7  How.) 
283,  12  L.  Ed.  702 ;  Thurlo  v.  Massachusetts,  46  U.  S.  (5  How.)  504,  12  L.  Ed. 
256;  Brown  v.  Maryland,  25  U.  S.  (12  Wheat.)  419,  6  L.  Ed.  678;  Moran  v. 
New  Orleans,  112  U.  S.  (12  Otto.)  69,  28  L.  Ed.  653 ;  Philadelphia,  etc.,  R.  Co. 
V.  Pennsylvania,  82  U.  S.  (15  Wall.)  2.32,  21  L.  Ed.  146. 

46  Tel.  Co.  V.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067;  Philadelphia,  etc.,  Co.  v. 
Pennsylvania,  122  U.  S.  326,  7  Sup.  Ct.  1118,  .30  L.  Ed.  1200 ;  Ratterman  v. 
West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32  L.  Ed.  229 ;  Gloucester 


864  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  673 

that  a  single  tax  assessed  under  the  statute  of  a  state  upon  the 
receipts  of  a  telegraph  company,  which  are  derived  partly  from  in- 
terstate commerce  and  partly  from  commerce  within  the  state, 
which  tax  is  assessed  and  returned  in  gross  and  without  separation 
and  apportionment,  is  not  wholly  invalid,  but  is  invalid  only  to  the 
extent  that  such  receipts  are  derived  from  interstate  commerce.^^ 

§  673.  Same  on  message. — A  tax  imposed  by  a  state  on  tele- 
graph messages  in  general  is  invalid,*^  except  in  respect  to  mes- 
sages transmitted  wholly  within  the  state. *°  A  different  rule  was 
held  by  some  of  the  state  courts,  but  the  ruling  of  the  Supreme 
Court  of  the  United  States  is  as  first  stated. ^°  Where  a  statute  re- 
Ferry  Co.  V.  Pennsylvania  Co.,  114  U.  S.  196,  5  Sup.  Ct.  826,  29  Lr.  Ed.  158 ; 
McCall  V.  California,  136  U.  S.  104,  10  Sup.  Ct.  881,  34  L.  Ed.  391 ;  West.  U. 
Tel.  Co.  V.  Pennsylvania,  128  U.  S.  39,  9  Sup.  Ct.  6,  32  L.  Ed.  345;  West.  U. 
Tel.  Co.  V.  Seay,  132  U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed.  409 ;  Leloup  v.  Port 
of  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  13S3,  32  L..  Ed.  311 ;  Charleston  v.  Postal 
Tel.  Cable  Co.  (S.  C.)  9  Ry.  &  Corp.  Law  J.  129 ;  Crandall  v.  Nevada,  6  Wall. 
<U.  S.)  35,  IS  L.  Ed.  745. 

47  See  Nebraska  Tel.  Co.  v.  Lincoln,  82  Neb.  59,  117  N.  W.  284,  28  L.  R.  A. 
<N.  S.)  221 ;  Ratterman  v.  West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32 
L.  Ed.  229. 

Electric  company. — Tax  on  receipts  of  business  may  be  imposed.  Elec.  Co. 
V.  Board  of  Assessors,  69  N.  J.  Law,  116,  54  Atl.  246 ;  People  v.  Sohmer,  162 
App.  Div.  207,  147  N.  Y.  Supp.  726 ;  Elec.  Corp.  v.  Los  Angeles,  163  Cal.  621, 
126  Pac.  594 ;  Com.  v.  Elec.  L.  Co.,  204  Pa.  249,  53  Atl.  1096. 

4s  Wabash  St.  L.  &  P.  R.  Co.  v.  Illinois,  118  TJ.  S.  557,  7  Sup.  Ct.  4,  30  L.  Ed. 
244 ;  West.  U.  Tel.  Co.  v.  Texas,  105  U.  S.  (15  Otto.)  460,  20  L.  Ed.  1067 ;  Hall 
V.  De  Cuir,  95  U.  S.  (5  Otto.)  48.5,  24  L.  Ed.  547 ;  The  Daniel  Ball,  77  U.  S. 
(10  Wall.)  557,  19  L.  Ed.  999 ;  West.  U.  Tel.  Co.  v.  Board  of  Assessment,  32 
U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed.  409 ;  West.  U.  Tel.  Co.  v.  Com.,  128  U.  S. 
39,  9  Sup.  Ct.  6,  32  L.  Ed.  345;  Leloup  v.  Mobile,  127  U.  S.  640,  8  Sup.  Ct. 
1383,  32  L.  Ed.  311 ;  AVest.  U.  Tel.  Co.  v.  Wakefield,  69  Neb.  272,  95  N.  W.  659 ; 
Ratterman  v.  West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32  L.  Ed.  229. 

4  9  Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S.  692,  14  Sup.  Ct.  1094,  38  L. 
Ed.  871 ;  West.  U.  Tel.  Co.  v.  Ass.,  132  U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed.  409 ; 
Atlantic  Postal  Tel.  Cable  Co.  v.  Savannah,  133  Ga.  66,  65  S.  E.  184 ;  West.  U. 
Tel.  Co.  V.  Wakefield,  69  Neb.  272,  95  N.  W.  659 ;  Postal  Tel.  Cable  Co.  v.  Rich- 
mond, 99  Va.  102,  37  S.  E.  789,  86  Am.  St.  Rep.  877. 

50  West.  U.  Tel.  Co.  v.  Com.,  110  Pa.  405,  20  Atl.  720,  reversed  in  128  U.  S. 
30,  9  Sup.  Ct.  6,  32  L.  Ed.  345 ;  also,  West.  U.  Tel.  Co.  v.  State  Board,  SO  Ala. 
273,  60  Am.  Rep.  99,  reversed  in  132  U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed. 
409 ;  Mobile  v.  Leloup,  76  Ala.  401,  reversed  in  127  U.  S.  640,  8  Sup.  Ct.  1383, 
32  L.  Ed.  311. 

In  West.  U.  Tel.  Co.  v.  Alabama  St.  Board  of  Assessment.  132  U.  S.  472,  10 
Sup.  Ct.  161,  33  L.  Ed.  409,  it  was  said  that:  "The  principle  is,  in  regard  to 
telegraph  companies  which  have  accepted  the  provision  of  Act  Cong.  July  24, 
1866,  c.  230,  14  Stat.  221,  sections  5263  to  5268  of  the  revised  Statutes  of  the 
United  States  (Comp.  St.  1913,  §§  10072-10077),  that  they  shall  not  be  taxed  by 
the  authorities  of  the  state  for  any  messages,  or  receipts  arising  from  mes- 
sages, from  points  within  the  state  to  points  without,  or  from  points  without 
the  state  to  points  within,  but  that  such  taxes  may  be  levied  upon  all  messages 
carried  and  delivered  exclusively  within  the  state.     The  foundation  of  this 


i 


§   674)  TAXATION  865 

quired  a  statement  to  be  made  by  the  chief  manager  of  the  tele- 
graph company,  of  the  entire  number  of  full-rate  and  half-rate  mes- 
sages of  the  company,  and  that  thus  the  amount  of  taxes  due  should 
be  ascertained,  a  tax  upon  certain  of  the  messages  was  held  uncon- 
stitutional; but  the  law  contained  no  direction  requiring  discrimi- 
nation in  the  report  between  the  messages  that  could  be  legally 
taxed  and  those  that  could  not,  and  the  entire  law  was  held  inopera- 
tive and  void.^^ 

§  674.  Foreign  companies. — A  telegraph  or  telephone  company 
doing  an  interstate  business  is  protected  by  that  provision  of  the 
constitution  of  the  United  States  which  says  that  Congress  shall 
have  power  "to  regulate  commerce  with  foreign  nations  and  among 
the  several  states."  ^^  This  provision  renders  illegal  an  excessive 
fee  demanded  by  a  state  as  a  condition  to  allowing  a  foreign  tele- 
graph or  telephone  company  to  do  business  in  the  state. ^^ 

principle  is  that  messages  of  the  former  class  are  elements  of  commerce  be- 
tween the  states  and  not  subject  to  legislative  control  of  the  states,  while  the 
latter  class  are  elements  of  internal  commerce  solely  within  the  limits  and 
jurisdiction  of  the  state,  and  therefore  subject  to  its  taxing  power." 

51  West.  U.  Tel.  Co.  v.  Texas,  62  Tex.  630. 

=  2  Article  1,  §  S. 

5  3  The  Kansas  statute  requiring  foreign  corporations  before  doing  business 
in  the  state  to  pay  a  specified  license  fee  is  not  valid  as  against  foreign  cor- 
porations engaged  in  interstate  commerce  where  such  fee  is  a  tax  on  the  in- 
terstate business,  and  also  'a  tax  on  the  company's  property  outside  of  the 
state,  and  hence  a  judgment  of  the  state  court  ousting  a  foreign  telegraph 
corporation  from  doing  business  in  the  state  because  it  did  not  pay  this  fee, 
which  amounted  to  $20,100,  is  invalid.  The  mere  fact  that  the  statute  recited 
that  it  was  not  intended  to  burden  or  regulate  interstate  commerce  is  imma- 
terial. Western  Union  Tel.  Co.  v.  Kansas.  216  U.  S.  1,  30  Sup.  Ct.  190,  .54  L. 
Ed.  355,  reversing  75  Kan.  609,  90  Pac.  299.  So  also  as  to  the  Arkansas  stat- 
ute where  the  fee  amounted  to  $25,050.  Ludwig  v.  West.  U.  Tel.  Co.,  216  U. 
S.  146,  30  Sup.  Ct.  2S0,  54  L.  Ed.  423,  disapproving  West.  Union,  etc.,  Co.  v. 
State,  82  Ark.  309,  101  S.  W.  748,  10  L.  R.  A.  (N.  S.)  1133,  12  Ann.  Cas.  38. 
In  the  case  of  Mulford  Co.  v.  Curry,  163  Cal.  276,  125  Pac.  236,  the  court  in 
declaring  illegal  a  graduated  license  fee  on  the  capital  stock  of  foreign  cor- 
porations as  a  condition  of  allowing  them  to  do  business  in  the  state  said  that 
the  recent  decisions  of  the  supreme  court  of  the  United  States  had  established 
the  following:  "The  admitted  power  of  the  state  to  regulate  and  prescribe 
terms  under  which  a  foreign  corporation  may  engage  in  intrastate  or  domes- 
tic business  is  subject  to  this  limitation,  that  where  such  foreign  corporation 
is  engaged  in  interstate,  as  well  as  intrastate  business,  no  such  term,  condi- 
tion or  requirement  will  be  constitutional  if  it  imposes  any  burden  upon  the 
interstate  business  of  such  corporation,  whatever  be  its  name  or  form ;  a  li- 
cense or  privilege  tax  for  the  conduct  of  such  intrastate  business,  based  upon 
the  total  capital  or  the  total  capital  stock  of  such  corporation  without  just 
relation  to  the  proportion  which  the  capital  or  the  capital  stock  u.«;ed  in  the 
state  bears  to  the  whole  capital  or  capital  stock,  though  in  tenns  declared  to 
be  directed  solely  to  the  intrastate  business  of  said  corporation,  is  unconsti- 
tutional and  void,  (a)  as  being  in  violation  of  the  commerce  clause  of  the  con- 
JoNEs  Tel.(2d  Ed.) — 55 


866  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  675 

§  675.  Power  of  a  municipality  to  impose  tax. — A  municipality 
has  no  inherent  power  to  exact  a  license  fee  from  a  telegraph  -or 
telephone  company  because  of  the  fact  of  its  doing  business  within 
the  city  limits  or  by  having-  its  poles  and  wires  therein ;  ^*  but  the 
state  may  constitutionally  authorize  one  of  its  municipalities  to 
exact  such  a  license  where  the  amount  to  be  so  collected  is  to  be 
used  in  defraying  the  expenses  for  inspecting  and  regulating  the 
lines/^  provided  the  amount  of  such  expenses  is  reasonable,  and 

stitution  by  the  imposition  of  an  illegal  burden  upon  interstate  commerce,  and 
(b)  because  violative  of  the  14th  amendment  of  the  constitution  and  its  equal 
protection  and  due  process  of  law  clause,  as  an  effort  to  tax  the  property  of 
citizens  of  the  United  States,  which  property  is  situated  beyond  the  jurisdic- 
tion of  the  taxing  state  and  is  not  amenable  to  its  revenue  laws."  A  state 
may  prohibit  a  foreign  telegraph  company  from  doing  a  local  telegraph  busi- 
ness in  the  state  unless  it  pays  a  certain  fee,  being  a  percentage  of  its  capital 
stock,  even  though  the  telegraph  company  has  accepted  the  Post  Roads  Act  of 
Congress.  Western  Union  Tel.  Co.  v.  State  (Tex.  Civ.  App.)  121  S.  W.  191. 
Taxes  levied  on  an  interstate  telegraph  company  cannot  be  collected  by  ex- 
cluding it  from  doing  business,  nor  by  injunction  against  its  doing  business. 
Western  Union  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L. 
Ed.  790 ;  Re  Pennsylvania  Tel.  Co.,  48  N.  J.  Eq.  91,  20  Atl.  846,  27  Am.  St. 
Rep.  462 ;  City  of  Bradford  v.  Postal  Tel.  Co.,  11  Ry.  &.  Corp.  L.  J.  54  (Penn. 
Com.  PI.  1S91).  A  state  may  impose  other  conditions.  A  New  York  company, 
organized  to  conduct  both  a  telegraph  and  telephone  business,  cannot  compel 
the  secretary  of  state  of  Michigan  to  issue  to  it  a  certificate  of  authority  to 
transact  both  a  telegraph  and  telephone  business  in  Michigan,  it  appearing 
that  the  Michigan  statutes  do  not  authorize  a  company  to  incorporate  for 
both  of  those  purposes,  and  the  statutes  authorize  foreign  corporations  to  do 
only  such  business  as  a  domestic  corporation  may  do.  American  Tel.  &  Tel. 
Co.  V.  Secretary  of  State,  159  Mich.  195,  123  N..W.  568. 

B4La  Crosse  v.  La  Crosse  Gas,  etc.,  Co.,  145  Wis.  408,  130  N.  W.  530;  New 
York  V.  New  York  City  Ry.,  138  App.  Div.  131,  123  N.  Y.  Supp.  132 ;  Wisconsin, 
etc.,  Co.  V.  Milwaukee,  126  Wis.  1,  104  N.  W.  1009,  1  L.  R.  A.  (N.  S.)  581,  110 
Am.  St.  Rep.  886 ;  Wisconsin  Tel.  Co.  v.  Oshkosh,  62  Wis.  32,  21  N.  W.  828. 
See  Allentown  v.  West.  U.  Tel.  Co.,  148  Pa.  117,  23  Atl.  1070,  33  Am.  St.  Rep. 
820 ;  Southern  Bell  Tel.,  etc.,  Co.  v.  Harrisonburg,  111  Va.  494,  69  S.  E.  348,  31 
L.  R.  A.  (N.  S.)  327,  line  outside  city  limits,  but  connected  with  line  in  city, 
no  right  to  tax. 

5  5  Postal  Tel.  Cable  Co.  v.  Baltimore,  79  Md.  502,  29  Atl.  819,  24  L.  R.  A. 
161 ;  West.  U.  Tel.  Co.  v.  Fremont,  .39  Neb.  692,  58  N.  W.  415,  26  L.  R.  A.  698 ; 
Philadelphia  v.  Postal  Tel.  Co.,  67  Hun,  21,  21  N.  Y.  Supp.  556 ;  Taylor  v.  Postal 
Tel.  Cable  Co.,  202  Pa.  583,  52  Atl.  128;  New  Hope  v.  Postal  Tel.  Cable  Co., 
202  Pa.  532,  52  Atl.  127;  Chester  v.  Philadelphia,  etc.,  Co.,  148  Pa.  120,  23 
Atl.  1070 ;  Allentown  v.  West.  U.  Tel.  Co.,  148  Pa.  117,  23  Atl.  1070,  33  Am. 
St.  Rep.  820 ;  Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160,  23  Sup.  Ct. 
817,  47  L.  Ed.  995,  reversing  102  Fed.  254,  42  C.  C.  A.  325 ;  West.  U.  Tel.  Co. 
V.  New  Hope,  187  U.  S.  419,  23  Sup.  Ct.  204,  47  L.  Ed.  240;  Postal  Tel.  Co. 
V.  Charleston,  153  U.  S.  692,  14  Sup.  Ct.  1094,  38  L.  Ed.  871;  St.  Louis  v. 
West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  990,  37  L.  Ed.  810;  Sunset  Tel., 
etc.,  Co.  V.  Medford  (C.  C.)  115  Fed.  202 ;  Philadelphia  v.  West.  U.  Tel.  Co.,  89 
Fed.  454,  32  C.  C.  A.  246 ;  Leloup  v.  Mobile,  127  U.  S.  &40,  8  Sup.  Ct.  1383,  32 
L.  Ed.  311;  City  of  Memphis  v.  Postal  Tel.  Cable  Co.,  145  Fed.  602,  76  C.  C.  A. 
292;    164  Fed.  600,  91  C.  C.  A.  135,  16  Ann.  Cas.  342;    Williams  v.  City  of 


§   675)  TAXATION  867 

based  upon  the  disbursements  of  the  municipality  in  connection 
with  the  poles  and  wires. ^^  In  such  cases  the  amount  to  be  paid 
for  supervision  depends  upon  all  the  circumstances  in  a  particular 
case,  and  if  there  is  conflicting  evidence,  the  question  may  be  sub- 
mitted to  a  jury.^''  The  license  fee  cannot  be  primarily  a  means  of 
raising  revenue,  so  the  expense  for  supervision  is  limited  to  this 
charge,  but  this,  being  fixed  in  advance,  may  be  large  enough  to 
cover  any  reasonable  anticipated  expense. ^^    It  has  been  held  that 

Talladega,  226  U.  S.  4(M,  33  Sup.  Ct.  116,  57  D.  Ed.  275.  See  §  S3.  But  see 
Wisconsin,  etc.,  Co.  v.  Milwaukee,  126  Wis.  1,  104  N.  W.  1009,  1  L.  R.  A.  (N.  S.) 
581,  110  Am.  St.  Rep.  886 ;  Ex  parte  Cramer,  62  Tex.  Cr.  R.  11,  136  S.  W. 
61,  36  L.  R,  A.  (N.  S.)  78,  Ann.  Cas.  1913C,  588. 

5«Leloup  V.  Mobile,  127  U.  S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311;  Postal 
Tel.,  etc.,  Co.  v.  Mobile  (C.  C.)  179  Fed.  955 ;  Troy  v.  West.  U.  Tel.  Co.,  164 
Ala.  482,  51  So.  523,  27  L.  R.  A.  (N.  S.)  627 ;  Ft.  Smith  v.  Hunt,  72  Ark.  556, 
82  S.  W.  163,  66  L.  R.  A.  238,  105  Am.  St.  Rep.  51 ;  Hot  Springs,  etc.,  Co.  v. 
Hot  Springs,  70  Ark.  302,  67  S.  W.  761;  Sunset  Tel.,  etc.,  Co.  v.  Pasadena, 
161  Cal.  265,  118  Pac.  796 ;  Pensacola  v.  Southern  Bell  Tel.  Co.,  49  Fla.  161, 
37  South.  820 ;  Atlanta,  etc.,  Co.  v.  Mayor,  133  Ga.  66,  65  S.  E.  184 ;  Id.,  136 
Ga.  657,  71  S.  E.  1115 ;  Wright  v.  Southern  Bell  Tel.,  etc.,  Co.,  127  Ga.  227, 
56  S.  E.  116 ;  Springfield  v.  Postal  Tel.,  etc.,  Co.,  253  111.  346.  97  N.  E.  672 ; 
Leavenworth  y.  Ewing,  SO  Kan.  58,  101  Pac,  664 ;  Cumberland,  etc.,  Co.  v. 
Hopkins,  121  Ky.  850,  90  S.  W.  594;  Cumberland,  etc.,  Co.  v.  Calhoun,  151 
Ky.  241,  151  S.  W.  659 ;  Louisville  v.  Pooley,  136  Ky.  286,  124  S.  W.  315, 
25  L.  R.  A.  (N.  S.)  582 ;  Postal,  etc.,  Co.  v.  Newport  (Ky.)  76  S.  W.  159 ;  State 
V.  Citizens'  Bank,  52  La.  Ann.  1086,  27  South.  709 ;  Postal  Tel.  Cable  Co.  v. 
Baltimore,  79  Md.  502,  29  Atl.  819,  24  L.  R.  A.  161;  Saginaw  v.  Swift  E.  L. 
Co.,  113  Mich.  600,  72  N.  W.  6;  Hodges  v.  West.  U.  Tel.  Co.,  72  Miss.  910, 
IS  South.  84,  29  L.  R.  A.  770;  St.  Louis  v.  West.  U.  Tel.  Co.,  148  U.  S.  92, 
13  Sup.  Ct.  485,  37  L.  Ed.  380 ;  Id.,  149  U.  S.  465,  13  Sup.  Ct.  990,  37  L.  Ed. 
810;  West.  U.  Tel.  Co.  v.  Freemont,  39  Neb.  692,  58  N.  W.  415,  26  L.  R.  A. 
698 ;  Id.,  43  Neb.  499,  61  N.  W.  724,  26  L.  R.  A.  706 ;  Neb.  Tel.  Co.  v.  Lincoln, 
82  Neb.  .59,  117  N.  W.  284,  28  L.  R.  A,  (N.  S.)  221 ;  Lincoln,  etc.,  Co.  v.  Lincoln 
(C.  C.)  182  Fed.  926 ;  Sunset,  etc.,  Co.  v.  Medford  (C.  C.)  115  Fed.  202 ;  Postal 
Tel.,  etc.,  Co.  v.  Charleston,  153  U.  S.  092,  14  Sup.  Ct.  1094,  38  L.  Ed.  871 ; 
Memphis  v.  Postal  Tel.  Cable  Co.,  164  Fed.  600,  91  C.  C.  A.  135,  16  Ann.  Cas. 
342 ;  Ogden  v.  Grossman,  17  Utah,  66,  53  Pac.  9S5 ;  Postal  Tel.  Cable  Co.  v. 
Norfolk,  101  Va.  125,  43  S.  E.  207 ;  Postal  Tel.  Cable  Co.  v.  Richmond,  99  Va. 
102,  37  S.  E.  789,  86  Am.  St.  Rep.  877 ;  West.  U.  Tel.  Co.  v.  Richmond  (C.  C.) 
178  Fed.  310 ;  Id.,  224  U.  S.  100,  32  Sup.  Ct.  449,  56  L.  Ed.  710 ;  Postal  Tel. 
Cable  Co.  v.  Taylor,  192  U.  S.  64,  24  Sup.  Ct.  208,  48  L.  Ed.  342;  Atlantic, 
etc.,  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160,  23  Sup.  Ct.  817,  47  L.  Ed.  995. 
See  §  83. 

5  7 Atlantic,  etc.,  Tel.  Co.  v,  Philadelphia,  190  U.  S.  160,  23  Sup.  Ct.  817,  47 
L.  Ed.  995. 

5  8  Atlantic,  etc.,  Co.  v.  Philadelphia,  190  U.  S.  160,  23  Sup.  Ct.  817,  47 
L.  Ed.  995;  Chester  v.  Philadelphia,  etc.,  Tel.  Co.,  148  Pa.  120,  23  Atl.  1070; 
Allentown  v.  West.  U.  Tel.  Co.,  148  Pa.  117,  23  Atl.  1070,  33  Am.  St.  Rep.  820; 
Cochranton  v.  Cochranton  Tel.  Co.,  41  Pa.  Super.  Ct.  146 ;  Delaware,  etc., 
Tel.  Co.'s  Petition,  224  Pa.  55,  73  Atl.  175,  132  Am.  St.  Rep.  750;  Postal  Tel., 
etc.,  Co.  V.  Taylor,  192  U.  S.  64,  24  Sup.  Ct.  20S,  48  L.  Ed.  342 ;  New  Hope 
V.  Postal  Tel.,  etc.,  Co.,  202  Pa.  532,  52  Atl.  127;  Postal  Tel.,  etc.,  Co.  v. 
New  Hope,  192  U.  S.  55,  24  Sup.  Ct.  204,  48  L.  Ed.  338.     See  §  83. 


868  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  676 

this  question  may  be  settled  by  statutes  authorizing  the  courts  to 
fix  on  a  specified  basis  the  amount  levied  by  a  municipality  in  the 
way  of  license  fees.^*  So  also  such  license  fee  must  not  interfere 
with  interstate  commerce. "^  So  a  license  fee  which  affects  inter- 
state and  governmental  business  ^^  as  well  as  local  business  is 
illegal ;  ^^  and  the  mere  fact  that  an  ordinance  imposing  a  license 
fee  declares  that  it  does  not  involve  interstate  telegraph  business 
is  not  conclusive  on  the  courts,  and  it  may  be  shown  that  such 
license  is  so  exorbitant  as  to  constitute  a  burden  on  interstate  com- 
merce by  reason  of  the  local  deficit  being  made  good  by  drawing 
from  the  interstate  receipts.*'^ 

§  676.  Special  franchise  taxes. — A  new  form  of  taxation,  of  very 
great  importance,  was  introduced  in  New  York  state  by  the  statute 
of  1899,  making  all  franchises  for  the  use  of  streets,  highways,  or 
public  places,  by  railroads  of  any  kind,  or  mains,  pipes,  tanks,  con- 
duits, or  wires  for  any  purpose,  taxable  as  special  franchises  and  to 
be  deemed  real  property.^*  Great  corporations  have  persistently 
fought  it  until  now,  by  decision  of  the  United  States  Supreme 
Court,  they  are  compelled  to  submit  to  it.*'^  The  main  contention 
of  the  corporations  against  the  validity  of  this  tax  was  that  it  im- 
paired the  obligation  of  the  contracts  under  which  these  franchises 

5  9  Re  Petition  of  United  Tel.  &  Tel.  Co..  31  Pa.  Co.  Ct.  R.  481 ;  West  Chester 
V.  Postal  Tel.,  etc.,  Co.,  227  Pa.  384,  76  Atl.  Go.  See  Delaware,  etc.,  Tel.  Co.'s 
Petition,  224  Pa.  55,  73  Atl.  175,  132  Am.  St.  Rep.  750;  Ex  parte  Cramer, 
62  Tex.  Cr.  R.  11,  136  S.  W.  61,  36  L.  R.  A.  (N.  S.)  78,  Ann.  Cas.  1913C,  588, 
may  place  cost  on  one  making  work.  See  State  v.  Gantz,  124  La.  535,  50 
South.  524,  24  L.  R.  A.  (N.  S.)  1072. 

GO  West.  U.  Tel.  Co.  v.  Kansas,  216  U.  S.  1,  30  Sup.  Ct.  190,  54  L.  Ed.  .355, 
in  w'liich  it  was  said :  "We  are  aware  of  no  decision  by  this  court  holding 
that  a  state  may,  by  any  device  or  in  any  way,  whether  by  a  license  tax,  iu 
the  form  of  a  'fee,'  or  otherwise,  burden  the  interstate  business  of  a  corpora- 
tion of  another  state,  although  the  state  may  tax  the  corpoi-ation's  property 
regularly  or  permanently  located  within  its  limits,  where  the  ascertainment 
of  the  amount  assessed  is  made  'dependent  in  fact  on  the  value  of  its  prop- 
erty situated  within  the  state.'  "  Postal  Tel.  Cable  Co.  v.  Mayor,  139  Ga. 
126,  76  S.  E.  744,  Ann.  Cas.  1914A,  984. 

61  A  license  fee  ordinance  which  does  not  expressly  exclude  governmental 
telegrams  is  illegal.  Williams  v.  Talladega,  226  U.  S.  404,  33  Sup.  Ct.  116,  57 
L.  Ed.  275. 

G2  Postal  Tel.,  etc.,  Co.  v.  Mayor,  139  Ga.  126,  76  S.  E.  744,  Ann.  Cas.  1914A, 
984. 

6  3  West.  U.  Tel.  Co.  v.  Kansas,  216  U.  S.  1,  30  Sup.  Ct.  190,  54  L.  Ed.  355. 
See  Armour,  etc..  Co.  v.  Lacy,  200  U.  S.  226,  26  Sup.  Ct.  2.32,  50  L.  Ed.  451. 

6  4  People  V.  Woodberry,  63  Misc.  Rep.  1,  116  N.  Y.  Supp.  209 ;  People  v. 
Hall,  57  Misc.  Rep.  308,  109  N.  Y.  Supp.  402.  See  State  v.  West.  U.  Tel. 
Co.,  73  Me.  518 ;    People  v.  Gold,  etc.,  Tel.  Co.,  98  N.  Y.  67. 

65  New  York  ex  rel.  Metropolitan  St.  R.  Co.  v.  State  Board  of  Tax  Coni'rs, 
199  U.  S.  1,  25  Sup.  Ct.  705,  50  L.  Ed.  G5,  4  Ann.  Cas.  381. 


§   677)  TAXATION  860 

were  obtained.  Corporations  which  had  paid  a  gross  sum  to  obtain 
a  franchise,  or  were  required  to  pay  annually  either  a  fixed  amount 
or  a  fixed  percentage  of  their  earnings,  contended  that  such  pay- 
ments were  all  that  the  state  could  demand  of  them  on  account  of 
such  franchise.  But  the  court  held  that  the  contract  did  not  pro- 
vide that  these  payments  were  to  be  in  lieu  of  or  an  equivalent  or 
substitute  for  taxes.  As  the  state  had  not  expressly  relinquished 
the  right  to  tax  them,  what  they  had  paid  for  the  grant  of  a  privi- 
lege raised  no  implication  of  any  relinquishment  of  the  power  to 
tax  its  value  as  in  case  of  other  property.  The  fact  that  the  prop- 
erty was  of  an  intangible  kind  made  it  no  different  in  this  respect 
from  a  grant  of  tangible  property,  like  a  tract  of  land.  It  w^as  con- 
tended in  one  case  that  the  valuation  of  such  franchise  was  mere 
guesswork  and  speculation,  which  could  not  constitute  process  of 
law,  but  the  court  briefly  disposed  of  this  contention,  holding"  that 
it  had  no  merit  where  such  valuation  was  made  by  a  state  board  to 
which  the  owner  of  the  franchise  was  required  to  furnish  a  written 
report,  with  notice  and  hearing  accorded  the  owner  and  review  of 
the  assessment  afforded  by  certiorari.  The  fact  that  some  corpora- 
tions were  previously  subjected  to  annual  payments  "in  the  nature 
of  a  tax,"  under  these  existing  contracts,  and  that  these  were 
allowed  to  be  deducted  fromi  the  special  franchise  tax,  was 
claimed  to  be  a  discrimination  against  other  companies  who  had 
paid  a  lump  sum  for  their  franchises,  and  to  deprive  them  of  their 
property  without  due  process  of  law,  or  to  deny  them  the  equal 
protection  of  the  laws.  But  it  was  held  that  these  constitutional 
rights  were  not  thus  impaired. 

§  677.  Where  rights  of  being  a  corporation  are  derived  from  the 
United  States. — In  many  instances  telegraph  companies  derive  their 
privileges  and  franchises  from  the  United  States ;  and  where  they 
have  a  situs  in  a  state,  the  latter  may  impose  a  tax  upon  the  prop- 
erty of  these  companies  notwithstanding  this  fact.®"  It  is  the  prop- 
erty of  the  company  that  is  subject  to  such  tax,  and  not  the  busi- 
ness.   This  is  one  fact  which  should  be  clearly  understood,  other- 

6  0  state  V.  West.  U.  Tel.  Co.,  165  Mo.  502,  65  S.  W.  775;  Atty.  Gen.  v. 
West.  U.  Tel.  Co.,  141  U.  S.  45,  11  Sup.  Ct.  889,  .35  L.  Ed.  628 ;  Rattenuan 
V.  West.  U.  Tel.  Co.,  127  U.  S.  411,  8  Sup.  Ct.  1127,  32  L.  Eil.  229 ;  West.  U. 
Tel.  Co.  V.  Massachusetts,  125  U.  S.  530,  8  Sup.  Ct.  9G1,  31  L.  Ed.  790 ;  Atty. 
Gen.  V.  West.  Union  Tol.  Co.  (C.  C.)  33  Fed.  129;  West.  U.  Tel.  Co.  v.  Tag- 
gart,  163  U.  S.  1,  16  Sup.  Ct.  1054,  41  L.  Ed.  49 ;  West.  U.  Tel.  Co.  v.  Visalia, 
149  Cal.  744,  87  Tac.  1023;  West.  U.  Tel.  Co.  v.  Lakin,  53  Wash.  326,  101 
Pac.  1094.  17  Ann.  Cas.  718.  See  San  Francisco  v.  West.  U.  Tel.  Co.,  96  Cal. 
140,  31  Pac.  10,  17  L.  R.  A.  301 ;  AVest.  U.  Tel.  Co.  v.  Wright,  185  Fed.  250, 
107  C.  C.  A.  356;   West.  U.  Tel.  Co.  v.  County,  160  Cal.  124,  116  Pac.  564. 


870  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  678 

wise  great  confusion  will  most  surely  be  the  result.  That  is,  a  tele- 
graph company  having  its  situs  within  a  state  may  have  its  prop- 
erty in  that  state  taxed  although  its  franchise  is  derived  from  the 
United  States,  and  for  the  purpose  of  carrying  on  commerce  be- 
tween the  states;  but  the  business  or  operation  of  such  company 
cannot  be  taxed,  since  that  would  be  a  tax  upon  interstate  com- 
merce."^ A  state  tax  upon  a  franchise  derived  from  the  United 
States  is  void  as  an  attempt  to  tax  the  operation  of  an  instrument 
of  the  general  government.''^ 

§  678.  Lines  on  railroads. — A  railroad  company  usually  oper- 
ates a  telegraph  or  telephone  system  for  its  own  private  business  in 
the  running  and  operation  of  trains,  etc.  When  this  is  the  case,  such 
system  is  not  subject  to  taxation  as  a  "telegraph  company."  "^  But 
if  the  railroad  company  has  no  separate  franchise  or  authority  to 
carry  on  a  general  telegraph  or  telephone  business  and  assumes 
such,  it  is  subject  to  taxation  under  a  statute  providing  for  the 
taxation  of  franchises  of  telegraph  and  telephone  companies.'^" 

§  679.  Same — suits  to  collect. — It  is  necessary  that  a  license 
fee  should  be  collected  by  a  suit  in  court  and  not  by  mandamus, '^^ 
and  the  courts  cannot  impose  an  excessive  penalty  for  the  nonpay- 
ment of  such  license. '^^  The  United  States  district  court  may  dis- 
charge an  employe  of  a  company  who  has  been  arrested  by  the 
municipal  authority  for  a  nonpayment  of  an  illegal  license  fee  on  a 
writ  of  habeas  corpus  ;'^^  and  this  court  has  jurisdiction  to  grant 
an  injunction  against  the  collection  of  such  a  fee,  where  the  value 

6  7  Reagan  v.  Mercantile  Trust  Co.,  154  U.  S.  413,  14  Sup.  Ct.  1060,  38  L.  Ed. 
102S ;  West.  U.  Tel.  Co.  v.  Atty.  Gen.,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L.  Ed. 
790;  City  of  St.  Louis  v.  West.  U.  Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  485, 
37  L.  Ed.  380. 

6  8  San  Francisco  t.  West.  U.  Tel.  Co.,  96  Cal.  140,  31  Pac.  10,  17  L.  E.  A. 
301 ;  West.  U.  Tel.  Co.  v.  Visalia,  149  Cal.  744,  87  Pac.  1023 ;  West.  U.  Tel.  Co. 
V.  Lakin,  53  Wash.  326,  lOl  Pac.  1094.  17  Ann.  Cas.  718;  California  v.  Central 
Pac.  R.  Co.,  127  U.  S.  1,  32  L.  Ed.  150,  8  Sup.  Ct.  1073. 

6  9  Adams  v.  Louisville,  etc.,  R.  Co.  (Miss.)  13  South.  932. 

7  0  Minneapolis,  etc.,  R.  Co.  v,  Oppegard,  18  N.  D.  1,  118  N.  W.  830. 
71  Chicago  V.  Chicago  Tel.  Co.,  230  111.  157,  82  N.  E.  607. 

7  2  Ex  Parte  Young,  209  U.  S.  123,  28  Sup.  Ct.  441,  52  L.  R.  A.  (N.  S.)  932, 
14  Ann.  Cas.  764;  State  v.  Galveston,  etc.,  R.,  100  Tex.  153,  97  S.  W.  71; 
Cox  V.  Paul,  175  N.  T.  328,  67  N.  E.  586 ;  Morris,  etc.,  Co.  v.  So.  Express  Co., 
146  N.  C.  167,  59  S.  E.  667,  15  L.  R.  A.  (N.  S.)  983 ;  Waters-Pierce  Oil  Co.  v. 
Texas,  212  U.  S.  86,  29  Sup.  Ct.  220,  53  L.  Ed.  417. 

73  Laundry  License  Case  (D.  C.)  22  Fed.  701;  Ex  parte  Conway  (C.  C.)  48 
Fed.  77 ;   Hardee  v.  Brown,  56  Fla.  377,  47  South.  834. 

Liability  of  agent. — The  local  agent  of  a  telephone  company  which  has 
forfeited  its  license  to  do  business  in  a  city  cannot  be  prosecuted  individually 
for  conducting  such  business  without  a  license.  Carterville  v.  Gibson,  259 
Mo.  499,  168  S.  W.  673,  L.  R.  A.  1915A,  106. 


§  680a)  TAXATION  871 

of  the  right  to  be  protected  or  the  extent  of  the  injury  to  be  pre- 
vented is  over  three  thousand  dollars,  even  though  the  license  itself 
is  not  that  amount/*  The  question  often  arises  as  to  when  can  a 
case  of  this  nature  be  removed  to  the  federal  court,  but  this  depends 
upon  the  usual  rules  applicable  to  other  removal  cases  and  which 
is  somewhat  foreign  to  this  work.'^^  If  an  illegal  license  has  been 
levied  upon  one  of  these  companies,  it  need  not  wait  until  the  state 
has  seized  its  property  or  commenced  suit,  but  it  may  pay  the  fee 
and  sue  to  recover  the  amount  back.'^^  A  mere  demand  upon  these 
companies  of  a  tax  is  not  duress,  but  a  penalty  for  nonpayment  may 
constitute  duress. ^^  And  where  an  assessment  or  tax  for  one  year 
has  been  adjudicated  by  the  court,  this  will  not  be  res  judicata  as 
to  subsequent  years  if  the  value  has  changed  or  the  assessors  have 
changed/* 

§  680.  Interest  when  payment  of  taxes  is  delayed. — Under  a 
statute  providing  that  interest  shall  be  charged  upon  all  taxes  not 
paid  on  or  before  a  specified  date,  a  telegraph  company  is  liable  for 
interest  from  the  date  prescribed,  on  the  amount  of  taxes  payable 
by  it,  notwithstanding  the  fact  that  payment  was  delayed  pending 
the  decision  of  an  appeal  taken  from  the  assessment,  hi  which  a 
reduction  of  the  assessment  was  obtained.'^"  If  the  taxes  are  such 
as  ought  not  to  be  paid,  the  company  has  a  remedy  for  not  paying 
same.  But  in  order  to  protect  the  company  from  paying  interest 
on  the  taxes  for  the  delayed  payment,  the  company  should  tender 
the  amount  for  which  it  is  assessed. 

§  680a.  Special  assessment  for  improvements. — As  justice  re- 
quires that  the  local  assessment  for  improvements  of  the  streets, 
such  as  the  widening,  reduction  of  the  grade,  or  the  pavement 
thereof,  shall  be  made  only  against  property  or  persons  benefited 
thereby  and  since  the  franchise  of  a  telegraph,  telephone  or  electric 

74  Postal  Tel.,  etc.,  Co,  v.  Mobile  (C.  C.)  179  Fed.  955;  Humes  v.  Ft.  Smith 
(C.  C.)  9.3  Fed.  857;  West.  V.  Tel.  Co.  v.  City  Council  (C.  C.)  56  Fed.  419; 
Postal  Tel.  Cable  Co.  v,  Charleston,  153  U.  S.  692,  14  Sup.  Ct.  1094,  3S  L.  Ed. 
871 ;  West.  U.  Tel.  Co.  v.  Andrews,  216  U.  S.  1G5,  30  Sup.  Ct.  286,  54  L.  Ed. 
430;  West.  U.  Tel.  Co.  v.  Andrews  (C.  C.)  154  Fed.  95.  See  West.  U.  Tel. 
Co.  V.  Atty.  Gen.,  125  U.  S.  530,  8  Sup.  Ct.  961,  31  L.  Ed.  790,  will  not  re- 
strain from  further  operation  within  the  state  until  payment  of  tax. 

T5  Memphis  v.  Postal  Tel.  Cable  Co.,  145  Fed.  602,  76  C.  C.  A,  292;  State  v. 
Port  Royal,  etc.,  Ry.  (C.  C.)  56  Fed.  333. 

7  0  Atchison,  etc.,  R.  v.  O'Connor,  223  U.  S.  280,  32  Sup.  Ct.  216,  56  L.  Ed. 
436,  Ann.  Cas.  1913C,  1050. 

7  7  Gaar,  Scott  &  Co.  v.  Shannon,  223  U.  S.  468,  32  Sup.  Ct.  236,  56  L.  Ed.  510. 

7  8  People  V.  Zundel,  157  N.  Y.  513,  52  N.  E.  570. 

7  9  West.  U.  Tel.  Co.  v.  State,  64  N.  H.  265,  9  Atl.  547.  See  Cooley  on  Tax. 
r2d  Ed.)  456. 


872  TELEGRAPH   AND  TELEPHONE  COMPANIES  (§    680a 

company  is  not  augmented  by  such  improvement,  these  companies 
are  not  generally  subjected  to  such  an  assessment.^"  Moreover,  the 
value  of  that  part  of  the  franchise  which  is  within  the  assessment 
area  is  so  difficult  of  ascertainment  that  its  indefiniteness  in  value 
renders  it  impracticable  to  levy  an  assessment  against  it  for  such 
improvements.^^ 

80  Spring  Creek  Dr.  Dist.  v.  Elgin,  etc.,  R.  Co.,  249  111.  260,  94  N.  E.  529 ; 
In  re  Anthony  Ave.,  46  Misc.  Rep.  525,  95  N.  Y.  Supp.  77,  affirmed  in  124 
App.  Div.  940,  109  N.  Y.  Supp.  1123. 

81  In  re  Anthony  Ave.,  46  Misc.  Rep.  525,  95  N.  Y.  Supp.  77,  affirmed  in 
124  App.  Div.  940,  109  N.  Y.  Supp.  1123. 


^ 


8   681)  COMMUNICATIONS  AS  EVIDENCE 


873 


CHAPTER  XXVII 
TELEGRAPH  AND  TELEPHONE  COMMUNICATIONS  AS  EVIDENCE 

§  6S1.  In  general. 

6S2.  What  is  a  telegram. 

683.  Letters  and  telegrams— compared. 

684.  Same  continued — admission  of. 

68.5.  Same  continued— presumption— exceptions. 

686.  Authorship  must  be  proved. 

687.  Proof  of  signature. 

688.  Telegrams  as  declarations  of  sender. 

689.  Telegrams  as  evidence  of  communication. 

690.  Rule  applicable  to  documentary  evidence. 

691.  Primary  evidence — in  general. 

692.  Rule  applicable  to  documentary  evidence  only. 

693.  Rule  applicable  to  telegrams. 

694.  Depends  upon  which  document  is  at  issue. 

695.  Same  continued— contents  of  message  delivered  to  addressee. 

696.  Messages  given  orally  for  transmission. 

697.  Actions  to  recover  statutory  penalties  and  damages. 

698.  Secondary  evidence. 

699.  Proof  of  absence  of  the  original. 

700.  Notice  to  produce. 

701.  What  evidence  admissible  as  secondary. 

702.  Late  improvements  in  telegraphy. 

703.  Same  continued — secondary  evidence, 

704.  Testimony  of  witnesses. 

705.  Secondary  evidence  of  unstamped  contracts. 

706.  When  telegram  need  not  be  produced. 

707.  Declaration  of  employes  subsequently  employed. 

708.  Notice  by  telegram. 

709.  Telephone  communication  as  evidence. 

710.  Identity  of  person — when  essential. 

711.  Same — effect  of,  with  unknown  persons — agency. 

712.  Same — what  constitutes  sufficient  proof  of  identity— burden  of  proof. 

713.  Testimony  of  bystanders. 

714.  When  operator  or  third  person  converses. 

715.  Operator  as  interpreter. 

716.  Bills  and  notes — presentment  by  telephone. 

717.  Oaths  admissible  by  means  of  teleplione. 

718.  Telephonic  communication  as  basis  for  affidavit — discharge  of  jury. 

719.  Serving  subpoena  by  telephone. 

§  681.  In  general. — We  shall  now  discuss  the  law  with  respect 
to  the  admission  of  telegrams  as  evidence.  In  assuming  this  under- 
taking we  shall  first  discuss  the  manner  of  proving  the  contents 
of  telegrams,  then  the  admission  of  such  with  respect  to  the  statute 
of  frauds,  and,  lastly,  we  shall  speak  of  such  evidence  as  a  privi- 


874  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  682 

leged  communication.  In  this  chapter  we  shall  only  discuss  the 
first  of  these  subdivisions,  the  manner  of  proving  the  contents  of 
telegrams,  and  leave  the  other  to  be  treated  in  subsequent  chapters. 
In  taking  up  the  subject  which  we  propose  to  discuss  at  present,  we 
shall,  after  discussing  the  subject  in  general,  speak  of  the  best  proof, 
or  such  as  is  termed  primary,  then  such  as  is  secondary,  after  which 
we  shall  say  something  of  telephone  communications. 

§  682,  What  is  a  telegram. — Before  entering  into  this  subject, 
however,  we  shall  see  what  is  meant  by  the  term  "telegram."  A 
telegram  is  a  message  sent  by  telegraph ;  ^  but  under  some  circum- 
stances a  message  sent  over  a  telephone  line  is  considered  a  tele- 
gram.^ In  England,  there  was  a  law  ^  which  empowered  the  post- 
master general  to  work  and  maintain  telegraphs  for  the  benefit  and 
use  of  the  public.  It  was  held  that  conversations  over  or  through 
telephone  lines  were  "messages"  or,  at  all  events,  "communications 
transmitted  by  telegraph,"  and  therefore  "telegrams"  within  the 
meaning  of  the  act;  and  that,  since  the  company  made  a  profit  out 
of  the  rents,  conversations  held  by  subscribers  through  their  tele- 
phones were  infringements  of  the  exclusive  privileges  of  transmit- 
ting telegrams  granted  to  the  postmaster  general  by  those  acts. 

§  683.  Letters  and  telegrams — compared. — There  is  a  similarity 
between  the  means  of  communicating  news  by  telegraph  and  by  the 
postal  system,  with  respect  to  the  proof  of  the  delivery  of  the  news 
to  the  party  addressed.  Where  a  letter  is  duly  posted,  stamped  and 
addressed  for  transmission  by  means  of  the  United  States  mail,  it  is 
presumed  that  such  letter  reached  its  destination.  A  telegraph 
company  is  engaged  in  a  public  service,  and  is  duty  bound  to  trans- 
mit and  deliver  all  messages  entrusted  to  its  care.  Having  assumed 
this  duty,  a  similar  presumption  arises ;  that  is,  that  the  message 
was  delivered.*  The  presumption  is  that  letters  properly  directed 
and  mailed  were  received,  and  the  same  is  true  of  telegrams  given 

1  Int.  Dec.  2  6  Q.  B.  Div.  244 ;    29  Moak,  602. 

3  Telegraph  Act,  1S63  and  1SG9. 

4  Perry  v.  German  American  Bank,  53  Neb.  89,  73  N.  W.  538,  68  Am.   St. 
Rep.  593 ;    West.  U.  Tel.  Co.  v.  Call  Pub.  Co.,  44  Neb.  326,  62  N.  W.  506,  27 
L.  R,  A.  622,  48  Am.  St.  Rep.  729 ;    Oregon  S.  S.  Co.  v.  Otis,  100  N.  Y.  446, 
3  N.  E.  485,  53  Am.  Rep.  221.     See,  also,  Eppinger  v.  Scott,  112  Cal.  369,  42 
Pac.  301,  44  Pac.  723,  53  Am.  St.  Rep.  220 ;    Breed  v.  Central  City  First  Nat. 
Bank,  6  Colo.  235;    Com.  v.  Jeffries,  7  Allen  (Mass.)  548,  83  Am.  Dec.  712 
Western  Twine  Co.  v.  Wright,  11  S.  D.  521,  78  N.  W.  945,  44  L.  R.  A.  438 
Lumber  Co.  v.  Nyman,  145  Mich.  477.  108  N.  W.  1019,  116  Am.  St.  Rep.  310 
White  V.  Fleming,  20  Nova  Scotia,  335.     Compare  State  v.  Gritzner,  134  Mo. 
512,  36  S.  W.  39,  holding  that  delivery  to  person  addressed  is  not  to  be  per- 
mitted unless  there  is  truth  that  the  message  was  received  by  the  telegraph 
office  to  which  it  was  directed.     Jones  on  Ev.  §  53. 


§    684)  COMMUNICATIONS  AS   EVIDENCE  875 

to  a  telegraph  company  for  transmission  and  properly  addressed,^ 
and  the  presumption  becomes  conclusive  when  not  denied.*' 

§  684.  Same  continued — admission  of. — The  general  rule  rela- 
tive to  the  admission  of  a  letter  in  evidence  against  the  person  who 
is  supposed  to  have  written  it  is  that  it  must  first  be  proved  that  the 
letter  was  written  by  such  person  or  by  his  request  or  authority. 
This  may  be  done  by  comparing  the  written  letter  with  other  writ- 
ings of  his,  or  by  any  other  evidence  which  will  show  that  he  had  it 
done  for  himself.  When  it  is  shown  by  competent  evidence  that 
he  is  the  author  of  the  letter,  it  may  then  be  admitted  in  evidence 
agaiiist  him.  If,  however,  the  letter  is  in  reply  to  one  written  to  the 
person  against  whom  it  is  to  be  admitted,  it  is  not  necessary  to 
prove  the  latter's  signature,  but  all  that  is  necessary  is  to  prove 
that  the  letter  is  one  in  reply  to  one  written  to  such  person  in  regard 
to  the  subject  at  issue.  The  rule  relative  to  the  admission  of  tele- 
grams, with  some  exceptions,  is  similar  to  the  above. '^     Thus,  in 

5  Com.  Y.  Jeffries.  7  Allen  (Mass.)  548,  83  Am.  Dec.  717,  and  note.  A  tele- 
gram is  presumed  to  have  been  delivered  in  the  regular  course  of  business 
to  the  person  to  whom  it  was  directed.  The  fact  that  the  telegram  was  sent 
is  therefore  admissible  in  evidence,  and  tends  to  prove  that  it  was  received. 
Eppinger  v.  Scott,  112  Cal.  369,  53  Am.  St.  Kep.  220,  42  Pac.  301,  44  Pac.  723 ; 
Perry  v.  German  American  Bank,  53  Neb.  89,  73  N.  W.  538,  68  Am.  St.  Rep. 
593. 

6  Oregon  Steamboat  Co.  v.  Otis,  100  N.  T.  446,  3  N.  E.  485,  53  Am.  Rep. 
221 ;  Austin  v.  Holland,  69  N.  Y.  571,  25  Am.  Rep.  246 ;  Eppinger  v.  Scott, 
112  Cal.  369,  42  Pac.  301,  44  Pac.  723,  53  Am.  St.  Rep.  220. 

7  That  person  signing  name  to  communications  sent  was  sender  pi'esumed. 
Tel.  Co.  V.  Troth,  43  Ind.  App.  7,  84  N.  E.  727.  But  such  presumption  is  re- 
buttable. Id.;  Edwards  v.  Erwin.  148  N.  C.  429,  62  S.  E.  545,  16  Ann. 
Cas.  393,  holding  that  a  telegram  received  in  due  course  and  which  purports 
to  be  a  reply  to  another  telegram  shown  to  have  been  previously  sent  by  the 
receiver  is  admissible  evidence  without  further  proof  as  to  the  identity  of 
the  sender.  For  further  support  of  this  proposition  see  People  v.  Hammond, 
132  Mich.  422,  93  N.  W.  1084;  Taylor  v.  The  Robt.  Campbell,  20  Mo.  254; 
Western  Twine  Co.  v.  Wright,  11  S.  D.  521,  78  N.  W.  942,  44  L.  R.  A.  438 ; 
So.  R.  Co.  V.  Howell,  135  Ala.  639,  34  South.  6;  Com.  v.  Burton,  183  Mass. 
461,  67  N.  E.  419 ;  Coupland  v.  Arrowsmith,  IS  L.  T.  (N.  S.)  755 ;  See  U.  S. 
V.  Babcock,  3  Dill.  (U.  S.)  571,  Fed.  Cas.  No.  14,485.  However,  a  reply  tele- 
gram may  be  excluded  on  the  ground  that  it  is  not  the  best  evidence.  Thus, 
where  there  is  no  evidence  that  the  original  telegram  given  by  the  sender  to 
the  sending  operator  is  lost  or  destroyed,  the  telegram  given  to  the  sendee 
by  the  receiving  operator  is  not  admissible.  The  fact  that  the  telegram  is  a 
reply  telegram  does  not  interfere  with  the  operation  of  the  rule.  Howley  v. 
Whipple,  48  N.  H.  487 ;  Cobb  v.  Glenn  Boom,  etc.,  Co.,  57  W.  Va.  49,  49  S.  E. 
1005,  110  Am.  St.  Rep.  734.  In  Howley  v.  Whipple,  supra,  the  court  said  : 
"Telegraphic  messages  are  instruments  of  evidence  for  various  purposes  and 
are  governed  by  the  same  rules  which  are  applied  to  other  writings.  If  there 
be  any  difference,  it  results  from  the  fact  that  messages  are  first  written  by 
the  sender  and  are  again  written  by  the  operator  at  the  other  end  of  the 
line,   thus   causing  the   inquiry   as   to   which   is   the   original.      The   original 


876  TELEGRAPH  AND  TELEPHONE  COMPANIES        (§  684 

order  to  admit  a  telegram  in  evidence  against  the  sender,  it  must 
be  first  proved  that  he  is  the  author  of  the  telegram,  and  the  same 
proof  may  be  resorted  to  in  this  instance  as  that  adopted  for  the 
proof  of  the  authorship  of  letters.  And  while  it  may  be  admitted 
in  evidence  in  the  absence  of  proof  of  the  sender's  handwriting, 
when  it  is  in  reply  to  a  letter  written  to  such  person,  yet  the  general 
rule  is  that  it  cannot  be  admitted  in  the  absence  of  such  proof  when 
it  is  in  reply  to  a  telegram  sent  to  such  person.^  The  reason  for 
this  rule  may  be  readily  seen.  Where  it  is  in  reply  to  a  letter,  the 
signature  of  the  author  thereof  may  be  known  by  the  recipient 
thereof,  or  it  is  in  such  a  place  as  to  be  known  by  him ;  but  in  the 
case  of  signatures  to  telegrams,  the  recipient  of  the  latter  has  no 
means  of  ascertaining  the  genuineness  of  such,  more  than  what 
the  operator  may  tell  him.  The  rule,  however,  would  be  different 
where  the  message  is  transmitted  by  means  of  the  late  improve- 
ments made  in  telegraphy,  and  which  will  be  hereafter  discussed. 
In  these  cases  the  same  rule  would  apply  as  where  the  message  is 
in  reply  to  a  letter.^ 

message,  whatever  it  may  be,  must  be  produced,  it  being  the  best  evidence ; 
and  in  case  of  its  loss  or  of  inability  to  produce  it  from  any  other  cause,  the 
next  best  evidence  the  nature  of  the  case  will  admit  of  must  be  furnished." 
"A  reply  telegram  may  also  be  excluded  on  the  ground  that  its  admission  vio- 
lates the  constitutional  right  of  an  accused  to  be  confronted  with  the  wit- 
nesses against  him.  Thus  in  Chester  v.  State,  23  Tex.  App.  577,  5  S.  W.  125, 
it  appeared  that  the  defendant  was  accused  of  the  forgery  of  a  draft.  While 
he  was  attempting  to  cash  the  draft,  certain  telegrams  were  sent  by  a  witness 
at  the  instance  of  the  defendant  to  inquire  as  to  its  validity.  Reply  telegrams 
thereto  were  proved  by  the  same  witness.  The  court,  holding  the  evidence 
improper,  said:  "As  to  the  pretended  replies  by  telegram,  we  know  of  no 
rule  of  law  by  which  they  could,  in  any  manner,  become  evidence  against  a 
defendant  on  trial  in  a  criminal  case,  who  is  guaranteed  the  right  by  the  con- 
stitution to  be  confronted  with  the  witnesses  against  him,  and  when  there  is 
not  the  slightest  evidence  that  the  dispatch  is  the  act  of  the  party  purporting 
to  send  it  and  when  the  statement  it  contains  is  most  conclusive  and  damag- 
ing to  the  party  against  whom  it  is  used,  and  that,  too,  a  statement  made  by 
a  party  not  under  oath.  It  is  indeed  the  veriest  hearsay,  which  even  the 
direst  necessities  of  justice  will  not  excuse  or  tolerate.  It  was  patent  error." 
But  see  Smith  v.  Easton,  54  Md.  138,  39  Am.  Rep.  355.  See  State  v.  Massee,  95 
S.  C.  315,  79  S.  E.  97,  46  L.  R.  A.  (N.  S.)  781,  message  from  Governor  concern- 
ing withdrawal  of  requisition  admissible  in  habeas  corpus  proceeding. 

8  Smith  V.  Easton,  54  Md.  138,  39  Am.  Rep.  355 ;  Howley  v.  Whipple,  48 
N.  H.  487.  See,  also,  Ovenston  v.  Wilson,  2  C.  &  K.  1,  61  C.  L..  1.  Compare 
Thorp  V.  Philbin,  15  Daly,  155,  3  N.  Y.  Supp.  939 ;  People  v.  Hammond,  132 
Mich.  422,  93  N.  W.  1084. 

9  Gray  on  Tel.  135.  This  writer  says :  "The  principle  upon  which  it  is 
admitted  is  that  the  person  who  answers  a  letter  is  almost  invariably  the  per- 
son to  whom  it  is  addressed.  This  principle,  since  it  is  entirely  independent 
of  the  question  of  handwriting,  applies,  apparently,  with  equal  force  to  com- 
munication by  telegraph.  But  it  does  not  in  reality  do  so..  It  is  true  that  the 
person  who  answers  a  telegraph  message  is  usually  the  person  to  whom  it  is 


§    686)  COMMUNICATIONS  AS   EVIDENCE  877 

§  685.  Same  continued — presumption — exceptions. — Where  a 
letter  has  been  received  from  a  certain  place  in  reply  to  a  letter 
written  to  such  person  at  such  place,  it  is  a  presumption  that  he 
was  at  that  place  at  the  time  the  letter  was  mailed. ^°  A  different 
rule  applies  in  case  of  telegrams.  Thus,  where  a  telegram  was  for- 
warded to  a  person  at  a  certain  place,  and  an  answer  purporting  to 
be  from  him  was  received  in  due  course,  this  is  no  evidence  that 
such  person  was  at  that  place  at  that  particular  time.  "In  the  case 
of  telegraphic  communications,  the  ground  of  belief  amounts  merely 
to  this :  That  the  operator  at  one  end  of  the  line  has  informed  the 
operator  at  the  other  end  of  the  presence  of  the  sender  of  the  an- 
swer. This  is  mere  hearsay."  ^^  But  a  receipt  of  a  message  over 
the  wires  at  the  point  of  destination  creates  a  presumption  that  the 
message  was  sent  from  the  office  from  which  it  purports  to  come.^" 

§  686.  Authorship  must  be  proved. — As  said  heretofore,  the  au- 
thorship of  a  telegram  must  be  proved  before  it  can  be  admitted  in 
evidence.  If  it  is  a  reply  to  a  letter,  it  is  enough  to  show  such  fact ; 
but  if  the  original  telegram  is  introduced,  the  handwriting  of  the 
sender  must  be  shown,  or  other  evidence  of  the  genuineness  must 
be  given. ^^  The  authenticity  of  certain  telegrams  is  sufficiently 
proven,  prima  facie  at  least,  where  one  in  an  agreed  cipher  was 
proved  to  a  certainty,  others  were  referred  to  in  exhibits  of  the  op- 
posite party,  and  still  others  contained  directions  to  draw  drafts 

addressed.  It  is  also  true,  however,  that  while  it  is  unnecessary  to  disclose 
the  intelligence  contained  in  a  letter  to  any  one  to  effect  its  transportation 
by  mail,  it  is  absolutely  necessary  to  disclose  intelligence  to  at  least  two  op- 
erators to  effect  its  transmission  by  telegraph.  Consequently  the  telegraph 
offers  far  greater  opportunity  to  deliver  fraudulent  answers  to  inquiries  than 
the  mail  does.  This  distinction  renders  the  principle  at  present  under  con- 
sideration inapplicable  to  communications  by  telegraph,  however  sound  its 
application  to  communications  by  mail  may  be  deemed  to  be.  The  message 
written  at  the  place  of  destination  might  be  admissible  to  prove  the  au- 
thorization of  the  apparent  sender,  if  it  purported  to  be  an  answer  to  a  letter 
proved  to  have  been  properly  mailed  to  him,  the  opportunity  to  deliver  fraud- 
ulent answers  to  inquiries  in  that  form  being  comparatively  slight." 

10  1  Green.  Ev.  (14th  Ed.)  §  578. 

11  Howley  v.  Whipple,  48  N.  H.  487.     See  Wig.  Ev.  §  2454. 

12  Elwood  V.  West.  U.  Tel.  Co.,  45  N.  Y.  549,  6  Am.  Rep.  140. 

13  Richie  V.  Bass,  15  La.  Ann.  668 ;  Burt  v.  Winona,  etc.,  R.  Co.,  31  Minn. 
472,  18  N.  W.  285,  289;  Smith  v.  Easton,  54  Md.  138,  39  Am.  Rep.  355; 
Reynolds  v.  Hinrichs,  16  S.  D.  602,  94  N.  W.  694;  Chester  v.  State.  23  Tex. 
App.  577,  5  S.  W.  125.  See,  also,  Eppinger  v.  Scott,  112  Cal.  369,  42  Pac.  301, 
44  Bac.  723,  53  Am.  St.  Rep.  220;  Lewis  v.  Havens,  40  Conn.  303;  Yeiser 
v.  Cathers,  5  Neb.  (Unof.)  204,  97  N.  W.  840 ;  Cobb  v.  Glenn  Boom,  etc.,  Co., 
57  W.  Va.  49,  49  S.  E.  1005,  110  Am.  St.  Rep.  734.  See  State  v.  Massee,  95 
S.  C.  315,  79  S.  E.  97,  46  L.  R.  A.  (N.  S.)  787,  to  impeach  Governor's  signature ; 
Johnson  v.  United  States,  215  Fed.  679,  131  C.  C.  A.  613,  L.  R.  A.  1915A,  862. 


878  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  687 

which  were  shown  to  have  been  drawn  and  paid.^*  So  also  testi- 
mony of  the  recipient  that  he  received  the  message  and  the  admis- 
sion of  the  sender  that  it  is  the  message  he  sent  is  abundant  proof 
of  the  authenticity  of  the  message.^  ^  But  where  the  sender  testifies 
that  the  message  was  in  her  own  handwriting  and  was  sent  by  her, 
a  dispatch  taken  from  the  company's  files  of  about  the  same  date, 
purporting  to  be  signed  by  her  and  referring  to  the  subject-matter 
in  question,  is  not  admissible  if  not  in  her  handwriting.^*^  A  paper 
offered  in  evidence,  purporting  to  contain  a  dispatch  received  at  a 
telegraph  office,  is  not  admissible  as  evidence  when  no  proof  is 
given  that  it  was  in  the  handwriting  of  any  person  employed  in  the 
telegraph  office  where  it  purports  to  have  been  received,  and  no 
other  proof  of  its  authenticity  is  given. ^^ 

§  687.  Proof  of  signature. — The  same  manner  of  proof  neces- 
sary to  prove  a  person's  signature  to  a  letter  is  applicable  in  the 
proof  of  signatures  to  telegrams.  Thus  evidence  founded  on  mere 
comparison  of  handwriting  is  not  admissible  as  a  general  rule  to 
prove  the  genuineness  of  a  signature;  ^^  but  it  is  held  that  an  ex- 
pert may  give  his  opinion  from  mere  comparison.^^  Testimony  by 
comparison  of  handwriting  is  admissible  in  corroboration  of  pre- 
vious testimony.^"  So,  if  the  witness  has  previous  knowledge  of 
the  hand,  he  may,  in  corroboration  of  his  testimony  compare  the 
writing  with  other  signatures  known  to  be  genuine.^ ^  Writings 
used  as  standards  in  comparison  of  hands  must  be  proved  to  be 
genuine.  So  letterpress  copies  of  letters  found  in  the  party's  letter 
book  are  not  admissible  as  standards  of  comparison  to  prove  the 
genuineness  of  a  signature,  but  original  signatures  must  be  used.^^ 
In  some  instances,  however,  press  copies  may  be  admitted  as  sec- 
ondary evidence,  but  not  for  comparison.  When  such  is  introduced, 
the  witness  should  be  asked  if  it  appears  to  be  in  the  handwriting  of 
defendant ;  then,  by  proving  that  it  is  a  press  copy,  it  would  follow 

14  Oregon  S.  S.  Co.  v.  Otis,  100  N.  Y.  446,  3  N.  E.  485,  53  Am.  Rep.  221; 
Johnson  v.  United  States,  215  Fed.  679,  131  C.  C.  A.  613,  L.  R.  A.  1915A,  862. 

15  Dunbar  v.  United  States,  156  U.  S.  185,  15  Sup.  Ct.  325,  39  L.  Ed.  390; 
Johnson  v.  United  States,  215  Fed.  679,  131  C.  C.  A.  613,  L.  R.  A.  1915A,  862. 

1 6  Lewis  V.  Havens,  40  Conn.  363. 

17  Richie  V.  Bass,  15  La.  Ann.  668 ;  Oregon  S.  S.  Co.  v.  Otis,  100  N.  Y.  446, 
3  N.  E.  485,  53  Am.  Rep.  221 ;  Smith  v.  East  on,  54  Md.  138,  39  Am.  Rep.  355 ; 
Dunbar  v.  United  States,  156  U.  S.  185,  15  Sup.  Ct.  325,  39  L.  Ed.  390. 

18  Clark  V.  Wyatt,  15  Ind.  271,  77  Am.  Dec.  90. 

19  Chance  v.  Indianapolis,  etc.,  R.  Co.,  32  Ind.  474;  Forgey  v.  First  Nat. 
Bank,  66  Ind.  125. 

2  0  Baker  v.  Haines.  6  Whart.  (Pa.  284),  36  Am.  Dec..  224. 

21  Shank  v.  Butsch,  28  Ind.  21. 

2  2  See  Com.  v.  Eastman,  1  Cush.  (Mass.)  189.  48  Am.  Dec.  596,  and  notes 


§    689)  COMMUNICATIONS  AS   EVIDENCE  879 

that  the  letter  from  which  the  imiDression  was  made  is  defendant's 
also.  He  should  not  be  asked:  "In  whose  handwriting  was  the 
original  of  which  this  purports  to  be  a  copy?"  This  question  elicits 
the  opinion  of  the  witness  concerning  the  handwriting  and  the 
necessary  consequence  of  that  opinion,  in  the  same  answer.-^ 

§  688.  Telegrams  as  declarations  of  sender. — When  a  telegram 
is  shown  to  have  been  delivered  for  transmission,  and  it  is  proven 
that  the  signature  to  same  is  that  of  the  sender,  such  telegram  may 
be  admitted  as  the  sender's  declaration.^*  Thus  evidence  that  a 
telegram  was  sent  by  the  defendant  to  the  drawee  of  an  order  which 
he  had  given  to  plaintiff,  directing  the  drawee  to  withhold  a  part 
of  the  amount  specified  and  to  pay  the  remainder,  is  competent  as 
tending  to  show  an  admission  by  the  defendant  of  indebtedness,  at 
least  to  the  extent  of  the  amount  of  such  remainder. ^°  The  general 
rule  is,  that  a  wife  cannot  testify  in  a  criminal  case  against  her  hus- 
band, unless  the  charge  is  one  which  has  been  committed  on  her  by 
him.^"  So  a  telegram  from  a  wife  of  one  of  the  defendants  in  an 
action  for  conspiracy,  not  written  nor  sent  by  either  of  them,  is 
inadmissible  as  evidence  against  them.  As  the  declaration  of  the 
wife,  it  could  not  affect  even  her  husband. ^'^ 

§  689.  Telegrams  as  evidence  of  communication. — Business  af- 
fairs may  be  transacted  by  means  of  telegrams  as  well  as  by  means 
of  correspondence  by  letter,  and  when  there  is  an  action  arising 
over  a  business  transaction,  all  letters  sent  or  received  by  the  par- 
ties to  the  action  and  in  regard  to  the  matter  at  issue  may  be  ad- 
mitted in  evidence.  So,  when  it  is  shown  that  telegrams  have  been 
received  in  due  course  from  either  party,  they  may  be  admitted  as 
evidence  of  the  communication  between  the  parties. ^^  They  may 
also  be  admitted  to  show  the  information  upon  which  the  addressee 

2  3  Com.  V.  Jeffries,  7  Allen  (Mass.)  548,  S3  Am.  Dec.  712. 

21  Com.  V.  Jeffries,  7  Allen  (Mass.)  548,  83  Am.  Dec.  712.  See,  also,  People 
V.  Hammond,  132  IMich.  422,  93  N.  W.  1084.  See,  also,  State  v.  Massee.  95 
S.  C.  315,  79  S.  E.  97,  46  L.  R.  A.  (N.  S.)  781 ;  Montgomery  v.  United  States, 
219  Fed.  1G2,  135  C.  C.  A.  60. 

2  5  Griggs  V.  Deal,  30  Mo.  App.  152.  See,  also,  Benford  v.  Sanuer,  40  Pa.  9, 
80  Am.  Dec.  545. 

2  6  State  V.  Jolly,  20  N.  C.  110,  32  Am.  Dec.  656. 

2  7  Benford  v.  Sauner,  40  Pa.  9,  80  Am.  Dec.  545. 

2  8  Com.  V.  Jeffries,  7  Allen  (Mass.)  548,  S3  Am.  Dec.  712;  Taylor  v.  Steam- 
boat Robert  Campbell,  20  Mo.  254.  Telegrams  transmitted  to  plaintiff  in  at- 
tachment suits  by  telephone,  and  reduced  to  writing  by  the  person  who  re- 
ceived them,  and  in  that  form  acted  upon  by  plaintiff,  are  admissible  as 
showing  the  information  upon  which  the  attachment  was  sued  out;  and  it  is 
not  necessary  that  the  dispatches  should  be  verified  by  comparing  them  witli 
the  originals  on  file  with  the  telegraph  company.  Deere  v.  Bagley,  80  Iowa, 
197,  45  N.  W.  557. 


880  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  690 

may  have  acted,  where  his  good  faith  or  his  intentions  are  in  ques- 
tion; provided  it  is  shown  that  he  read  and  acted  upon  them.^® 
Thus  a  telegram  sent  by  telephone  and  reduced  to  writing  by  the 
person  receiving  it  may  be  admitted  as  showing  information  on 
which  a  plaintiff  acted  in  suing  out  an  attachment.  It  is  not  neces- 
sary, in  such  a  case,  that  they  should  be  verified  by  comparing  them 
with  the  originals  on  file  in  the  company's  office ;  the  question  in 
such  a  case  is,  not  what  the  original  messages  contained,  but  what 
was  contained  in  them  when  they  reached  the  plaintiff.^" 

§  690.  Rule  applicable  to  documentary  evidence. — It  would  be 
foreign  to  the  purpose  of  this  treatise  to  discuss  the  general  rule  in 
relation  to  the  admission  of  evidence  pertaining  to  documentary 
evidence,  but  suffice  it  to  say  the  general  rule  governing  such 
evidence  is  applicable  in  the  case  of  telegrams.^i  ^s  a  rule,  how- 
ever, in  order  for  the  message  to  be  admitted  against  any  one,  it 
must  be  shown  that  he  is  a  party  to  the  message,  either  as  the 
sender  or  receiver.^-  Thus  correspondence  by  wire  between  opera- 
tors sending  and  receiving  a  message,  which  was  not  communicated 
to  the  sender,  is  not  admissible  to  show  that  the  person  to  whom 
the  message  was  directed  was  absent  from  the  place  of  delivery.^^* 
So  also  letters  and  telegrams  as  to  the  cancellation  of  an  insurance 
policy,  sent  by  an  insurance  company  to  its  agent  after  a  loss,  are 
not  admissible  against  the  insured  in  an  action  on  the  policy.^* 
There  may  be,  however,  some  exceptions  to  the  rule.  Thus,  where 
an  action  is  brought  to  recover  the  price  of  goods  sold,  a  telegram 
countermanding  the  order  for  such  goods,  although  it  was  sent  to 
one  not  a  party  to  the  action,  is  admissible  when  it  appears  that  it 
was  intended  to  be  delivered  to  the  sellers  of  the  goods  and  that  it 

2  9  J.  K.  Armsby  Co.  y.  Eckerly,  42  Mo.  App.  299. 

3  0  Deere  v.  Bagley,  80  lov/a,  197,  45  N.  W.  557. 

31  Com.  V.  Vosburg,  112  Mass.  419;  Brownfield  v.  Phoenix  Ins.  Co.,  35  Mo. 
App.  54 ;  Id.,  26  Mo.  App.  390 ;  Benford  v.  Sanner,  40  Pa.  9,  80  Am.  Dee.  545 ; 
Eldridge  v.  Hargreaves,  30  Neb.  638,  46  N.  W.  923;  Hammond  v.  Beeson 
(Mo.)  15  S.  W.  1000;  State  v.  Espinozei,  20  Nev.  209,  19  Pac.  677;  Inter- 
national, etc.,  R.  Co.  V.  Prince,  77  Tex.  560,  14  S.  W.  171,  19  Am.  St.  Hep.  795 ; 
Powell  V.  Brunner,  86  Ga.  531,  12  S.  E.  744 ;  J.  K.  Armsby  Co.  v.  Eckerly,  42 
Mo.  App.  299 ;  Richmond  v.  Sundburg,  77  Iowa,  255,  42  N.  W.  184 ;  West.  U. 
Tel.  Co.  V.  Cooper,  71  Tex.  507,  9  S.  W.  598,  1  L.  R.  A.  728,  10  Am.  St.  Rep. 
772 ;  West.  U.  Tel.  Co.  v.  Henderson,  89  Ala.  510,  7  South.  419,  IS  Am.  St. 
Rep.  148. 

3  2  Powell  V.  Brunner,  86  Ga.  531,  12  S.  E.  744;  People  v.  Hammond,  132 
Mich.  422,  93  N.  W.  1084. 

•3  West.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598,  1  L.  R.  A.  728,  10 
Am.  St.  Rep.  772. 

34  Browufleld  v.  Phoenix  Ins.  Co.,  35  Mo.  App.  54;  Id.,  26  Mo.  App.  390. 
See,  also,  Larminie  v.  Carley,  114  111.  196,  29  N.  E.  382. 


§    692)  COMMUNICATIONS  AS  EVIDENCE  881 

actually  came  into  their  possession  and  was  replied  to  by  such 
parties.^  ^ 

§  691.  Primary  evidence — in  general. — One  of  the  general  rules 
of  the  law  of  evidence  is  that  the  best  obtainable  evidence  must  be 
adduced  in  court,  or  such  as  is  generally  termed  primary  evidence. 
It  has  been  a  rule  repeatedly  enunciated  by  the  courts  from  the 
earliest  times  that  the  highest  degree  of  proof  of  which  the  case 
from  its  nature  is  susceptible  must,  if  obtainable,  be  produced ;  or, 
in  other  words,  that  no  evidence  shall  be  adduced  which  presup- 
poses that  the  party  offering  it  can  obtain  better  evidence."^  "The 
object  of  the  rule  of  law,"  as  was  ably  said,  "which  requires  the 
production  of  the  best  evidence  of  which  the  fact  sought  to  be  es- 
tablished is  susceptible,  is  the  prevention  of  fraud ;  for  if  a  party 
is  m  possession  of  this  evidence,  and  withholds  it,  and  seeks  to  sub- 
stitute inferior  evidence  in  its  place,  the  presumption  naturally 
arises  that  the  better  evidence  is  withheld  for  fraudulent  purposes 
which  its  production  would  expose  and  defeat."  ^''  This  rule  does 
not  mean  that  the  strongest  possible  evidence  of  the  matter  at  issue 
shall  be  given,  or  that  all  evidence  in  the  case  shall  be  produced; 
but  it  requires  simply  that  no  evidence  shall  be  given  which,  from 
its  nature,  may  warrant  the  inference  that  there  is  obtainable  by 
the  party  evidence  more  direct,  conclusive  and  original.  In  other 
words,  it  means  that  the  most  direct,  satisfactory  and  conclusive 
evidence  obtainable,  and  that  of  the  highest  degree  or  grade,  must 
be  produced. ^^ 

§  692.  Rule  applicable  to  documentary  evidence  only. — This 
rule  is  applicable  to  the  admission  of  documentary  evidence  only, 
since  there  is  no  primary  and  secondary  evidence  to  such  as  may 
be  oral.  In  other  words,  the  testimony  of  one  witness  cannot  be 
excluded  on  the  ground  that  another  might  give  more  conclusive 
evidence. ■""*  If  two  parties  claim  that  they  are  familiar  with  the 
circumstances  of  a  particular  transaction,  but  their  statements  in 
regard  to  same  are  conflicting,  it  is  within  the  province  of  the  jury 

85  Eldridge  v.  Hargreaves,  30  Neb.  6.38,  46  N.  W.  923. 

36  People  V.  I^mbert,  5  jNIich.  .349,  72  Am.  Dec.  49;  Storm  v.  Green,  51  Miss. 
103 ;  Clifton  v.  T  ■.  S.,  4  How.  242,  11  L.  Ed.  957 ;  Church  v.  Ilubbart,  2  Cranch, 
187,  2  L.  Kd.  249 ;  Ward  v.  Kolin,  58  Fed.  4G2,  7  C.  C.  A.  314. 

3  7  Bagley  v.  McMickle,  9  Cal.  430. 

38  Elliott  V.  Van  Bnren,  33  Mich.  49,  20  Am.  Rep.  608;  West.  U.  Tel.  Co.  v. 
Stevenson,  128  Pa.  442,  18  Atl.  441,  15  Am.  St.  Rep.  6S7,  5  L.  R.  A.  515 ;  Zang 
V.  Wyant,  25  Colo.  551,  56  Pac.  565,  71  Am.  St.  Rep.  145. 

3  9  Nelson  v.  Boynton,  3  Mete.  (Mass.)  396,  37  Am.  Dec.  148;  Elliott  v.  Van 
Buren,  33  Mich.  49,  20  Am.  Rep.  668. 

Jones  Tel.(2d  Ed.) — 56 


882  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  693 

to  determine  which  statement  is  the  more  correct,  and  it  is  never 
the  duty  of  the  court  to  exclude  the  testimony  of  one  witness  be- 
cause it  may  think  that  of  another  is  better.  Where,  however,  doc- 
uments or  other  written  instruments  exist,  the  contents  of  which 
are  in  dispute,  the  original  should  be  produced  to  prove  such  con- 
tents rather  than  to  prove  it  by  other  evidence  which  would  be 
open  to  the  charge  of  inaccuracy.*"  In  some  instances,  however, 
and  more  particularly  with  respect  to  proving  telegrams,  parol  evi- 
dence may  be  best ;  which  fact  we  shall  speak  of  later. 

§  693.  Rule  applicable  to  telegrams. — The  principal  question  in- 
volved in  the  consideration  of  the  admission  of  telegrams  as  evi- 
dence to  prove  their  contents  is,  What  is  the  best  evidence  to  prove 
such  facts?  The  general  rule  is  that  the  original  telegram,  when 
obtainable,  shall  be  produced ;  but  it  is  not  an  easy  matter  in  every 
instance  to  determine  what  is  the  original  telegram.  In  such  com- 
munications there  are  two  distinct  documents ;  the  one  delivered 
by  a  person  to  the  company  for  transmission,  and  the  other  de- 
livered by  the  company  to  the  person  to  whom  it  was  sent.  The 
contents  of  these  two  may  be  identical ;  and  while  the  presumption 
may  be  that  they  are  the  same,  yet  it  is  not  the  case  in  every  in- 
stance. So  the  presumption  is  not  a  conclusive  one.  It  is  generally 
held  that  this  question  depends  upon  the  further  question  as  to  who 
the  company  represented  as  agent,  the  sender  or  the  recipient  of 
the  message?  In  other  words,  if  the  person  sending  the  message 
takes  the  initiative  so  that  the  company  is  to  be  regarded  as  his 
agent,  the  message  actually  delivered  at  the  end  of  the  line  is  the 
original  and  primary  evidence ;  but  if  the  person  to  whom  the  mes- 
sage is  sent  takes  the  risk  of  its  transmission,  or  is  the  employer  of 
the  company,  the  message  delivered  to  the  operator  is  the  origi- 
nal." 

4  0  Elliott  V.  Van  Buren,  33  Mich.  49,  20  Am.  Rep.  668;  Heneky  v.  Smith,  10 
Or.  349,  45  Am.  Rep.  143. 

4iDurkee  v.  Vt.  C.  Ry.  Co.,  29  Vt.  127;  Trevor  v.  Wood,  36  N.  Y.  307,  93 
Am.  Dec.  511 ;  Bond  v.  Hurd,  31  Mont.  314,  78  Pac.  579,  3  Ann.  Cas.  566 ;  State 
V.  Hopkin.s,  50  Vt.  316 ;  Saveland  v.  Green,  40  Wis.  431 ;  West.  U.  Tel.  Co.  v. 
Shotter,  71  Ga.  760.  See  Jones  on  Ev.  §  210.  But  see  Henkel  v.  Papa  L,  R. 
6  Ex.  7 ;  Matteson  v.  Noyes,  25  111.  592 ;  Williams  v.  Brickell,  37  Miss.  682,  75 
Am.  Dec.  88. 

Proving  a  contract. — In  proving  a  contract  by  telegram,  the  best  evidence  is 
the  telegram  containing  the  offer  as  received  at  the  point  of  destination  and 
a  dispatch  containing  the  acceptance  as  delivered  for  transmission.  Durkee  v. 
Vt.  C.  Ry.  Co.,  29  Vt.  127 ;  Howley  v.  Whipple,  48  N.  H,  487 ;  Wilson  v.  Minn., 
etc.,  R.  Co.,  31  Minn.  481,  IS  N.  W.  291;  Saveland  v.  Green,  40  Wis.  431; 
Smith  V.  Easton,  54  Md.  138,  39  Am.  Rep.  355 ;  Beach  v.  Raritan,  etc.,  Ry.  Co., 
37  N.  Y.  457 ;  Cobb  v.  Glenn  Boom,  etc.,  Co.,  57  W.  Va.  49,  49  S.  E.  1005,  110 
Am.  St.  Rep.  734. 


§    695)  COMMUNICATIONS  AS  EVIDENCB  883 

§  694.  Depends  upon  which  document  is  at  issue. — The  proper 
solution  of  this  question,  we  think,  depends  upon  which  document 
is  at  issue.  In  other  words,  it  depends  upon  whether  the  contents 
of  the  message  delivered  by  the  sender  to  the  company  are  at  issue, 
or  whether  it  is  the  contents  of  the  message  delivered  by  the  com- 
pany to  the  addressee.  The  message  delivered  to  the  company  is 
the  original  whenever  the  words  authorized  to  be  sent  and  which 
were  thereupon  agreed  to  be  transmitted  and  delivered  to  the  ad- 
dressee are  in  issue. *^  It  is  necessary  to  prove  these  words,  when- 
ever a  company  is  sued  for  a  breach  of  contract,*^  that  is,  the  rule 
applies  to  cases  in  which  the  telegraph  company  is  a  party.  So 
also,  when  the  message  is  offered  as  a  declaration  by  the  sender  in 
a  criminal  proceeding,  or  as  an  admission  in  a  civil  action,  the  mes- 
sage as  tendered  to  the  company  for  transmission  is  the  original 
and  best  proof.** 

§  695.  Same  continued — contents  of  message  delivered  to  ad- 
dressee.— Whenever  the  words  which  the  company  actually  de- 
livered to  the  person  to  whom  the  message  was  sent  are  at  issue, 
the  message  delivered  to  such  person  is  the  original  and  best  evi- 
dence. So,  when  the  message  relates  to  a  contract  between  the 
sender  and  addressee,  made  by  means  of  a  telegram,  the  rule  is 
that  the  nature  of  the  contract  depends  upon  the  message  delivered 
to  the  addressee ;  or,  in  other  words,  to  be  more  clear  on  this  sub- 
ject, if  the  addressee  is  under  legal  obligation  to  obey  the  tele- 
graphic orders  of  another,  the  message  transmitted  and  delivered  to 
him,  and  not  what  was  intended  or  directed  to  be  sent,  contains  the 
best  proof  of  such  facts,  and  should,  therefore,  be  adduced  in  evi- 
dence,*^ and  this,  too,  without  accounting  for  the  message  tendered 
to  the  company  for  transmission.*®  This  is  not,  however,  always 
the  rule.  If,  for  instance,  the  addressee  suggest  that  the  telegraph 
company  be  used  as  a  means  to  consummate  the  contract,  this  fact 

4  2  Gray  on  Tel.  233.  In  Montgomery  v.  United  States,  219  Fed.  162,  135  C. 
C.  A.  60,  it  was  held  that  the  original  was  one  filed  at  sending  office,  but  a 
copy  of  which  found  at  same  office  was  admissible  against  sender,  the  ac- 
cused, without  account  for  original. 

43  West.  U.  Tel.  Co.  v.  Hopkins,  49  Ind.  223 ;  Conyers  v.  Postal  Cable  Co., 
92  Ga.  619,  19  S.  E.  253,  44  Am.  St.  Rep.  100 ;  West.  U.  Tel.  Co.  v.  Blance,  94 
Ga.  431,  19  S.  E.  255 ;  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W.  216 ; 
West.  U.  Tel.  Co.  v.  Williford  (Tex.  Civ.  App.)  27  S.  W.  700. 

4  4  Com.  V.  Jeffries,  7  Allen  (Mass.)  548,  83  Am.  Dec.  712.  See,  also,  Morgan 
V.  People,  59  111.  58. 

45  Illinois. — Anheuser-Busch  Brewing  Assoc,  v.  Hutmacher,  127  111.  652,  21 

40  Saveland  v.  Green,  40  Wis.  431 ;  Oregon  S.  S.  Co.  v.  Otis,  100  N.  Y.  446, 
3  N.  E.  485,  53  Am.  Rep.  221. 


884  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  696 

will  make  the  company  the  agent  for  the  addressee,  and  the  mes- 
sage which  was  delivered  to  the  company  will  be  the  original  and 
best  evidence.*'^  If  the  action  is  based  merely  on  the  delay  in  de- 
livery, the  message  delivered  to  the  addressee  is  the  best  evidence 
to  prove  such  fact  without  proof  of  the  message  delivered  to  the 
company,*^  especially  where  there  is  no  dispute  as  to  the  contents 
of  the  two.*^ 

§  696.  Messages  given  orally  for  transmission. — The  best  evi- 
dence to  prove  the  contents  of  a  message  given  for  transmission  is 
not  always  by  a  written  telegram  but  in  order  to  exclude  as  a  copy 
the  message  transmitted  and  delivered,  it  must  appear  that  the 
message  given  for  transmission  was  in  writing,  since  there  can  be 
no  copy  of  an  oral  communication.^"  Where  it  is  sought  to  show 
by  parol  evidence  the  contents  of  a  message  delivered  to  the  com- 
pany's operator,  it  cannot  be  objected  that  the  evidence  offered 
was  not  the  best  evidence,  unless  it  be  shown  that  the  message  de- 
livered to  the  operator  was  in  writing ;  and  since,  as  a  matter  of 
fact,  many  telegrams  are  communicated  orally  by  the  sender  to  the 
operator,  the  court  cannot  conclude,  without  proof,  that  telegrams 
given  to  an  operator  in  any  given  case  were  in  writing.^^  The  gen- 
eral rule  would  clearly  be  applicable  where  it  is  sought  to  prove  by 
parol  the  contents  of  a  message  transmitted  and  delivered,  if  it 
appeared  that  the  message  transmitted  was  delivered  orally  to  the 
recipient  without  being  reduced  to  writing.^^ 

N.  E.  626,  4  Lr.  R.  A.  575,  affirming  29  111.  App.  316 ;  Chicago,  etc.,  R.  Co.  v. 
Russell,  91  111.  298,  33  Am.  Rep.  54 ;  Matteson  v.  Noyes,  25  111.  591. 

Kansas. — Barons  v.  Brown,  25  Kan.  414. 

Massachusetts. — ^Nickerson  v.  Spindell,  164  Mass.  25,  41  N.  E.  105. 

Minnesota. — Wilson  v.  Minneapolis,  etc.,  R.  Co.,  31  Minn.  4S1,  IS  N.  W.  291 ; 
Magie  v.  Herman,  50  Minn.  424,  52  N.  W.  909,  36  Am.  St.  Rep.  060. 

Neiv  Hampshire. — Howley  v.  Whipple,  48  N.  H.  487. 

Neio  Yorfc.— Thorp  v.  Philbin,  15  Daly,  155,  3  N.  Y.  Supp.  939. 

Vermont. — ^Durkee  v.  Vermont  Cent.  R.  Co.,  29  Vt.  127. 

West  Virginia. — Merchants'  Nat.  Bank  v.  Wheeling  First  Nat.  Bank,  7  W. 
Va.  544. 

4  7  Smith  V.  Easton,  54  Md.  138,  39  Am.  Rep.  355.  See,  also,  Pegram  v.  West. 
U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557. 

4  8  Conyers  v.  Postal  Tel.  Cable  Co.,  92  Ga.  619,  19  S.  E.  253,  44  Am.  St.  Rep. 
100 ;  West.  U.  Tel.  Co.  v.  Bates,  93  Ga.  352,  20  S.  E.  639 ;  West.  U.  Tel.  Co.  v. 
Blance,  94  Ga.  431,  19  S.  E.  255. 

4  9  West.  U.  Tel.  Co.  v.  Fatman,  73  Ga.  285,  54  Am.  Rep.  877. 

5  0  Banks  v.  Richardson,  47  N.  C.  109.  In  this  case  it  was  held  that  dots 
and  dashes  made  on  paper  at  the  telegraph  office  cannot  constitute  the  original 
of  a  message  when  the  woi-ds  of  the  message  are  put  in  writing  by  the  oper- 
ator. 

51  Terre  Haute,  etc.,  R.  Co.  v.  Stockwell,  118  Ind.  98,  20  N.  E.  650.  See,  al- 
so, Banks  v.  Richmond,  47  N.  C.  109. 

52  Durkee  v.  Vermont  Cent.  R.  Co.,  29  Vt.  127. 


§    698)  COMMUNICATIONS  AS   EVIDENCE  885 

§  697.  Actions  to  recover  statutory  penalties  and  damages. — In 
an  action  against  a  telegraph  company  to  recover  damages  or  a 
statutory  penalty  for  failure  to  transmit  and  deliver  a  message  with 
due  diligence,  the  issue  being  not  as  to  the  contents  of  the  telegram, 
but  as  to  failure  or  delay  in  transmission  and  delivery,  the  message 
actually  delivered  by  the  company  is  admissible  in  evidence  without 
producing  or  explaining  the  absence  of  the  message  delivered  by 
the  sender  to  the  company.^^  There  was  one  case,  however,  which 
held  that  the  telegram  delivered  to  the  operator  was  the  original 
and  should  have  been  produced.^*  This  case  has  been  later  disap- 
proved.^^ But  it  has  been  held  that,  if  in  such  an  action  the  con- 
tents of  the  telegram  sent  are  material,  the  loss  by  plaintiff  of  the 
telegrams  received  will  not  lay  the  foundation  for  introducing  parol 
evidence  of  the  contents  without  accounting  by  notice  to  produce, 
or  otherwise,  for  the  nonproduction  of  the  telegrams  written  and 
delivered  by  the  sender  for  transmission.^*' 

§  698.  Secondary  evidence. — It  is  a  general  rule  of  evidence 
that,  when  written  evidence  of  a  fact  exists,  the  writing  constitutes 
the  best  evidence  of  the  fact;  and  where  the  writing  is  not  pro- 
duced, parol  evidence  cannot  be  admitted  to  prove  its  contents,  un- 
less the  absence  of  the  writing  is  satisfactorily  explained.  In  other 
words,  parol  evidence  is  not  admissible  in  substitution  for  available 
written  evidence,  and  the  contents  of  a  writing  cannot  be  proved  by 
parol  evidence. ^'^  The  contents  of  a  letter  may  be  proved  by  sec- 
ondary evidence,  where  such  letter,  if  existing,  would  itself  be  ad- 
missible. And  this  is  so  when  the  destruction  of  such  letter  is 
shown  to  have  arisen  from  misapprehension,  and  was  without  any 
fraudulent  purpose,  though  such  destruction  was  the  party's  volun- 
tary act.^^  Such  evidence  must  not  only  appear  to  be  the  best 
secondary  evidence,  but  it  must  be  the  best  legal  evidence  obtain- 
able under  the  circumstances.^"     The  rule  which  governs  the  ad- 

5  3  West.  U.  Tel.  Co.  v.  Blance,  94  Ga.  431,  19  S.  E.  255;  West.  U.  Tel.  Co.  v. 
Bates.  93  Ga.  3.52,  20  S.  E.  G39 ;  Conyers  v.  Postal  Tel.  Cable  Co.,  92  Ga.  619, 
19  S.  E.  253,  44  Am.  St.  Rep.  100 ;  West.  U.  Tel.  Co.  v.  Fatman,  73  Ga.  2S5,  54 
Am.  Rep.  877 ;  West.  U.  Tel.  Co.  v.  Cline,  8  Ind.  App.  364,  35  N.  E.  564.  See, 
also,  West.  U.  Tel.  Co.  v.  Smith  (Tex.  Civ.  App.)  26  S.  W.  216. 

54  West.  U.  Tel.  Co.  v.  Hopkins,  49  lud.  223. 

5  5  Reliance  Lumber  Co.  v.  West.  U.  Tel.  Co.,  58  Tex.  394.  44  Am.  Rep.  620. 

5  6  West.  U.  Tel.  Co.  v.  Hines,  94  Ga.  430,  20  S.  E.  349,  disapproving  and  lim- 
iting Cincinnati,  etc.,  R.  Co.  v.  Disbrow,  76  Ga.  253.  But  see  West.  TJ.  Tel. 
Co.  V.  Thompson,  18  Tex.  Civ.  App.  279,  44  S.  W.  402. 

f7Newsom  v.  Jackson,  26  Ga.  241,  71  Am.  Dec.  206;  Boynton  v.  Rees,  8 
Pick.  (Mass.)  329,  19  Am.  Dec.  326 ;  Johnson  v.  Arnwine,  42  N.  J.  Law,  451,  36 
Am.  Rep.  527. 

5  8  Tobin  v.  Shaw,  45  Me.  331,  71  Am.  Dec.  547. 

5  9  Philipson  v.  Bates,  2  Mo.  116,  22  Am.  Dec.  444. 


886  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  699' 

mission  of  secondary  evidence  of  the  contents  of  documents  gen- 
erally apply  to  the  admission  of  secondary  evidence  of  the  contents 
of  a  telegraph  message.  Thus  the  contents  of  a  telegram  cannot 
be  proved  by  testimony  of  the  person  to  whom  it  is  sent,  without 
producing  the  original  or  accounting  for  its  absence.®^ 

§  699.  Proof  of  absence  of  the  original. — As  was  said,  in  order 
to  produce  secondary  evidence  of  the  contents  of  a  message,  it  must 
be  shown  by  sufficient  proof  that  the  original  has  been  lost,  de- 
stroyed or  is  otherwise  not  obtainable.  It  is  not  an  easy  matter 
to  make  a  fixed  rule  by  which  the  admission  of  such  evidence  is  to 
be  governed,  but  the  circumstances  of  each  particular  case  must  be 
considered  in  making  such  rule.  There  must  be  sufficient  proof 
adduced  by  the  party  offering  such  evidence  that  the  original  is 
beyond  the  jurisdiction  of  the  court,  or  has  been  lost  or  destroyed, 
and  that  he  has  made  diligent  efforts  to  find  same.''^  Thus,  where 
the  employe  of  the  company  testified  that  he  worked  at  the  office 
at  which  the  telegram  was  received,  that  the  message  could  not  be 
found  there,  and  that  under  the  rules  of  the  company  messages  were 
sent  to  the  head  offices  to  be  destroyed  after  remaining  at  the  re- 
ceiving office  for  six  months,  this  is  sufficient  to  show  the  impossi- 
bility of  obtaining  the  original.*'^  It  is  not  competent,  however, 
for  the  messenger  of  the  receiving  office  to  testify  from  information 
that  the  message  filed  with  him  had  been  destro)^ed  by  the  em- 
ployes of  the  head  offices. ^^     When  the  employe,  who,  at  the  time 

GoMcCormick  v.  Joseph,  83  Ala.  401,  3  South.  796;  Whilden  v.  Merchants', 
etc.,  Nat.  Bank,  64  Ala.  1,  38  Am.  Rep.  1 ;  Yavapai  County  v.  O'Neill,  3  Ariz. 
363,  29  Pac.  430 ;  West.  U.  Tel.  Co.  v.  Hines,  94  Ga.  4.30,  20  S.  E.  349 ;  West. 
U.  Tel.  Co.  V.  Hopkins,  49  Ind.  223 ;  Williams  v.  Brickell,  37  Miss.  682,  75  Am. 
Dec.  SS ;  Yeiser  v.  Cathers,  5  Neb.  (Unof.)  204,  97  N.  W.  840 ;  Prather  v.  Wil- 
kens,  68  Tex.  187,  4  S.  W.  2.52 ;  West.  U.  Tel.  Co.  v.  Williford  (Tex.  Civ.  App.) 
27  S.  W.  700 ;  Durkee  v.  Vermont  Cent.  R.  Co.,  29  Vt.  127 ;  Cairo,  etc.,  Ry.  Co. 
V.  Mahoney,  82  111.  73,  25  Am.  Rep.  299 ;  Brownlee  v.  Reiner,  147  Cal.  641,  82 
Pac.  324 ;  Nickerson  v.  Spindell,  164  Mass.  25,  41  N.  E.  105 ;  Barons  v.  Brown, 
25  Kan.  410 ;  Blair  v.  Brown,  116  N.  C.  631,  21  S.  E.  434 ;  Hallet  v.  Agger- 
gaard,  21  S.  D.  554,  114  N.  W.  690,  14  L.  R.  A.  (N.  S.)  1251 ;  Cobb  v.  Glenn 
Boom,  etc.,  Co.,  57  W.  Va.  49,  49  S.  E.  1005,  110  Am.  St.  Rep.  734. 

'61  Barons  v.  Brown,  25  Kan.  410;  Whilden  v.  Merchants'  Bank,  64  Ala.  1, 
38  Am.  Rep.  1 ;  Elwell  v.  Mersick,  50  Conn.  272 ;  West.  U.  Tel.  Co.  v.  Smith 
(Tex.  Civ.  App.)  26  S.  W.  216 ;  Hallet  v.  Aggergaard,  21  S.  D.  504,  114  N.  W. 
696,  14  L.  R.  A.  (N.  S.)  1251 ;  Flint  v.  Kennedy  (C.  C.)  33  Fed.  820. 

62Riordan  v.  Guggerty,  74  Iowa,  688,  39  N.  W.  107;  West.  U.  Tel.  Co.  v. 
Collins,  45  Kan.  88,  25  Pac.  187,  10  L.  R.  A.  515,  note ;  Smith  v.  Easton,  54  Md. 
138,  39  Am.  Rep.  355 ;  Oregon  Steamship  Co.  v.  Otis,  100  N.  Y.  446,  3  N.  E. 
485,  53  Am.  Rep.  221,  14  Abb.  N.  C.  (N.  Y.)  388.  See,  also,  People  v.  Ham- 
mond, 132  Mich.  422,  93  N,  W.  1084 ;  Ward  v.  Ry.  Co.  (Tenn.  Ch.  App.)  57  S. 
W.  193 ;  West.  U.  Tel.  Co.  v.  Kemp,  55  111.  App.  583 ;  Flint  v.  Kennedy  (C.  C.) 
33  Fed.  820. 

6  3  American  U.  Tel.  Co.  v.  Daugherty,  89  Ala.  191,  7  South.  660. 


§    700)  COMMUNICATIONS  AS  EVIDENCE  887 

of  testifying,  but  not  at  the  time  of  receipt,  had  possession  of  the 
papers  and  books  of  the  office  from  which  the  message  was  trans- 
mitted, testified  that  none  of  the  messages  forwarded  from  the  office 
on  the  day  on  which  the  message  was  sent  were  in  the  office,  and  that 
he  supposed  all  such  messages  had  been  destroyed,  as  it  was  the  cus- 
tom to  destroy  them  after  six  months,  the  destruction  of  same  is 
not  established  by  the  testimony  of  such  employe.^*  While  the  tes- 
timony of  such  employe  may  prove  the  absence  of  the  message  from 
the  office,  yet  it  would  not  establish  the  destruction  of  it,  which 
could  only  be  done  by  the  officer  causing  the  destruction.*'^  It  was 
held  in  one  case  that  the  addressee  might  testify  to  the  contents  of 
a  message  where  the  sender,  who  was  a  party  to  the  action,  did 
not  deny  having  sent  it  and  where  the  contents  are  set  out  in  the 
declaration.^^  This  is  not  the  rule  where  the  original  is  not  ac- 
counted for,  but  was  admitted  on  the  ground  of  its  harmlessness. 

§  700.  Notice  to  produce. — In  order  that  secondary  evidence 
may  be  admitted  to  prove  the  contents  of  a  telegram,  the  rule  is 
that  the  party  offering  to  produce  such  evidence  should,  if  the  origi- 
nal is  in  the  possession  or  under  the  control  of  the  adverse  party  to 
the  suit,  give  him  sufficient  notice  to  produce  it.''^  If  the  telegram 
is  in  the  possession  of  a  stranger  to  the  action,  and  who  is  not 
legally  bound  to  produce  it,  the  person  offering  to  produce  second- 
ary evidence  of  its  contents  must  have  served  a  subpoena  duces 
tecum  upon  such  stranger.  Where  the  telegram  is  alleged  to  have 
been  lost  or  destroyed,  it  must  be  shown,  as  said,  that  diligent 
search  has  been  made  for  the  original."^  This  is  the  rule  where  the 
telegraph  company  is  not  made  a  party  to  the  action,  for  the  rule 
does  not  apply  where  the  original  message  is  the  foundation  of  the 
action,  and  the  adverse  party  must  know  from  the  very  nature  of 
the  case  that  it  is  charged  with  the  possession  of  it.  For  instance, 
in  an  action  against  a  company  for  the  breach  of  a  contract  to  com- 
municate a  message,  the  plaintiff  need  not  give  the  defendant  notice 
to  produce  that  message;  he  may  immediately  resort  to  parol  evi- 
dence to  prove  the  contents.®^  This  rule  has  been  contradicted/" 
but  we  think  that  it  was  wrongly  so. 

64  Barons  v.  Brown,  25  Kan.  410.  ee  i  Greenl.  Ev.  §  84,  note. 

6  6  Williams  V.  Brickell,  37  Mis.s.  6S2,  75  Am.  Dec.  88.  See,  also,  Oregon 
Steamship  Co.  v.  Otis,  100  N.  Y.  44G,  3  N.  E.  485,  53  Am.  Rep.  221. 

67  Brownlee  v.  Reiner,  147  Cal.  G41,  82  Pac.  324;  West.  U.  Tel.  Co.  v.  Kapp, 
35  Tex.  Civ.  App.  663,  80  S.  W.  840.  See,  also,  Hallet  v.  Aggergaard,  21  S.  D. 
554,  114  N.  W.  696,  14  L.  R.  A.  (N.  S.)  1251. 

68  Stephen's  Dig.  of  Ev.  arts.  67,  68 ;  Matteson  v.  Noyes,  25  111.  591. 

6  0  Reliance  Lumber  Co.  v.  West.  U.  Tel.  Co.,  58  Tex.  304,  44  Am.  Rep.  020. 

7  0  West.  U.  Tel.  Co.  v.  Hopkins,  49  Ind.  223. 


SS8  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  701 

§  701.  What  evidence  admissible  as  secondary. — When  it  is  suf- 
ficiently shown  that  the  original  telegram  cannot  be  produced  to 
prove  its  contents,  the  question  which  then  presents  itself  is,  What 
evidence  should  be  produced  as  being  the  next  best  evidence?  As 
said  elsewhere,  when  the  original  or  best  evidence  cannot  be  pro- 
duced, the  next  accessible  evidence  to  prove  such  fact  must  be 
produced. ^^  If  the  company  preserves  letterpress  or  other  copies  of 
the  original  telegram  which  it  receives  and  delivers,  it  seems  that 
this  would  be  the  next  best  evidence. '^^  The  office  book  of  these 
companies  is  not,  however,  a  shop  book  or  an  account  book,  or  any 
record  recognized  by  law  as  evidence,  and  where  it  only  contains  a 
memorandum  of  the  terms  of  the  original  message,  it  can  only  be 
used  to  refresh  the  memory  of  the  witness,  where  such  usage  is  the 
practice.  If  a  copy  of  the  message  is  kept  by  authority  of  the  com- 
pany at  either  end  of  the  Hne,  or  by  a  connecting  company,  it  seems 
that  it  would  be  admissible  as  secondary  evidence.  A  telegram 
written  at  one  end  of  the  line  may  be  introduced  as  evidence  at  the 
other  end,  it  seems,  in  two  different  ways :  It  may  be  introduced  as 
the  original,  and  when  this  is  the  case  it  must  be  proved  to  be  the 
original;  '^"  or,  where  the  contents  of  the  message  delivered  to  the 
addressee  are  at  issue,''^  it  may  be  introduced  as  a  fact  relative  to 
the  fact  in  issue.  It  is  part  of  the  contract  of  transmission  that  the 
message  will  be  transmitted  and  delivered  in  the  exact  words  in 
which  it  w^as  received  from  the  sender;  and  when  the  issue  arises 
on  the  incorrectness  of  the  transmission,  the  original  message  must 
be  introduced  to  prove  such  incorrectness.  It  was  held  in  one  case 
that,  on  proof  of  the  destruction  of  the  original  telegram,  an  un- 
certified copy  was  admissible  on  a  trial  of  forgery  to  show  that  the 
respondent  at  a  certain  time  knew  of  a  material  fact  therein  stat- 
ed."^ Where  the  issue  is  as  to  whether  the  message  was  ever  de- 
livered at  all  to  the  addressee,  the  receipt  of  the  message  by  such 
person  is  the  best  evidence. 

§  702.  Late  improvements  in  telegraphy. — We  do  not  think  that 
the  late  improvements  made  in  telegraphy  will  change  the  law  here- 
tofore discussed,  in  any  particular,  and  especially  do  we  think  this 
is  true  with  respect  to  the  rules  of  evidence  herein  treated.  Of 
course,  in  some  instances  the  company  will  not  be  liable  for  errors 

71  Philipson  v.  Bates,  2  Mo.  116,  22  Am.  Dec.  444. 

72  Anglo-American  Packing,  etc.,  Co.  v.  Cannon  (C.  C.)  31  Fed.  313. 

7  3  Barons  v.  Brown,  25  Kan.  410;  Smith  v.  Easton,  54  Md.  138,  39  Am. 
Rep.  355. 

7*  Com.  V.  Jeffries,  7  Allen  (Mass.)  548,  83  Am.  Dec.  712. 
7  5  State  V.  Hopkins,  50  Vt.  316. 


§    704)  COMMUNICATIONS  AS  EVIDENCE  889 

made  in  the  transmission  by  means  of  the  late  improvements,  where 
it  would  otherwise  be,  should  the  message  have  been  transmitted 
by  the  old  method.  What  we  mean  is  this :  There  is  a  late  inven- 
tion on  the  method  of  transmitting  news  over  telegraph  lines,  by 
means  of  which  the  sender,  instead  of  the  operator,  virtually  sends 
or  transmits  the  message  himself.  In  other  words,  he  writes  the 
message  himself,  and,  at  the  same  time,  by  means  of  an  electric 
connection  of  the  pencil  used  by  him  with  another  at  the  receiving 
office,  an  exact  copy  is  reproduced  at  the  latter  office.  A  still  later 
improvement  is  where  typewriters  are  connected  instead  of  an  elec- 
tric connection.  Now  where  these  instruments  are  in  good  working  or- 
der, or  when  the  company  is  not  negligent  in  keeping  them  in  suitable 
condition,  it  will  not  be  liable  for  errors  made  in  the  transmission 
of  news,  when  the  sender  voluntarily  operates  the  machine  himself. 
The  wireless  telegraphy  is  operated  wholly  by  experienced  em- 
ployes of  the  company  and  the  same  liabilities  are  imposed  on  them 
for  errors  made  as  those  imposed  on  the  ordinary  wire  telegraph 
companies. 

§  703.  Same  continued — secondary  evidence. — With  respect  to 
the  proof  of  the  contents  of  telegrams  sent  by  means  of  the  wireless 
telegraph,  the  same  rule  of  evidence  is  applicable  as  in  the  proof  of 
telegrams  sent  by  the  ordinary  telegraphic  method.  When  it  is  sent 
by  one  of  the  other  methods  discussed  in  the  preceding  section, 
the  original  is  the  telegram  written  by  the  sender  at  the  transmit- 
ting office,  when  the  contents  of  the  telegram  delivered  to  the 
company  are  attempted  to  be  shown.  If  this  cannot,  however,  be 
produced,  the  next  best  evidence  to  prove  such  fact,  as  we  believe, 
would  be  the  reproduced  copy  at  the  other  end  of  the  line.  If, 
however,  it  is  required  that  a  copy  of  the  telegram  be  kept  at  the 
transmitting  office,  there  is  a  doubt  in  our  minds  as  to  whether 
this  or  the  reproduced  copy  at  the  other  end  of  the  line  would  be  the 
best  evidence;  but  we  are  inclined  to  think  that,  if  the  contents  of 
the  telegram  as  delivered  for  transmission  are  at  issue,  the  copy  at 
the  transmitting  office  w^ould  be  the  best  evidence  to  prove  such 
fact.^**  In  other  respects,  the  admission  of  telegrams  as  evidence  is 
the  same  as  the  admission  of  such  as  are  sent  in  the  ordinary  ways, 
and  which  has  already  been  discussed. 

§  704.  Testimony  of  witnesses. — When  the  original  cannot  be 
produced,  the  addressee  of  the  telegram  may  testify  that  it  was  re- 
ceived by  him ;  however,  if  it  is  not  shown  by  the  admission  of  such 
person  that  he  did  receive  it,  such  fact  must  be  shown,  either  by  his 

»8  See  cases  in  note  41,  supra. 


890  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  T05 

written  receipt  for  the  delivery — if  he  gave  one — or  by  the  oral 
testimony  of  some  one  present  when  it  was  delivered.  But  if  there 
is  proof  that  the  message  was  properly  placed  upon  the  wires,  and 
that  the  person  to  whom  the  message  was  sent  was  present  at  the 
place  of  destination,  it  has  been  held  that  a  presumption  of  delivery 
then  arises."  This  presumption  is  not  conclusive,  however,  but  the 
burden  is  cast  upon  the  plaintiff  to  show  that  it  was  not  delivered 
to  him.  This  may  be  proved  by  parties  who  were  with  him  when 
he  was  in  the  office,  and  who  could  have  seen  the  delivery  if  such 
had  been  made. 

§  705.  Secondary  evidence  of  unstamped  contracts. — It  has  been 
held  that  if  a  written  instrument  which  is  the  foundation  of  the 
action  is  not  stamped,  and  is  excluded  as  evidence  for  that  reason, 
the  contract  evidenced  by  such  written  instrument  cannot  be  proved 
by  pcLVoV^  We  presume  the  same  rule  would  apply  to  actions  upon 
which  telegrams  are  the  foundation.  In  an  Alabama  case  it  was 
held  that  the  company  would  not  be  liable  for  negligently  transmit- 
ting an  unstamped  telegram.^^  But  if  the  telegram,  not  being  the 
foundation  of  the  action,  is  offered  in  evidence  by  a  person  not  a 
party  to  it,  as  an  admission  of  the  adverse  party  touching  a  matter 
at  issue,  the  fact  that  it  is  not  stamped  is  no  ground  for  objecting  to 
its  admission.^*'  If  suit  is  brought  upon  the  original  consideration 
for  which  an  unstamped  note  is  given,  the  note  is  admissible  in 
evidence  to  explain  the  testimony  of  a  witness  in  reference  to  the 
date  of  a  settlement  between  the  parties,  and  the  amount  found 
due,«^  and  an  unstamped  telegram  containing  such  facts  may  be 
admitted  to  prove  such.  This  discussion  is  of  little  importance  just 
now,  as  the  revenue  stamp  law  has  been  repealed." 

§  706.  When  telegram  need  not  be  produced. — Where  a  written 
instrument  is  only  an  evidence  of  a  fact  in  issue,  it  need  not  be 
produced,  nor  need  its  absence  be  satisfactorily  accounted  for 
before  other  evidence  of  that  fact  is  admissible.^^  Thus  a  payment 
of  money  may  be  proved  by  oral  testimony,  without  accounting  for 
the  absence  of  the  written  receipt.^*     Applying  this  rule  to  tele- 

7  7  Com.  V.  Jeffries,  7  Allen  (Mass.)  548,  83  Am.  Dec.  712;  U.  S.  v.  Bab- 
cock,  3  Dill,  571,  Fed.  Cas.  No.  14,485.  See,  also,  State  v.  Hopkins,  50  Vt. 
316 ;    Greenl.  on  Ev.  §  40. 

7  8  Mobile,  etc.,  R.  Co.  v.  Edwards,  46  Ala.  267. 

7  9  West.  U.  Tel.  Co,  v.  Young,  138  Ala.  240,  36  South.  374. 

80  Eeis  T,  Hellman,  25  Ohio  St.  ISO. 

81  Israel  v.  Redding,  40  111.  362. 

82  Act  Cong.  June  13,  1898,  c.  448,  30  Stat.  448,  and  Act  March  2,  1901, 
c.  806,  31  Stat.  938. 

83  Greenl.  on  Ev.  §  90;    Taylor  on  Ev.  (7th  Ed.)  §§  415,  416. 

8  4  Jacobs  V.  Lindsey,  1  East,  460. 


§   706)  COMMUNICATIONS  AS   EVIDENCE  801 

graphic  messages,  it  follows  that,  when  the  message  is  merely  an 
evidence  of  a  fact  in  issue,  it  need  not  be  produced  nor  its  absence 
accounted  for,  before  oral  testimony  may  be  admitted  to  prove  such 
fact.  Thus,  as  has  been  seen,  the  contents  of  the  telegram  delivered 
to  the  company  for  transmission  may  be  proved  by  oral  testimony 
only  when  its  absence  has  been  satisfactorily  accounted  for,®^  yet 
the  absence  of  such  message  need  not  be  satisfactorily  accounted 
for  before  the  introduction  of  oral  testimony  of  the  genuineness  or 
authorization  of  the  sender.  So  the  delivery  of  a  telegram  to  the 
person  addressed  may  be  proved  orally  without  accounting  for  the 
written  receipt  for  that  delivery.  So  also,  where  the  action  is  for  a 
delay  in  the  delivery  of  a  message,  oral  testimony  may  be  intro- 
duced to  show  such  delay,  without  accounting  for  the  message 
actually  delivered,  and  upon  which  is  noted  the  exact  time  of  de- 
livery.®® When  a  telegram  has  been  altered  in  transmission,  where- 
by the  sender  suffers  an  injury,  he  may  prove  by  oral  testimony 
that  the  authorized  message  was  not  delivered  without  accounting 
for  the  message  as  delivered,  but  if  the  addressee  should  institute 
the  action  for  injuries  sustained  by  acting  on  a  misinformation,  he 
should  produce  the  altered  message,  or  give  good  reasons  for  its 
absence.®^ 

85  See  cases  In  note  60,  supra. 

86  Where  the  telegram  is  not  itself  the  foundation  of  the  action,  but  the 
failure  to  transmit  and  deliver  it  within  a  reasonable  time  is  the  gist  of 
the  controversy,  the  fact  that  the  message  was  delivered  for  transmission 
is  a  substantive  fact  necessary  to  be  proved,  and  the  last  rule  does  not  apply, 
and  parol  evidence  is  not  secondary,  but  primary.  West.  U.  Tel.  Co.  v.  Cline, 
8  Ind.  App.  364,  35  N.  E.  564.  Where  copies  of  telegrams  relating  to  a  matter 
about  which  there  is  no  controversy  have  been  filed  on  a  notice,  it  is  proper 
to  permit  the  operator  who  received  the  telegram  to  state  them,  when  such 
statement  does  not  materially  differ  from  the  copies  filed.  International, 
etc.,  R.  Co.  V.  Prince,  77  Tex.  560,  14  S.  W.  171,  19  Am.  St.  Rep.  795 ;  In- 
ternational, etc.,  R.  Co.  V.  Cock  (Tex.)  14  S.  W.  242. 

87  Gray  on  Tel.  §  134.  The  author  gives  the  following  for  the  reason  of  the 
rule :  "The  delivery  of  an  altered  message  by  a  telegraph  company  causes  at 
times  two  distinctly  different  losses.  It  injures  the  sender,  in  depriving  him 
of  the  benefit  that  he  would  have  derived  through  the  due  and  correct  com- 
munication of  his  message;  it  injures  the  receiver,  in  causing  him  to  act  to 
his  detriment  upon  an  altered  message.  In  an  action  for  the  former  injury, 
the  fact  that  the  authorized  message  was  not  delivered  may  be  proved  by 
oral  testimony,  without  accounting  for  the  absence  of  the  delivered  message, 
showing  the  exact  alteration.  In  an  action  for  the  latter  injury,  however, 
the  delivered  message  must  be  produced  or  its  absence  satisftictorily  ac- 
counted for  before  oral  testimony  is  admissible.  This  distinction  is  due  to 
the  following  cause:  In  the  former  action,  the  question  in  issue  is  whether 
the  correct  message  was  delivered ;  in  the  latter,  what  was  the  correct 
message  delivered.  In  the  former,  the  contents  of  the  delivered  message, 
w^hatever  they  may  be,  are  simply  evidence  that  the  correct  message  was  not 
delivered ;   in  the  latter,  they  are  themselves  to  be  proved,  since  the  action  is 


892  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  707 

§  707.  Declaration  of  employes  subsequently  employed. — The 
general  rule  of  agency  is  that  the  representations  and  admissions  of 
agents  bind  the  principal  only  when  they  are  made  while  the  agent 
is  acting  within  the  actual  or  apparent  scope  of  his  authority.*^  It 
is  also  well  settled  that  the  declarations  concerning  a  fact  in  dis- 
pute are  admissible  as  part  of  the  res  gestce  only  when  they  explain 
and  are  contemporaneous  with  such  fact  and  are  made  without  any 
preparation.^^  In  accordance  with  this  rule,  where  a  telegraph 
company  is  being  sued  for  a  breach  of  contract,  the  subsequent  acts 
and  declarations  of  the  company's  agent,  unconnected  with  the 
performance  of  the  contract,  are  not  admissible. 

§  708.  Notice  by  telegram. — Where  a  statute  requires  notice  to 
be  given  in  writing,  it  has  been  held  that  such  notice,  sent  by  means 
of  a  telegram,  was  a  sufficient  compliance  with  such  statute.^** 
Thus,  where  the  clerk  adjourns  court  in  accordance  to  an  order, 
sent  by  means  of  a  telegram,  it  may. be  held  a  sufficient  compliance 
with  a  statute  requiring  notice  to  be  in  writing.^ ^  But  a  notice 
conveyed  by  means  of  a  telephone  is  a  verbal  one,  and  is  therefore 
insufficient  under  a  statute  requiring  notice  to  be  in  writing.^^ 
This  is  the  holding  both  in  the  state  and  federal  courts,  and  is  also 
the  ruling  in  the  English  courts. ^^ 

§  709.  Telephone  communication  as  evidence. — Conversations 
carried  on  by  means  of  a  telephone  do  not  differ  in  their  essential 
characteristics  from  those  carried  on  verbally.®*  The  only  apparent 
difference  is  that  the  parties  conversing  are  further  apart;    there 

based  upon  the  exact  difference  between  the  contents  of  the  message  delivered 
and  those  of  the  message  authorized." 

88  Story  on  Agency,  §§  134-137. 

80  Best  on  Ev.  (7th  Ed.)  §  495. 

90  Georgia.— West.  U.  Tel.  Co.  v.  Bailey,  115  Ga.  725,  42  S.  E.  89,  61  L.  K.  A. 
933,  note,  notice  of  writ  of  certiorari. 

Illinois.^ — Morgan  v.  People,  59  111.  58. 

Indiana. — Kaufman  v.  Wilson,  29  Ind.  504. 

/OK-a.— State  v.  Holmes,  56  Iowa,  588,  9  N.  W.  894,  41  Am.  Rep.  121. 

New  Jersey. — Cape  May,  etc.,  R.  Co.  v.  Johnson,  35  N.  J.  Eq.  422. 

United  S/«/es.— Schofield  v.  Horse  Springs  Cattle  Co.  (C.  C.)  65  Fed.  433. 

England.— Havvfood  v.  Wait,  IS  W.  R.  205;  Tomkinson  v.  Cartledge,  22 
Alb.  L.  J.  1231;"  In  re  Bryant,  4  Ch.  D.  98,  35  L.  7  U.  S.  4S9,  25  W.  R.  230; 
Ex.  p.  Langley,  13  Ch.  D.  110,  28  W.  R.  174. 

91  State  V.  Holmes,  56  Iowa,  588,  9  N.  W.  894,  41  Am.  Rep.  121. 

92  Schofield  V.  Horse  Springs  Cattle  Co.  (C.  C.)  65  Fed.  433,  testing  statute 
U.  S.  Rev.  St.  §  672. 

9  3  Ex  parte  Apeler,  85  S.  C.  417,  14  S.  E.  931;  South  Carolina  Code  Civ. 
Proc.  1902,  §  408 ;   Schofield  v.  Horse  Springs  Cattle  Co.  (C.  C.)  65  Fed.  433. 

9  4  Young  v.  Seattle  Transfer  Co.,  33  Wash.  225,  74  Pac.  375,  99  Am.  St. 
Rep.  942,  63  L.  R.  A.  9S8.  See  Jenderson  v.  Hansen,  50  Mont.  216,  146  Pac. 
473;    Clough  V.  West.  U.  Tel.  Co.,  99  S.  C.  484,  83  S.  E.  916. 


8    709)  COMMUNICATIONS  AS  EVIDENCE  893 

is  generally  no  difference  in  the  tone  of  their  voices.  The  telephone 
is  merely  a  medium  by  which  they  are  brought  together  in  voice, 
although  far  apart  in  person.  The  rule  of  evidence  with  respect 
to  the  admission  of  oral  statements  made  in  an  ordinary  conversa- 
tion is  generally  applicable  to  conversations  of  this  nature.^^  Such 
conversations  are  not  rendered  incompetent  because  communica- 
tions of  that  character  are  uncertain,  unreliable  and  easily  manu- 
factured. These  facts  merely  afifect  the  weight  of  the  evidence.«« 
So  a  party  against  whom  a  telephonic  conversation  is  used  may 
show  that  the  person  answering  tht  telephone  was  a  fraud  or  im- 

95  Globe  Printing  Co.  v.  Stalil,  23  Mo.  App.  451 ;  People  v.  Ward,  3  N.  Y. 
Cr.  R.  483 ;  Young  v.  Seattle  Transfer  Co.,  33  Wash.  225,  74  Pac.  375.  99  Am. 
St.  Rep.  942,  63  L.  R.  A.  988;  Sbawyer  v.  Cliamberlain,  113  Iowa,  742,  84 
N.  W.  661,  86  Am.  St.  Rep.  411.  See,  also.  Gait  v.  Woliver,  103  111.  App.  71 ; 
Dannemiller  v.  Leonard,  8  O.  C.  D.  735,  15  Ohio  Cir.  Ct.  R.  686;  Soutbwark 
Nat.  Bank  v.  Smith,  21  Pa.  Co.  Ct.  R.  1,  7  Pa.  Dist.  R.  182;  Wolfe  v.  Mo. 
Pac.  Ry.  Co.,  97  Mo.  473,  11  S.  W.  49,  10  Am.  St.  Rep.  331,  3  L.  R.  A.  542 ; 
Mo.  Pac.  Ry.  Co.  v.  Heidenheimer,  82  Tex.  195,  17  S.  W.  60S,  27  Am.  St.  Rep. 
861 ;  Barrett  v.  Magner,  105  Minn.  118,  117  N.  W.  245,  127  Am.  St.  Rep.  531. 
In  Wolfe  V.  Mo.  Pac.  Ry.  Co.,  supra,  the  court  said:  "The  courts  of  justice 
do  not  ignore  the  great  improvement  in  the  means  of  intercomumnication 
which  the  telephone  has  made.  Its  nature,  operation  and  ordinary  uses  are 
facts  of  general  scientific  knowledge,  of  which  the  courts  will  take  judicial 
notice  as  part  of  public  contemporary  history.  When  a  person  places  him- 
self in  connection  with  a  telephone  system  through  an  instrument  in  his 
office,  he  thereby  invites  communication,  in  relation  to  his  business,  through 
that  channel.  Conversations  so  held  are  admissible  in  evidence  as  personal 
interviews  by  a  customer  with  an  unknown  clerk  in  charge  of  an  ordinary 
shop  would  be  to  the  relations  there  carried  on.  The  fact  that  the  voice  at 
the  telephone  was  not  identified  does  not  render  the  conversation  inadmissible. 
The  ruling  here  announced  is  intended  to  determine  merely  the  admissibility 
of  such  conversations  in  such  circumstances,  but  not  the  effect  of  such  evi- 
dence after  its  admission."  West.  U.  Tel.  Co.  v.  Saunders,  164  Ala.  234,  51 
South.  176.  1.37  Am.  St.  Rep.  35 ;  Gilliland  v.  So.  Ry.,  85  S.  C.  26,  67  S.  E.  20, 
137  Am.  St.  Rep.  861,  27  L.  R.  A.  (N.  S.)  1106;  Knickerbocker  Ice  Co.  v. 
Gardiner  Dairy  Co..  107  Md.  556,  69  Atl.  405,  16  L.  R.  A.  (N.  S.)  746;  Wilhier 
v.  Silverman,  109  Md.  341,  71  Atl.  962,  24  L.  R.  A.  (N.  S.)  895;  Wilson  v. 
Minn.,  etc.,  Ry.  Co.,  31  Minn.  481,  18  N.  W.  291;  Oskamp  v.  Gadsden,  35 
Keb.  7,  52  N. 'w.  718,  37  Am.  St.  Rep.  428,  17  L.  R.  A.  440;  Lippitt  v.  St. 
Louis  Dressed  Beef  Co.,  27  Misc.  Rep.  222,  57  N.  Y.  Supp.  747;  Guest  v. 
Hannibal,  etc.,  R.  Co.,  77  Mo.  App.  258,  may  show  person  answering  the  tele- 
phone was  a  fraud  or  imposter;  St.  Louis,  etc.,  R.  Co.  v.  Kennedy  (Tex.  Civ. 
App.)  96  S.  W.  653 ;  Fitzgerald  v.  Benner,  219  111.  485,  76  N.  E.  709.  In  C.  C. 
Thompson,  etc.,  Co.  v.  Appleby,  5  Kan.  App.  680,  48  Pac.  933,  it  was  held  that 
■ordinarily  telephonic  communications  are  considered  as  binding  as  if  the 
telegraph  or  mail  was  used,  notwithstanding  that  there  is  no  proof  that  the 
person  receiving  the  message  is  the  identical  person  for  whom  it  was  intended, 
provided  that  it  be  shown  that  both  telephones  were  connected  with  the  cen- 
tral telephone  office,  that  the  proper  number  was  called  for,  connections  made, 
and  response  received  from  the  call.  Rut  sec  Planters'  Cotton  Oil  Co.  v. 
West.  U.  Tel.  Co.,  126  Ga.  621,  55  S.  E.  495,  6  L.  R.  A.  (N.  S.)  1180. 

9  6  Sbawyer  v.  Chamberlain,  113  Iowa,  742,  84  N.  W.  661,  86  Am.  St.  Rep.  411. 


894 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  TIO 


poster.^''  Consequently,  where  one  party  testifies  that  a  conversa- 
tion took  place  over  the  telephone  and  the  other  that  no  such  con- 
versation ever  took  place,  a  question  of  fact  for  the  jury  arises  as  in 
other  cases. ^^  Therefore  the  effect  of  evidence  of  communication 
over  the  telephone  on  the  issue  of  the  case  is  a  matter  for  the  jury, 
which  may  be  entitled  to  little  or  much  weight  in  the  estimation  of 
the  jury  according  to  their  views  of  its  credibility  and  of  the  other 
testimony  in  support  or  in  contradiction  of  it.^°  The  same  general 
rules  obtain  in  respect  to  the  admissibility  of  telephonic  conversa- 
tions in  criminal  cases  as  obtain  in  respect  to  civil  cases. ^'*° 

§  710.  Identity  of  person — when  essential. — When  a  person  is 
connected  by  telephone  with  a  place  of  business,  or  with  one  with 
whom  he  desires  to  converse,  and  is  answered  by  some  one  as- 
suming to  be  such  a  person,  it  will  be  presumed  that  he  is  such 
person.  However,  when  the  communication  is  of  such  a  nature 
as  to  require  identification  of  the  individual,  there  must  be  evidence 
of  such  identity,  in  addition  to  the  mere  fact  that  the  witness  asked 
for  a  connection  with  his  place  of  business,  and  that  when  the 
connection  was  made  some  one  who  claimed  or  assumed  to  be  such 
person  responded."^  While  the  identification  of  the  voice  of  the 
party  responding  at  the  phone  has,  in  many  cases,  been  held  sufifi.- 
cient  to  establish  identification  prima  facie,  it  does  not  follow  that 
the  recognition  of  the  voice  is  the  exclusive  means  of  identifying 
the  party.  Surrounding  circumstances  may  be  taken  into  account. 
This  question  occasionally  arises  where  an  efTort  is  made  to  bind  a 
person  in  consequence  of  a  telephone  conversation  carried  on  with 
his  employe  who  is,  at  the  time  of  such  conversation,  in  the  former's 
place  of  business.    So  it  has  been  held  that  a  conversation  made  by 


9  7  Guest  V.  Hannibal,  etc.,  R.  Co.,  77  Mo.  App.  258. 

0  8  Gait  V.  Woliver,  103  111.  App.  71;  McCarthy  v.  Peach,  186  Mass.  67, 
70  N.  E.  1029,  1  Ann.  Cas.  801. 

9  9  Godair  v.  Ham  Nat.  Bank,  225  111.  572,  80  N.  E.  407,  116  Am.  St.  Rep. 
172,  S  Ann.  Cas.  447;  Conkling  v.  Standard  Oil  Co.,  138  Iowa,  596,  116  N.  W. 
822 ;  Wolfe  v.  Mo.  Pac.  R.  Co.,  97  Mo.  473,  11  S.  W.  49,  10  Am.  St.  Rep.  331, 
3  L.  R.  A.  539. 

100  Vaughn  v.  State,  130  Ala.  18,  30  South.  669;  State  v.  Usher,  136  Iowa, 
606,  111  N.  W.  811 ;  People  v.  Ward,  3  N.  Y.  Cr.  R.  483 ;  People  v.  McKane, 
143  N.  Y.  455,  38  N.  E.  950;  People  v.  StroUo,  191  N.  Y.  42,  83  N.  E.  573; 
State  V.  Nelson,  19  R.  I.  407,  34  Atl.  990,  61  Am.  St.  Rep.  780,  33  L.  R.  A.  559 ; 
Stepp  V.  State,  31  Tex.  Cr.  R.  349,  20  S.  W.  753.  See  Hopkins  v.  State,  9 
Okl.  Cr.  104,  130  Pac.  1101,  Ann.  Cas.  1915B,  736,  self-serving  declarations  in- 
admissible. 

101  Barrett  v.  Magner,  105  Minn.  118,  117  N.  W.  245,  127  Am.  St.  Rep.  531; 
Wolfe  V.  Mo.  Pac.  Ry.  Co.,  97  Mo.  473,  11  S.  W.  49,  10  Am.  St.  Rep.  331,  3  L. 
R.  A.  539 ;  Gilliland  v.  So.  Ry.  Co.,  85  S.  C.  26,  67  S.  E.  20,  137  Am.  St.  Rep. 
861,  27  L.  R.  A.  (N.  S.)  1106. 


§   711)  COMMUNICATIONS  AS  EVIDENCE  895 

telephone  between  the  plaintiff  and  a  person  in  the  office  of  the 
defendant  is  not  admissible  to  bind  the  latter  in  the  absence  of  the 
identification  of  such  person  and  evidence  that  he  had  at  least  ap- 
parent authority  to  act  for  the  defendant  in  the  transaction.  How- 
ever, it  may  be  admitted  to  show  that  it  was  held  with  some  one  in 
the  office  of  the  defendant  in  the  same  manner  as  would  be  in  case 
a  similar  conversation  was  had  face  to  face  with  an  unknown  em- 
ploye in  his  office. ^°-  This  is  based  to  a  certain  extent  on  the 
theory  that  the  telephone  company  has  given  proper  connections 
with  the  party  desired. ^°^ 

§  711.  Same — effect  of,  with  unknown  persons — agency. — There 
are  many  business  matters  transacted  over  the  telephone  between 
parties  who  are  entirely  unknown  to  each  other ;  and,  when  one  of 
these  parties  is  acting  in  the  capacity  of  agency,  in  the  particular 
transaction,  for  some  third  person,  it  sometimes  becomes  very 
difficult  to  establish  this  agency,  especially  where  the  voice  of  the 
alleged  agent  is  unknown  to  the  party  on  the  other  end  of  the  line. 
But  when  a  person  places  himself  in  connection  with  a  telephone 
system  through  an  instrument  in  his  office,  he  thereby  invites  com- 
munication in  relation  to  his  business  through  that  channel;  and, 
on  the  ground  of  necessity,  conversations  carried  on  through  such 

102  Kimbark  v.  111.  Car,  etc.,  Co.,  103  111.  App.  632;  Godair  v.  Ham  Nat. 
Bank,  225  111.  572,  SO  N.  E.  407,  IIG  Am.  St.  Rep.  172,  8  Ann.  Cas.  447.  In  the 
case  last  cited  a  telephone  conversation  between  a  bank  cashier  and  some  one 
in  the  business  office  of  a  commission  house  about  a  business  matter,  and  as  to 
whether  certain  drafts  would  be  paid,  together  with  a  reply  in  the  affirmative, 
was  admitted  in  evidence,  although  the  cashier  did  not  know  with  whom  he 
was  talking.  But  in  a  homicide  case  testimony  of  a  witness  to  the  effect  that 
on  the  night  of  the  homicide  he  received  a  telephonic  message  purporting  to 
come  from  the  deceased  is  not  admissible  where  the  witness  did  not  know  or 
recognize  the  voice  of  the  person  telephoning.  Such  evidence  is  merely  hear- 
say. Vaughn  v.  State,  130  Ala.  18,  30  South.  669.  But  where  a  witness  in  a 
criminal  case,  testifying  to  statements  made  by  the  defendant  over  the  tele- 
phone, testifies  that  he  knew  and  distinguished  the  defendant's  voice,  the  evi- 
dence is  admissible.  Stepp  v.  State,  31  Tex.  Cr.  R.  349,  20  S.  W.  753.  Like- 
wise admissions  of  a  defendant  made  over  the  telephone  are  admissible,  even 
though  the  witness  did  not  at  the  time  know  defendant  or  recognize  his  voice, 
where  there  is  other  evidence  proving  the  conversation.  People  v.  McKane, 
143  N.  Y.  455,  38  N.  E.  850.  But  in  an  action  by  a  wife  for  alienation  of  her 
husband's  affection,  where  declarations  of  the  defendant  over  the  phone  are 
not  identified  as  having  been  made  by  the  defendant,  they  are  not  admissible, 
since  the  identity  of  the  declarant  is  essential.  Dunham  v.  McMichael,  214  Pa. 
485,  63  Atl.  1007.  Where  the  surrounding  circumstances  leave  no  doubt  con- 
cerning the  identity  of  the  persons  communicating  by  telephone  and  are  their 
authority  in  the  matter  under  discussion,  the  evidence  is  admissible.  Harri- 
son Granite  Co.  v.  Pa.  Ry.  Co.,  145  Mich.  712,  108  N.  W.  1081. 

103  Guest  V.  Hannibal,  etc.,  R.  Co.,  77  Mo.  App.  258. 


896  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  Til 

medium  are  generally  admissible.^"*  Furthermore,  when  a  person 
is  placed  in  telephonic  connections  with  the  place  of  business  of  one 
with  whom  he  desires  to  converse,  and  is  answered  by  some  one 
assuming  to  be  this  person,  it  will  be  presumed  that  he  is  such 
person,  although  the  former  is  not  acquainted  with  his  voice  ;"^ 
however,  this  presumption  may  be  overcome  by  proof  to  the  con- 
trary.i°«  So,  where  a  person  is  placed,  by  request,  in  telephonic 
connection  with  an  office  and  discusses  business  matters  there  with 
a  person  who  claims  to  have  authority  to  act  therein,  the  fact  that 
he  did  not  remember  who  spoke  to  him  through  the  telephone,  nor 
could  state  the  name  of  such  person,  or  whether  he  was  an  agent  of 
the  person  with  whom  he  desired  to  transact  business,  does  not 
afifect  the  competency  of  the  testimony  when  he  recognized  the 
voice  of  the  person  answering  at  the  time  as  an  employe  with  whom 
he  had  previously  transacted  business  by  telephone  at  such  of- 
fice.^•'^  In  other  words,  such  conversation  is  similar  to  an  inter- 
view of  the  same  character  with  an  unknown  person  found  in 
charge  of  a  place  of  business.^"^    It  may  be  observed  that  conver- 

104  Globe  Ptg.  Co.  V.  Stahl,  23  Mo.  App.  451;  Knickerbocker  Ice  Co.  v.  Gar- 
diner Dairy  Co.,  107  Md.  556,  69  Atl.  405,  16  L.  R.  A.  (N.  S.)  746. 

105  Guest  V.  Hannibal,  etc.,  R.  Co.,  77  Mo.  App.  258;  Gilliland  v.  So.  Ry.  Co., 
85  S.  C.  26,  67  S.  E.  20,  137  Am.  St.  Rep.  861,  27  L.  R.  A.  (N.  S.)  1106. 

IOC  Globe  Ptg.  Co.  V.  Stahl,  23  Mo.  App.  451.  See  Planters'  Cotton  Oil  Co. 
V.  West.  U.  Tel.  Co.,  126  Ga.  621,  55  S.  E.  495,  6  L.  R.  A.  (N.  S.)  1180. 

10  7  Mo.  Pac.  R.  Co.  V.  Heidenheimer,  82  Tex.  195,  17  S.  W.  608,  27  Am.  St. 
Rep.  861 ;  Knickerbocker  Ice  Co.  v.  Gardiner  Co.,  107  Md.  556,  69  Atl.  405,  16 
L.  R.  A.  (N.  S.)  746. 

los  West.  U.  Tel.  Co.  v.  Rowell,  153  Ala.  295,  45  South.  73.  In  General  Hos- 
pital Soc.  V.  New  Haven  Rendering  Co.,  79  Corm.  581,  65  Atl.  1065,  118  Am. 
St.  Rep.  173,  9  Ann.  Cas.  168,  a  conversation  over  telephone  between  a  hos- 
pital employe,  who  was  in  charge  of  telephone  calls,  and  a  person  purporting 
to  be  connected  with  the  defendant  asking  for  the  dispatch  of  an  ambulance  to 
defendant's  place  of  business  for  two  men  who  had  been  severely  hurt,  was 
offered  in  evidence.  The  court,  in  admitting  the  evidence,  said:  "This  testi- 
mony was  plainly  admissible.  A  conversation  by  telephone  between  an  agent 
of  the  plaintiff  at  its  office  with  a  person  in  the  office  of  the  defendant  speak- 
ing for  defendant,  unaccompanied  by  evidence  that  the  person  speaking  for 
the  defendant  was  authorized  to  use  the  defendant's  telephone  for  the  pur- 
pose of  communicating  messages  from  the  office  of  the  defendant,  other  than 
a  presumption  arising  from  the  use  of  the  defendant's  telephone  in  the  defend- 
ant's office  and  a  course  of  business  and  experience  necessarily  Involved 
in  the  use  of  this  instrumentality  for  communication,  is  prima  facie  pennis- 
sible  for  any  purpose  that  a  conversation  with  a  person  at  the  office  of 
the  defendant,  who  is  apparently  in  charge  of  the  office  as  the  defendant's 
representative,  would  be  admissible.  Rock  Island,  etc.,  Ry.  Co.  v.  Pot- 
ter, 36  111.  App.  590;  Reed  v.  Burlington,  etc.,  R.  Co.,  72  Iowa,  166, 
2  Am.  St.  Rep.  243,  33  N.  W.  451 ;  Wolfe  v.  Mo.  Pac.  Ry.  Co.,  97  Mo.  473,  11 
S.  W.  49,  10  Am.  St.  Rep.  331,  3  L.  R.  A.  539.  The  fact  that  a  person  in  the 
defendant's  office,  apparently  in  charge  as  its  representative,  told  the  plain- 
tiff to  send  an  ambulance,  as  testified,  is  a  fact  relevant  to  the  issues  raised 


§    712)  COMMUNICATION'S  AS  EVIDENCE  897 

sations  conducted  by  means  of  the  telephone  with  unknown  parties 
claimed  to  be  agents  are  admissible  when  such  unknown  person 
assumes  to  act  in  this  capacity,  but  when  such  fact  is  not  acknowl- 
edged or  assumed,  the  courts  do  not  agree  whether  the  mere  con- 
versation is  sufficient  evidence  of  agency  to  make  it  relevant  to 
the  issue  in  the  case.  Some  of  the  courts  will  allow  the  introduc- 
tion of  such  conversations,  while  others  require  evidence  of  strong 
circumstances  showing  a  customary  course  of  dealing  or  some 
ratification  of  the  acts  of  the  person  so  assuming  to  act  as  agent. 
Some  of  the  courts  have  refused  such  conversations  to  be  admitted 
under  circumstances  where  they  would,  under  the  rule  followed  in 
most  courts,  have  been  allowed.^*^"  It  does  not  seem,  however,  that 
the  rule  of  evidence  in  establishing  agency  in  cases  of  this  kind 
should  be  different  from  that  in  any  other  form  of  communication, 
except  that  it  may  be  more  difficult  to  be  proved  in  the  case  of  a 
telephonic  conversation  with  an  unknown  person. 

§  712.  S,ame — what  constitutes  sufficient  proof  of  identity — bur- 
den of  proof. — When  material  to  the  issues  in  the  case,  communica- 
tions through  the  medium  of  the  telephone  may  be  shown  in  the 
same  manner,  and  with  like  effect,  as  conversations  had  between 
individuals  face  to  face,  but  the  identity  of  the  party  sought  to  be 
charged  with  a  liability  must  be  established  by  some  testimony, 
either  direct  or  circumstantial.  It  is  not  always  necessary  that  the 
voice  of  the  party  answering,  or  of  either  party,  for  that  matter, 
be  recognized  by  the  other  in  such  conversations,  but  the  identity 
of  the  person  or  persons  holding  the  conversation,  in  order  to  fix  a 
liability  upon  them  or  their  principals,  must  in  some  manner  be 
shown.  To  hold  parties  responsible  for  answers  made  by  unidenti- 
fied persons,  in  response  to  calls  at  the  telephone  from  their  offices 
or  places  of  business  concerning  their  affairs,  opens  the  door  for 
fraud  and  imposition,  and  establishes  a  dangerous  precedent,  which 
is  not  sanctioned  by  any  rule  of  law  or  principle  of  ethics.  A  party 
relying  or  acting  upon  a  communication  of  that  character  takes  the 
risk  of  establishing  the  identity  of  the  person  conversing  with  him 

by  the  pleadings."  Lincoln  Mill  Co.  v.  Wissler,  4  Neb.  (Unof.)  675,  95  N.  W. 
S.~7,  when  both  the  plaintiff  and  defendant  testify  that  there  was  but  one  con- 
versation over  the  telephone  between  them,  and  agree  as  to  the  substance  of 
it,  but  not  as  to  its  date,  it  is  immaterial  that  the  party  offering  the  conversa- 
tion in  evidence  could  not  identify  the  employed  of  the  other  party  who  an- 
swered his  telephone  call.  Godair  v.  Ham  Nat.  Bank,  225  111.  572,  SO  N.  E. 
407,  116  Am.  St.  Rep.  172,  8  Ann.  Cas.  447. 

i«9  Oberraann  Browing  Co.  v.  Adams,  35  111.  App.  510;  Conkling  v.  Standard 
Oil  Co.,  138  Iowa,  506,  116  N.  W.  822 ;  Wolfe  v.  Mo.  Pac.  By.  Co.,  97  Mo.  473, 
Jones  Tel.(2d  Ed.)— 57 


898  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  712 

at  the  other  end  of  the  line.^^°  But  the  mere  fact  that  a  conversa- 
tion is  by  means  of  a  telephone  does  not  place  any  greater  burden 
of  proof  on  the  party  introducing  it  than  that  involved  in  any 
other  oral  contract. ^^^  The  case  may  be  made  out  by  direct  or  cir- 
cumstantial evidence,  and  it  is  not  necessary  that  the  voice  of  either 
person  be  recognized,  but  if  the  identity  of  the  person  conversing 
be  shovv^n,  this  will  be  sufficient.^^^    The  identity  of  the  person  may 

11  S.  W.  49,  3  L.  R.  A.  539,  10  Am.  St.  Rep.  331 ;  Rock  Island,  etc.,  R.  Co.  v. 
Potter,  36  111.  App.  590 ;  Planters'  Cotton  Oil  Co.  v.  West.  U.  Tel.  Co..  126  Ga. 
621,  55  S.  E.  495,  6  L.  R.  A.  (N.  S.)  IISO ;  Eastlick  v.  So.  R.  Co.,  116  Ga.  48, 
42  S.  E.  499 ;  Young  v.  Seattle  Transfer  Co.,  33  Wash.  225,  74  Pac.  375,  99  Am. 
St.  Rep.  942,  63  L.  R.  A.  988. 

110  Young  V.  Seattle  Trans.  Co.,  33  Wash.  225,  74  Pac.  375,  99  Am.  St.  Rep. 
942,  63  L.  R.  A.  988. 

111  Herendeen  Mfg.  Co.  v.  Moore,  66  N.  J.  Law,  74,  48  Atl.  525. 

112  In  Young  v.  Seattle  Transfer  Co.,  33  Wash.  225,  74  Pac.  375,  99  Am.  St. 
Rep.  945,  63  L.  R.  A.  988,  the  court  said:  "When  material  to  the  issue,  com- 
munication through  the  medium  of  the  telephone  may  be  shown  in  the  same 
manner,  and  with  like  effect  as  conversations  had  between  individuals  face  to 
face,  but  the  identity  of  the  party  sought  to  be  charged  with  a  liability  must 
be  established  by  some  testimony,  either  direct  or  circumstantial.  It  is  not 
always  necessary  that  the  voice  of  the  party  answering,  or  of  either  party,  for 
that  matter,  be  recognized  by  the  other  in  such  conversations,  but  the  identity 
of  the  person  or  persons  holding  the  conversation,  in  order  to  fix  a  liability 
upon  them  or  their  principals,  must  in  some  manner  be  shown.  To  hold  par- 
ties responsible  for  answers  made  by  unidentified  persons  in  response  to  call 
at  the  telephone  from  their  offices  or  places  of  business  concerning  their  af- 
fairs opens  the  door  for  fraud  and  imposition,  and  establishes  a  dangerous 
precedent,  which  is  not  sanctioned  by  any  rule  of  law  or  principle  of  ethics  of 
which  we  are  aware.  A  party  relying  or  acting  upon  a  communication  of 
that  character  takes  the  risk  of  establishing  the  identity  of  the  person  con- 
versing with  him  at  the  other  end  of  the  line."  Wolfe  v.  Mo.  Pac.  R.  Co.,  97 
Mo.  473,  11  S.  W.  49,  10  Am.  St.  Rep.  331,  3  L.  R.  A.  539;  Godair  v.  Ham  Nat. 
Bank.  225  111.  572,  80  N.  E.  407,  116  Am.  St.  Rep.  172,  8  Ann.  Cas.  447 :  Gen. 
Plospital  Soc.  v.  New  Haven  Rendering  Co.,  79  Conn.  581,  65  Atl.  1065,  118  Am. 
St.  Kep.  173,  9  Ann.  Cas.  168 ;  Shawyer  v.  Chamberlain,  113  Iowa,  742,  84  N. 
W.  661,  86  Am.  St.  Rep.  411.  Where  a  witness  testifies  that  he  conversed 
with  a  certain  person  over  the  telephone,  it  clearly  implies  that  he  recoiiuized 
his  voice.  Gait  v.  Woliver,  103  111.  App.  71 ;  State  v.  Usher,  136  Iowa,  606,  111 
N.  W.  811.  The  testimony  of  a  witness  that  he  recognized  defendant's  voice 
over  the  telephone  is  sufficient  identification  to  justify  admission  of  the  con- 
versation in  evidence.  Lord  Electric  Co.  v.  Morrill,  178  Mass.  304,  59  N.  E. 
807.  In  Murphy  v.  Jack,  142  N.  Y.  215,  36  N.  E.  882,  40  Am.  St.  Rep.  590,  the 
court  said:  "There  would  be  no  objection  to  the  information  having  been  con- 
veyed through  the  medium  of  the  telephone,  if  it  had  been  made  to  appear 
that  the  affiant  was  acquainted  with  the  plaintiff,  and  recognized  his  voice,  or 
if  it  had  appeared  in  some  satisfactorj'  way  that  he  knew  it  was  the  plaintiff 
who  was  speaking  with  him.  None  of  these  facts,  however,  were  averred. 
There  was  absolutely  nothing  upon  which  the  judge  could  pass  to  show  that 
it  was  the  plaintiff  who  was  speaking  and  not  some  undisclosed  person,  who, 
in  the  plaintiff's  name,  furnished  to  the  attorney  the  information  made  use  of. 
The  perfection  to  which  the  invention  of  the  telephone  has  been  brought  has 
immensely  facilitated  the  intercommunication  of  individuals  at  distant  points, 


§    712)  '    COMMUNICATIONS   AS   EVIDENCE  899 

be  shown  by  a  person  who  had  a  previous  conversation  with  him 
in  any  similar  manner;  ^^^    but  the  plaintiff  cannot,  in  support  of 

and  inasmuch  as  the  voice  of  the  speaker  is  heard  in  most,  if  not  in  all,  cases, 
the  identification  of  the  speaker  should  be  possible,  the  very  faculty  of  com- 
munication and  identification,  and  therefore  imposes  a  duty  upon  the  party 
who  invokes  judicial  action  upon  the  strength  of  information  so  received  to 
state  his  knowledge,  or  his  grounds  for  believing,  that  it  actually  came  from 
the  party  who  furnished  it."  Conkling  v.  Standard  Oil  Co.,  13S  Iowa,  596,  116 
N.  W.  822,  telephonic  conversation  may  be  repeated  in  evidence  where  other- 
wise admissible.  The  surrounding  circumstances  may  be  taken  into  consider- 
ation. Godair  v.  Ham  Nat.  Bank,  225  HI.  572,  80  N.  B.  407,  116  Am.  St.  Rep. 
172,  8  Ann.  Cas.  447 ;  Barrett  v.  Magner,  105  Minn.  118,  117  N.  W.  245,  127 
Am.  St.  Rep.  531 ;  Wolfe  v.  Mo.  Pac.  R.  Co.,  97  Mo.  473,  11  S.  W.  49,  10  Am.  St. 
Rep.  331,  3  L.  R.  A.  539;  People  v.  McKane,  143  N.  Y.  4.55,  38  N.  E.  950. 
Thus,  where  it  was  understood  that  the  agent  of  the  plaintiff  would  call  up 
defendant  over  the  telephone  regarding  certain  transactions  in  a  few  days, 
and  in  a  few  days  he  was  called  up  by  some  one  in  relation  to  the  matter  who, 
in  a  subsequent  personal  conversation  held  pursuant  to  the  telephonic  one, 
admitted  he  was  the  party  who  had  telephoned,  the  identification  is  sufficient. 
Deering  v.  Shumpik,  67  Minn.  348,  69  N.  W.  1088 ;  Kansas  City  Star  P.  Co.  v. 
Standard  Warehouse  Co.,  123  Mo.  App.  13,  99  S.  W.  765.  Where  a  witness  se- 
cures telephonic  connection  with  a  place  of  business  of  a  party  and  some  one 
answers  stating  that  the  individual  wanted  is  outside,  but  will  be  called  in, 
and  verj'  soon  thereafter  another  voice  answered  and  a  conversation  takes 
place  concerning  a  business  transaction  of  the  same  tenor  as  one  which  oc- 
curred a  few  days  previous  in  a  personal  conversation  between  the  same  par- 
ties, the  evidence  is  admissible.  Barrett  v.  Magner,  105  Minn.  118,  117  N.  W. 
245,  127  Am.  St.  Rep.  535 ;  People  v.  Strollo,  191  N.  Y.  42,  83  N.  E.  573,  evi- 
dence admitted  although  the  witness  was  not  acquainted  at  the  time  with  the 
defendant's  voice,  but  became  so  subsequently.  But;  contrary  to  the  last  case, 
.see  Dunham  v.  McMichael,  214  Pa.  485,  63  Atl.  1007. 

113  In  the  case  of  Globe  Print.  Co.  v.  Stahl,  23  Mo.  App.  451,  the  court  said: 
''The  sole  question  which  arises  upon  the  record  is  whether  the  court  erred  in 
admitting  evidence  of  a  conversation  heard  through  a  telephone  between  the 
plaintiff's  bookkeeper  and  a  person  who  answers  to  the  defendant's  name.  The 
bookkeeper  testifies  that  he  called  up  by  telephone  to  the  general  office  of  the 
Bell  Telephone  Company  for  the  defendant's  number,  and  was,  by  the  central 
office,  connected  therewith  ;  that  the  list  of  the  telephone  company  showed  that 
the  defendant  had  two  telephones,  one  at  his  undertaking  establishment  on 
Fi-anklin  avenue,  in  the  city  of  St.  Louis,  and  the  other  at  his  livery  stable, 
on  Olive  street ;  that  witness  was  not  certain  which  number  he  called,  but 
that  his  best  recollection  was  that  it  was  the  Olive  street  number ;  that  there 
was  an  answer  from  the  defendant's  number  to  the  telephone  call ;  that  he 
(the  witness)  did  not  know  whose  voice  it  was,  and  does  not  know  ;  that  the 
witness  did  not  know  the  defendant's  voice  and  did  not  know  the  defendant, 
but  that  he  asked,  through  the  telephone,  if  that  was  Stahl  (the  defendant), 
and  the  answer  was  'Yes.'  The  witness  was  then  asked  to  give  the  conversa- 
tion then  had  through  the  telephone  with  the  party  answering  the  call.  In  re- 
sponse to  this  (luestion  the  witness  testified,  against  the  objection  of  the  de- 
fendant, 'that  he  asked  why  defendant  did  not  pay  the  bill  for  which  this 
suit  was  brought,  and  that  the  party  answering  said,  "All  right ;  I  will  attend 
to  the  matter  about  the  first  of  the  month."  '  A  previous  witness  had  testified 
for  the  plaintiff  to  a  conversation  through  the  telephone  in  a  similar  manner 
with  the  defendant,  whose  voice  the  former  witness  identified."  The  court 
ruled  that  the  testimony  was  admissible. 


900  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  713 

his  statement  of  such  conversation,  prove  that  he  repeated  at  the 
time  to  a  third  person  the  answer  received  over  a  telephone.^^*  It 
is  true  that  a  party  may  be  misled  by  a  conversation  over  a  tele- 
phone. The  acts  and  expressions  of  the  person  talking  may  be 
often  followed  in  ascertaining  what  he  means,  and  this,  of  course, 
cannot  be  considered  while  communicating  by  means  of  the  tele- 
phone. But,  in  an  ordinary  and  natural  conversation,  the  identity 
of  the  person  may  be  established  by  means  of  hearing  such  person 
talk,  or  other  circumstances,  quite  as  readily,  though  possibly  not 
as  certainly  as  if  he  had  seen  such  person."^  The  fact  that  the 
witness,  who  testifies  to  a  conversation  between  himself  and  an- 
other, did  not  recognize  the  other's  voice  does  not  affect  the  ad- 
missibility of  his  evidence  but  only  its  weight. ^^®  The  same  rule 
applies  to  a  case  where  the  witness,  in  an  action  against  a  carrier, 
testifies  that  he  demanded  the  goods  in  question  from  the  defend- 
ant's agent,  through  the  telephone,  but  that  he  did  not  remember 
the  name  of  the  agent  on  whom  he  made  the  demand/^^  or  at  which 
office,  where  the  defendant  had  two,  he  had  called. ^^^ 

§  713.  Testimony  of  bystanders. — Where  it  is  admitted  that  a 
conversation  was  had  over  a  telephone  at  a  certain  time,  a  by- 
stander, at  one  end  of  the  line,  hearing  what  was  said  by  the  party 
at  that  place,  but  not  hearing  the  replies  thereto,  nor  knowing  who 
was  talking  at  the  other  end  of  the  Hne,  may  testify  as  to  what  he 
heard.^^°     But  a  statement  made  by  this  party  to  him  or  to  another 

114  German  Savings  Bank  v.  Citizens'  Nat.  Bank,  101  Iowa,  530,  70  N.  W. 
769,  63  Am.  St.  Rep.  399.  See,  also.  Missouri  Pac.  R.  Co.  v.  Heidenheimer,  82 
Tex.  195,  17  S.  W.  608,  27  Am.  St.  Rep.  861 ;  Cent.  U.  Tel.  Co.  v.  Falley,  118 
Ind.  194,  19  N.  E.  604,  10  Am.  St.  Rep.  13.5. 

115  Shawyer  v.  Chamberlain,  113  Iowa,  742,  84  N.  W.  661,  86  Am.  St.  Rep. 
411 ;  Wolfe  v.  Missouri  Pac.  R.  Co.,  97  Mo.  473,  3  L.  R.  A.  539,  10  Am.  St. 
Rep.  331,  11  S.  W.  49 ;  Sullivan  v.  Kuykendall,  82  Ky.  483,  56  Am.  Rep.  901. 
See  German  Savings  Bank  v.  Citizens'  Nat.  Bank,  101  Iowa,  530,  70  N.  W. 
769,  63  Am.  St.  Rep.  399. 

116  Wolfe  V.  Missouri  Pac.  R.  Co.,  97  Mo.  473,  11  S,  W.  49,  3  L.  R.  A.  539, 
10  Am.  St.  Rep.  331 ;  Globe  Print.  Co.  v.  Stalil,  23  Mo.  App.  451.  See  Knicker- 
bocker Ice  Co.  V.  Gardiner  Dairy  Co.,  107  Md.  556,  69  Atl.  405,  16  L.  R.  A. 
(N.  S.)  746. 

117  Missouri  Pac.  R.  Co.  v.  Heidenheimer,  82  Tex.  195,  17  S.  W.  60S,  27  Am. 
St.  Rep.  S61.    See,  also.  Rock  Island,  etc.,  R.  Co.  v.  Potter,  36  111.  App.  590. 

118  Globe  Print.  Co.  v.  Stahl,  23  Mo.  App.  451. 

X19  Miles  V.  Andrews,  153  111.  267,  38  N.  E.  644.  In  McCarthy  v.  Peach,  186 
Mass.  67,  70  N.  E.  1029,  1  Ann.  Cas.  801,  the  court  said  :  "We  think  that  the 
evidence  was  rightly  admitted.  The  analogies  furnished  by  conversations  be- 
tween parties  through  an  interpreter,  and  conversations  in  a  loud  tone  by 
one  party  and  a  whisper  by  the  other,  are  not  altogether  complete.  In  such 
cases  the  third  party  who  testifies  to  more  or  less  of  a  conversation,  as  the 
case  may  be,  is  in  the  presence  of  the  persons  whose  conversation  he  under- 
takes  to   repeat,   and   therefore  has  personal   knowledge   in   respect  to  the 


§    714)  COMMUNICATIONS  AS   EVIDENCE  901 

bystander  in  his  presence  of  what  was  said  by  the  other  party  at 
the  other  end  of  the  line  would  be  hearsay  evidence,  and  therefore 
inadmissible.  It  is  possible,  however,  that  the  bystander  heard 
also  the  party  at  the  other  end  of  the  line,  and  if  he  did,  what  was 
said  would  be  admissible,  even  though  he  could  not  identify  the 
person  or  his  voice. ^^° 

§  714.  When  operator  or  third  person  converses. — Where  two 
parties  desire  to  communicate  by  means  of  a  telephone,  but  on 
account  of  inexperience  in  the  use  of  a  phone,  or  on  account  of 
atmospheric  hindrance,  one  of  them  is  unable  to  carry  on  his  part 
of  the  conversation,  whereby  an  operator  in  the  employ  of  the  com- 
pany or  some  third  person  at  the  other  end  of  the  line  is  called  on 
to  carry  on  the  conversation,  he  is  deemed  the  agent  of  the  party 
who  invokes  his  aid  and  is  competent  to  prove  the  message  or  con- 
versation by  his  principal. ^^^     If  such  operator  or  third  person  has 

parties  of  the  conversation,  though  he  may  not  hear  or  understand  all  that 
is  said  by  the  principals.  In  the  present  case  the  witness  had  no  personal 
knowledge  as  to  the  identity  of  the  other  party  to  the  alleged  conversation, 
or  that  there  was  any  other  party,  or,  if  there  was,  that  he  heard  what  the 
plaintiff  purported  to  say  to  him.  It  is  not  contended  that  the  mere  fact 
that  the  conversation  was  over  a  telephone  rendered  what  the  witness  tes- 
tified to  incompetent.  Lord  Elec.  Co.  v.  Morrill,  ITS  Mass.  304,  59  N.  E.  807. 
The  evidence  that  was  admitted  cannot  be  regarded  as  hearsay  evidence,  or 
declarations  made  by  the  plaintiff  in  his  own  interests,  simply  because  the 
witness  did  not  know,  of  his  own  knowledge,  that  the  other  party  of  the  al- 
ledged  conversation  was  the  defendant,  or  that  there  was  any  other  party 
or  that  defendant  heard  what  purported  to  be  said  to  him.  If  the  alleged 
conversation  took  place  as  the  plaintiff  testified  it  did,  then  what  the  plain- 
tiff said  was  admissible  as  part  of  it.  Whether  it  did  take  place  as  alleged, 
or  was  fictitious,  was  a  question  of  fact  for  the  jury.  It  could  not  be  ruled, 
as  matter  of  law,  that  there  was  no  evidence  of  a  conversation  between  the 
plaintiff  and  defendant  of  which  what  was  testified  to  by  the  witness  con- 
stituted a  part."     See  Clough  v.  West.  U.  Tel.  Co.,  99  S.  C.  4S4,  S3  S.  E.  91G. 

120  German  Savings  Bank  v.  Citizens'  Bank,  101  Iowa,  530,  70  N.  W.  7G9, 
63  Am.  St.  Rep.  399.  See  Willner  v.  Silverman,  109  Md.  341,  71  Atl.  9G2,  24 
L.  R.  A.  (N.  S.)  895. 

121  Sullivan  v.  Kuykendall,  82  Ky.  4S3,  56  Am.  Rep.  901.  In  this  case  the 
parties  did  not  have  a  conversation  directly  with  each  other  over  the  tele- 
phone, but  the  conversation  was  conducted  by  an  operator  in  charge  of  a 
public  telephone  station  at  one  end  of  the  line.  It  was  held  that  the  con- 
versation was  admissible  in  evidence  and  that  it  was  competent  for  the  per- 
son receiving  the  message  to  state  what  the  operator  at  the  time  reported 
as  being  said  by  the  sender.  The  court  in  the  opinion  says :  "When  using 
the  telephone,  if  he  knows  that  he  is  talking  to  the  operator,  he  also  knows 
that  he  is  making  him  an  agent  to  repeat  what  he  is  saying  to  another  party ; 
and,  in  such  a  case,  certainly  the  statements  of  the  operator  are  competent, 
being  the  declarations  of  the  agent,  and  made  during  the  progress  of  the 
transaction.  If  he  is  ignorant  whether  he  is  talking  to  the  person  witli  whom 
he  wishes  to  communicate  or  with  the  operator,  or  even  any  third  party,  yet 
he  does  it  with  the  expectation  and  intention  on  his  part  that  in  case  he 
is  not  talking  with  the  one  for  whom  the  information  was  intended  it  will 


902  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  715 

forgotten  what  was  said  in  the  conversation,  it  may  be  proved  by 
witnesses  who  heard  him  when  the  statements  were  made  to  the 
party  for  whom  he  was  conversing.^-'  It  seems  that  the  identity  of 
the  person  at  the  other  end  of  the  Hne  may  be  proven  by  such 
operator  or  third  person  whether  he  was  acting  as  agent  in  such 
conversation,  or  whether  his  voice  was  recognized  in  a  casual  way, 
while  such  person  was  conversing  with  the  party  at  the  place  at 
which  the  operator  was  stationed. 

§  715.  Operator  as  interpreter. — It  is  a  general  rule  that  where 
one,  through  an  interpreter,  makes  statements  to  another,  the  in- 
terpreter's statements,  made  at  the  time,  of  what  was  said,  are  com- 
petent evidence  against  the  party.  The  interpreter  need  not  be 
called  to  prove  it,  but  his  statements  made  at  the  time  may  be 
proved  by  third  persons  who  were  present  and  heard  it.^-^  The 
reason  of  the  rule  is  that  the  interpreter  is  the  agent  of  both  parties 
and  acting  at  the  time  within  the  scope  of  his  authority.  So  it  has 
been  held  that,  when  an  operator  at  some  intermediate  point  on  the 
line  volunteers  to  aid  and  assist  two  parties  to  converse  over  the 
line  where  they  are  prevented  from  talking  themselves,  each  to  each, 
by  atmospheric  hindrances,  such  operator  acts  in  the  capacity  of  in- 
terpreter or  as  the  agent  for  both  parties,  and  statements  made  by 
one  of  such  parties  to  such  operator  may  be  used  against  the 
other. ^-*  Such  statements  are  not  given  as  hearsay  evidence,  but 
are  competent  because  it  is  the  declaration  of  an  agent  made  during 
the  progress  of  a  transaction  in  which  he  represents  his  principal. ^^^ 

§  716.  Bills  and  notes — presentment  by  telephone. — A  great 
majority  of  the  cases  hold  that  a  presentment  of  the  bill  or  note,  or 
other  commercial  paper,  and  demand  of  payment  should  be  made 
by  an  actual  exhibition  of  the  instrument  itself,  in  order  to  effect 

be  communicated  to  that  person ;  and  he  thereby  makes  the  person  receiving 
it  his  agent  to  communicate  what  he  might  have  said.  This  certainly  should 
be  the  rule  as  to  an  operator,  because  the  person  using  the  telephone  knows 
there  is  one  at  each  station  whose  business  it  is  to  so  act ;  and  we  think 
that  the  necessities  of  a  growing  business  require  this  rule,  and  that  it  is 
sanctioned  by  the  known  I'ules  of  evidence."  Conkling  v.  Standard  Oil  Co., 
138  Iowa,  596,  116  N.  W.  822;  Neb.  Nat.  Bank  v.  Burke,  44  Neb.  2.34,  62 
N.  W.  452 ;  Herendeen  INIfg.  Co.  v.  Moore,  66  N.  J.  Law,  74,  48  Atl.  525.  See, 
contra,  Wilson  v.  Coleman,  81  Ga.  297,  6  S.  E.  693. 

122  Sullivan  v.  Kuykendall,  82  Ky.  483,  56  Am.  Rep.  901. 

12  3  Camerlin  v.  Palmer  Co.,  10  Allen  (Mass.)  539;  Schearer  v.  Harber,  36 
Ind.  536 ;    1  Greenl.  Ev.  §  183 ;    1  Phill.  Ev.  519. 

124  Oskamp  v.  Gadsden,  35  Neb.  7,  52  N.  W.  718,  37  Am.  St.  Rep.  428,  17 
L.  R.  A.  440,  note. 

125  West.  U.  Tel.  Co.  v.  Wells,  50  Fla.  474,  39  South.  838.  2  L.  R.  A.  (N.  S.) 
1072,  111  Am.  St.  Rep.  129,  7  Ann.  Cas.  531;  Oskamp  v.  Gadsden,  35  Neb.  7, 
52  N.  W.  718,  37  Am.  St.  Rep.  428,  17  L.  R.  A.  440,  note. 


§    716)  COMMUNICATIONS   AS   EVIDENCE  903 

its  dishonor,  notice  of  which  the  holder  should  give  in  order  to 
charge  those  secondarily  liable ;  or,  at  least,  the  demand  of  payment 
should  be  accompanied  by  some  clear  indication  that  the  instru- 
ment is  at  hand  ready  to  be  delivered.^-''  So  it  has  been  held  that 
a  demand  by  telephone  of  the  maker  for  payment  of  a  note  which 
is  payable  at  his  residence  is  not  a  sufficient  presentment  to  charge 
the  indorser  thereon,  although  the  one  making  the  demand  has  the 
instrument  in  his  possession  at  the  time  the  demand  is  made/^^ 

126  Citizens'  Bank  v.  First  Nat.  Bank,  135  Iowa,  605,  113  N.  W.  481,  13 
L.  R.  A.  (N.  S.)  303 ;  Bank  v.  Cameron,  7  Barb.  (N.  Y.)  143 ;  Musson  v.  Lake, 
4  How.  2G2,  11  L.  Ed.  9G7 ;  Farmers'  Bank  v.  Duvall,  7  Gill  &  J.  (Md.)  78; 
Peet  V.  Dougherty,  7  Rob.  (La.)  85 ;  Union  Bank  v.  Lea,  7  Rob.  (La.)  76,  41 
Am.  Dec.  275;  Freeman  v.  Bo.vnton,  7  Mass.  483;  Shaw  v.  Reed,  12  Pick. 
(Mass.)  132;  Fisher  v.  Beckwith,  19  Vt.  31,  46  Am.  Dec.  174;  Waring  v. 
Betts,  90  Va.  46,  17  S.  E.  739,  44  Am.  St.  Rep.  890 ;  Porter  v.  Thorn,  40  App. 
Div.  34,  57  N.  Y.  Supp.  479,  affirmed  in  167  N.  Y.  584,  60  N.  E.  1119. 

Acceptance  of  draft  by  telegram  may  be  done.  See  First  National  Bank  v. 
Muskogee  Pipe  Line  Co.,  40  Okl.  603,  139  Pac.  1136,  L.  R.  A.  1916B,  1021. 

127  Gilpin  V.  Savage,  201  N.  Y.  167,  94  N.  E.  656,  Ann.  Cas.  1912A,  861,  34 
L.  R.  A.  (N.  S.)  417;  State  Nat.  Bank  v.  Kennedy,  145  App.  Div.  669,  130 
N.  Y.  Supp.  412.  The  court,  in  the  first  case  cited,  reverses  the  conclusion 
reacned  in  the  same  case  in  60  Misc.  Rep.  605,  112  N.  Y.  Supp.  802,  affirmed 
in  132  App.  Div.  948,  118  N.  Y.  Supp.  1108.  He  said :  "Was  the  note  in  this 
case  presented  at  No.  507  Prospect  avenue,  the  place  of  payment  named  in 
the  note,  within  the  reasonable  meaning  of  the  statute?  We  think  it  was. 
At  the  time  of  the  conversation  between  the  maker  and  the  bank  officials 
over  the  telephone,  the  maker  was  actually  at  the  place  of  payment.  The 
talk  was  immediately  between  him  and  the  holder  of  the  note.  For  every 
purpose  of  demand  and  refusal,  it  was  just  as  effective  as  though  the  conver- 
sation had  taken  place  between  the  parties  when  all  were  within  the  walls 
of  the  house  itself.  The  maker  knew  perfectly  well  that  a  demand  was,  then 
and  there,  made  upon  him  for  the  payment  of  the  note  in  question,  and  he 
was  then  and  there  called  upon  to  act.  He  did  act,  and  treated  it  as  a  de- 
mand for  payment  and  declined  to  pay.  He  did  not  question  the  mode  or 
manner  of  payment,  but  declared  his  inability  to  meet  the  note,  and  made 
claim  to  some  arrangement  for  its  renewal.  Of  course,  the  maker  had  the 
right  to  have  insisted  on  the  exhibition  of  the  note  to  him,  as  evidence  of  the 
banker's  authority  to  collect.  That  right  was  a  right,  however,  personal  to 
the  maker,  and,  by  not  demanding  its  production,  he  waived  it.  If,  on  de- 
mand of  payment,  exhibition  of  conmiercial  paper  is  not  asked,  and  a  party 
to  whom  demand  is  made  declines  to  pay  on  other  grounds,  a  mere  formal 
presentation  by  actual  exhibition  of  the  paper  will  be  considered  waived." 
And  then,  upon  the  validity  of  a  telephonic  presentation,  the  same  learned 
justice  continued:  "It  seems  to  the  court  that  all  the  essentials  of  a  good 
presentation  were  met.  It  was  made  on  the  day  of  the  maturity  of  the  note. 
The  note  was  described  to  the  maker  in  a  conversation  with  the  maker  at  the 
place  of  payment;  payment  was  asked  and  declined.  So  far  as  the  maker 
was  concerned,  all  that  he  required  was  done.  The  indorser  could  not  well 
demand  more  for  his  own  actual  protection.  All  that  remains  to  the  in- 
dorser is  the  purely  technical  ground  ot  a  failure  to  produce  the  note  itself 
at  the  house,  *  *  *  which  would  have  resulted  in  the  same  refusal  of 
payment  made  over  the  telephone.  *  *  *  The  telephone  is  simply  an  in- 
strument by  which  two  persons  may  talk  directly  to  each  other.     Suppose  the 


'904  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  717 

§  717.  Oaths  admissible  Dy  means  of  telephone. — Conversations 
can  be  carried  on  by  means  of  the  telephone  almost  as  easily  as  if 
the  parties  were  together,  face  to  face.  Of  course,  there  may  be 
some  hindrances  to  prevent  this,  but  as  a  usual  thing,  w^here  the 
lines  are  in  good  working  order,  communication  can  be  as  easily 
effected  by  this  means  as  by  personal  conversation ;  and  where  the 
identity  of  either  or  both  of  the  parties  is  known,  there  is  no  reason 
why  the  same  business  and  legal  transactions — where  it  is  not  nec- 
essary for  the  same  to  be  in  writing — may  not  be  conducted  by  this 
means  as  easily  as  if  the  parties  were  together  in  person.  For 
instance,  in  cities  and  towns,  as  is  known,  orders,  sales,  purchases, 
and  many  other  business  transactions  are  made  almost  exclusively 
by  the  telephone.  Orders  of  the  court — where  it  is  not  necessary 
for  them  to  be  in  writing — may  be  made  through  this  means.  We 
see  no  reason  why  an  oath  may  not  be  administered  by  means  of  the 
telephone,  where  the  identity  of  the  party  making  same  is  known ; 
and  it  has  been  held  that  an  acknowledgment  of  a  deed  made  to  a 
notary  over  a  telephone  followed  by  a  certificate  in  proper  form 
was  good  under  all  circumstances  unless  vitiated  by  fraud.^-^     If, 

holder  of  a  note  should  call  to  the  maker  from  across  the  street,  as  the  maker 
stood  in  his  doorway,  and  notified  him  that  he  had  his  note  and  asked  pay- 
ment. Would  not  such  a  demand  be  deemed  in  law  a  proper  presentment,  al- 
though the  streets  separated  the  person  holding  the  note  and  the  actual  place 
of  payment?  Can  it  make  any  substantial  difference  because  the  person 
holding  the  note  happens  to  be  some  blocks  away,  provided  he  is  able  to  reach 
the  maker  over  the  telephone  and  talk  directly  to  him  in  that  way?  The  law 
simply  requires  substantial  compliance  in  reference  to  proper  presentment, 
and  will  not  strain  to  find  grounds  for  releasing  and  indorsing,  where  there 
has  been  such  a  substantial  compliance,  and  any  omission  to  observe  the 
more  technical  rules  does  not  work  to  the  prejudice  of  the  endorser."  See 
C.  C.  Thompson  &  Co.  v.  Appleby,  5  Kan.  App.  680,  48  Pac.  933.  See,  also. 
West.  U.  Tel.  Co.  v.  Louissell,  11  Ala.  App.  5G3,  66  South.  839. 

12  8  In  Banning  v.  Banning,  SO  Cal.  271,  22  Bac.  210,  13  Am.  St.  Rep.  156, 
the  validity  of  an  acknowledgment  was  questioned  upon  the  ground  that  at 
the  time  the  deed  was  acknowledged  by  the  defendant,  who  was  "not  visibly, 
and,  therefore,  not  i>ersonally,  present  before  the  notary  at'  the  time  he  took 
her  acknowledgment  through  a  telephone,  she  then  being  three  miles  distant 
from  him."  To  this  objection  the  court  said :  "It  is  admitted  that  the  certifi- 
cate of  the  notary  is  in  due  form ;  and  it  is  not  alleged  or  pretended  by  the 
defendant  that  she  did  not  voluntarily  sign  and  deliver  the  deeds ;  nor  that 
she  did  not  voluntarily,  and  without  the  hearing  of  her  husband,  acknowledge 
the  execution  of  them  through  the  telephone,  after  having  been  informed  by 
the  notary  of  their  contents;  nor  that  any  deception  or  fraud  was  practiced 
to  induce  her  to  execute  the  deeds ;  nor  even  that  the  plaintifl:  had  notice 
of  the  manner  in  which  it  is  alleged  that  she  acknowledged  the  execution 
through  the  telephone.  These  particulars  are  not  stated  for  the  purpose  of 
maintaining  that,  under  any  circumstances,  an  acknowledgment  of  a  deed 
may  be  taken  through  a  telephone,  but  for  the  sole  purpose  of  showing  that 
there  is  no  pretense  of  fraud,  dui'ess,  or  mistake."  The  court  held  that 
the  acknowledgment  in  the  case  at  bar  was  valid. 


§    718)  COMMUNICATIONS   AS   EVIDENCE  905 

however,  it  should  be  necessary  for  the  party  to  attach  his  signa- 
ture to  the  instrument  of  writing  at  the  time  the  acknowledgment 
is  taken,  or  if  the  statute  under  which  the  oath  is  administered  re- 
quires the  personal  presence  of  the  affiant,  the  rule  would  be  other- 
wise.^-'' 

§  718.  Telephonic  communication  as  basis  for  affidavit — dis- 
charge of  jury. — It  seems  to  be  a  general  rule  that  an  affidavit  in 
support  of  an  attachment,  whether  made  by  the  creditor  himself  or 
by  his  agent,  must  allege  in  positive  terms  the  grounds  for  the  at- 
tachment, and  that  information  and  belief  cannot  supply  the  place 
of  such  positive  allegation.  The  affiant,  in  such  cases,  is  not,  how- 
ever, required  to  have  a  personal  knowledge  of  the  facts  required  to 

129  Wester  v.  Hurt,  123  Tenn.  SOS,  130  S.  W.  842,  Ann.  Cas.  1912C,  329, 
30  L.  R.  A.  (N.  S.)  358.  In  Sullivan  v.  First  Nat.  Bank,  37  Tex.  Civ.  App. 
228,  S3  S.  W.  421,  it  was  held  that  an  oath  required  by  statute  to  be  made  by 
the  affiant  in  the  personal  presence  of  the  officer  could  not  be  administered 
over  the  telephone,  although  the  officer  recognized  the  voice  of  the  affiant. 
The  court  said:  "The  law  requires  the  affiant  to  be  in  the  personal  presence 
of  the  officer  administering  the  oath ;  and  to  the  end  that  the  officer  may 
know  him  to  be  the  person  he  represented  himself  to  be,  for  it  is  not  required 
that  the  affiant  be  identified  or  introduced,  or  to  be  personally  known  to  the 
officer,  but  to  the  end  that  he  be  certainly  identified  as  the  person  who  ac- 
tually took  the  oath."  And  then,  in  considering  the  question  with  relation  ta 
a  possible  prosecution  for  perjury,  the  court  continued :  "It  may  be  true  that 
the  officer,  when  he  takes  the  affidavit  of  one  well  known  to  him.  might 
recognize  his  voice  over  the  telephone,  and  therefrom  be  able  to  testify  that 
he  took  the  oath  and  made  the  affidavit  in  issue.  But  it  must  be  borne  in 
mind  that  the  law  does  not  require  the  clerk  or  notary  to  be  acquainted 
with  one  who  becomes  an  affiant  before  them ;  a  stranger  may  appear,  sign  an 
affidavit,  and  demand  that  the  officer  swear  him  and  affix  his  jurat.  In  that 
case  the  officer  certifies  and  can  swear  to  no  more  than  that  the  man  who 
affixed  the  name  to  the  affidavit  swore  to  its  truth.  The  name  he  signed 
may  have  been  fictitious,  but  the  individual  swore  to  it,  as  the  clerk  or 
notary  certified,  and  he  would  be  subject  under  that  name,  or  its  true  one 
take  for  perjury.  Now,  if.  the  contention  of  appellant  is  sound  (personal 
presence  of  afiiant  was  not  required),  the  rule  must  be  laid  down  broadly, 
and  whoever  might  demand  the  official  jurat  by  his  personal  presence  mignt 
also  demand  it  over  the  telephone.  Had  it  not  so  haijpened  in  this  case  that 
the  clerk  was  acquainted  with  Sullivan  and  identified  him  by  his  voice,  he 
could  have  done  no  more  than  certify  that  a  man  whom  he  did  not  know, 
out  who  represented  himself  to  be  Sullivan,  authorized  the  name  of  Sullivan 
to  be  signed  to  the  aflidavit  and  swore  its  contents  were  true.  The  clerk 
could  not  possil:ly  identify  him  as  the  one  making  the  affidavit  if  the  question 
should  afterwards  arise.  In  a  prosecution  for  perjury,  nuich  testimony  on 
the  part  of  the  clerk  would  not  even  raise  an  issue  against  the  unknown  af- 
fiant. So  we  hold  that  not  only  is  the  personal  presence  of  the  affiant  re- 
quired to  the  end  that  by  appropriate  form  and  ceremony  his  conscience  may 
lie  bound,  but  that  it  is  required  *  *  *  that  the  officer  may  see  and  know 
that  the  man  who  signs  also  swears.  No  modern  business  necessity  requires 
the  broadening  of  these  rules.  To  allow  the  contention  of  appellant  would  be 
to  open  a  broad  door  for  fraud  and  imposition,  and  hold  out  to  the  perpetra- 
tors a  tempting  chance  for  immunity  of  discovery  and  identification." 


906  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  719 

be  stated ;  but  it  is  essential  that  his  information  must  appear  to 
have  been  completely  derived.  So  it  has  been  held  that  an  affidavit 
for  attachment  made  on  information  and  belief  is  not  sufficient  to 
support  an  attachment  where  such  information  or  belief  of  the 
affiant  is  based  upon  the  statement  of  the  plaintiff  and  his  attorney 
to  him  over  the  telephone,  unless  it  appears  that  the  affiant  was 
acquainted  with  the  plaintiff,  and  recognized  his  voice,  or  it  appears 
in  some  satisfactory  way  that  he  knew  it  was  the  plaintiff  speaking 
to  him.^^°  So  also,  in  a  question  somewhat  similar  to  the  above, 
it  was  held  that  a  report  made  by  an  officer  in  attendance  upon  the 
court  over  the  telephone  of  the  illness  of  a  juror,  and  his  inability 
to  proceed  with  the  trial  is  not  sufficient  evidence  of  this  fact  to 
warrant  the  court  in  discharging  a  jury  in  a  criminal  case  and  to 
thereby  preserve  to  the  defendant  his  constitutional  rights. ^^^ 

§  719.  Serving  subpoena  by  telephone. — Where  the  statute  pre- 
scribing the  method  by  which  subpoenas  shall  be  served  clearly 
indicates  that  there  must  be  a  personal  service,  a  subpcjena  served 
by  reading  it  over  the  telephone  will  be  insufficient.'^^-    If,  however, 

130  Murpliy  v.  Jack,  142  N.  Y.  215,  36  N.  E.  882,  40  Am.  St.  Rep.  590. 

131  State  V.  Nelson,  19  R.  I.  467,  34  Atl.  990,  61  Am.  St.  Rep.  780,  33  L.  R. 
A.  559. 

132  S.  Lowman  &  Co.  v.  Ballard,  168  N.  C.  16,  84  S.  E.  21,  L.  R.  A.  1915D, 
427.  In  Ex  parte  Terrell  (Tex.  Cr.  App.)  95  S.  W.  536,  the  petitioner  sought 
and  obtained  his  discharge  from  a  commitu^ent  for  contempt  in  not  obeying 
a  subpoena  served  on  him  by  reading  it  over  the  telephone  to  him.  The  court 
in  discharging  the  petitioner  said:  "Applicant  insists  that  the  action  of  the 
court  is  without  authority  of  law,  in  that  under  the  facts  stated  the  court  had 
no  power  to  render  the  judgment  nisi,  adjudging  him  guilty  of  contempt  of 
court,  much  less  malie  said  judgment  final.  This  involves  the  question : 
First,  whether  the  service  of  a  subixena  could  be  made  over  the  telephone ; 
and,  second,  concede  that  such  service  is  authorized  by  our  statute,  judgment 
against  applicant  could  not  be  made  final  in  the  first  instance.  When  our 
statutes  were  passed  on  the  subject  of  subpoenas  and  their  service,  it  was 
before  the  invention  of  telephones — at  least  before  their  use  in  this  state. 
Of  course,  the  law  originally  contemplated  personal  service.  The.  statute,  In 
article  515,  Code  of  Criminal  Procedure  of  1895,  says:  'A  subpcjena  is  served 
by  reading  the  same  in  the  hearing  of  the  witness,  and  the  officer  having  the 
subpoena  shall  make  due  return  thereof,'  etc.  There  are  other  statutes  in 
connection  with  this  showing  that  the  officer  is  entitled  to  fees  for  service, 
and  certain  fees  for  mileage  traveled  in  making  the  service.  Indeed,  all  of 
our  statutes  on  this  subject  appear  to  contemplate  a  personal  service,  not  only 
by  reading  the  process  in  the  hearing,  but  in  the  presence  of  the  witness. 
However,  it  is  urged  that  service  by  phone  is  within  the  letter  and  spirit  of 
our  statutes  on  the  subject  of  serving  process.  If  this  were  clearly  true, 
then  the  law  might  be  applied  to  the  new  invention,  or  the  new  invention 
applied  to  the  law.  But  we  do  not  think  so.  In  such  case  service  by  phone, 
the  party  served  being  without  the  view,  could  only  be  identified  by  the  voice 
of  the  party  on  whom  the  service  should  be  made,  and  this  could  only  apply 
to  but  few  cases,  only  to  such  as  the  officer  making  the  service  could  know 
and  recognize  the  voice,  and  this  would  be  a  rather  unsatisfactory  method 


§    719)  COMMUNICATIONS   AS   EVIDENCE  907 

the  statute  does  not  require  a  personal  service,  there  should  be  no 
good  reason  why  service  may  not  be  made  over  the  telephone  if 
the  officer  is  acquainted  with  and  can  identify  the  party  served  as 
being  the  one  to  be  subpoenaed.^ ^^ 

of  identification  at  best.  The  best  means  of  identification  would  be  recoijni- 
tion  of  the  person  on  whom  the  service  was  made;  such  recognition  based 
on  personal  view  of  the  witness  by  the  officer.  Accordingly  we  hold  that 
senuce  by  phone  is  not  contemplated  or  embraced  within  our  statutes  on  the 
subject  of  service  of  subpoena  by  an  officer  as  a  witness.  Clay  v.  State,  40  Tex. 
Cr.  R.  59.3,  51  S.  W.  370 ;  Tooney  v.  State,  5  Tex.  App.  ir>? ;  Sullivan  v.  First 
Nat.  Bank,  37  Tex.  Civ.  App.  228,  88  S.  W.  421.  None  of  these  cases  are  ex- 
actly in  point,  but  they  are  illustrative  of  the  question  here  before  the  court." 
133  See  dissenting  in  S.  Lowman  &  Co.  v.  Ballard.  168  N.  C.  16,  84  S.  E. 
21,  L.  R.  A.  1915D.  427.  In  this  case  it  was  said:  "This  system  of  serving 
summons  and  subpoenas  is  a  great  saving  of  expense  and  of  time.  It  has 
been  much  resorted  to  in  the  courts  and  now  to  hold  it  illegal  may  jeopardize 
the  validity  of  many  legal  proceedings  which  have  been  based  upon  such  serv- 
ice. In  a  practical  age  there  is  no  reason  why  the  courts  should  not  avail 
themselves  of  the  same  conveniences  which  business  men,  and  indeed  all  oth- 
ers, customarily  use  and  have  found  to  be  safe  and  reliable,  as  well  as  con- 
venient. No  statute  forbids  it,  and  the  courts  in  actual  practice  have  recog- 
nized and  used  it." 


908  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§    720 

CHAPTER  XXVIII 
TELEGRAPH  MESSAGES  IN  RELATION  TO  THE  STATUTE  OF  FRAUDS 

§  720.  [Evidence. 

721.  Subject-matter  to  which  statute  applies. 

722.  How  statute  may  be  satisfied. 

723.  Company — agent  of  sender. 

724.  Message  delivered  to  company — effect  of  under  statute  of  frauds. 

725.  Telegi-am  delivered  to  addressee — effect  under  statute. 

726.  What  telegram  should  contain. 

727.  Time  of  delivery  with  respect  to  making  of  contracts. 

728.  Written  contracts  adopted.  • 

§  720.  Evidence. — It  is  not  the  intention  to  give  the  history  of 
the  statute  of  frauds,  or  to  discuss  the  laws  in  general  applicable 
thereto,  as  this  is  a  subject  foreign  to  his  work,  but  to  discuss  only 
telegraphic  messages  as  evidence,  in  relation  to  such  statutes.  The 
English  statutes  of  frauds  was  enacted  in  1676,  under  the  title,  "An 
act  for  preventing  of  frauds  and  perjuries,"  ^  and  has  been  adopted, 
in  substance,  in  most,  if  not  all,  the  American  states.  The  fourth 
and  seventeenth  sections  of  this  statute  affect  contracts  of  sale,  the 
former  applying  to  "lands,  tenements,  and  hereditaments,  or  any 
interest  in  or  concerning  them,"  and  the  latter  to  the  sale  of  per- 
sonal property,  or,  in  the  language  of  the  English  statute,  "any 
goods,  wares,  or  merchandise,  tor  the  price  of  ten  pounds  sterling 
or  upwards."  It  is  these  two  sections  which  are  of  special  impor- 
tance in  connection  with  telegraph  messages.^ 

1  29  Car.  Q.  C.  3. 

2  The  English  statute  of  frauds  and  perjuries,  29  Car.  11,  c.  3,  whose  provi- 
sions have  generally  been  adopted  in  the  United  States,  contains  two  sections — 
the  fourth  and  seventeenth — of  especial  importance  in  connection  with  telegraph 
messages.  The  fourth  section  provides,  in  effect,  that  no  action  shall  be 
brought  to  charge  an  executor  or  administrator  upon  any  special  promise  to 
answer  out  of  his  own  estate,  or  to  charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debts,  defaults  or  miscarriage  of  another,  or  to 
charge  any  person  upon  an  agreement  made  in  consideration  of  marriage,  or 
upon  any  contract  or  sale  of  lands,  tenements,  or  hereditaments,  or  any  in- 
terest in  or  concerning  them,  or  upon  any  agreement  that  is  not  to  be  per- 
foi-med  within  the  space  of  one  year  from  the  making  thereof,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing  and  signed  by  the  party  to  be  charged  there- 
with or  some  other  person  thereunto  by  him  lawfully  authorized.  The  seven- 
teenth section  enacts,  in  effect,  that  no  contract  for  the  sale  of  any  goods, 
wares,  or  merchandise,  for  the  price  of  ten  pounds  sterling,  or  upwards,  shall 
be  allowed  to  be  good  unless,  among  other  exceptions,  some  note  or  memoran- 
dum in  writing  of  the  said  bargain  be  made  and  signed  by  the  parties  to  be 
charged  by  such  contract  or  their  agents  thereunto  lawfully  authorized. 


§    722)  THE   STATUTE    OF   FRAUDS  900 

§  721.  Subject-matter  to  which  statute  applies. — Prior  to  the 
enactment  of  the  statute  of  frauds,  all  freehold  estates  in  corporeal 
hereditament  could  be  created  by  livery  of  seisin,  and  all  estates 
less  than  freehold  by  parol.  The  statute  changed  the  law  so  that 
all  such  freehold  estates  created  merely  by  livery  of  seisin,  and  all 
estates  less  than  freehold,  except  leases  for  terms  not  exceeding 
three  years  whereon  a  rent  of  not  less  than  two-thirds  the  full  im- 
proved value  was  reserved,  created  merely  by  parol,  have  the  effect 
only  of  estates  at  will,  unless  they  are  put  in  writing  and  signed 
by  the  grantor.  The  written  instrument  required  by  the  statute 
must  be  a  deed  in  the  case  of  a  freehold  estate,^  but  in  the  case  of 
estates  less  than  freehold,  the  instrument  need  not  be  made  under 
seal ;  *  and  a  written  agreement  for  a  lease  signed  but  not  sealed 
has  been  held  to  amount  to  a  lease  unless  it  is  otherwise  intended 
by  the  parties.^  Where  the  subject-matter  is  concerning  "goods, 
wares,  or  merchandise,''  a  contract  made  in  regard  to  same  "shall 
not  be  allowed  to  be  good"  except  upon  one  of  three  conditions, 
namely:  (1)  The  buyer  shall  accept  part  of  the  goods  so  sold,  and 
actually  receive  the  same ;  (2j  or  give  something  in  earnest  to  bind 
the  bargain,  or  in  part  payment ;  (3)  or  that  some  note  or  memo- 
randum in  writing  of  the  said  bargain  be  made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their  agents  thereunto 
lawfully  authorized.*' 

§  722.  How  statute  may  be  satisfied. — The  statute  may  be  satis- 
fied either  by  a  written  contract  or  by  a  sufficient  memorandum 
evidencing  the  existence  of  an  antecedent  parol  contract.  There  is 
a  distinction  between  the  contract  itself  and  the  "note  or  memo- 
randum" evidencing  its  existence,  and  it  is  only  when  the  contract 
is  oral  that  it  is  necessary  that  there  be  a  written  memorandum. 
When  the  contract  is  oral  and  is  to  be  evidenced  by  a  memorandum, 

3  Jackson  v.  Wood,  12  Johns.  (N.  Y.)  73 ;  Stewart  v.  Clark,  13  Mete.  (Mass.) 
79.    Some  of  the  states  have  abolished  the  requirement  of  a  seal. 

*  Lake  v.  Campbell,  IS  III.  lOG ;  Mayberi-y  v.  Johnson,  15  N.  J.  Law,  IIG ; 
Hill  V.  Woodman,  14  Me.  38 ;  Allen  v.  Jaquish,  21  Wend.  (N.  Y.)  G2S. 

5  Baxter  v.  Brown,  2  W.  Bl.  973;  Goodlittle  v.  Way,  17  R.  735.  See,  also, 
Harrison  v.  Parmer,  76  Ala.  157. 

Contract  not  capable  of  performance  icithin  year — part  performance. — A 
parol  contract  between  a  telephone  company  and  an  electric  light  company 
for  the  use  of  the  poles  of  either  company  by  the  other  for  its  wires  and  ap- 
pliances is  within  the  statute  of  frauds  (Ky.  St.  §  470),  where  there  is  no  in- 
timation that  the  performance  of  the  contract  depends  on  any  contingency 
that  could  take  place  within  a  year,  and  a  contract  is  unenforceable  unless 
there  has  been  part  performance.  East  Tenn.  Tel.  Co.  v.  Paris  Electric  Co., 
156  Ky.  762,  162  S.  W.  530,  Ann.  Cas.  1915C,  543. 

e  Langdell's  Select  Cases  on  Sales,  1032,  1033. 


910 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  T23 


the  latter  must  contain  all  the  material  and  express  terms  of  the 
contract,  and  must  be  signed  by  the  party  to  be  charged,  or  by  a 
person  or  agent  thereunto  lawfully  authorized  by  him/ 

§  723.  Company — agent  of  sender. — With  reference  to  contracts 
entered  into  by  an  agent,  the  principal  will  be  bound  by  any  act 
made  within  the  apparent  limit  of  the  agent's  authority,  without 
regard  to  the  violation  of  any  instructions,  private  in  their  nature, 
which  the  principal  may  have  given  the  agent  as  to  the  manner  of 
executing  his  authority.  Such  is  the  undoubted  rule,  and  is  sus- 
tained by  almost  all  the  authorities.*  The  principal  is  bound  by 
all  the  agent's  acts.  So,  with  respect  to  the  making  of  a  contract 
for  said  principal,  all  acts  done  in  his  behalf  will  be  charged  to  the 
principal.  It  has  been  seen  heretofore  that  contracts  may  be  made 
between  two  persons  by  the  medium  of  the  telegraph,  and  while 
the  telegraph  company  may  be  considered,  in  a  certain  light,  an  in- 
dependent contractor  with  respect  to  said  contract,  yet  it  is  very 
generally  held  that  it  acts  as  agent  for  the  party  employing  its  serv- 
ices, or  the  one  suggesting  these  means  to  consummate  such  con- 
tract. Therefore,  this  being  the  general  rule,  any  act  of  the  com- 
pany in  carrying  out  such  contract  will  be  binding  on  the  sender  or 
the  company's  principal. 

§  724.  Message  delivered  to  company — effect  of  under  statute 
of  frauds. — While  an  oral  message  may  be  delivered  to  a  company 
to  be  transmitted  and  delivered,  yet  the  general  regulations  of  these 
companies  require  the  message  to  be  written  and  signed.  Such 
regulations,  as  has  been  seen,  are  reasonable  and  enforceable.  The 
question  which  presents  itself  under  this  subject  is  whether  a  writ- 
ten message,  concerning  a  contract  and  containing  all  the  material 
and  express  terms  of  the  contract,  is  a  sufticient  memorandum, 
when  delivered  to  the  company  for  transmission,  to  satisfy  the  stat- 
ute of  frauds.     It  has  been  so  held.^    A  memorandum  is  in  the  na- 


7  Langdell's  Select  Cases  on  Sales,  1032,  1033. 

8  Louisville  Coffin  Co.  v.  Stokes,  78  Ala.  372 ;  Liddell  v.  Sahline,  55  Ark.  627, 
17  S.  W.  705 ;  Hamill  v.  Ashley,  11  Colo.  ISO,  17  Pac.  502 ;  Paine  v.  Tillinghost, 
52  Conn.  532 ;  Lattomus  v.  Farmers'  Mut.  F.  Ins.  Co.,  3  Houst.  (Del.)  404 ;  Lake 
Shore,  etc.,  R.  Co.  v.  Foster,  104  Ind.  293,  4  N.  E.  20,  54  Am.  Rep.  319 ;  Aus- 
trian V.  Springer,  94  Mich.  343,  54  N.  W.  50,  34  Am.  St.  Rep.  350 ;  Potter  v. 
Springfield  Milling  Co.,  75  Miss.  532.  25  South.  259;  Gerhardt  v.  Boatman's 
Sav.  Inst.,  38  Mo.  60,  90  Am.  Dec.  407;  Whaley  v.  Duncan,  47  S.  C.  139,  25 
S.  E.  54. 

0  McBlain  v.  Cross,  25  L.  T.  U.  S.  804 ;  Trevor  v.  Wood,  30  N.  Y,  307,  93 
Am.  Dec.  511 ;  Smith  v.  Easton,  54  Md.  138,  39  Am.  Rep.  .358 ;  Watson  v.  Baker, 
71  Tex.  739,  9  S.  W.  867  ;  Little  v.  Dougherty,  11  Colo.  103,  17  Pac.  292  ;  Ex  parte 
Brown,  7  Mo.  App.  487.  In  the  case  of  McBlain  v.  Cross,  above  cited,  B.,  hav- 
ing contracted  with  C,  defendant's  brother,  for  the  sale  of  hay,  brought  an 


§    725)  THE   STATUTE    OF   FRAUDS  911 

ture  of  an  admission  by  the  party  to  be  charged,  and  it  is  not  neces- 
sary, therefore,  for  it  to  be  delivered  to  the  other  party  in  order  for 
the  contract  to  become  effective.^"  The  fact  that  the  telegram  is 
written  in  accordance  to  the  regulations  of  the  company,  does  not 
affect  its  validity  as  a  memorandum.  The  act  of  employing  the 
company,  and,  consequently,  the  act  of  writing  the  message  in  com- 
pliance with  the  regulation  of  the  company,  is  a  voluntary  act,^^ 
and  is  not  an  act  done  under  duress. 

§  725.  Telegram  delivered  to  addressee — effect  under  statute. — 
The  next  question  which  presents  itself  in  considering  this  subject 
is  whether  a  telegram  delivered  by  the  company  to  the  addressee 
satisfies  the  statute,  if  it  contains  the  material  and  express  terms 
of  the  contract  and  the  signature  of  the  sender — the  party  to  be 
charged — written  by  the  company.  If  the  telegraph  company  is 
the  agent  of  the  sender,  which  may  be  the  case,  as  stated  in  a  pre- 
ceding section  and  which  will  be  further  considered,  a  delivery  of 

action  against  defendant  for  not  accepting.  At  the  trial  tlie  judge  admitted 
letters  and  telegrams  signed  by  C,  as  evidence  against  defendant,  and  the 
,1ury  found  for  plaintiff.  Held,  that  there  was  sufficient  evidence  of  the  au- 
thority, and  that  the  two  telegrams,  of  which  one  was  signed  in  C.'s  name,  and 
in  the  other  the  name  of  the  defendant  was  not  mentioned  as  buyer,  together 
constituted  a  sufficient  memorandum  of  the  contract  to  satisfy  the  statute  of 
frauds,  on  the  ground  that  the  defendant  be  treated  as  the  undisclosed  prin- 
cipal of  C,  who  appeared  on  the  telegrams  to  be  liable  as  principal. 

So  also  a  telegram  sent  in  pursuance  of  a  previous  correspondence  by  letter 
may  constitute  "an  unconditional  promise  in  writing  to  accept  a  bill  before  it  is 
drawn,"  and  amounts  to  an  actual  acceptance  under  the  statute,  so  as  to  pre- 
clude the  necessity  of  presentment  for  acceptance  or  payment.  Whilden  v. 
Merchants',  etc.,  Nat.  Bank,  64  Ala.  1,  38  Am.  Rep.  1 ;  Donovan  v.  Schoenhofen 
Brewing  Co.,  92  Mo.  App.  341 ;  Whaley  v.  Hinchman,  22  Mo.  App.  483 ;  Bank  v. 
Oppenheim,  133  App.  Div.  586,  118  N.  Y.  Supp.  297,  insufficient  in  form ;  Tay- 
lor V.  Scott  &  Co.,  178  111.  App.  487,  insufficient ;  Fait  Co.  v.  Anderson,  70  Ark. 
237,  88  S.  W.  90.5,  not  sufficient.  See,  also.  Turner  v.  Provost,  17  Can.  S.  Ct. 
283. 

The  memorandum  is  adequate,  although  the  telegram  is  addressed  to  the 
sender's  agent.  Spangler  v.  Danforth,  65  111.  152  ;  Warfield  v.  Wisconsin  Cran- 
berry Co.,  63  Iowa,  312,  19  N.  W.  224 ;  Everman  v.  Herndon  (Miss.)  11  South. 
652;  Cunningham  v.  Williams,  43  Mo.  App.  629;  Barnett  v.  McCree,  76  Hun, 
610,  27  N.  Y.  Supp.  820 ;  Williamston,  etc.,  R.  Co.  v.  Battle,  66  N.  C.  540 ;  Lee 
V.  Cherry,  85  Tenn.  707,  4  S.  W.  835,  4  Am.  St.  Rep.  800;  Singleton  v.  Hill.  91 
Wis.  57,  64  N.  W.  588,  51  Am.  St.  Rep.  868 ;  Inv.  Co.  v.  Bank,  47  Wash.  .566,  92 
Pac.  380.  But  compare  Jordan  v.  Mahoney,  109  Va.  133,  03  S.  E.  467,  or  a 
third  person;  Moss  v.  Atkinson,  44  Cal.  3;  Nicholson  v.  Dover,  145  N.  C.  IS,  58 
S.  E.  444,  13  L.  R.  A.  (N.  S.)  167 ;  Beckwith  v.  Clark,  188  Fed.  171,  110  C.  C. 
A.  207 ;  Miller  v.  Kansas  City,  etc.,  R.  Co.,  58  Kan.  189,  48  Pac.  8.53 ;  Ilollis  v. 
Burgess,  37  Kan.  487,  15  Pac.  536 ;  Moore  v.  Mountcastle,  61  Mo.  424 ;  Gibson  v. 
Holland,  L.  R.  1,  C.  P.  1,  1  H.  &  R.  1,  11  Jor.  N.  S.  1022,  35  L,  J.  C.  P.  5,  13 
L.  T.  Rep.  N,  S.  293,  14  Wkly.  Rep.  86. 

10  Brown  on  Statute  of  Frauds,  §  354a. 

1 1  Brown,  Ex  parte,  7  Mo.  App.  484. 


912  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  726 

such  telegram  by  it  will  be  a  sufficient  compliance  with  the  statute. 
But,  on  the  other  hand,  if  the  company  is  not  operating  in  the 
capacity  of  agent  for  the  sender,  the  rule  would  be  otherwise.  It  is 
presumed  that  a  telegraph  company  has  written  out  the  telegram 
at  the  place  to  which  it  was  delivered  in  the  exact  words  in  which 
it  was  delivered  to  such  company  for  transmission,  and  when  the 
latter  is  deemed  the  agent  of  the  sender  in  delivering  any,  as  dis- 
tinguished from  certain,  messages,  the  message  delivered,  if  it  con- 
tain the  material  and  express  terms  of  the  contract,  will  satisfy  the 
statute,  although  the  message  has  been  altered  in  its  transmission. 
But  if  the  company  is  only  representing  the  sender  as  agent  in  de- 
livering the  message  which  it  receives  from  him,  the  statute  will 
be  satisfied  so  long  as  the  message  has  not  been  altered,  or  when 
it  conforms  to  the  message  which  the  company  received.  We  shall 
hereafter  speak  more  fully  of  contracts  made  through  the  medium 
of  the  telegraph,  and  how  the  statute  of  frauds  is  afifected  thereby. 
§  726.  What  telegram  should  contain. — Whether  or  not  a  tele- 
gram, delivered  to  or  by  a  telegraph  company,  contains  sufficient 
memoranda  of  a  contract  to  satisfy  the  statute  of  frauds,  must  be 
determined  by  the  law  applicable  to  the  subject  in  general.  Thus, 
generally  speaking,  the  memorandum  should  contain,  in  substance, 
all  the  material  parts  of  the  contract,  including  the  names,  or  a 
description,  of  both  parties;^-  the  subject-matter,  which  must  be 
correctly  stated;"  the  price,  if  actually  agreed  upon  by  the  par- 
ties ;  ^^  the  stipulations  as  to  credit,  and  the  time  and  place  of  pay- 
ment, if  such  there  be ;  ^^  and  any  other  terms  and  conditions  which 

12  Cooper  V.  Smith,  15  East,  103;  Allen  v.  Bennett,  3  Taunt.  169;  Lincoln  v. 
Erie  Preserving  Co.,  132  Mass.  129 ;  McElroy  v.  Seery,  61  Md.  397 ;  Anderson 
V.  Harold,  10  Ohio,  399. 

13  Hazard  v.  Day,  14  Allen  (Mass.)  487,  92  Am.  Dec.  790 ;  May  v.  Ward,  134 
Mass.  127 ;  McElroy  v.  Buck,  35  Mich.  434. 

A  defective  memorandum  of  sale  cannot  be  helped  out  by  a  telegram  from 
one  of  the  parties  with  which  the  other  is  in  no  wise  connected.  J.  K.  Arms- 
by  Co.  V.  Eckerly,  42  Mo.  App.  299. 

So  also  telegrams  between  a  sheriflC  and  a  third  person  are  inadmissible  to 
show  an  agreement  between  a  sheriff  and  a  county  in  relation  to  their  subject- 
matter.    Yavapie  County  v.  O'Niel,  3  Ariz.  363,  29  Pac.  430. 

Telegrams  concerning  the  sale  of  property  are  not  sufficient  memorandum 
under  the  statute,  where  it  is  impossible  to  tell  from  them  exactly  what  prop- 
erty is  intended  to  be  included  and  the  parties  disagree  as  to  what  property 
is  meant.    Breckinridge  v.  Crocker,  78  Cal.  529,  21  Pac.  179. 

14  Smith  V.  Arnold,  5  Mason,  416,  Fed.  Cas.  No.  13,004;  Phelps  v.  Still- 
ings.  60  N.  H.  505;  Soles  v.  Hickman,  20  Pa.  ISO;  O'Xiel  v.  Grain,  67  Mo.  250. 

15  Wright  V.  Weeks,  25  N.  Y.  158;  Norris  v.  Blair,  39  Ind.  90,  10  Am.  Rep. 
135 ;  AVilliams  v.  Robinson,  73  Me.  186,  40  Am.  Rep.  352. 


§   726)  THE    STATUTE    OF   FRAUDS  913 

are  a  part  of  the  contract/^  In  accordance  with  this  rule,  a  tele- 
gram properly  addressed  and  signed,  in  the  following  words,  "You 
may  come  on  at  once  at  a  salary  of  two  thousand  dollars,  condi- 
tional only  upon  satisfactory  discharge  of  business,"  was  held  to 
be  insufficient  as  a  memorandum  to  satisfy  the  statute,  since  it  fixed 
no  time  for  the  continuance  of  the  employment  and  did  not  even 
mention  the  nature  of  the  employment  itself.^'^  Telegrams  which 
are  signed  by  a  person  and  relate  to  a  contract,  but  do  not  state 
its  terms  or  conditions,  are  not  sufficient  to  take  the  contract  out 
of  the  statute,  and  a  defective  memorandum  of  sale  cannot  be  helped 
out  by  a  telegram  from  one  of  the  parties  with  which  the  other  is 
in  no  wise  connected.  So  also  telegrams  between  a  sheriff  and  a 
third  person  are  inadmissible  to  show  an  agreement  between  a 
sheriff  and  a  county  in  relation  to  the  subject-matter.  An  agree- 
ment for  the  purchase  of  land  may  be  made  by  telegrams  or  letters 
and  telegrams  if  they  are  so  connected  by  reference,  express  or 
implied,  showing  on  their  face  the  essentials  of  a  contract  relating 
to  land,^^  but  telegrams  concerning  the  sale  of  lands  are  not  a 
sufficient  memorandum  under  the  statute,  where  it  is  impossible  to 
tell  from  them  exactly  what  property  is  intended  to  be  included, 
and  the  parties  disagree  as  to  what  property  is  meant.^^ 

16  Riley  V.  Farnsworth,  116  Mass.  223;  Oakman  v.  Rogers,  120  Mass.  214. 

17  Palmer  v.  M.  P.  Rolling  Mill  Co.,  32  Mich.  274. 

18  Welsh  V.  Brainerd,  95  Minn.  234,  103  N.  W.  1031 ;  Watson  v.  Baker,  71 
Tex.  746,  9  S.  W.  S67 ;  Underwood  v.  Stack,  15  Wash.  497,  46  Pac.  1031. 

19  A  telegram  signed  by  the  vendee  is  insufficient  as  a  memorandum  under 
the  statute  of  frauds  where  it  does  not  describe,  mention,  or  refer  to  the  sub- 
ject-matter of  the  contract  otherwise  than  by  showing  the  terms  of  payment 
and  directing  the  agent  of  the  vendor  to  draw  up  a  contract  accordingly.  Haz- 
ard V.  Day,  14  Allen  (Mass.)  487,  92  Am.  Dec.  790.  And  where  a  telegram 
asking,  "Will  you  take  $400.00  and  let  them  take  it,  or  will  you  take  it  at  ?13,- 
400.00V"  was  sent  to  one  who  had  a  parol  contract  to  purchase  the  premises  at 
.513,000.00,  and  who  replied  by  telegraph,  "I  will  take  $400.00  and  let  them 
have  the  farm,"  it  was  held  that  he  could  not  recover  the  $400.00  mentioned 
in  the  telegrams  where  the  other  parties  did  not  take  the  premises.  Miller  v. 
Nugent,  12  Ind.  App.  348,  40  N.  E.  282. 

The  telegraph  correspondence  must,  however,  fully  complete  the  transac- 
tion. Thus,  in  Robinson  v.  Weller,  81  Ga.  704,  8  S.  E.  447,  it  was  said:  "It  is 
true  that  a  contract  can  be  made  by  correspondence  through  the  mail  or  by 
telegrams,  as  well  as  when  the  parties  are  together,  and  the  same  rules  will 
apply  in  either  case,  but  in  order  to  make  any  sort  of  contract  the  ofler  of  the 
seller  must  be  accepted  by  the  purchaser  unequivocally,  unconditionally,  and 
without  variance  of  any  sort.  There  must  be  a  mutual  consent  of  the  parties 
thereto,  and  they  must  assent  to  the  same  thing  in  the  same  sense.  An  ab- 
solute acceptance  of  a  proposal,  coupled  with  a  condition,  will  not  be  a  com- 
plete contract,  because  there  does  not  exist  the  requisite  mutual  assent  to  the 
same  thing  in  the  same  sense.  Both  parties  must  assent  to  the  same  thing, 
in  order  to  make  a  binding  contract  between  them.    Applying  these  principals 

Jones  Tel.(2d  Ed.) — 58 


914  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  727 

§  727.     Time  of  delivery  with  respect  to  making  of  contracts. — 

It  is  not  essential  that  the  memorandum  should  be  made  at  the 

to  the  facts  of  this  case,  we  find:  (1)  An  advertisement  in  the  newspaper  by 
Mrs.  Weller  of  a  certain  house  and  lot  for  sale ;  (2)  a  postal  card  addressed  to 
Mrs.  Weller  by  the  plaintiff,  inquiring  as  to  her  price  and  terms ;  (3)  a  letter 
from  Mrs.  Weller,  the  defendant,  stating  her  price  and  terms ;  (4)  a  telegram 
from  the  plaintiff  to  the  defendant  saying,  'Offer  accepted.  Money  ready; 
send  deeds  at  once,'  and  a  letter  of  the  same  date  amplifying  the  telegram,  and 
stating  the  same  thing  in  substance,  as  will  be  seen  by  reading  the  above  cor- 
respondence. It  will  be  observed  from  this  correspondence  that  Robinson,  the 
plaintiff,  resided  in  Rome,  Ga.,  and  'Mrs.  Weller,  the  defendant,  in  Chatta- 
nooga, Tenn.  When,  therefore,  she  wrote  to  Robinson  that  she  would  accept 
$2,000  for  the  property,  one-third  cash,  and  the  balance  on  time,  her  offer 
meant  that  she  would  accept  the  cash  at  her  place  of  residence  in  Chattanooga 
and  that  she  would  make  the  deeds  to  the  purchaser  in  Chattanooga.  That 
was  the  legal  intent  and  purpose  of  her  offer.  She  was  not  compelled  to  make 
the  deeds  and  send  them  to  Rome,  Ga.,  nor  go  to  Rome,  Ga.,  and  when  Robin- 
son wrote  accepting  her  offer,  and  saying  that  money  was  ready  at  Rome  and 
directed  her  to  send  the  deeds  to  him,  it  was  not  a  full  acceptance  of  the  offer 
which  she  had  made,  and  therefore  was  not  a  complete  contract,  and  the 
court  did  not  err  in  non-suiting  the  plaintiff.  The  description  of  the  property 
must  be  sufficiently  definite  to  admit  of  its  identification.  Thus  a  telegraph 
ofl:er  stating,  "I  will  give  you  $2,000.00  for  your  lot,  if  accepted  to-night,"  to 
which  the  addressee  responded,  "Will  accept  your  offer,"  is  too  indefinite  to 
admit  of  parol  evidence  to  identify  the  lot  in  a  suit  for  specific  performance. 
Farthing  v.  Rochelle,  131  N.  C.  563,  43  S.  E.  1.  "The  writing  itself  should  af- 
ford the  means  whereby  the  identification  may  be  made  complete  by  parol  evi- 
dence." Consequently  the  telegram,  "I  will  take  your  house  at  $3,000.00.  An- 
swer," with  reply,  "See  J.  B.  Williams ;  if  not  sold  you  can  have  it,"  is  an  in- 
sufficient description  to  comply  with  the  statute  of  frauds.  Whaley  v.  Hinch- 
man,  22  Mo.  App.  483.  And  where  the  agent  of  the  owner  telegraphed  him, 
"I  am  offered  seventy  thousand  for  balance  of  Merced  town  property,  five  thou- 
sand on  Tuesday  next ;  balance  in  thirty  days.  This  is  in  accordance  to  our 
proposition.  Telegraph  me  at  Fresno  your  answer,"  to  which  he  replied,  "Ac- 
cept the  seventy  thousand  dollars  offered  for  Merced  town  property,"  where- 
upon the  agent  telegraphed  to  the  purchaser,  "Mr.  Crocker  has  telegraphed  me 
as  follows:  'Accept  the  seventy  thousand  dollars  offered  for  the  Merced  town 
property,'  "  the  court  decided  that  the  telegrams  were  an  insufficient  memo- 
randum because  it  could  not  be  ascertained  from  them  who  the  buyer  was  nor 
whose  property  was  the  subject-matter.  Breckinridge  v.  Crocker,  78  Cal.  529, 
21  Pac.  179.  With  respect  to  leases,  it  was  held  in  Hastings  v.  Weber,  142 
Mass.  232,  7  N.  E.  846,  56  Am.  Rep.  671,  that  where  an  agent  sent  a  descrip- 
tion of  a  store  and  the  rental  asked  for  five  years,  to  his  principal,  telegraphed 
him,  "If  basement  included  at  $4,000.00  secure  five  years'  lease,"  the  oral  ac- 
ceiJtance  by  the  landlord  of  the  terms  on  being  handed  the  telegram  by  the 
agent  was  an  insufficient  memorandum  under  the  statute  of  frauds,  since  it 
disclosed  only  instructions  to  the  agent,  and  not  authority  to  make  a  contract. 
But  it  has  been  also  held  that  a  telegram  signed  by  the  tenant  and  sent  to  his 
agent,  in  response  to  an  offer  in  a  letter  by  the  agent,  stating  the  terms  upon 
which  the  landlord  would  make  a  lease  to  which  the  telegram  refers,  is  a  suf- 
ficient memorandum  under  the  statute  of  frauds.  Gaines  v.  McAdam,  79  111. 
App.  201,  Kingsley  v.  Siebrecht,  92  Me.  23,  42  Atl.  249,  69  Am.  St.  Rep.  486. 
Where  all  the  conditions  and  stipulations  for  a  lease  are  embodied  in  letters 
and  telegrams,  it  is  a  sufficient  memorandum,  notwithstanding  that  it  was  con- 


§    727)  THE   STATUTE    OF   FRAUDS  915 

same  time  as  the  contract;^*'  nor  is  it  necessary  that  all  the  terms 
of  the  contract  should  be  noted  at  one  time,  or  in  one  piece  of 
paper;  but  it  will  suffice  if  the  whole  contract  be  in  substance  con- 
tained on  separate  pieces,  and  these  memoranda  make  such  refer- 
ence to  each  other  as  to  show  that  they  are  parts  of  one  whole. -^ 
So,  applying  the  rule  to  telegrams,  it  is  not  necessary  that  they  be 
delivered  at  the  time  the  contract  was  made,  nor  is  it  necessary 
that  all  of  the  facts  should  be  embraced  in  one  message,  but  if  they 
are  made  out  properly  on  different  telegraph  blanks  or  on  several 
letters  and  telegrams  relating  to  the  subject-matter  of  the  con- 
tract ~^  and  signed  by  the  sender,-^  it  is  a  sufficient  compliance  with 
the  statute. 

tomplated  that  a  formal  lease  was  to  be  thereafter  drawn.  Post  v.  Davis,  7 
Kan.  App.  217,  52  Pac.  903. 

20  Bird  V.  Munroe,  66  Me.  347,  22  Am.  Rep.  571. 

21  Peck  V.  Vandemark,  99  N.  Y.  29,  1  N.  E.  41 ;  Jelks  v.  Barrett,  52  Miss.  315 ; 
Fishei-  V.  Kuhn,  54  Miss.  480. 

22  Alabama. — Paris  v.  Johnson,  155  Ala.  403,  46  South.  642. 

California. — Breckinridge  v.  Crocker,  78  Cal.  529,  21  Pac.  179 ;  Elbert  v.  Los 
Angeles  Gas  Co.,  97  Cal.  244,  32  Pac.  9. 

Colorado.— Little  v.  Dougherty,  11  Colo.  103,  17  Pac.  292 ;  Beckwith  v.  Tal- 
bot, 2  Colo.  639. 

Connecticut.— Grant  v.  Mfg.  Co.,  85  Conn.  421,  83  Atl.  212. 

Georf;ia.— Brooks  v.  Miller,  103  Ga.  712,  30  S.  E.  630. 

Indiana. — Jennings  v.  Shertz,  45  Ind.  App.  120,  88  N.  E.  729 ;  Wills  v.  Ross, 
77  Ind.  1,  40  Am.  Rep.  279.  See  Porter  v.  Patterson,  42  Ind.  App.  404,  85  N.  E. 
797. 

Kentucky.— Smith  v.  Theobald,  86  Ky.  141,  5  S.  W.  394,  9  Ky.  Law  Rep.  444. 

Maine. — Weymouth  v.  Goodwin,  105  Me.  512,  75  Atl.  61;  Kingsley  v.  Sie- 
brecht,  92  Me.  23,  42  Atl.  249,  09  Am.  St.  Rep.  486. 

Massachusetts. — Williams  v.  Smith,  161  Mass.  248,  37  N.  E.  455. 

.1/i/i»cso^a.— Welsh  v.  Brainard,  95  Minn.  234,  103  N.  W.  1031 ;  Sanborn  v. 
Nockin,  20  Minn.  178  (Gil.  163) ;  Olson  v.  Sharpless,  53  Minn.  91,  55  N.  W.  125. 
See  O'Donnell  v.  News  Co.,  119  Minn.  378,  138  N.  W.  677. 

Missouri. — Leesley  v.  Fruit  Co.,  162  Mo.  App.  195,  144  S.  W.  138 ;  Cunning- 
ham V.  Williams,  43  Mo.  App.  629;  Greeley-Burnham  Gro.  Co.  v.  Capen,  23 
Mo.  App.  301. 

Nebraska. — Heenan  v.  Parmele,  80  Neb.  514,  118  N.  W.  324;  Vindquest  v. 
Perky,  16  Neb.  284,  20  N.  W.  301. 

New  Hampshire. — Abbott  v.  Shepherd,  48  N.  H.  14. 

Neiv  Jersey. — Wheaton  v.  Collins  (Ch.)  84  Atl.  271. 

New  York. — Peck  v.  Vandermark,  33  Hun,  214,  affirmed  in  99  N.  T.  29,  1  N. 
E.  41 ;  Poel  v.  Brunswick,  etc.,  Co.,  78  Misc.  Rep.  311,  139  N.  Y.  Supp.  602. 

OAia/ioma.— Atwood  v.  Rose,  32  Okl.  355,  122  Pac.  929. 

South  Carolina.— Allen  v.  Burnett,  92  S.  C.  95,  75  S.  E.  368;  Neufville  V. 
Stuart,  1  Hill,  Eq.  159. 

Texas.— Gulf,  etc.,  R.  Co.  v.  Settegast,  79  Tex.  2.56,  15  S.  W.  228 ;  Kearby  v. 
Hopkins,  14  Tex.  Civ.  App.  166,  36  S.  W.  506. 

United  States.— Bihh  v.  Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  37  L.  Ed.  819 ; 
Ryan  v.  U.  S.,  136  U.  S.  68,  10  Sup.  Ct.  913,  34  L.  Ed.  447,  Lindsey  v.  Hum- 

2  3  See  note  23  on  following  page. 


^16  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  728 

§  728.  Written  contracts  adopted. — The  statute  of  frauds  is  not 
affected  by  the  parties  mutually  accepting  a  written  contract,  as 
this  is  considered,  under  such  statute,  a  contract  in  writing.  Such 
contract  cannot  be  varied  by  oral  testimony,  unless  it  was  created 
by  both  written  and  oral  communication.  In  the  latter  instance,  it 
is  clear  that  the  parties  did  not  intend  to  create  the  contract  by  their 
mutual  adoption,^*  and  in  such  cases  oral  testimony  should  be  ad- 
missible to  prove  the  intent  of  the  parties.  In  accordance  with 
this  rule,  oral  testimony  of  the  terms  of  a  contract  to  let  a  canal 
boat  was  admitted,  although  the  message  which  finally  completed 
the  contract  was  in  the  following  words :  "You  may  have  barge 
Globe  for  $400,  until  October  1.  Rent  payable  half  1st  July,  and 
half  1st  October."  ^^  A  message  of  this  description  is  not  sufficient 
as  a  memorandum  to  satisfy  the  statute  and  does  not  contain  the 
terms  of  the  oral  contract;  and  oral  testimony  should  be  admissible 
in  such  instances  to  show  the  meaning  of  the  written  communica- 
tion.^^^^ 

brecht  (C.  C.)  162  Fed.  548 ;  Beckwith  v.  Clark,  188  Fed.  171,  110  C.  C.  A.  207 ; 
Laud,  etc.,  Co.  v.  Inv.  Co.  (D.  C.)  201  Fed.  752.    See,  also,  §  747. 

23  A  telegram  signed  by  the  party  to  be  charged,  or  his  agent,  is  a  memoran- 
dum in  writing  within  the  statute  of  frauds.  Watson  v.  Baker,  71  Tex.  739, 
9  S.  W.  867.  A  telegram  accepting  an  offer  by  telegram  to  sell,  together  with 
a  letter  of  the  same  date  signed  by  the  same  party  and  to  the  same  effect,  af- 
fords sufficient  evidence  of  the  suliscription  by  the  party  to  take  the  case  out  of 
the  statute  of  frauds.    Trevor  v.  Wood,  36  N.  Y.  307,  93  Am.  Dec.  511. 

24  Beach  v.  R.  &  D.  B.  Rd.  Co.,  37  N.  Y.  457. 
2  5  Beach  v.  R.  &  D.  B.  Rd.  Co.,  37  N.  Y.  457. 
26  McElroy  v.  Buck,  35  Mich.  434. 

In  deciding  whether  several  telegrams  constitute  a  contract  within  the  stat- 
ute of  frauds,  it  was  said  in  Brewer  v.  Horst  &  Lachmund  Co.,  127  Cal.  643, 
60  Pac.  418,  50  L.  R.  A.  240,  that:  "The  court  is  permitted  to  interpret  the 
memorandum  (consisting  of  the  two  telegrams)  by  the  light  of  all  circum- 
stances under  which  it  was  made,  and  if,  when  the  court  is  put  into  posses- 
sion of  all  knowledge  which  the  parties  to  the  transaction  made  at  the  time,  it 
can  be  plainly  seen  from  the  memorandum  who  parties  to  the  contract  were, 
what  the  subject  of  the  contract  was,  and  what  were  its  terms,  then  the  court 
should  not  hesitate  to  hold  the  memorandum  sufficient.  Oral  evidence  may 
be  received  to  show  in  what  sense  figures  or  abbreviations  were  used ;  and 
their  meaning  may  be  explained  as  it  was  understood  between  the  parties. 
Mann  v.  Higgins,  S3  Cal.  66,  23  Pac.  206 ;  Berry  v.  Kolwalsky,  95  Cal.  134,  30 
Pac.  202,  29  Am.  St.  Rep.  101 ;  Callahan  v.  Stanley,  57  Cal.  476.  Also:  'Parol 
evidence  is  always  admissible  to  explain  the  surrounding  circumstances,  and 
situation  and  relations  of  the  parties  at  and  immediately  before  the  execution 
of  the  contract,  in  order  to  connect  the  description  with  the  only  thing  intend- 
ed, and  thereby  to  identify  the  subject-matter  and  to  explain  the  terms  and 
phrases  used  in  a  local  or  special  sense.'  Preble  v.  Abrahams,  88  Cal.  245,  26 
Pac.  99,  22  Am.  St.  Rep.  301 ;  Towle  v.  Carmelo,  etc.,  Co.,  99  Cal.  397,  33  Pac. 
1126." 


8    730)  PRIVILEGED  COMMUNICATIONS  917 

CHAPTER  XXIX 
TELEGRAPH  MESSAGES  AS  PRIVILEGED  COMMUNICATIONS 

§  729.  Introduction. 

730.  Same  continued— in  hands  of  telegraph  companies. 

731.  Postal  law  not  applicable  to  telegraph  messages. 

732.  Same  continued— would  assist  in  illegal  purposes. 

733.  Statutes  forbidding  disclosure  of  telegrams. 

734.  Same  continued— not  protected  by  postal  laws. 

735.  When  may  be  privileged  communications. 

736.  Steps  to  obtain  telegrams— in  general. 

737.  Same  continued— how  further  obtained— court  inspection. 
73S.  Rule  for  describing  message  in  writ. 

739.  Same  continued— illustrations— valid  services. 

740.  Same  continued — when  invalid. 

§  729.  Introduction.— Having  treated,  in  preceding  chapters, 
of  the  manner  of  proving  the  contents  of  a  telegraphic  message, 
and  when  such  satisfies  the  statute  of  frauds,  we  shall  now  speak 
of  such  as  privileged  communications.  In  discussing  the  subject, 
we  shall  attempt  to  treat  it  under  two  different  views  with  respect 
to  the  person  from  whom  a  divulgence  of  the  message  is  sought; 
that  is,  whether  the  message  is  in  the  hands  of  the  sender  or  ad- 
dressee, or  whether  it  is  in  the  hands  of  the  company.  With 
respect  to  the  first  of  these — whether  a  message  in  the  hands  of  the 
sender  or  addressee  is  privileged  communication — we  shall  be  very 
brief,  since  this  question  depends  entirely  upon  the  laws  relating 
to  privileged  communications  in  general,  and  the  fact  that  the 
communication  was  made  by  telegraph  instead  of  some  other  way 
does  not  change  the  rule.  The  mode  of  communication  has  never 
been  held  to  determine  the  question  of  privilege. 

§  730.  Same  continued — in  hands  of  telegraph  companies. — It 
has  been  a  very  mooted  question  whether  a  message  in  the  hands 
of  the  telegraph  company  was  a  privileged  communication.  It  was 
held  in  England,  before  the  government  got  control  of  these  com- 
panies, that  it  was  not;  ^  since  that  time  the  earlier  cases  held  that 
they  were  privileged  communications,"  but  the  latter  decisions  hold 
them  not  to  be  privileged.^     This  question  has  been  more  thor- 

1  The  Coventry  Case,  1  O'M.  &  H.  97,  104 ;  The  Bridgewater  Case,  1  O'M. 
&  H.  112. 

2  The  Tampston  Case,  2  O'M.  &  H.  G6 ;  The  Stroud  Case,  2  O'M.  &  H.  107, 
110. 

3  The  Bolton  Case,  2  O'M.  &  H.  13S;  The  Horwich  Case,  3  O'M.  &  H.  61,  62; 
Tomline  v.  Tyler,  44  L.  T.  N.  S.  187. 


918  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  731 

oughly  discussed  in  the  courts  of  our  country,  and  it  has  been  very 
generally  held  that  such  communications  were  not  privileged.* 
Those  who  urge  that  the  messages,  in  the  hands  of  the  telegraph 
company,  are  privileged  communications,  do  not  attempt  to  support 
their  reasons  upon  the  relationship  of  the  parties,  or  the  subject- 
matter  of  the  messages,  or  upon  the  confidential  nature  of  the  com- 
munication. They  base  their  reasons  either  upon  the  ground  of 
public  policy  which  sustain  those  legal  statutes  of  the  United 
States,  which,  in  effect,  give  inviolability  to  postal  communications, 
or  upon  particular  statutes  giving  inviolability  to  telegraph  mes- 
sages in  the  hands  of  telegraph  companies.  We  shall  treat  these 
briefly  in  separate  sections. 

§  731.  Postal  law  not  applicable  to  telegraph  messages. — Able 
writers  have  taken  the  position  that  the  law  which  protects  the 
contents  of  communications  made  through  the  United  States  mail 
should  apply  to  commlunications  made  by  the  medium  of  teleg- 
raphy, as  the  communications  made  by  the  latter  means  were 
oftener  as  great  in  importance  as  those  sent  by  mail.^  Granting 
this  to  be  the  case,  it  is  a  question  to  be  settled  by  the  legislative 
and  not  by  the  judicial  branch  of  the  government.*'     As  seen,  the 

4  Woods  V.  Miller,  55  Iowa,  168,  7  N.  W.  484,  39  Am.  Rep.  170 ;  State  v. 
Litchfield,  58  Me.  267;  Ex  parte  Brown,  72  Mo.  83,  37  Am.  Rep.  428;  Id., 
7  Mo.  App.  484;  People  v.  Webb  (Sup.)  5  N.  T.  Supp.  855;  Henisler  v.  Freed- 
man,  2  Pars.  Eq.  Cas.  (Pa.)  274;  Ex  parte  Gould,  60  Tex.  Cr.  R.  442,  132 
S.  W.  364,  31  L.  R.  A.  (N.  S.)  835 ;  Nat.  Bank  v.  Nat.  L.  Bank,  7  W.  Va.  544 ; 
In  re  Storror  (D.  C.)  63  Fed.  564 ;  U.  S.  v.  Hunter  (D.  C.)  15  Fed.  712 ;  U.  S. 
V.  Babcock,  3  Dill.  .566,  Fed.  Cas.  No.  14,484 ;  In  re  Smith,  L.  R.  7  Ir.  286 ; 
Tomline  v.  Tyler,  44  L.  T.  Rep.  (N.  S.)  187 ;  Re  Dwight,  15  Ont.  148 ;  Leslie 
V.  Hervey,  15  L.  C.  Jur.  9. 

5  In  18  Am.  L.  Reg.  65  et  seq.,  Mr.  Cooley  discusses  the  subject  and  con- 
tends for  a  rule  opposed  to  that  of  the  text.  He  announces,  in  conclusion, 
that  the  doctrine  that  telegraph  authorities  may  be  required  by  legal  process 
to  produce  private  messages  upon  the  application  of  third  persons  is  objected 
to  on  the  following  grounds : 

"1.  That  it  defeats  the  policy  of  the  law,  which  invites  free  communica- 
tion, and  to  the  extent  that  it  may  discourage  correspondence,  it  operates  as 
a  restraint  upon  industry  and  enterprise,  and,  what  is  of  equal  importance, 
upon  intimate  social  and  family  correspondence. 

"2.  It  violates  the  confidence  which  the  law  undertakes  to  render  secure^ 
and  makes  the  promise  of  the  law  a  deception. 

"3.  It  seeks  to  reach  a  species  of  evidence  which,  from  the  very  course  of 
the  business,  parties  are  interested  to  render  blind  and  misleading,  and  which; 
therefore,  must  often  present  us  with  error  in  the  guise  of  truth,  under  cir- 
cumstances which  precludes  a  discovery  of  the  deception. 

6  In  Ex  parte  Brown,  72  Mo.  91,  37  Am.  Rep.  426,  the  court  said :  "The 
fact  that  railroad  trains  orders  are  generally  communicated  by  telegraph, 
that  a  vast  amount  of  trade  and  trafiic  is  transacted  through  this  medium, 
that  it  has  become  of  almost  equal  importance  in  the  commerce  of  this  coun- 
try with  the  postal  system,  and  that  in  a  business  sense  men  are  compelled 


§    732)  PRIVILEGED   COMMUNICATIONS  919 

government  has  control  of  the  postal  system,  and,  for  this  reason, 
it  has  legislated  upon  the  subject,  and  it  is  not,  therefore,  an  as- 
sumption of  a  legislative  power  for  the  courts  to  consider  questions 
arising  under  this  subject;  but  it  would  be  if  they  should  consider 
a  subject  not  embraced  in  the  postal  laws.  There  is  also  a  differ- 
ence in  the  amount  of  information  derived  from  the  communica- 
tions sent  by  these  two  instrumentalities  of  news  communicators, 
and  this  should  be  a  reason  for  not  permitting  communications  sent 
by  telegraph  to  be  protected  by  the  postal  laws.  All  the  informa- 
tion obtained  from  the  contents  of  a  communication  sent  by  mail  is 
such  as  may  be  seen  from  the  wrapper  or  envelope,  while,  on  the 
other  hand,  a  telegraph  company  acquires  full  knowledge  of  the 
contents  of  messages  intrusted  to  it  fer  transmission.  If  a  court 
desires  to  obtain  information  of  certain  communications  sent  by 
telegraph,  it  may  secure  this  from  the  company  without  exposing 
other  communications,  but  the  same  information  could  not  be  ob- 
tained from  the  United  States  mail  without  divulging,  perhaps, 
many  other  communications  whose  secrecy,  immaterial  for  any 
purposes  of  justice,  might  be  of  the  utmost  importance  to  the  par- 
ties. 

§  732.  Same  continued — would  assist  in  illegal  purposes. — As 
we  all  know,  and  as  it  has  often  been  stated  at  other  places  in  this 
work,  telegraph  companies  have  become  great  factors  in  the  com- 
mercial world,  and  the  news  transmitted  by  means  of  those  instru- 
mentalities concern  matters  of  almost  every  description.  It  is  the 
quickest  way  of  accomplishing  business  transactions  at  distant 
points.  If,  then,  communications  sent  by  means  of  telegraphy  were 
allowed  to  be  privileged  communications,  many  criminal  acts  would 
be  consummated  by  means  of  these  companies.  The  criminal 
would  communicate  the  news  concerning  his  crime,  knowing  at  the 
time  that  the  company  could  not  divulge  the  same.^  Of  course, 
the  company  could  refuge,  as  has  been  seen,  to  transmit  news  con- 
cerning illegal  purposes,  but  it  is  not  every  time  that  the  company 

to  communicate  by  telegraph,  are  for  the  consideration  of  the  legislative 
branch  of  the  government  in  determining  the  propriety  of  placing  telegraph 
communications  on  the  same  footing  with  correspondence  by  mail,  or  declar- 
ing them  privileged;  but  the  amiunciation  of  such  a  doctrine  by  the  court 
would  be  an  assumption  of  power  which  belongs  to  the  legislative  depart- 
ment." 

7  In  State  v.  Litchfield,  58  Me.  269,  the  court  said :  "Nor  can  telegraphic 
communications  be  deemed  any  more  confidential  than  any  other  communica- 
tions. They  are  not  to  be  protected  to  aid  the  robber  or  assassin  in  the  con- 
summation of  their  felonies,  or  to  facilitate  their  escape  after  the  crime  has 
been  committed.  Telegraphic  companies  cannot  rightfully  claim  that  the 
messages  of  rogues  and  criminals,  which  they  may  innocently  or  ignorantly 


920  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  733 

knows  of  the  illegal  nature  of  the  communication.  While  the  same 
criminal  object  may  be  accomplished  by  communications  through 
the  mail,  yet  other  secrets  and  communications  would  be  divulged, 
as  stated  elsewhere,  if  the  courts  should  attempt  to  obtain  the  in- 
formation concerning  this  particular  charge  from  mail  matters. 
This  view,  however,  has  been  assailed  by  Mr.  Cooley  in  a  very  able 
discussion  on  the  subject.^ 

§  733.  Statutes  forbidding  disclosure  of  telegrams. — There  are 
statutes  in  some  of  the  states  which  forbid,  under  penalty,  the  dis- 
closure of  telegrams  by  telegraph  companies.^  It  seems,  however, 
from  a  perusal  of  most  of  the  statutes  on  this  subject,  that  there 
are  few  which  prohibit  the  disclosure  of  the  contents  of  telegrams 
while  in  the  hands  of  the  telegraph  company.  While  there  is  a 
difference  between  some  of  these  statutes,  yet  there  is  a  similarity 
in  them  all ;  and,  for  the  reason  that  there  is  a  difference  in  some 
of  them  in  some  respect,  it  would  be  difficult  to  lay  down  a  rule 
which  would  be  applicable  to  all.  So  we  would  therefore  suggest 
that  the  statute  under  which  the  cause  arises  be  consulted.  In 
some  of  these  the  provision  of  the  statute  is  against  a  disclosure  of 
the  contents  of  such  telegrams,  except  to  a  court  of  justice.  In  a 
great  number  of  them  the  provision  is  against  a  willful  or  intentional 
or  an  unlawful  disclosure  of  the  contents  of  such  telegrams,  and 
the  penalty  is  generally  imposed  on  the  person  and  not  the  company 
making  the  disclosure.  In  others  the  provision  stands  unqualified. 
It  will  be  seen  from  a  further  perusal  of  these  statutes  that  none  of 
the  provisions  therein  prohibit  the  company  from  disclosing  the 
contents  of  such  telegrams  when  legally  summoned  for  that  purpose 
into  a  court  of  justice.  The  first-mentioned  statutes  provided  that 
they  should  not  be  disclosed  except  to  a  court  of  justice;  this  fact, 
then,   does  away  with  the  question  of  privileged  communication. 

transmit,  should  be  withheld  whenever  the  cause  of  justice  renders  their 
production  necessary." 

In  Henisler  v.  Freedman,  2  Pars.  Eq.  Cas.  (Pa.)  274,  it  is  said  in  ordering 
the  production  of  a  telegram :  "The  telegraph  may  he  used  with  the  most 
absolute  security  for  purposes  destructive  to  the  well-being  of  society,  a  state 
of  things  rendering  its  usefulness  at  least  questionable.  The  correspondence 
of  the  traitor,  the  murderer,  the  robber  and  the  swindler,  by  means  of  which 
their  crimes  and  frauds  could  be  the  more  readily  accomplished  and  their  de- 
tection and  punishment  avoided,  would  become  things  so  sacred  that  they 
could  never  become  accessible  to  public  justice,  however  deep  might  be  the 
public  interest  involved  in  their  production." 

8  18  Am.  L.  Reg.  72,  Cooley's  Const.  Lim.  (Cth  Ed.)  371,  note.  See  Stroud 
Election  cases  to  O'M.  &  11.  107,  112.     But  see  Wig.  on  Ev.  vol.  4,  p.  .3191. 

9  Code  of  Tenn.  1896,  §§  1837,  1838 ;  Ann.  Code  Miss.  1S92,  §  1301 ;  Law.s 
N.  C.  18S9,  c.  41,  p.  61;  Pub.  Acts  Conn.  1889,  c.  30,  p.  IS;  Wisconsin  Rev. 
Stat.  1878,  §  4557 ;    Iowa  Code  1886,  §  1328.     See  §  220. 


§    735)  PRIVILEGED   COMMUNICATIONS  921 

Where  a  telegraph  company  discloses  the  contents  of  a  telegram 
in  a  court,  in  obedience  to  a  subpoena  duces  tecum,  this  would  be  a 
lawful  and  compulsory  disclosure,  and  not  an  intentional,  willful  or 
unlawful  disclosure  as  meant  in  the  second  mentioned  statute. 
The  same  rule  would  apply  when  the  provisions  of  the  statute  stand 
unqualified,  since  in  the  construction  of  such  enactment,  an  excep- 
tion in  favor  of  due  legal  process  is  always  implied. ^"^ 

§  734.  Same  continued — not  protected  by  postal  laws. — It  has 
been  said  in  a  previous  section  that  the  contents  of  messages  in  the 
hands  of  telegraph  companies  were  not,  in  the  absence  of  statutes 
to  that  effect,  protected  under  the  principle  of  public  policy  similar 
to  that  which  exists  in  favor  of  letters  sent  through  the  mail.  While 
there  is  a  difference  of  opinion  on  the  subject,  the  better  view  is  that 
these  statutory  provisions  do  not  change  the  rule.  "There  is  no 
such  analogy  between  the  transmission  of  communications  by  mail 
and  their  transmission  by  telegraph  as  would  justify  the  application 
to  the  latter  of  the  principles  which  obtain  in  respect  to  the  former ; 
and  certainly  penal  statutes  relating  to  the  one  cannot  by  the  courts 
be  declared  applicable  to  the  other."  ^^ 

§  735.  When  may  be  privileged  communications. — The  question 
which  next  presents  itself  is.  Is  a  telegram  in  the  hands  of  the  tele- 
graph company  ever  a  privileged  communication?  It  is  very  evi- 
dent that  a  message  which  is  not  a  privileged  communication  in 
the  hands  of  the  parties  to  it  is  not  a  privileged  communication  in 
the  hands  of  a  telegraph  company ;  ^^  but  where  a  message  is  a 
privileged  communication  in  the  hands  of  the  parties  to  it,  the 
question  is  not  quite  so  clear.  In  other  words,  communications 
between  husband  and  wife,  attorney  and  client,  and  physician  and 
patient  are  privileged  communications  while  such  remain  undis- 
closed ;  but  as  soon  as  there  is  a  disclosure  of  such  communications 
to  a  third  person,  the  latter  is  under  no  obligation,  with  respect  to 
the  privilege  accorded  under  this  rule  of  law,  to  retain  such.  Then, 
when  a  disclosure  of  such  a  communication  is  made  to  a  telegraph 
company  for  transmission,  does  such  a  disclosure  fall  under  dis- 
closures made  to  a  third  person  as  above  stated?  It  very  clearly 
does  not.    There  is  an  exception  to  the  above  rule,  and  it  is  under 

10  Brown,   Ex  parte,  7  Mo.  App.  484. 

11  Ex  parte  Brown,  72  Mo.  91,  37  Am.  Rep.  426;  Ex  parte  Brown.  7  Mo. 
App.  484;  Woods  v.  Miller.  55  loAva,  168,  7  N.  W.  484,  .39  Am.  Rep.  170;  Com. 
V.  Jeffries,  7  Allen  (Mass.)  548,  S3  Am.  Dec.  712 ;  Henisler  v.  Freedman,  2 
Pars.  Eq.  Cas.  (Pa.)  274;  Nat.  Bank  v.  Nat.  Bank,  7  W.  Va.  54G;  In  re 
Storror  (D.  C.)  G3  Fed.  564.  See,  al«o,  U.  S.  v.  Hunter  (D.  C.)  15  Fed.  712 ; 
U.  S.  V.  Babcock.  3  Dill.  566,  Fed.  Cas.  No.  14,484. 

12  Leslie  v.  Harvey,  15  L.  C.  Jur,  9, 


922  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  736 

this  that  the  question  can  be  negatively  answered.  Privileged 
communications  do  not  lose  their  privilege  in  the  hand  of  another 
who  was  informed  of  such  merely  as  a  necessary  means  of  effecting 
them.  Thus  a  privileged  communication  between  attorney  and 
client  does  not  lose  its  privilege  in  the  hands  of  an  interpreter  whose 
aid  was  necessary  to  effect  it/^  and  it  is  under  this  exception  that  a 
privileged  communication  in  the  hands  of  a  telegraph  company,, 
simply  as  a  means  of  effecting  its  purpose,  is  a  privileged  communi- 
cation, and  cannot  therefore  be  disclosed.^* 

§  736.  Steps  to  obtain  telegrams — in  general. — Having  consid- 
ered the  question  whether  telegrams  in  the  hands  of  telegraph  com- 
panies are  privileged  communications,  and  showing  that  they  are 
not  so  considered,  we  shall  now  proceed  to  discuss  the  subject  as  to 
how  they  may  be  obtained  from  these  companies  in  order  that  their 
contents  may  be  disclosed  in  a  court  of  justice.  There  have  been 
different  methods  pursued  to  obtain  private  writings  or  documents 
which  are  in  the  hands  of  others,  for  the  purpose  of  producing  them 
in  courts  as  material  evidence  of  an  issue  involved.  In  equity,  it 
has  been  held  that  a  bill  of  discovery  was  the  proper  method  to 
obtain  these  writings;  and  at  common  law  the  plaintiff  in  a  case 
could  obtain  an  order  to  inspect  the  private  documents  in  the  hands 
of  another  for  the  purpose  of  preparing  his  pleadings. ^'^  He  could 
also,  under  the  common-law  procedure,  serve  notice  on  the  person 
in  whose  possession  the  documents  were,  to  present  such  in  court. 
Yet  this  method  would  not  compel  the  person  to  protect  such  docu- 
ments, but  would  only  lay  a  ground  for  secondary  evidence.  The 
general  and  most  common  method  pursued,  where  it  is  desired  that 
the  document  shall  be  produced  in  court  as  evidence  in  the  case  at 
issue,  is  by  summoning  the  person  in  whose  possession  the  docu- 
ments are,  to  come  into  court  and  bring  such  documents  particu- 
larly described.  The  process  is  most  generally  a  subpoena  duces 
tecum.  W^here  the  documentary  evidence  is  in  the  hands  of  one  of 
the  parties  to  the  suit,  whether  such  party  is  a  telegraph  company 
or  some  individual,  the  description  of  such  document  offers  no 
peculiarity  in  their  application  to  telegraph  messages ;  but  if  such 
person,  possessing  these  documents,  is  not  a  party  to  the  suit  and 
is  compelled  under  a  subpoena  duces  tecum  to  produce  such  in  court, 
there  is  a  peculiarity  in  its  practical  application  to  telegraph  mes- 
sages in  the  hands  of  telegraph  companies.     Under  the  first  kind, 

13  Bemberry  v.  Bemberry,  2  Beor.  173;    1  Greenl.  on  Ev.  §  239. 
1*  2  Br.  Purd.  Dig.  §§  2,  3. 
15  Wharton  on  Ev.  §  742. 


§    737)  PRIVILEGED   COMMUNICATIONS  923 

the  description  of  the  document  in  the  subpoena  duces  tecum  must 
be  made  with  reasonable  certainty  but  no  greater  degree  of  partic- 
ularity will  be  required  than  is  practicable  under  all  the  circum- 
stances.^® Under  the  latter  rule  it  is  different.  Telegraph  com- 
panies are  in  possession  of  innumerable  documents  and  messages, 
and  in  order  that  matters  irrelevant  to  the  point  at  issue  shall  not 
be  disclosed,  the  subpoena  duces  tectun  should  describe  the  message 
desired  with  the  greatest  degree  of  certainty. 

§  737.  Same  continued — how  further  obtained — court  inspec- 
tion.— To  obtain  documents  in  evidence,  under  a  subpoena  duces 
tecum,  a  description,  if  possible,  of  such  document  should  be  made 
with  such  reasonable  certainty  as  will  not  necessitate  the  produc- 
tion of  other  documents  in  court  not  relevant  to  the  matter  at  issue. 
This  often  becomes  a  difficult  matter,  especially  with  respect  to 
telegrams  in  the  hands  of  telegraph  companies.  As  said,  a  telegram 
in  the  hands  of  the  parties  to  it  is  as  much  their  private  writings 
as  letters  or  other  similar  private  documents ;  and  because  they  are 
in  the  hands  of  the  companies  for  transmission  does  not  cause  the 
privacies  of  these  to  be  lost,  and  they  can  only  be  obtained  by  a 
proper  legal  process.  They  must  therefore  be  relevant  to  the  mat- 
ter at  issue  before  they  can  be  obtained  under  a  subpoena  duces 
tecum.  Documents  in  the  hands  of  private  persons  or  corporations 
may  not  be  so  difficult  of  description,  but  the  number  of  telegrams 
in  the  hands  of  telegraph  companies  are  generally  so  very  numerous 
that  a  rule  describing  the  certainty  with  which  the  documents  in 
the  hands  of  the  first  kind  would  doubtless  be  so  comprehensive  as 
to  embrace  many  messages  which  would  be  irrelevent  to  the  matter 
at  issue ;  so  the  rule  in  this  respect  should  therefore  be  more  spe- 
cific. It  is  true,  as  stated,  that  it  is  difficult  to  describe  the  docu- 
ments or  telegrams  in  the  hands  of  telegraph  companies  with  such 
accuracy  every  time  as  to  prevent  the  production  of  some  which 
are  irrelevant,  but  the  greatest  degree  of  accuracy  under  the  cir- 
cumstances should  be  made ;  and  if  there  should  be  some  such  pro- 
duced with  those  relevant  to  the  issue,  the  court,  on  inspection  of 
same,  should  not  admit  their  disclosure  in  evidence.^^ 

16  u.  S.  V.  Babcock,  3  Dill.  5GG,  Fed.  Cas.  No.  14,484;  Lee  v,  Augas  L.  R. 
2  Eq.  59 ;    Morris  v.  Hermen,  1  C.  &  M.  29 ;    41  E.  C.  L.  22. 

17  In  Ex  parte  Brown,  72  Mo.  83,  37  Am.  Rep.  426.  A  subpoona  duces  tecum 
was  issued  by  the  clerk  of  the  St.  Louis  Criminal  Court  commanding  the  peti- 
tioner to  appear  before  the  grand  jury  to  testify  in  a  certain  matter  pending 
before  said  intpiest,  and  then  and  there  produce  any  or  all  telegraphic 
despatches,  or  copies  of  the  same,  then  in  the  office  of  the  "Western  Union  Tele- 
graph Company  at  St.  Louis,  of  which  petitioner  was  manager,  these  des- 
patches being  between  certain  parties  therein  mentioned.     Brown  appeared 


924  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  738 

§  738.  Rule  for  describing  message  in  writ. — This  question  is  a 
matter  of  such  great  difficulty  of  comprehension  that  the  courts  are 
not  at  all  harmonious  in  their  opinions,  and  it  has  theretofore  be- 
come almost  impossible  to  lay  down  a  fixed  rule  which  would  be 
applicable  in  every  particular  case,  but  each  case  must  be  consid- 
ered somewhat  alone.  In  nearly  every  case  where  the  party  who 
has  the  writ  issued  cannot  specify  with  accuracy  messages  relevant 
to  the  matter  at  issue,  yet  he  generally  knows  the  names  of  the 
parties  to  the  messages,  the  places  from  and  to  which  they  are  sent, 
the  subject-matter  about  which  they  have  reference,  and  the  time 
of  sending.  If,  then,  these  writs  contain  with  reasonable  certainty 
these  essential  facts,  the  company  will  have  sufficient  notice  as  to 
what  messages  are  desired,  and  can,  therefore,  be  compelled  to 
produce  such  in  a  court  of  justice.  In  accordance  with  this  rule, 
the  following  illustrated  cases  may  tend  to  further  show  when  the 
specifications  contained  in  these  writs  are  valid  and  when  invalid. 

§  739.  Same  continued — illustrations — valid  services. — A  writ 
of  duces  tecum  served  upon  a  telegraph  company,  containing  the 

before  tlie  grand  jury,  but  deciined  to  produce  the  messages,  and  that  court, 
invoking  a  provision  of  ttieir  Constitution  witli  regard  to  search  and  seizure, 
lield  tliat  tbe  party  was  not  in  contempt,  and  tliat  the  District  Court  had  no 
power  to  punish  him  for  refusing  to  deliver  the  messages.  The  court  said: 
"The  section  declares  that  the  people  ought  to  be  secure,  in  their  papers,  from 
unreasonable  searches,  and  whether  a  subpoena  duces  tecum  for  papers,  or 
search  warrant  for  chattels,  be  issued,  the  spirit  of  that  section  demands 
that,  while  in  the  latter  case  there  must  be  probable  cause  supported  by  oath, 
or  affirmation,  with  a  description  in  the  warrant  of  the  place  to  be  searched, 
or  the  thing  to  be  searched  for,  in  the  other  it  shall,  at  least,  give  a  reason- 
ably accurate  description  of  the  paper  wanted,  either  by  its  date,  title,  sub- 
stance, or  the  subject  it  relates  to,  and  that  it  shall  be  shown  to  the  court,  or 
authority  issuing  the  process,  that  there  is  a  cause  pending  in  a  court  and 
that  the  paper  is  material  as  evidence  in  the  cause.  To  permit  an  indis- 
criminate search  among  all  the  papers  in  one's  possession  for  no  particular 
paper,  but  some  paper  which  may  throw  some  light  on  some  issue  involved  in 
the  trial  of  some  cause  pending,  would  lead  to  consequences  that  can  be  con- 
templated only  with  horror,  and  such  a  process  is  not  to  be  tolerated  among 
a  free  people.  A  grand  jury  has  a  general  inquisitorial  power.  They  may 
ask  a  witness  summoned  before  them  without  reference  to  any  particular 
offense,  which  is  a  subject  of  inquiry,  what  he  knows  touching  the  violation 
of  any  section  of  the  Criminal  Code.  Give  such  a  body,  in  addition,  the  power 
to  search  any  man's  papers  for  evidence  of  some  crime  committed,  and  you 
convert  it  into  a  tribunal  which  soon  becomes  as  odious  to  American  citizens 
as  the  Star  Chamber  was  to  Englishmen  or  the  Spanish  Inquisition  to  the 
civilized  world.  Here  communications,  at  different  times  within  a  period  of 
fifteen  months,  sent  or  received  by  the  parties  named,  are  called  for.  The 
date,  title,  substance,  or  subject-matter  of  none  of  them  is  given,  and  it  is 
utterly  impossible  that  it  could  have  been  made  to  appear,  without  more, 
that  any  of  the  messages  were  matei'ial  as  evidence  before  the  gi'and  jury. 
Moreover,  it  not  only  called  for  all  messages  between  the  parties  named,  but 
for  all  which  may  have  been  sent  or  received  by  either  of  the  parties  to  or 


§    739)  PRIVILEGED   COMMUNICATIONS  925 

following  demands  for  messages  was  deemed  valid  :^^  "Copies  of 
all  telegrams  received  through  the  office  of  the  Western  Union 
Telegraph  Company  at  Long  Branch,  in  the  state  of  New  Jersey, 
from  June  15  to  September  15,  1874,  and  from  June  15  to  Septem- 
ber, 1875,  addressed  to  General  O.  E.  Babcock,  signed  John  Mc- 
Donald, John  A.  Joyce,  John  or  J.,  with  books  showing  the  delivery 
of  the  same ;  all  telegrams  sent  from  Long  Branch  through  said 
office  during  said  months,  signed  O.  E.  Babcock,  O.  E.  B.,  Bab.,  or 
B.,  addressed  to  John  McDonald,  or  John  A.  Joyce,  St.  Louis,  Mo., 
or  Ripon,  Wis. ;  all  telegrams  sent  through  the  office  of  said  com- 
pany at  the  City  of  New  York  upon  the  9th,  10th,  or  12th  days  of 
December,  1874,  signed  John  McDonald,  John  Mac,  or  Mc,  ad- 
dressed to  John  A.  Joyce,  St.  Louis,  Mo.,  or  General  O.  E.  Babcock, 
Washington,  D.  C. ;  also,  copies  of  all  telegrams  received  at  the 
city  of  New  York,  from  said  city  of  St.  Louis,  on  the  26th,  27th, 

from  any  person  on  the  face  of  the  earth.  A  compliance  with  the  order  might 
have  resulted  in  the  production  of  confidential  communications  between  hus- 
band and  wife,  client  and  attorney,  confessor  and  penitent,  parent  and  child. 
Matters  which  it  deeply  concerned  the  parties  to  keep  secret  from  the  world, 
and  of  no  importance  or  value  as  evidence  in  any  cause,  might  thus  be  dis- 
closed to  the  annoyance  and  shame  of  the  only  persons  interested.  Incidents 
in  the  lives  of  members  of  families  which  the  happiness  and  welfare  of  the 
household  require  to  be  kept  secret  might  be  exposed,  and  offenses  not  recog- 
nizable by  law,  long  since  committed  and  condoned,  brought  to  light  and 
hawked  through  the  country  by  scandalmongers,  to  the  disturbance  of  the 
peace  of  society,  and  the  destruction  of  the  happiness  of  whole  households. 
It  is  no  answer  to  this  that  the  obligation  of  secrecy  imposed  by  law  on  grand 
juries  would  prevent  such  exposure.  It  is  enough  to  disturb  and  harass  a 
man  that  twelve  of  his  neighbors,  though  sworn  to  secrecy,  have  acquired 
knowledge  diminishing  their  respect  for  him,  which  they  had  no  right  to 
obtain,  and  they  may  be  the  very  twelve  men  with  whom,  above  all  others, 
he  most  desired  to  be  in  good  repute."  To  the  same  effect,  see  Ex  parte 
Gould,  GO  Tex.  Cr.  R.  442,  132  S.  W.  364,  31  L.  R.  A.  (N.  S.)  835.  "In  this 
case,  the  subpcena  duces  tecum  was  for  all  telegrams  sent  from  the  office  at 
Baird,  ordering  intoxicating  liquors;  it  did  not  specify  whether  the  liquors 
ordered  were  unlawfully  sent  for;  it  said  all  intoxicating  liquors.  All  in- 
toxicating liquors  are  not  under  the  ban  of  the  law.  What  right  had  the 
grand  jury  to  have  exposed  before  them  the  messages  sent  indiscriminately 
by  the  citizenship  of  Baird  in  ordering  intoxicating  liquors?  The  demand 
made  upon  the  witness  was  unreasonable  and  unwarranted.  It  was  too  gen- 
eral. It  did  not  relate  to  any  crime  committed,  nor  to  any  per.>50u  accused 
or  suspected.  It  was  not  directed  to  the  inquiry  into  any  crime.  It  failed  to 
show  the  purposes  for  which  the  telegi-ams  were  demanded,  and  was  but  a 
prying  and  fishing  expedition  that  cannot  be  authorized  by  law.  The  pro- 
tection of  papers  is  as  much  secured  under  the  provisions  of  the  Bill  of 
Rights  as  a  man's  house,  and  the  same  rules  that  apply  to  one  apply  to  the 
other.  The  courts  will  not  permit  the  exercise  of  an  arbitrary  power,  where 
its  tendency  might  be  to  disturb  domestic  relations,  expose  commercial  secrets, 
to  satisfy  the  idle  curiosity  of  men.  The  Constitution  holds  too  sacred  the 
privacy  of  home  to  permit  this." 
18  U.  S.  V.  Babcock,  3  Dill.  5G6,  Fed.  Cas.  No.  14,484. 


926 


TELEGRAPH  AND  TELEPHONE  COMPANIES 


(§  T40 


28th,  and  29th  days  of  October,  1874,  addressed  to  Mr.  John  A. 
Joyce,  Mrs.  Kate  Joyce,  Kate  Joyce,  or  Kate  M.  Joyce,  together 
with  books  showing  deHvery  of  same." 

§  740.  Same  continued — when  invalid. — On  the  other  hand,  a 
writ  containing  the  following  demand  for  messages  was  held  in- 
valid: ^^  "Dispatches  between  Dr.  J.  C.  Nidelet  and  A.  B.  Wake- 
held,  and  William  Ladd  and  J.  C.  Nidelet,  and  William  Ladd  and 
Dr.  Nidelet,  between  Warren  McChester  and  A.  B.  Wakefield,  be- 
tween Warren  McChester  and  J.  C.  Nidelet,  between  the  latter  and 
John  S.  Phelps,  between  A.  B.  Wakefield  and  John  S.  Phelps,  be- 
tween the  latter  and  William  Ladd,  and  between  George  W.  Ander- 
son and  A.  B.  Wakefield,  sent  or  received  by  or  between  any  or  all 
of  said  parties,  within  fifteen  months  last  past."  Again,  a  writ  con- 
taining a  demand  for  all  messages  sent  from  or  received  at  a  cer- 
tain telegraph  office  between  the  sixth  and  twentieth  days,  inclu- 
sive, of  a  certain  month  was  deemed  to  be  invalid. 


19  Brown,  Ex  parte,  72  Mo.  83,  37  Am.  Rep.  426,  overruling,  7  Mo.  App.  484. 
A  subpoena  requiring  the  agent  of  a  telegrapli  company  to  produce  before 
the  grand  jury  all  messages  sent  from  the  town  before  a  specified  time,  or- 
dering intoxicating  liquors,  is  too  broad.  Ex  parte  Gould,  60  Tex.  Cr.  R.  442, 
132  S.  W.  364,  31  L.  R.  A.  (N.  S.)  835. 


§  741)  CONTRACTS  BY  TELEGRAM  92T 


CHAPTER  XXX 

CONTRACTS    BY    TELEGRAM 

§  741.  In  general. 

742.  Alteration  of  telegram  does  not  affect  rule. 

743.  Same  continued — private  institution — does  not  effect. 

744.  What  must  contain. 

745.  When  offer  is  complete. 

746.  Order  made  by  telegram. 

747.  Communication  both  by  post  and  telegraph. 

748.  When  contracts  take  effect. 

749.  Offer  and  acceptance— must  be  definite  and  unconditional. 

750.  Offer  requiring  actual  receipt  of  acceptance. 

751.  Same  continued — how  request  implied. 

752.  Acceptance  must  be  made  within  time. 

753.  Revocation  of  offer. 

754.  Designation  of  parties. 

755.  Indorsement  apd  acceptance  by  telegram — forged  acceptance. 

756.  Contract — what  law  governs. 

757.  Telegraph  company  ordinarily  the  agent  of  sender. 

758.  Sender  bound  on  message  as  received. 

759.  Within  the  meaning  of  the  statute  of  frauds. 

760.  Exception  to  the  rule. 

761.  English   rule. 

762.  Telegraph  company  an  independent  contractor. 

763.  Same  continued — may  be  sued. 

764.  Same — where  message  a  mere  step  to  negotiation, 

765.  Same— where  message  is  a  definite  offer, 

766.  Same — acceptance  of  an  offer. 

§  741.  In  general. — In  creating  a  contract,  the  negotiations  per- 
taining  to  same  may  be  conducted  by  letter,  as  is  very  common  in 
mercantile  transactions.^  The  contract  is  complete  when  the  an- 
swer, containing  the  acceptance  of  a  distinct  proposition,  is  dis- 
patched by  mail  or  otherwise,  provided  it  is  done  with  due  diligence 
after  the  receipt  of  the  letter  containing  the  proposal,  and  before 
any  intimation  is  received  that  the  offer  has  been  withdrawn.  Mail- 
ing the  answer  containing  the  acceptance  and  thus  placing  it  beyond 
the  control  of  the  party  is  valid  as  a  constructive  notice.^  As  has 
been  seen,  there  is  no  material  difference  in  communications  carried 
on  by  telegraph  and  correspondence  conducted  through  the  mail; 
it  is  therefore  generally  held,  that  the  same  law  is  applicable  to 

1  Kimbell  v.  Moreland,  55  Ga.  164 ;  Dana  v.  Short,  81  111.  408 ;  Thomas  L.  & 
T.  Co.  V.  Beville,  100  Ind.  309;  College  Mill  Co.  v.  Fidler  (Tenn.  Ch.  App.)  58 
S.  W.  382 ;  Patrick  v.  Bowman,  149  U.  S.  411,  13  Sup.  Ct.  811,  866,  37  L.  Ed. 
790. 

2  2  Kent,  Com.  (12th  Ed.)  477. 


D28  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  742 

both. 8  These  facts  being  true,  there  is  no  reason — and  it  is  gener- 
ally so  held* — why  contracts  cannot  be  as  easily  negotiated  by  the 
medium  of  the  telegraph  as  through  the  mail,  and  be  governed  by 
the  same  rules  of  law  applicable  to  the  latter.^ 

§  742.  Alteration  of  telegram  does  not  affect  rule. — It  is  true 
that  the  terms  of  a  contract  are  more  liable  to  be  changed  or  altered 

3  Illinois.— Haas  v.  Myers,  111  111.  421,  53  Am.  Rep.  634  ;  Cobb  v.  Foree,  38 
111.  App.  255. 

7»f/ta HO.— Miller  v.  Nugent,  12  Ind.  App.  348.  40  X.  E.  282. 

Kentuclcy. — Calhoun  v.  Atchison,  4  Bush,  261,  96  Am.  Dec.  299. 

Maine.— Tvue  v.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156. 

Maryland. — Curtis  v.  Gibney,  59  Md.  131. 

Missouri. — Whaley  v.  Hincbman,  22  Mo.  App.  483. 

New  Jersey. — Hallock  v.  Commercial  Ins.  Co.,  26  N.  J.  Law,  268. 

New  Yor;i-.— Beach  v.  Raritan,  etc.,  R.  Co.,  37  N.  Y.  457;  Schonberg  v. 
Cheney,  3  Hun,  677 ;  Trevor  v.  Wood,  41  Barb.  255.  reversed  in  36  N.  Y.  307, 
1  Trans.  App.  248,  93  Am.  Dec.  511 ;  Marschall  v.  Eisen  Vineyard  Co.,  7  Misc. 
Rep.  674,  28  N.  Y.  Supp.  62,  58  N.  Y.  St.  Rep.  375. 

ren»essee.— College  2^1111  Co.  v.  Fidler  (Ch.  App.)  58  S.  W.  382. 

United  States.— mnnesota  Linseed  Oil  Co.  v.  Collier  White  Lead  Co.,  4  Dill. 
431,  Fed.  Cas.  No.  9,635. 

England.— Steyenson  v.  McLean,  5  Q.  B.  D.  346,  49  L.  J.  Q.  B.  701,  42  L.  T. 
Rep.  U.  S.  897. 

Canada.— Thovne  v.  Barwick,  16  U.  C.  C.  P.  369;  Marshall  v.  Jamison,  42 
U.  C.  Q.  D.  115. 

4  Meinett  v.  Snow,  3  Idaho  (Hash.)  112,  27  Pac.  677 ;  Robinson  Match  Works 
V.  Chandler,  56  Ind.  575;  Richmond  v.  Sundburg,  77  Iowa,  255,  42  N.  W.  184; 
Post  V.  Davis,  7  Kan.  App.  217,  52  Pac.  903 ;  Franklin  Bank  v.  Lynch,  52  :Md. 
270,  36  Am.  Rep.  375 ;  Brauer  v.  Shaw,  168  Mass.  198,  46  X.  E.  617,  60  Am.  St. 
Rep.  387 ;  Taylor  v.  The  Robert  Campbell,  20  Mo.  254 ;  Hammond  v.  Beeson 
(Mo.)  15  S.  W.  1000;  Isaac  Joseph  Iron  Co.  v.  Richardson,  38  Wkly.  Notes  Cas. 
(Pa.)  487 ;  Eckert  v.  Schoch,  155  Pa.  530.  26  Atl.  654 ;  Short  v.  Threadgill,  3 
Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  §  267 ;  Duble  v.  Batts,  38  Tex.  312  ;  Durkee  v. 
Vermont  Cent.  R.  Co.,  29  Vt.  127;  Wells  v.  Milwaukee,  etc.,  R.  Co.,  30  Wis. 
605 ;  Saveland  v.  Green,  40  Wis.  431 ;  Utley  v.  Donaldson,  94  U.  S.  29,  24  L. 
Ed.  54 ;  Alford  v.  Wilson  (C.  C.)  20  Fed.  96 ;  Central  Trust  Co.  v.  Wabash,  etc., 
R.  Co.  (C.  C.)  38  Fed.  561 ;  Garrettson  v.  Atchison  Bank  (C.  C.)  39  Fed.  163,  7 
L.  R.  A.  428 ;  (C.  C.)  47  Fed.  807,  affirmed  2  C.  C.  A.  145,  51  Fed.  168 ;  Schultz 
V.  Phenix  Ins.  Co.  (C.  C.)  77  Fed.  375 ;"  Andrews  v.  Sclireiber  (C.  C.)  93  Fed. 
367. 

5  Haas  v.  Myers,  111  111.  421,  53  Am.  Rep.  634 ;  Cobb  v.  Foree,  38  111.  App. 
255 :  Miller  v.  Nugent,  12  Ind.  App.  348,  40  N.  E.  282 ;  Calhoun  v.  Atchison,  4 
Bush  (Ky.)  261,  96  Am.  Dec.  299 ;  True  v.  International  Tel.  Co.,  60  Me.  9,  11 
Am.  Rep!  156;  Curtis  v.  Gibney,  59  Md.  131;  Whaley  v.  Hincbman,  22  Mo. 
App.  483 ;  Hallock  v.  Commercial  Ins.  Co.,  26  N.  J.  Law,  268 ;  Beach  v.  Rari- 
tan, etc.,  R.  Co.,  37  N.  Y.  457;  Schonberg  v.  Cheney,  3  Hun  (N.  Y.)  677;  Tre- 
vor V.  Wood,  41  Barb.  (N.  Y.)  255,  reversed  in  36  N.  Y.  307,  93  Am.  Dec.  511 ; 
Marschall  v.  Eisen  Vineyard  Co.,  7  Misc.  Rep.  674,  28  N.  Y.  Supp.  62,  58  N.  Y. 
St.  Rep.  375 ;  Shavelane  v.  Green,  40  Wis.  431 ;  College  Mill  Co.  v.  Fidler  (Tenn. 
Ch.  App.)  58  S.  W.  382 ;  Minnesota  Linseed  Oil  Co.  v.  Collier  White  Lead  Co., 
4  Dill.  431,  Fed.  Cas.  No.  9G35 ;  Stevenson  v.  McLean,  5  Q.  B.  D.  346,  49  L.  J. 
Q.  B.  701,  42  L.  T.  Rep.,  N.  L.  897,  28  Wkly.  Rep.  916;  Thorne  v. 
Barwick,  16  U.  C.  C.  P.  369 ;  Marshall  v.  Jamieson,  42  U.  C.  Q.  B.  115 ;  Cage 
V.  Black,  97  Ark.  613,  134  S.  W.  942 ;  Mitchell  v.  Wallace,  87  S.  W.  303,  27  Ky. 


^ 


§    742)  CONTRACTS  BY  TELEGRAM  92'J 

if  conveyed  by  telegram  than  they  would  be  should  they  be  sent 
by  mail.  In  the  course  of  communication  of  news  by  telegram, 
there  are  many  hindrances  to  be  encountered  which  are  often  un- 
avoidable. The  wires  of  the  company  may  often  become  heavily 
charged  with  electricity  as  a  result  of  an  abnormal  atmospheric  con- 
dition, and  this  fact  always  has  the  effect  of  disturbing  the  com- 
munication of  news  so  as  to  prevent  a  correct  transmission ;  the 
same  effect  will  be  produced  as  a  result  of  the  wires  being  covered 
with  ice  or  sleet,  or  when  they  have  become  crossed.  So  also  the 
communication  conducted  by  the  latter  means  is  more  often  inter- 
fered with  by  acts  of  the  public  enemy,  or  by  strikes  of  the  com- 
pany's employes.  It  is  also  a  more  difficult  way  of  transmitting 
news,  and  unless  the  employes  are  skilled  and  experienced  work- 
men, alterations  or  changes  in  the  messages  are  more  likely  to  be 
made  than  if  the  same  had  been  communicated  by  mail.  The  fact 
that  an  alteration  has  been  made  does  not,  however,  change  the 
application  of  the  law  to  these.  The  message  as  delivered  to  the 
addressee  contains  the  terms  of  the  contract  upon  which  he  must 
act,  provided  the  same  is  done  in  good  faith.  While  the  sender  of 
the  message  is  bound  by  the  terms  of  the  contract  as  received,  yet 
he  may  have  recourse  against  the  company  for  negligently  trans- 
mitting the  message.** 

Law  Rep.  967 ;  Bradley  v.  Bower,  5  Neb.  542,  99  N.  W.  490 ;  Sherrerd  v.  Tel. 
Co.,  146  Wis.  197,  131  N.  W.  341 ;  Sumner  v.  Cole,  32  N.  S.  R.  179 ;  Heckla  v. 
Cunard,  37  N.  S.  R.  97 ;  Harty  v.  Gooderlian,  31  U.  C.  Q.  B.  IS ;  Goodall  v. 
Smith,  46  U.  C.  Q.  B.  3S8 ;  Holcomb  v.  Linn,  174  111.  App.  419 ;  First  National 
Bank  v.  Commercial  Savings  Bank,  74  Kan.  606,  87  Pac.  746,  8  L.  R.  A.  (N.  S.) 
114S,  lis  Am.  St.  Rep.  340,  11  Ann.  Cas.  281 ;  Cedar  Rapids  Lbr.  Co.  v.  Fisher, 
129  Iowa,  332,  105  N.  W.  595,  4  L.  R.  A.  (N.  S.)  177 ;  Lucas  v.  West.  U..  131 
Iowa,  669,  109  N.  W.  191,  6  L.  R.  A.  (N.  S.)  1016 ;  Clark  Mfg.  Co.  v.  West.  U., 
152  N.  C.  157,  67  S.  E.  329,  27  L.  R.  A.  (N.  S.)  643 ;  Utley  v.  Donaldson,  94  U.  S. 
29,  24  L.  Ed.  54.  Contracts  required  to  be  in  writing  may  be  made  by  moans 
of  written  telegrams.  Western  Twine  Co.  v.  Wright,  11  S.  D.  521,  78  N.  W. 
942,  44  L.  R.  A.  438.  Of  course,  where  letters  and  telegrams  are  employed  by 
the  parties,  there  is  no  contract  unless  the  minds  of  the  parties  meet  at  the 
same  time  on  the  same  terms.  Sutter  v.  Raeder,  149  Mo.  297,  50  S.  W.  S13. 
Where  the  contract  consists  wholly  of  letters  and  telegrams,  the  question 
whether  they  constitute  a  contract  is  one  of  law  for  the  court.  James  v. 
Marion  Fruit,  etc.,  Co.,  69  Mo.  App.  207.  In  other  words,  the  use  of  telegrams 
as  evidence  of  the  contract  of  the  parties  is  governed  by  the  same  general 
rules  which  are  applied  to  other  writings.  Saveland  v.  Green,  supra.  There 
is,  in  fact,  but  little,  if  any,  difference  between  the  rules  governing  the  nego- 
tiations of  contracts  by  correspondence  through  the  post  office  and  communica- 
tions by  means  of  the  telegram.  Minnesota  Linseed  Oil  Co.  v.  Collier  White 
Lead  Co.,  supra ;  Cobb  v.  Glenn  Boom  &  Lbr.  Co.,  57  W.  Va.  49,  49  S.  E.  1005, 
110  Am.  St.  Rep.  734. 

6  West.  U.  Tel.  Co.  v.  Shotter,  71  Ga.  760 ;  Ayer  v.  West.  U.  Tel.  Co.,  79  Me. 

Jones  Tel. (2d  Ed.) — 59 


930  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  743 

§  743.  Same  continued — private  institution — does  not  effect. — 
The  same  law  is  applicable  to  the  creation  of  contracts  whether 
they  have  been  negotiated  by  mail  or  by  telegram,  and  this,  too 
notwithstanding  that  the  telegraph  companies,  unlike  the  post- 
office,  are  private  institutions,  owned  and  operated  by  private 
individuals/  As  was  said  by  an  able  text-writer  on  this  subject: 
"This  distinction  is  immaterial,  it  seems,  upon  the  question  whether 
either  a  telegraph  company  or  the  post  office  is  the  agent  of  a  pri- 
vate individual  to  complete  a  contract  in  his  behalf.  A  telegraph 
company  is  employed  to  communicate  a  certain  message.  It  neither 
undertakes  nor  is  authorized  to  go  further,  and  effect  as  an  agent 
the  purposes  for  which  the  communication  of  that  message  is  de- 
sired by  the  employer.    It  is  simply  a  forwarder  of  messages."  ^ 

§  744.  What  must  contain. — In  order  that  a  contract  may  be 
negotiated  through  correspondence  or  by  mail,  the  letters  pertain- 
ing to  such  must  contain  sufficient  matter  to  show  that  an  offer 
has  been  made  and  accepted.  When  the  cardinal  points  of  a  pro- 
posed contract  are  definitely  agreed  upon  by  letter,  the  mere  fact 
that  in  the  course  of  the  correspondence  reference  has  been  made 
to  a  more  formal  agreement  will  not  deter  the  court  from  con- 
sidering the  agreements  arrived  at  by  the  letters  as  concluded.  The 
same  rule  applies  to  contracts  made  by  telegram.  If  the  telegrams 
in  regard  to  such  contract  contain  sufficient  elements  to  constitute 
a  contract,  and  it  is  evident  from  these  that  the  contract  has  been 
accepted,  the  parties  will  be  bound  by  such  contract,^  although, 
during  the  communication,  more  formal  contracts  may  have  been 
referred  to ;  and  a  court  would  not  hesitate  to  consider  the  agree- 
ments arrived  at  by  telegram  as  concluded.^"     It  is  presumed  that 

49.3,  10  Atl.  495,  1  Am.  St.  Rep.  353 ;  Magie  v.  Herman,  50  Minn.  424,  52  N.  W. 
909,  36  Am.  St.  Rep.  660 ;  Saveland  v.  Green,  40  Wis.  431. 

7  Dickson  v.  Renters'  Tel.  Co.,  2  C.  P.  D.,  62,  19  Moak,  313,  affirmed  3  P.  C. 
D.  1,  30  Moak.  1. 

8  Gray  on  Tel.  par.  113. 

9  Calhoun  v.  Atchison,  4  Bush  (Ky.)  261,  96  Am.  Dec.  299 ;  Cedar  Rapids 
Lumber  Co.  v.  Fisher,  129  Iowa,  332,  105  N.  W.  595,  4  L.  R.  A.  (N.  S.)  177. 

10  Cayley  v.  Walpole,  22  L.  T.  N.  S.  900,  IS  W.  R.  782;  Johnson  v.  King,  2 
Bing.  270,  9  Moore,  482.  But  the  telegrams  or  letters,  or  both,  must  contain 
sufficient  matter  to  show  that  a  contract  was  made  and  accepted.  Brewer  v. 
Horst,  etc.,  Co.,  127  Cal.  643,  50  L.  R.  A.  240u,  60  Pac.  418.  See,  also.  Cox  v. 
Maxwell,  151  Mass.  336,  24  N.  E.  50 ;  Short  v.  Threadgill,  3  Willson,  Civ.  Cas. 
Ct.  App.  (Tex.)  §  268:  Societe  Anonyme,  etc.,  v.  Old  Jordan  Min.,  etc.,  Co.,  9 
Utah,  483,  35  Pac.  492 ;  Lawrence  v.  Milwaukee,  etc.,  R.  Co.,  84  Wis.  427,  54 
N.  W.  797 ;  Utley  v.  Donaldson.  94  U.  S.  29,  24  L.  Ed.  54 ;  Central  Trust  Co.  v. 
Wabash,  etc.,  R.  Co.  (C.  C.)  38  Fed.  561 ;  Alford  v.  Wilson  (C.  C.)  20  Fed.  96. 

Where,  in  connection  icith  prior  oral  negotiations,  a  telegram  is  sent  to  fix 
some  details  of  the  contract,  the  telegram  is  merely  evidence  to  the  point 


§  746)  CONTRACTS  BY  TELEGRAM  931 

if  there  are  two  conflicting  contracts  made  by  the  same  parties,  at 
different  times,  in  regard  to  the  same  subject-matter,  the  last  made 
should  be  more  valid  and  enforceable.  Where,  however,  the  con- 
tract is  to  be  made  out,  partly  by  telegrams  and  partly  by  parol 
evidence,  the  whole  becomes  a  question  for  the  jury.^;^ 

§  745.  When  offer  is  complete. — When  an  offer  or  proposition 
is  made  by  mail  or  by  telegram,  it  is  not  complete  until  it  has  been 
delivered  to  the  sendee.  The  party  making  an  offer — the  same  to 
be  delivered  by  this  means — appoint  this  agency  to  make  the  de- 
livery. The  postal  system  or  telegraph  being  an  agent  of  the 
sender,  the  offer  is  not  complete  so  long  as  it  remains  in  the  hands 
of  the  agent,  but  so  soon  as  it  is  delivered  to  the  party  to  whom 
the  offer  is  made,  it  then  becomes  complete.  If  there  are  any  de- 
lays or  mistakes  made  during  the  transmission  of  the  offer,  the 
party  sending  same  must  suffer  the  consequence.^^ 

§  746.  Order  made  by  telegram. — An  order  for  goods  or  mer- 
chandise may  be,  and  often  is,  made  by  telegram.^^  The  question 
which  we  desire  to  discuss  in  this  connection  is,  W^hen  does  the 
order  take  effect  or  become  a  sale,  where  nothing  is  said  in  the 
message  in  this  regard?  If  the  message  should  request  that  a  reply 
be  given  so  as  to  notify  the  sender  whether  the  order  could  be  filled, 
there  would  be  no  doubt  about  when  the  order  would  take  eft'ect. 
The  order,  in  this  instance,  would  be  filled  when  the  reply  was 
given  to  the  telegraph  company.  The  difiicult  question  to  be  deter- 
mined is,  When  will  the  sale  be  complete  when  nothing  is  said 
about  a  reply?     If  the  goods  are  to  be  delivered  to  the  carrier  by 

shown  by  it  and  does  not  constitute  tlie  contract.  Beacli  v.  Raritan,  etc.,  R. 
Co.,  37  N.  Y.  457.  Tims,  wiiere  the  original  negotiations  were  oral,  a  telegram 
stating:  "I  will  take  double-decked  car  hogs.  Wm.  C.  Bryant  will  close  con- 
tract"— was  insufficient  to  constitute  a  contract,  the  court  saying:  "Standing 
by  itself,  the  telegram  contained  none  of  the  elements  of  a  bargain  except 
liUantity,  and  it  implied  that  there  had  been  some  communication  previously  in 
regard  to  terms,  which  would  have  to  be  appealed  to,  to  explain  the  substance 
of  the  bargain.  Moreover,  it  did  not  purport  to  be  a  note  or  memorandum  of 
agreement  at  all,  but  only  a  simple  notification  of  adhesion  to  an  agreement 
which  had  been  previously  arranged  therefor  and  the  terms  of  which  were  as- 
sumed to  be  understood,  and  the  facts  showing  that  the  previous  arrangement 
so  referred  to  was  one  which  rested  wholly  in  parol."  McElroy  v.  Buck,  35 
Mich.  434. 

11  Blockow  V.  Seymour,  17  C.  B.  U.  S.  107.  See,  also.  Cox  v.  Maxwell,  151 
Mass.  336,  24  N.  E.  50 ;  Short  v.  Thrcadgill,  3  Willson,  Civ.  Cas.  Ct.  App.  (Tex.) 
§267;  Society  Anonyme,  etc.,  v.  Old  Jordan  Miu.,  etc.,  Co.,  9  Utah,  4So,  35  Pac. 
492. 

i2Averill  v.  Hedge,  12  Conn.  424;  Mactier  v.  Fritch,  6  Wend.  (N.  Y.)  103, 
21  Am.  Dec.  262 ;  Frith  v.  Lawrence,  1  Paige  (N.  Y.)  434 ;  Adams  v.  Lendsell,  1 
B.  &  Aid.  681,  19  Rev.  Rep.  415. 

13  See  chapter  XXI. 


932  TELEGRAPH  AND  TELErHOXE  COMPANIES  (§  747 

the  party  on  whom  the  order  is  made,  and  the  carrier  is  designated 
in  the  order,  it  seems  that  a  delivery  to  the  carrier  or  warehouse 
company  would  be  a  sufficient  acceptance  of  the  order.  If,  how- 
ever, no  carrier  is  mentioned  in  the  order,  but  other  goods  which 
have  been  purchased  by  the  same  party  were  delivered  to  a  certain 
carrier,  it  seems  that  the  party  on  whom  the  order  was  made  would 
be  justified  in  delivering  the  goods  to  the  same  carrier,  and  the 
acceptance  would  then  be  complete.  The  circumstances  of  each 
particular  case  may  be  different,  and,  of  course,  under  this  state 
of  facts  the  same  rule  would  not  apply  to  both. 

§  747.  Communication  both  by  post  and  telegraph. — In  order 
to  create  a  contract  by  means  of  correspondence,  it  is  not  necessary 
that  all  the  negotiations  should  have  been  conducted  by  post  nor  by 
telegraph,  but  it  may  have  been  created  both  by  correspondence  by 
post,  and  by  communications  by  telegraph.^*  In  other  words,  some 
of  the  communications  may  have  been  made  by  mail  and  others  by 
telegram. ^^    And  it  seems  that,  if  it  is  not  necessary  that  the  con- 

14  See  cases  in  note  22,  §'  727. 

15  Bissinger  v.  Prince,  117  Ala.  4S0,  23  South.  67;  Calhoun  v.  Atchison,  4 
Bush  (Ky.)  265,  96  Am.  Dec.  299;  Cobb  v.  Glenn  Boom,  etc.,  Co.,  57  W.  Va.  49, 
49  S.  E.  1005,  110  Am.  St.  Rep.  734 ;  Olds  v.  East  Tenn.,  etc.,  Co.  (Tenn.  Ch. 
App.)  48  S.  W.  333 ;  Utley  v.  Donaldson,  94  U.  S.  29,  24  L.  Ed.  54 ;  Alford  v. 
AYilson  (C.  C.)  20  Fed.  96.  But  the  telegrams  and  letters  must  be  connected 
without  the  aid  of  parol.  Duff  v.  Hopkins  (D.  C.)  33  Fed.  599.  A  person  may 
bind  himself  by  an  offer  to  sell  personal  property,  where  the  amount  or  quan- 
tity is  left  to  be  fixed  by  the  person  to  whom  the  offer  is  made.  Moultou-rv. 
Kershaw,  59  Wis.  316,  IS  N.  W.  172.  48  Am.  Rep.  516.  Thus  a  letter  inquir- 
ing: "Have  you  any  more  northwestern  mess  pork,  or  prime  mess,  also  extra 
mess?  Telegraph  price  on  receipt  of  this" — to  which  the  dealer  replied  by 
telegraph:  "Letter  received.  Xo  light  mess  here,  extra  mess  Twenty-eight, 
seventy-five  (28.75)" — whereupon  a  telegram  was  sent  reading:  "Dispatch  re- 
ceived. Will  take  two  hundred  extra  mess,  price  named."  The  court  held  that 
the  telegram  stating  the  price  of  pork  was  a  mere  quotation  of  the  market 
price  of  pork,'  and  the  reply  telegram  to  it  was  a  mere  order  for  goods  which 
dealer  might  accept  or  reject,  at  his  pleasure,  and  which,  until  accepted,  con- 
stituted no  contract.  Beaupre  v.  Pacific,  etc..  Telegraph  Co.,  21  Minn.  155. 
But  in  Eckert  v.  Schoch,  155  Pa.  530,  26  Atl.  654,  the  following  correspondence 
by  letters  and  telegrams  was  held  to  constitute  a  contract,  viz:  The  plaintiff 
wrote  a  letter  to  the  defendant  inquiring  whether  he  had  any  wheat  to  sell. 
The  defendant  responded  with  a  postal  card,  asking:  "What  can  you  pay  for 
good  Pa.  wheat  on  track  here?  If  you  can  pay  S3i^  on  track  here  for  prime 
Pa.  wheat,  will  send  you  a  sample.  Please  let  me  hear  by  return  mail."  Plain- 
tiff replied  by  telegram,  stating:  "If  good  stock  there,  can  place  five  cars, 
price  named.  Send  sample  quick" — and  on  the  same  day  also  wrote  to  de- 
fendant: "On  receipt  of  your  postal,  I  wired  you  that,  if  good  stock,  I 
thought  I  could  use  five  cars  of  wheat  at  price  quoted  (83%).  Send  sample 
quick.  Demand  for  wheat  good  and  I  think  I  can  do  some  trading  with  you. 
The  freight  rate,  I  suppose,  is  about  13d" — which  was  followed  by  a  telegram 
on  the  same  day  stating,  "Ship  quick  five  cars  of  prime,  red  wheat  to  Stemton, 
as  trial  lot."    This  telegram  was  followed  the  next  day  by  a  letter  stating: 


S    748)  CONTRACTS  BY  TELEGRAM  933 

tract  should  be  in  writing,  as  required  by  the  statute  of  frauds,  oral 
statements  made  when  the  contracting  parties  are  together,  or 
made  by  telephone,  may  be  used  in  connection  with  the  telegrams 
to  prove  the  contract.  As  it  has  been  elsewhere  ^^  discussed,  to 
make  some  contracts  binding,  some  written  memorandum  must 
have  been  kept,  and  also  that  a  memorandum  might  be  made  by 
telegram.  So,  if  there  have  been  oral  statements  made  respecting 
the  creation  of  a  contract  which  is  required  to  be  in  writing,  they 
may  be  considered  in  connection  with  such  telegrams  to  explain  the 
contract  as  made. 

§  748.  When  contracts  take  effect. — It  is  the  rule  of  law  that, 
when  a  contract  is  made  by  means  of  correspondence  through  the 
mail,  the  contract  is  complete  upon  the  posting  by  one  party  of  a 
letter  addressed  to  the  other,  accepting  the  terms  offered  by  the 
latter,  although  such  letter  may  never  reach  its  destination.^^  The 
reason  of  the  rule  is  obvious.  He  who  makes  a  proposition  or  an 
offer  through  the  mail  impliedly  appoints  the  postal  system  his 
agent,  and  when  the  other  party  accepts  the  proposition  or  offer, 
and  in  accordance  thereto  delivers  a  properly  addressed  letter  to 
said  agent  to  be  conveyed  to  the  first  party,  the  acceptance  is  suffi- 
ciently made.  Applying  the  same  rule  to  contracts  negotiated  by 
means  of  the  telegraph,  we  find  it  is  generally  held  that  when  an 
unconditional  offer  is  made  through  this  means,  and  a  telegram 
containing  an  acceptance  of  the  terms  of  such  contract  is  delivered 
to  the  telegraph  company  by  the  offeree,  the  contract  is  com- 
pleted, whether  the  message  does  or  does  not  reach  the  other 
party.^^    And  it  has  been  held  that  an  acceptance  by  telegram  of 

"I  confirm  purcliase  of  five  cars  prime  Penn'a.  wheat  at  83%,  track,  Silins- 
grove.  Bill  all  to  Stemton,  and  get  as  low  a  rate  as  possible.  Get  them  ofE  at 
once.  This  is  to  be  a  sample  lot  and,  if  satisfactory,  I  hope  to  handle  consid- 
erable of  your  wheat.  Send  me  an  average  sample  at  once."  If  the  corre- 
spondence and  telegrams  between  the  parties  contain  all  details  of  a  contract, 
it  is  enforceable,  even  though  the  telegrams  show  that  their  agreement  should 
be  formally  expressed  in  a  single  paper,  which,  when  signed,  should  be  the 
evidence  of  what  already  has  been  agreed  upon.  Nash  v.  Kreling,  6  Cal.  Unrep. 
Cas.  2.38,  56  Pac.  262 ;  Post  v.  Davis,  7  Kan.  App.  217,  52  Pac.  9(33 ;  Sanders  v. 
Pottlitzer  Bros.  Fruit  Co.,  144  N.  Y.  209,  39  N.  E.  75,  43  Am.  St.  Rep.  757,  29 
L.  R.  A.  431 ;  Phenix  Ins.  Co.  v.  Schultz,  80  Fed,  337,  25  C.  C.  A.  453. 
10  See  chapter  XXVIII. 

17  Blake  v.  Ins.  Co.,  67  Tex.  160,  2  S.  W.  368,  60  Am.  Rep.  15;  Butrerfield  v. 
Spencer,  14  N.  Y.  Super.  Ct.  1 ;  Mactier  v.  Frith,  6  Wend.  (N.  Y.)  103,  21  Am. 
Dec.  202 ;  Vassar  v.  Camp,  14  Barb.  (N.  Y.)  354. 

18  Cobb  V.  Foree,  38  111.  App.  255.  Compare  Maclay  v.  Harvey,  90  111.  525, 
32  Am.  Rep.  35.  See  Lucas  v.  West.  U.,  131  Iowa,  6G9,  109  N.  W.  191,  6  L.  R. 
A.  (N.  S.)  1017,  holding  that  an  acceptance  by  telegram  of  an  offer  by  mail 
which  does  not  specify  any  mode  of  acceptance  does  not  complete  the  contract 
until  the  telegram  is  delivered  to  the  sendee.     See  Perry  v.  Mt.  Hope  Iron 


934  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  749 

an  offer  by  mail,  which  does  not  specify  any  mode  of  acceptance, 
does  not  complete  the  contract  until  the  telegram  is  delivered  to 
the  sendee.^"  So,  in  accordance  to  this  holding,  the  rule  would  ap- 
ply to  a  converse  case,  i.  e.,  where  the  offer  is  transmitted  by  tele- 
graph and  the  acceptance  by  mail.  Under  this  the  question  might 
arise  as  to  when  the  contract  would  be  completed  if  the  offer  were 
transmitted  over  the  lines  of  one  telegraph  company  and  the  ac- 
ceptance over  the  lines  of  another.  A  rigid  adherence  to  the  rule 
would  require  that  the  same  line  be  used,  and  the  one  selected 
by  the  offerer,  otherwise  the  contract  would  not  be  completed  until 
the  acceptance  had  been  actually  delivered  in  person  to  the  latter. 
This  result,  however,  might  perhaps  be  obviated  by  taking  the  posi- 
tion that,  by  sending  the  offer  by  telegraph,  the  party  making  it 
sanctions  the  employment  of  the  telegraph  generally  as  a  means  of 
transmitting  the  acceptance,  and  not  merely  the  employment  of 
the  particular  telegraph  company  employed  by  him.^° 

§  749.  Offer  and  acceptance — must  be  definite  and  uncondi- 
tional.— There  must  be  a  distinct  offer  in  order  to  form  a  basis  for 
an  acceptance  in  regard  to  telegraphic  communication  in  the  same 
manner  as  is  necessary  respecting  correspondence  by  letter,  since 
it  is  essential  that  there  be  a  meeting  of  the  minds  of  the  parties 
upon  all  the  terms  of  the  contract.-^  Furthermore,  the  telegraphic 
acceptance  of  a  proposition  must  be  clear,  definite,--  and  substan- 

Co.,  15  R.  I.  380,  5  Atl.  632,  2  Am.  St.  Rep.  902.  See,  also,  West.  U.  v.  Sights, 
34  Okl.  461,  126  Pac.  234,  Ann.  Cas.  1914C,  204,  42  L.  R.  A.  (N.  S.)  419 ;  Wester 
V.  Casein  Co.,  206  N.  Y.  506,  100  N.  E.  4SS,  Ann.  Cas.  1914B,  377,  holding, 
where  a  person  makes  an  offer  by  letter  or  telegram,  and  the  person  to  whom 
it  is  made  accepts  it  in  the  same  manner,  the  contract  comes  into  existence 
when  the  acceptance  is  mailed,  or  sent,  as  the  offerer  gives  the  carrier  of  his 
message  implied  authority  to  receive  the  reply  for  him ;  True  v.  luternational 
Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156 1  Wheat  v.  Cross,  31  Md.  99,  1  Am.  Rep. 
28 ;  Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157 ;  McCulloch  v. 
Eagle  Ins.  Co.,  1  Pick.  (Mass.)  27S ;  Trevor  v.  Wood,  36  N.  Y.  307,  93  Am.  Dec. 
511 ;  Hamilton  v.  Lycoming  Mut.  Ins.  Co.,  5  Pa.  339.  See  Elliott  on  Contracts, 
§  45. 

19  Lucas  V.  West.  U.,  131  Iowa,  669,  109  N.  W.  191,  6  L.  R.  A.  (N.  S.)  1016. 
See  Elliott  on  Contracts,  §  45  et  seq. 

20  See  Elliott  on  Contracts,  §  45  et  seq. 

21  Deshon  v.  Fosdick,  1  Woods,  286,  Fed.  Cas.  No.  3,819 ;  Goulding  v.  Ham- 
mond, 54  Fed.  639,  4  C.  C.  A.  533;  Alexander  v.  West.  U.,  67  Miss.  386,  7 
South.  280;  Ford  v.  Gehhardt,  114  Mo.  298,  21  S.  W.  818.  See,  also.  West. 
Union  v.  Way,  83  Ala.  542,  4  South.  844;  Breckinridge  v.  Crocker,  78  Cal. 
529,  21  Pac.  179. 

2  2  "Telegram  received.  You  can  consider  the  coal  sold.  Will  be  in  Cleve- 
land and  arrange  particulars  next  week."  is  not  sufficiently  clear  and  definite 
to  constitute  a  sale  of  the  coal.  Martin  v.  Northwestern  Fuel  Co.  (C.  C.)  22 
Fed.  596.  "You  may  consider  that  you  have  the  contract"  was  used  in  a 
letter  responding  to  a  telegraphic  inquiry  insufficient.     Bissinger  v.  Prince, 


§  749)  CONTRACTS  BY  TELEGRAM  935 

tially  absolute."  The  question  whether  certain  acts  or  conduct 
constitute  a  definite  proposal  or  acceptance  upon  which  a  binding 
contract  may  be  predicated  without  any  further  action  on  the  part 
of  the  person  from  whom  it  proceeds,  or  a  mere  preliminary  step, 
which  is  not  susceptible,  without  further  action  by  such  party,  of 
being  converted  into  a  binding  contract,  depends  upon  the  nature 
of  the  particular  acts  or  conduct  in  question,  and  the  circumstances 
attending  the  transaction ;  and  it  is  impossible  to  formulate  a  gen- 
eral principle  or  criterion  for  its  determination.  All  that  can  be 
usefully  done  is  to  call  attention  to  individual  cases  which  have 
passed  upon  the  question  under  various  states  of  facts,-*  it  being 
remembered  that  the  question  for  determination  is  not  as  to  the 
general  requisites  of  effect  of  a  proposal  or  acceptance  essential  to 
completion  of  a  contract,  but  merely  whether  certain  acts  or  con- 
duct of  a  person,  relied  upon  as  a  proposal  or  acceptance,  are  in 
fact  such,  or,  upon  the  other  hand,  constitute  a  mere  preliminary 
step,  looking  eventually  toward  a  proposal  or  acceptance  by  that 
party.  It  can  be  said,  however,  that  where  a  contract  is  sought  to 
be  established  by  letters  or  telegrams,  it  must  appear  from  the 
direct  terms  of  the  same  that  both  sides  have  agreed  to  one  and 
the  same  set  of  propositions.  If  any  new  matter  is  introduced  into 
the  answer,  or  anything  is  left  by  the  offer  to  further  determination, 
no  contract  has  been  entered  into.  If  the  reply  does  not  in  every 
particular  comply  with  the  offer,  it  will  not  make  a  contract.-^    For 

117  Ala.  480,  23  South.  67.  But  where,  in  response  to  a  telegram  asking, 
"Will  you  extend  note  for  thirty  days?  Answer  at  once,"  a  bank  replies  by 
telegram,  "Would  prefer  money,  if  you  can  raise  it  conveniently,"  the  reply 
amounts  to  an  offer  to  renew  the  note  if  the  money  cannot  be  raised  conven- 
iently. Shobe  V.  Luff,  GG  111.  App.  414.  See  First  National  Bank  v.  Com- 
mercial Savings  Bank,  74  Kan.  GOG,  87  Pac.  74G,  8  L.  R.  A.  (N.  S.)  1148,  118 
Am.  St.  Rep.  340,  11  Ann.  Cas.  281. 

2  3  But  minor  details  of  the  transaction  may  be  left  for  future  settlement. 
West.  U.  V.  Valentine,  18  111.  App.  57.  An  offer  is  not  accepted  which  accepts 
a  proposition  with  a  qualification  attached  to  the  acceptance,  as  where  tele- 
gram reads,  "Have  sold  the  Rastel  place  for  twentj-five.  Answer,"  to  which 
defendant  responded,  "Sell  land,  reserving  crops."  Clay  v.  Ricketts,  60  Iowa, 
3G2,  23  N.  W.  755.  See,  also,  Backer  v.  Holt,  5G  Wis.  100,  14  N.  W.  8.  "I  ac- 
cept offer  thirty-three  for  all  your  stock,  drawing  three  days'  sight  draft, 
with  check  attached.  Answer  promptly  number  of  shares,"  is  not  an  ab- 
solute acceptance,  but  one  with  a  condition  attached  to  it  respecting  the  mode 
of  payment.  Cameron  v.  Wright,  21  App.  Div.  395,  47  N.  Y.  Supp.  571;  Seley 
V.  Williams,  20  Tex.  Civ.  App.  405,  50  S.  W.  399.  A  telegram  to  a  bidder  for 
public  woi-k,  "You  are  low  bidder.  Come  on  morning  train,"  does  not  con- 
clude a  contract  with  him.  Cedar  Rapids  Lbr.  Co.  v.  Fisher,  129  Iowa,  332, 
105  N.  W.  595,  4  L.  R.  A.  (N.  S.)  177. 

2  4  Whether  or  not  the  correspondence  shows  an  agreement  is  always  a 
question  of  construction.     See  cases  cited  in  note  5,  supra. 

2  5piienix  Ins.  Co.  v.  Schultz,  80  Fed.  337,  25  C.  C.  A.  453;    1  Chitty  on 


936  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  750 

telegrams  to  constitute  a  valid  contract  they  must  not  be  indefinite, 
uncertain  or  ambiguous.-^ 

§  750.  Offer  requiring  actual  receipt  of  acceptance. — The  rule 
that  a  letter  or  telegram  of  acceptance  takes  effect  when  it  is  mailed 
or  delivered  to  the  telegraph  company  does  not  apply,  of  course, 
where  the  offer  requires  actual  receipt  of  the  letter  or  telegram  of 
acceptance ;  as  where  it  says :  "Unless  I  receive  your  answer  by  a 
certain  time,  I  will  not  consider  myself  bound,"  ^^  or  where  the 
offerer  requests  an  answer  by  telegraph,  "yes"  or  "no,"  and  states 
that  unless  he  receives  the  answer  by  a  certain  day  he  will  conclude 
"no."    It  was  held  in  this  case  that  the  offer  was  made  dependent 

Contracts  (llth  Am.  Ed.)  15;  Parsons  on  Contracts  (6th  Ed.)  476;  Edichal 
Bullion  Co.  V.  Columbia  Gold  Min.  Co.,  87  Va.  641,  13  S.  E.  100 ;  Minneapolis, 
etc.,  Ry.  Co.  v.  Columbus  Rolling  Mill  Co.,  119  U.  S.  149,  30  L.  Ed.  376,  7 
Sup.  Ct.  168 ;  Va.  Hot  Spgs.  Co.  v.  Harrison,  93  Va.  569,  25  S.  E.  888 ;  Gould- 
ing  V.  Hammond,  54  Fed.  639,  4  C.  C.  A.  533 ;  Haas  v.  Myers,  111  111.  421, 
53  Am.  Rep.  634 ;    Lewis  v.  Browning,  130  Mass.  173. 

2  6  Breckinridge  v.  Crocker,  78  Cal.  529,  21  Pac,  179;  North  v.  Mendel,  73 
Ga.  400,  54  Am.  Rep.  879;  Watt  v.  Wisconsin  Cranberry  Co.,  63  Iowa,  730, 
18  N.  W.  898 ;  Lincoln  v*  Erie  Preserving  Co.,  132  Mass.  129 ;  Hazard  v.  Day, 
14  Allen  (Mass.)  487,  92  Am.  Dec.  790;  Hastings  v.  Webber,  142  Mass.  232, 
7  N.  E.  846,  56  Am.  Rep.  671;  Palmer  v.  Marquett,  etc.,  Co.,  32  Mich.  274; 
Williams  v.  Brickell,  37  Miss.  682,  75  Am.  Dec.  88;  Alexander  v.  West.  U., 
67  Miss.  386,  7  South.  280 ;  Rector  Prov.  Co.  v.  Sauer,  69  Miss.  235,  13  South. 
623;  Whaley  v.  Hinchman,  22  Mo.  App.  483;  Marschall  v.  Eisen  Vineyard 
Co.,  7  Misc.  Rep.  674,  28  N.  Y.  Supp.  62;  Moulton  v,  Kershaw,  59  Wis.  316, 
18  N.  W.  172,  48  Am.  Rep.  516.  The  court,  in  Watson  v.  Baker,  71  Tex.  739, 
9  S.  W.  867,  in  discussing  the  sufficiency  of  letters  and  telegrams  to  show  a 
sale  of  land,  said:  "As  in  all  other  contracts  in  writing,  parol  testimony 
cannot  add  to  their  tenns,  yet  it  can  show  the  circumstances.  It  cannot 
make  the  contract  for  the  sale  of  land,  but  can  apply  a  description  to  the 
property,  if  such  application  can  be  made,  so  that  it  be  known  that  the  par- 
ticular object  is  found.  Parol  evidence  cannot  add  to  an  imperfect  contract 
a  material  part,  in  order  to  sustain  it,  but  it  can  apply  a  description  in  it 
to  the  subject."  Abbreviations  may  be  used  in  making  sales  where  they 
have  a  well-known  meaning  in  the  trade.  Brewer  v.  Horst,  etc.,  Co.,  127  Cal. 
643,  €0  Pac.  418,  50  L.  R.  A.  240;  Pepper  v.  West.  Union,  87  Tenn.  554,  11 
S.  W.  783,  10  Am.  St.  Rep.  699,  4  L.  R.  A.  660.  Cipher  telegrams  may  be  ex- 
plained by  parol  evidence  showing  that  the  message  was  intelligible  to  the 
party  receiving  it.  West.  Union  v.  Way,  83  Ala.  542,  4  South.  844;  Bibb  v. 
Allen,  149  U.  S.  481,  13  Sup.  Ct.  950,  37  L.  Ed.  819.  Thus  it  may  be  shown 
that  a  telegram  reading,  "Buy  three  May,"  meant  "Buy  3,000  bushels  of 
May  wheat,"  the  court  saying  that :  "Ciphers  play  an  important  part  in 
business  affairs,  and  we  see  no  reason  why  they  are  not  as  proper  subjects 
for  translation  as  foreign  languages."  Carland  v.  West.  Union,  118  Mich.  369, 
76  N.  W.  702,  74  Am.  St.  Rep.  394,  43  L.  R.  A.  280.  Where  message  reads, 
"Sell  grained  star  brand,  evaporated  apples,  abstrusely  delivered  St.  Louis, 
next  week's  shipment  from  Western  New  York,"  it  is  necessary  to  show  that 
the  receiver  of  the  message  understood  the  word  "grained"  to  mean  "one  car- 
load," and  the  word  "abstrusely"  to  mean  "10%."  J.  K.  Armsby  Co.  v.  Eck- 
erly,  42  Mo.   App.   299. 

2  7  Lewis  V.  Browning,  130  Mass.  173. 


§  752)  CONTRACTS  BY  TELEGRAM  937 

upon  the  actual  receipt  and  not  the  mere  sending  of  the  telegram.-^ 
Such  a  condition  may  in  some  cases  be  implied  from  the  nature  and 
form  of  the  previous  negotiations.-^  Thus,  where  the  message  re- 
quested the  ofiferee  to  answer  "yes"  or  "no,"  this  shows  that  it  was 
in  the  contemplation  of  the  parties  that  this  telegram  should  not 
merely  have  been  deposited  for  transmission,  but  that  it  should 
have  been  transmitted  and  been  received  before  there  could  arise 
between  the  parties  any  complete  contract. 

§  751.  Same  continued — how  request  implied. — The  request  or 
authorization  to  communicate  the  acceptance  of  the  offer  by  tele- 
graph may  be  implied  in  either  of  two  ways,  viz.:  (1)  The  tele- 
graph is  used  to  make  the  offer,  as  where  a  person  makes  an  offer 
to  another  by  a  telegraphic  message  and  says  nothing  as  to  how 
the  answer  shall  be  sent;  and  (2)  where  the  circumstances  are 
such  that  it  must  have  been  in  the  contemplation  of  the  parties  that, 
according  to  the  ordinary  usage  of  such  parties,  the  telegraph 
might  be  used  as  a  means  for  such  purposes.^°  Therefore,  where 
an  offer  is  made  'by  post,  it  is  presumed  that  the  acceptance  of  the 
offer  shall  be  made  by  post;  but  if  the  offer  is  made  by  telegram, 
it  is  presumed  that  the  acceptance  should  be  made  by  telegraph. ^^ 

§  752.  Acceptance  must  be  made  within  time. — In  order  for  an 
acceptance  to  be  good,  it  must  be  made  within  the  time  allowed  in 
the  offer.  If  there  is  no  such  time  specified,  it  should  be  made 
within  a  reasonable  time  after  the  receipt  of  the  offer.  An  offer 
comes  to  an  end  at  the  expiration  of  the  time  given  for  its  accept- 
ance, a  limitation  of  time  within  which  an  offer  is  to  run  being 
equivalent  to  the  withdrawal  of  the  offer  at  the  end  of  the  time 
named. ^-  But  when  no  time  is  fixed  in  the  offer,  it  expires  at  the 
end  of  a  reasonable  time.^^  What  is  a  reasonable  time  depends 
upon  the  nature  of  the  offer  and  the  circumstances  of  the  particular 

2  8Langdell  on  Contracts,  pars.  6,  11,  15. 

2  9  Haas  V.  Myers,  111  111.  421,  53  Am.  Rep.  634. 

3  0  Hawtborn  v.  Fraser,  2  Ch.  27,  61  L.  J.  Ch.  373,  66  L.  T.  Rep.  U.  S.  439, 
40  Wkly.  Rep.  434. 

31  See  Lucas  v.  West.  Union,  131  Iowa,  669,  109  N.  W.  191,  6  L.  R.  A.  (N.  S.) 
1016. 

3  2  Maclay  v.  Ilarvey.  90  111.  525,  32  xVm.  Rep.  35;  Cannon  River  Jlfg.  Ass'u 
V.  Rogers,  42  Minn.  123,  43  N.  W.  792,  IS  Am.  St.  Rep.  497 ;  Mac-tier  v.  Frith, 
6  Wend.  (N.  Y.)  103,  21  Am.  Dec.  202;  Union  Nat.  Bank  v.  Mills,  100  N.  C. 
347,  11  S.  E.  321,  19  Am.  St.  Rep.  538;  Weaver  v.  Burr,  31  W.  Va.  736,  8 
S.  E.  743,  3  L.  R.  A.  94. 

33  Sanford  v.  Howard,  29  Ala.  684,  68  Am.  Dec.  101;  Forrier  v.  Storer,  63 
Iowa,  484,  19  N.  W.  288,  50  Am.  Rep.  752;  Mitchell  v.  Abbott,  86  Me.  338, 
29  Atl.  1118,  41  Am.  St.  Rep.  559,  25  L.  R.  A.  503 ;  Morse  v.  I'.ellows,  7  N.  H. 
549,  28  Am.  Dec.  372.  When  a  telegram  making  an  offer  and  demanding  an 
immediate  acceptance  is  received  at  10  o'clocls  Saturday  night,  the  sender  is 


938  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  T53 

matter  about  which  the  offer  is  made.^*  Thus,  if  it  should  be  in 
regard  to  the  sale  of  land,  it  seems  that  it  is  not  necessary  that  so 
prompt  a  time  be  exercised  as  it  would  in  case  it  were  concerning 
the  sale  of  chattels,  stocks  or  perishable  property.^°  In  a  case 
bordering  on  this  point,  a  person  went  west  to  purchase  a  drove  of 
cattle.  If  there  was  an  opportunity  to  purchase  at  a  reasonable  price 
he  was  to  wire  another  person  of  same  and  the  latter  was  to  arrange 
for  part  of  the  payment  at  a  certain  time.  The  latter  did  not  make 
such  arrangement  at  the  time,  but  came  later  and  claimed  his  inter- 
est in  the  purchase.  It  was  held  that  he  was  too  late.  "It  was 
essential  that  he  should  have  performed  before.  *  *  *  That  he 
could  not,  after  leading  Myers  to  think  that  he  did  not  want  an 
interest  in  the  purchase,  and  the  latter  and  Martin  raising  and  pay- 
ing all  the  purchase  money  required,  come  in  afterwards,  though 
only  the  next  day,  and  then  offer  to  pay  his  share  of  the  money,  and 
demand  the  right  of  participation  in  the  purchase.  To  have  then 
admitted  Haas  into  the  purchase  would  have  been  but  a  matter  of 
favor  with  Myers,  not  of  obligation."  ^^ 

§  753.  Revocation  of  offer. — It  is  a  general  rule  that  where  an 
offer  is  made,  not  under  seal,  it  may  be  revoked  at  any  time  before 
acceptance,  unless  there  is  a  binding  agreement  to  hold  it  open,  but 

not  bound  by  an  acceptance  sent  on  the  following  Monday.  James  v.  Marion 
Fruit  Jar,  etc.,  Co.,  69  Mo.  App.  207. 

Question  for  i»ri/.— Lucas  v.  West.  Union  Tel.  Co.,  131  Iowa,  669,  109  N.  W. 
191,  6  L.  R.  A.  (N.  S.)  1016. 

3  4  Averill  v.  Hedge,  12  Conn.  424;  Larmon  v.  Jordan,  56  111.  204;  Morse  v. 
Bellows,  7  N.  H.  549,  28  Am.  Dec.  372. 

Where  the  negotiations  respect  articles  which  fluctuate  much  in  price,  an 
acceptance  must  be  immediate.  Minn.  Linseed  Oil  Co.  v.  Collier  White  Lead 
Co.,  4  Dill.  431,  Fed.  Cas.  No.  9,035;  Home  v.  Niver,  168  Mass.  4,  46  N.  E. 
893.  Where  a  telegram  making  an  offer  to  sell  fruit  cans  read,  "Wire  in- 
stantly, or  this  is  withdrawn,"  was  delivered  about  10  p.  m.,  an  acceptance 
delayed  until  Monday  morning  is  so  unreasonable  as  not  to  constitute  a  con- 
tract. James  v.  Marion  Fruit,  etc.,  Co.,  -69  Mo.  App.  207.  Where  a  proposal 
by  letter  states,  "This  is  for  a  wired  acceptance  on  receiving  this  letter,  or 
no  trade,"  an  acceptance  wired  the  following  day  is  insufficient.  Eagle  Mill 
Co.  V.  Caven,  76  Mo.  App.  458.  "Must  have  reply  early  to-morrow"  is  a  stipu- 
lation for  reply  within  that  time.  Union  Nat.  Bank  v.  IMiller,  106  N.  C.  347, 
11  S.  E.  321,  19  Am.  St.  Rep.  538.  Where  a  person  inquired  by  letter,  "What 
is  Cole's  Scrip  worth  and  soldier's  additional  homesteads  now?"  to  which  the 
addressee  responded  by  letter,  "I  can  furnish  today  Cole's  Scrip  at  $5.00  and 
additional  eighties  at  $3.00  per  acre,"  a  telegram  the  next  day,  after  receipt 
of  the  reply,  stating,  "Send  me  two  Soldier's  additional  eighties  to-day,"  is 
too  late.    Talbot  v.  Pettigrew,  3  Dak.  141,  13  N.  W.  576. 

35Kempner  v.  Cohn,  47  Ark.  519,  1  S.  W.  869,  58  Am.  Rep.  775;  Park  v. 
Whitney,  148  Mass.  278,  19  N.  E.  161 ;  Minnesota  Linseed  Oil  Co.  v.  Collier 
White  Lead  Co.,  4  Dill.  431,  17  Fed.  Cas.  No.  9,635. 

86  Haas  V.  Myers,  111  111.  421,  53  Am.  Rep.  634. 


§    754)  CONTRACTS  BY  TELEGRAM 


939 


it  cannot  be  revoked  after  acceptance."  In  order  that  the  offer 
should  be  revoked,  it  is  necessary  that  the  same  be  communicated 
to  the  offeree  before  he  accepts  the  offer.^^  Formal  notice  of  such 
revocation  is  not  always  necessary.  It  is  sufficient  if  the  person 
making  the  offer  makes  some  act  inconsistent  with  it,  as  where  he 
sells  the  property  to  another  person,  and  the  offeree  knows  of  such 
sale  before  he  accepts.^"  If  an  offer  is  sent  by  telegram,  and,  in 
accordance  to  the  regulations  of  the  company's  office,  the  sender  is 
unable  to  recall  his  telegram,  he  may  do  so  by  other  means  if  pos- 
sible before  it  is  accepted ;  ^°  as  by  a  second  telegram  sent  by  the 
same  means  and  delivered  at  the  same  time  with  the  first  tele- 
gram ;  *^  or  by  a  telegram  received  by  the  offeree  before  he  has 
delivered  his  telegram  to  the  company  accepting  the  oft'er.-*-  But 
a  revocation  of  an  offer  not  actually  communicated  to  the  person 
to  whom  the  offer  is  made,  or  which  is  communicated  to  him  after 
the  acceptance  has  been  sufficiently  made,  is  inoperative.*^  So  it 
follows  that  a  revocation  of  an  offer  made  by  telegram  can  have  no 
effect,  unless  the  same  is  communicated  to  the  offeree  before  the 
acceptance. 

§  754.  Designation  of  parties. — Where  the  transaction  about 
which  the  telegrams  relate  is  one  between  agents  or  brokers,  the 
question  whether  the  parties  signing  the  telegrams  are  acting  per- 
sonally or  merely  as  brokers  often  becomes  material.**     The  gen- 

37  Cooper  V.  Lansing  Wheel  Co.,  94  Mich.  272,  54  N.  W.  39,  34  Am.  St.  Rep. 
341;  Ide  v.  Leiser,  10  Mont.  5,  24  Pac.  695,  24  Am.  St.  Rep.  17;  Perry  v. 
Mt.  Hope  Iron  Co.,  15  R.  I.  380,  5  Atl.  632,  2  Am.  St.  Rep.  902 ;  Brauer  v. 
Shaw,  168  Mass.  198,  46  N.  E.  617,  60  Am.  St.  Rep.  387. 

as  Eskridge  v.  Glover,  5  Stew.  &  P.  (Ala.)  264,  26  Am.  Dec.  344 ;  Kempner  v. 
Cohn,  47  Ark.  519,  1  S.  W.  869,  58  Am.  Rep.  775 ;  Dambmann  v.  Lorentz,  70 
Md.  380,  17  Atl.  389,  14  Am.  St.  Rep.  3&4;  Waterman  v.  Banks,  144  U.  S.  394, 
12  Sup.  Ct.  646,  36  L.  Ed.  479. 

3  9  Kempner  v.  Cohn,  47  Ark.  519,  1  S.  W.  869,  58  Am.  Rep.  775;  Coleman  v. 
Applegarth,  68  Md.  21,  11  Atl.  284,  6  Am.  St.  Rep.  417. 

4  0  Newcoml)  v.  De  Roose,  2  E.  &  E.  271,  6  Jur.  U.  S.  68,  29  L.  J.  Q.  B.  4, 
8  Wkly.  5,  105  E.  C.  L.  271 ;  Baker  v.  Holt,  56  Wis.  100,  14  N.  W.  8 ;  Harris  v. 
Scott,  67  N.  H.  437,  32  Atl.  770,  by  telegram. 

41  Sherwin  v.  Nat.  Cash  Reg.  Co.,  5  Colo.  App.  162,  38  Pac.  392. 
4  2  Re  London,  etc.,  81  L.  T.  Rep.  U,  S.  512. 

43  Wheat  V.  Cross,  31  INId.  99,  1  Am.  Rep.  28 ;  Brauer  v.  Shaw,  168  Mass.  198, 
46  N.  E.  617,  60  Am.  St.  Rep.  387. 

44  "Telegraph  how  much  corn  you  will  sell,  with  lowest  cash  price,  Buffalo," 
reply  "Three  thousand  cases,  one  dollar  five  cents,  open  one  week,"  to  which 
this  reply  is  made,  "Sold  corn;  will  see  you  to-morrow."  The  court,  after 
holding  that  there  was  no  sale  to  the  broker,  said:  "Construing  the  first  two 
telegrams  together,  the  defendant  says  to  the  plaintiff  that  it  will  sell  a  cer- 
tain quantity  of  corn  on  certain  terms,  and  within  a  certain  time ;  but  it  does 
not  say  that  it  will  sell  to  the  plaintiff.  It  says,  in  effect,  that  it  will  hold 
the  corn  for  a  week,  for  the  plaintiff  to  find  a  purchaser.    The  plaiutififs  reply 


940  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  754 

eral  rule  is  that  one  who  acts  as  agent  for  another,  in  order  to  re- 
lease himself  from  liability  should  disclose  his  principal,  because 
otherwise  it  would  be  presumed  that  he  intended  to  bind  himself 
personally.  In  other  words,  it  is  not  the  duty  of  one  dealing  with 
an  agent  to  find  out  whether  he  is  acting  in  the  transaction  in  that 
capacity  or  as  principal;  but  it  is  the  duty  of  the  agent,  if  he  de- 
sires to  relieve  himself  from  personal  liability,  to  disclose  the  name 

confirms  this  construction,  for  he  does  not  say  that  he  will  take  the  corn, 
but  that  he  has  sold  it  and  will  see  the  defendant  the  next  day."  Lincoln  v. 
Erie  Preserving  Co.,  132  Mass.  129.  "Carlton  &  Moffat,  New  York.  At  what 
price  can  you  supply  C.  F.  L.  June,  July  delivery  one  million  Standard  Calcut- 
ta wheat  bags:  Terms,  notes  payable  1st  day  of  November,  1st  day  of  De- 
cember ;  interest  to  begin  1st  day  of  July.  E.  L.  G.  Steele  &  Co."  The  de- 
fendant replied:  "E.  L.  G.  Steel  &  Co.,  Sau  Francisco:  Calcutta  offers,  sub- 
ject to  immediate  reply,  one  million  centals  March,  April  shipment,  steamer 
3  92/100  cents,  net  cost,  and  freight.  Must  have  a  confirmed  bankers  credit  on 
London,  four  months'  sight.  Subject  to  reply  by  5  p.  m.  liere  today  Thursday. 
Carleton  &  Moffat" — to  which  plaintiffs  assignors  replied:  "Carleton  &  Mof- 
fat, 132  Front  Street,  New  York:  We  accept,  for  our  account,  one  million 
standard  Calcutta  bags,  size  twenty-two  by  thirty-six,  weight  twelve  ounces, 
as  per  your  telegram  of  today.  Wire  us,  confirming  this,  and  naming  your 
correspondent  in  Calcutta,  and  instruct  us  regarding  credit.  E.  L.  G.  Steele 
&  Co."  The  Court  said :  "It  is  insisted  by  the  defendant  that  the  fair  reading 
of  this  telegram  was  that  it  was  an  offer  made,  not  by  him,  but  by  somebody 
else,  which  he  transmitted.  As  will  be  seen,  the  question  upon  the  construc- 
tion of  the  phrase  'Calcutta  offers.'  We  think  it  would  be  straining  the  lan- 
guage used  to  assume  that  such  phrase  meant  that  somebody  in  Calcutta  of- 
fered to  sell.  The  more  reasonable  and  natural  view  to  take  would  be  that, 
the  plaintiff's  assignors  having  asked  the  defendant  if  he  would  sell,  the  words 
'Calcutta  offers,'  as  used  by  the  defendant,  mean  that,  'From  advices  received 
from  Calcutta  we  offer  you ;'  and  then  follow  the  terms  which  are  different 
from  the  offer.  This  answer  is  signed,  not  by  the  defendant  as  agent,  but  in 
his  firm  name,  and  presumably,  therefore,  in  his  personal,  and  not  in  any  rep- 
resentative, capacity.  That  this  is  a  reasonable  construction  follows  from  the 
fact  that  the  plaintiff's  assignors  were  not  asking  the  defendant  what  he 
could  obtain  from  Calcutta,  but  the  inquiry  was  what  'you'  (meaning  the  de- 
fendant personally)  would  sell  the  bags  for.  Before  answering  the  telegram, 
it  might  well  be  that  the  defendant  needed  advices  from  Calcutta  as  to  the 
terms  upon  which  he  could  get  the  bags,  which  would  fully  explain  the  phrase 
used,  'Calcutta  offers.'  It  will  also  be  noted  that  in  his  telegram  the  defend- 
ant requested  an  answer  by  5  p.  m.  The  only  purpose  of  requesting  that  an- 
swer was  to  have  the  contract  completed.  There  was  no  one  suggested  to 
whom  the  plaintiff's  assignors  could  direct  their  answer,  except  to  the  defend- 
ant, and  it  was  entirely  Immaterial  from  whom  the  bags  were  obtained,  pro- 
vided they  were  of  the  proper  standard ;  but,  as  the  bags  were  undoubtedly 
to  come  from  Calcutta,  the  price  and  time  of  shipment  from  that  place  were 
important.  To  hold  that  these  telegrams  did  not  make  a  contract  would  neces- 
sarily assume  that  the  reply  which  the  defendant  required  was  with  no  inten- 
tion of  binding  either  himself  or  any  one  else,  because  there  is  no  suggestion 
of  a  dealing  between  the  plaintiff's  assignors  and  any  person  except  the  defend- 
ant. The  latter  does  not  intimate  that  he  was  acting  in  a  representative  ca- 
pacity, or  for  an  undisclosed  principal,  nor  do  we  think  any  such  inference  is 
to  be  drawn  from  the  fact  that  in  the  confirmatory  telegram  to  the  defendant 


§  754)  CONTRACTS  BY  TELEGRAM  941 

of  his  principal  in  the  transaction.*^  So,  where  a  contract  is  being 
made  by  means  of  the  telegraph,  the  ofterer,  if  he  is  acting  in  the 
capacity  of  agent  or  broker,  should  impart  the  information  to  the 
offeree.  The  contracting  parties  may  be  ascertained  by  means  of 
a  confirmatory  telegram.**'  But  it  has  been  held  that  a  statement 
in  a  telegram  that  a  sale  had  been  made  to  a  certain  person  did  not 
itself  show  that  the  sale  was  made  to  a  firm  of  which  the  said  per- 
son was  a  member.*^ 

accepting  the  latter's  offer  we  find  a  request  for  the  defendant  to  name  a  'cor- 
respondent in  Calcutta.'  We  think  it  was  an  erroneous  assumption  on  the 
part  of  the  judge  below  to  conclude  from  this  that  the  senders  of  the  telegram 
considered  that  they  were  dealing  with  the  defendant  as  an  agent,  and  that 
it  was  sent  with  a  view  of  learning  the  name  of  the  principal.  It  must  be  re- 
membei-ed  that  the  defendant  required,  among  other  conditions,  'a  confirmed 
banker's  credit  on  London' ;  and  it  was  necessary  for  plaintiff's  assignors  to 
luiow  who  was  to  receive  this  credit,  as  it  was  equally  proper  for  them  to 
know  the  name  of  the  party  who  was  to  ship  the  bags.  It  would  be  placing 
too  much  importance  upon  such  language  to  conclude  that  it  was  an  inquiry 
for  the  name  of  defendant's  principal,  while  the  telegrams  themselves  show 
that  all  the  essential  dealings  were  immediately  with  the  defendant.  The 
plaintiff's  assignors  were  not  concerned  with  the  question  of  how  or  from 
whom  the  defendant  might  obtain  the  bags ;  but,  having  made  a  contract  with 
him  to  purchase  them,  it  was,  of  course,  proper  that  they  should  have  the  in- 
formation, so  that  they  might  comply  with  the  terms  contained  in  the  defend- 
ant's telegram  in  reference  to  credit,  and  the  place  from  which  the  bags  were 
to  be  shipped.  If,  however,  the  defendant  was  in  fact  acting  as  agent,  we 
think  he  was  still  liable  for  failure  to  disclose  the  name  of  his  principal.  The 
general  rule  is  that  one  who  acts  as  agent  for  another,  in  order  to  release  him- 
self from  liability,  should  disclose  his  principal,  because  otherwise  it  would 
be  presumed  that  he  intended  to  bind  himself  personally.  In  other  words,  it 
is  not  the  duty  of  one  dealing  with  an  agent  to  find  out  whether  he  is  acting 
in  the  transaction  in  that  capacity  or  as  principal ;  but  it  is  the  duty  of  the 
agent,  if  he  desires  to  relieve  himself  from  personal  liability,  to  disclose  the 
name  of  his  principal  in  the  transaction.  The  conclusion  at  which  we  have 
arrived,  therefore,  is  that  there  was  a  direct  inquiry  to  the  defendant  person- 
ally as  to  the  price  at  which  he  would  sell  the  bags,  that,  in  reply,  the  de- 
fendant proposed  the  terms  upon  which  he  would  sell,  and  that  the  final  tele- 
gram of  the  plaintiff's  assignors  was  an  acceptance  of  the  offer  made,  and  com- 
pleted the  contract."  Crossett  v.  Carleton,  23  App.  Div.  30G,  48  N.  Y.  Supp. 
309. 

4  5  Crossett  v.  Carleton,  23  App.  Div.  366,  48  N.  Y.  Supp.  309;  Cobb  v.  Glenn 
Boom,  etc.,  Co.,  57  W.  Va.  49,  49  S.  E.  1005,  110  Am.  St.  Rep.  734. 

40  "Hor.st  &  Lachmund  Co.,  Santa  Rosa,  Cal.  Bought  thirteen  at  eleven  five- 
eighths  net  you  ;  confirm  purchase  by  wire  to  Brewer,  nineteen  sixteen  M. 
street,  inspection  on  or  before  Saturday.  Do  you  want  fifteen  at  eleven  quar- 
ter? C.  A.  Wagner" — who  responded  with  the  following  telegram  to  the  ven- 
dor: Reply:  "Geo.  Brewer,  1916  M.  Street.  Sacramento,  Cal.  We  confirm 
purchase  Wagner  eleven  five-eighths  cents,  like  sample.  Horst  &  Lachmund 
Co."  The  telegrams  suQiciently  disclosed  the  parties.  Brewer  v.  Horst  &  Lach- 
mund, 127  Cal.  643,  60  Pac.  418,  50  L.  R.  A.  240.  See  Watt  v.  Wisconsin  Cran- 
berry Co.,  63  Iowa,  730,  18  N.  W.  898. 

47  Watt  v.  Wisconsin  Cranberry  Co.,  63  Iowa,  730,  18  N.  W.  898. 


942  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  755 

§  755.  Indorsement  and  acceptance  by  telegram — forged  accept- 
ance.— A  promise  to  indorse  *^  commercial  paper,  or  a  valid  accept- 
ance *^  thereof,  may  be  made  by  telegram.  So  a  bank  which  re- 
ceives from  another  a  telegram  promising  to  honor  a  draft  has  a 
right  to  use  and  present  it  to  any  one  interested  in  the  draft  either 
as  a  holder  or  prospective  purchaser,  since  it  in  law  becomes  a  part 
of  the  draft  as  an  acceptance.^'*  But  liability  will  not  arise  upon  a 
claimed  contract  of  indorsement  or  acceptance  external  to  such 
paper,  unless  the  language  used  clearly  and  unequivocally  imparts 
an  absolute  promise  to  pay.^^     It  has  been  held  that  a  bank  to 

48  Smith  V.  Easton,  54  Md.  138,  39  Am.  Rep.  355. 

49  Coffman  v.  Campbell,  87  111.  98 ;  Whilden  v.  Merchants',  etc.,  Nat.  Bank, 
64  Ala.  1,  38  Am.  Rep.  1 ;  Flora  First  Nat.  Bank  v.  Clark,  61  Md.  400,  48  Am. 
Rep.  114 ;  Ravenswood  Bank  v.  Reneker,  IS  Pa.  Super.  Ct.  192 ;  Bank  v.  Bank, 
74  Kan.  606,  87  Pac.  746,  8  L.  R.  A.  (N.  S.)  1148,  118  Am.  St.  Rep.  340,  11  Ann. 
Cas.  281 ;  Garrettson  v.  North  Atchison  Bank  (C.  C.)  39  Fed.  163,  7  L.  R.  A. 
428,  affirmed  in  (C.  C.)  47  Fed.  S67 ;  Wells  v.  West.  Union,  144  Iowa,  605,  123 
N.  W.  371,  24  L.  R.  A.  (N.  S.)  1045,  138  Am.  St.  Rep.  317 ;  Bank  v.  Bradstreet, 
89  Neb.  186,  130  N,  W.  1038,  38  L.  R.  A.  (N.  S.)  747.  See,  also,  Henrietta  Nat. 
Bank  v.  State  Nat.  Bank,  SO  Tex.  648,  16  S.  AV.  321,  26  Am.  St.  Rep.  773, 
holding  that,  where  the  holder  telegraphed  the  drawee,  "Will  you  pay  E.  F. 
and  W.  S.  Ikard's  check  for  eighteen  hundred  on  presentation?"  the  reply 
telegram,  "Yes,  will  pay  the  Ikard  check,"  sufficiently  identified  the  check  to 
sustain  an  action  for  breach  of  the  promise  to  pay. 

Countermanding  check. — A  countermand  of  a  check  may  be  made  by  tele- 
gram, and  if  a  bank  is  negligent  in  acting  on  a  countermand,  it  will  be  liable. 
Curtice  v.  London  City,  etc..  Bank,  1  B.  R.  C.  417,  1  K.  B.  293,  77  L.  J.  K.  B. 
(N.  S.)  341,  98  L.  T.  (N.  S.)  190,  24  Times  L.  R.  176. 

5  0  Wells  V.  West.  Union,  144  Iowa,  605,  123  N,  W.  371,  24  L.  R.  A.  (N.  S.) 
1045,  138  Am.  St.  Rep.  317. 

El  Such  a  promise  is  not  made  by  returning  to  the  telegraph  inquiry,  "Is  J. 
F.  Donald's  check  on  you  Three  hundred  fifty  good?"  the  telegraphic  response, 
"J.  F.  Donald's  check  is  good  for  sum  named."  First  Nat.  Bank  v.  Coml.  Sav- 
ings Bank,  74  Kan.  606,  87  Pac.  746,  8  L.  R.  A.  (N.  S.)  1148,  118  Am.  St.  Rep. 
340,  11  Ann.  Cas.  281.  "If  we  can  see  a  margin  will  authorize  you  to  draw 
for  the  cost,"  a  telegram  stating,  "Will  advance  cost  if  you  buy  strict,  good,  or- 
dinary at  sixteen,"  is  an  unconditional  promise  in  writing  to  accept  a  bill  be- 
fore it  is  drawn.  Whilden  v.  Merchants',  etc..  Bank,  64  Ala.  1,  38  Am.  Rep.  1. 
"Will  you  honor  draft  drawn  by  A.  Harper  for  $2,300?"  a  reply  telegram  is 
sent  stating,  "Will  pay  A.  Harper  draft  $2,.300  for  stock,"  is  an  absolute  un- 
dertaking to  accept  and  pay  the  draft.  Coffman  v.  Campbell,  87  111.  98.  A 
telegram  to  a  bank  asking,  "Will  you  pay  James  Tate's  check  on  you,  twenty 
thousand  dollars?  Answer,"  and  the  bank  answers,  "James  Tate  is  good. 
Send  on  your  paper,"  the  telegram  of  the  bank  is  a  contract  to  pay  the  check 
on  presentation.  North  Atchison  Bank  v.  Garretson,  51  Fed.  168,  2  C.  C.  A. 
145.  "We  will  pay  Clark  &  Goldby's  draft,  $608.92,"  is  not  a  contract  to  ac- 
cept a  draft  for  $680.92.  Brinkman  v.  Hunter,  73  Mo.  172,  39  Am.  Rep.  492. 
"Will  drafts  for  thirty-eight  hundred,  made  by  J.  R.  Snyder  on  you,  be  paid  if 
presented  Monday?"  the  bank  replies,  "Drafts  named  are  good  now,"  the  reply 
does  not  constitute  an  acceptance,  even  though  the  holder  of  the  drafts  has 
telegraphed,  "We  have  sent  a  man  with  drafts.  Will  be  there  before  three 
o'clock."    Myers  v.  Union  Nat.  Bank,  27  111.  App.  254.     In  Kahn  v.  Walton,  46 


§  757)  CONTRACTS  BY  TELEGRAM  943 

which  a  forg-ed  telegram  is  delivered  through  the  negligence  of  the 
telegraph  company,  agreeing  to  honor  a  draft,  and  which,  on  the 
faith  thereof,  cashes  the  draft  to  an  insolvent,  may  maintain  an 
action  against  the  telegraph  company  for  the  loss  thereby  in- 
curred.°- 

§  756.  Contract — what  law  governs. — It  is  the  general  law  of 
contracts,  as  discussed  elsewhere,^^  that  the  rights  of  the  parties 
must  be  governed  by  the  laws  of  the  state  where  the  property  is 
situated  and  where  the  contract  and  conveyance  are  made,  unless 
it  is  clearly  shown  that  the  conveyance  was  intended  to  take  effect 
in  another  state. ^*  Thus,  where  a  Mississippi  plantation  was  leased 
in  a  contract  made  by  telegram  to  parties  living  in  the  state  of 
Kentucky,  and  an  action  was  brought  in  the  latter  state  to  recover 
the  rent  which  was  not  stipulated  as  to  when  it  should  be  paid,  it 
was  held  that  the  time  of  payment  must  be  determined  by  the 
laws  and  customs  of  the  state  where  the  land  was  situated,  the 
contract  was  to  be  performed,  the  landlord  lived,  and  where  in  legal 
contemplation  the  contract  was  made.^^  It  may  be  said,  however, 
that  the  same  difficulty  respecting  the  conflict  of  laws  which  occurs 
with  respect  to  other  contracts  also  occurs  with  respect  to  contracts 
made  by  telegram.^® 

§  757.  Telegraph  company  ordinarily  the  agent  of  sender. — An 
agent  may  be  appointed  by  implication.  Thus  the  appointment  of 
an  agent  may  be  implied  from  the  fact  that  a  person  is  placed  in  a 


Ohio  St.  195,  20  N.  E.  203,  the  inquiry  was:  "Are  M.  A.  Walton's  check  for 
two  thousand  good?"  The  answer  was:  "Yes,  sir."  Acceptance  not  good.  In 
Springfield  Bank  v.  First  Nat.  Bank,  30  Mo.  App.  271,  the  court  said:  "A 
parol  representation  by  the  bank  upon  which  a  check  is  drawn  that  the  check 
is  good  is  not  equivalent  to  a  certification,  and  does  not  bind  the  bank  to  pay 
it  whenever  presented  until  barred  by  limitation ;  nor  does  it  release  the  holder 
from  the  duty  of  proper  diligence  in  presentment  for  payment.  It  binds  the 
bank  to  nothing  more  than  the  statement  was  true  at  the  time  it  was  made." 
"The  bill  shall  have  attention"  is  insuflScient  (Rees  v.  Warwick,  2  B.  &  Aid. 
113,  2  Stark.  411),  and  a  letter  written  by  one  to  another  saying,  "I  will  ac- 
cept and  pay  James  Cusick's  order  for  (20.00)  twenty  dollars,"  does  not  be- 
come an  acceptance  by  the  others  endorsing  the  letter.  Allen  v.  Leavens,  26 
Or.  164,  37  Pac.  488,  46  Am.  St.  Rep.  613,  26  L.  R.  A.  620.  See  State  Bank  v. 
Bradstreet,  89  Neb.  186,  130  N.  W.  1038,  38  L.  R.  A.  (N.  S.)  747,  an  uncondi- 
tional acceptance. 

5  2  Wells  V.  West.  Union,  144  Iowa,  005,  123  N.  W.  371,  24  L.  R.  A.  (N.  S.) 
1045,  138  Am.  St.  Rep.  317. 

5  3  See  §  488  et  seq. 

5  4Wyse  V.  Dandridge,  35  Miss.  672,  72  Am.  Dec.  149;  Young  v.  Harris,  14 
B.  Mon.  (Ky.)  556,  61  Am.  Dec.  170 ;  Galliano  v.  Pierre  &  Co.,  IS  La.  Ann.  10, 
^9  Am.  Dec.  643,  and  note. 

5  5  Calhoun  v.  Atchison,  4  Bush  (Ky.)  2G1,  96  Am.  Dec.  299. 

6  6  North  Packing,  etc.,  Co.  v.  West.  Union  Tel.  Co.,  70  111.  App.  275;  Perry 


944  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  757 

situation  in  which,  according  to  ordinary  usage,  he  would  be  under- 
stood to  represent  and  act  for  another.^'^  So  it  can,  in  general,  be 
said  that  the  manner  in  which  a  party  treats  one  who  apparently 
acts  as  his  agent,  and  holds  him  out  as  such  to  third  parties,  will 
be  a  sufficient  implication  of  agency. ^^  It  is  a  general  rule  that, 
when  the  post  is  used  as  a  means  of  conveying  news  respecting  a 
certain  transaction,  the  party  first  selecting  the  post  for  such  pur- 
pose impliedly  appoints  this  instrumentality  as  an  agency  for  con- 
summating the  transaction  and  it  is  therefore  his  agent.  However, 
the  extent  of  employment  of  such  agent  is  merely  to  convey  the 
letter  and  deliver  it  to  the  other  party  when  called  for.  The  same 
rule  applies  to  telegraph  companies,  whereby  they  are  ordinarily 
considered  the  agent  of  the  party  sending  the  message.^^  The 
elTect  of  the  rule,  as  has  been  seen,  is  that,  when  an  offer  has  been 
made  by  telegraph,  the  contract  is  complete  at  the  moment  the  ac- 
ceptance is  delivered  to  the  company  for  transmission  to  the  party 
making  the  offer.®"  If  the  acceptance  is  delayed  or  changed  in  any 
way  in  the  transmission,  the  sender  will  be  bound  nevertheless.®^ 
He  assumes  responsibilities  for  errors  both  ways.®^ 

V.  Mt.  Hope  Iron  Co.,  15  R.  I.  380,  2  Am.  St.  Rep.  902,  5  Atl.  632 ;  Gist  v.  West. 
Union  Tel.  Co.,  45  S.  C.  344,  55  Am.  St.  Rep.  763,  23  S.  E.  143 ;  Western  Union 
Tel.  Co.  V.  Eubanks,  100  Ky.  591,  38  S.  W.  1068,  66  Am.  St.  Rep.  361,  36  L.  R. 
A.  711 ;  Garrettson  v.  North  Atchison  Bank  (C.  C.)  47  Fed.  867. 

6  7  Evans  on  Agency  (Ewell's  Ed.)  23. 

5  8  South,  etc.,  Alabama  R.  Co.  v.  Henlein,  52  Ala.  606,  23  Am.  Rep.  578; 
Shaffer  v.  Sawyer,  123  Mass.  294 ;  Hull  v.  Jones,  69  Mo.  587 ;  Singer  Mfg.  Co. 
V.  Holdfodt,  86  111.  455,  29  Am.  Rep.  43 ;  Haughtou  v.  Maurer,  55  Mich.  323, 
21  N.  W.  426 ;  Lovell  v.  Williams,  125  Mass.  439. 

5  9  Haubelt  v.  Rea,  etc..  Mill  Co.,  77  Mo.  App.  672.  See  §  467,  and  cases  cit- 
ed.   See,  also,  cases  in  note  98  under  §  487. 

60  See  §  748. 

<i^  Alahama.—luinn  v.  McLean,  80  Ala.  360;  Levisohn  v.  Waganer,  76  Ala. 
412 ;  Falls  v.  Gaither,  9  Port.  605. 

Arkansas. — Kempner  v.  Cohn,  47  Ark.  519,  1  S.  W.  869,  58  Am.  Rep.  775. 

Connecticut. — Averill  v.  Hedge,  12  Conn.  424. 

Georgia.— West.  Union  v.  Shotter,  71  Ga.  760 ;  Bryant  v.  Booze,  55  Ga.  438 ; 
Levy  V.  Cohen,  4  Ga.  1. 

Illinois.— Haas  v.  Myers,  111  111.  421,  53  Am.  Rep.  634 ;  Cobb  v.  Foree,  38 
111.  App.  255 ;  Anheuser-Busch  Brewing  Ass'n  v.  Hutmacher,  127  111.  652,  21 
N.  E.  626,  4  L.  R.  A.  575,  affirmed  29  111.  App.  316. 

Indiana. — Barr  v.  Ins.  Co.  of  North  America,  61  Ind.  488;  Ky.  Mut.  Ins.  Co. 
v.  Jenks,  5  Ind.  96.  See  New  v.  Ins.  Co.,  171  Ind.  33,  40,  85  N.  E.  703,  131  Am. 
St.  Rep.  245. 

loica. — Hunt  v.  Higman,  70  Iowa,  406,  30  N.  W.  769;  Siebold  v.  Davis,  67 
Iowa,  560,  25  N.  W.  778 ;  Ferrier  v.  Storer,  63  Iowa,  484,  19  N.  W.  288,  50  Am. 

02  Trevor  v.  Wood,  36  N.  Y.  307,  93  Am.  Dec.  511,  reversing  41  Barb.  (N.  Y.) 
255.  See,  also,  Magie  v.  Herman,  50  Minn.  424,  52  N.  W.  909,  36  Am.  St.  Rep. 
660 ;  Wilson  v.  Minneapolis,  etc.,  R.  Co.,  31  Minn.  483,  18  N.  W.  291 ;  Durkee 
V.  Vermont  Cent.  R.  Co.,  29  Vt.  127. 


§  758)  CONTRACTS  BY  TELEGRAM  945 

§  758.  Sender  bound  on  message  as  received. — If  a  message  is 
delivered  to  a  telegraph  company  containing  an  offer  to  sell  mer- 
chandise at  a  certain  price,  and  the  company  transmits  it  so  as  to 

Rep.  752 ;  Moore  v.  Pierson,  6  Iowa,  279,  71  Am.  Dec.  409 ;  Lucas  v.  West. 
Union,  131  Iowa,  669,  109  N.  W.  191,  6  L.  R.  A.  (N.  S.)  1016. 

Kansas. — Trounstiue  v.  Sellers,  35  Kan.  447,  11  Pac.  441. 

Kentucky.— Calhoun  v.  Atchison,  4  Bush,  261,  96  Am.  Dec.  299 ;  Hutcheson 
V.  Blakeman,  3  Mete.  80 ;  Chiles  v.  Nelson,  7  Dana,  281 ;  Cable  Co.  v.  Oil  Co., 
140  Ky.  506,  131  S.  W.  277 ;  Carter  v.  Hibbard,  83  S.  W.  112,  26  Ky.  Law  Rep. 
1033.  Compare  Ins.  Co.  v.  Joseph,  103  S.  W.  317,  31  Ky.  Law  Rep.  714,  12 
L.  R.  A.  (N.  S.)  439,  acceptance  not  revoked  by  death  after  mailing. 

Maine.— Ayer  v.  West.  Union,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353. 
See,  also.  True  v.  International  Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156. 

il/ar(//aHd.— Stockham  v.  Stockham,  32  Md.  196;  Wheat  v.  Cross,  31  Md.  99, 
1  Am.  Rep.  28. 

Michigan.— Wilcox  v.  Cline,  70  Mich.  517,  38  N.  W.  555. 

Minnesota.— Magia  v.  Herman,  50  Minn.  424,  52  N.  W.  909,  36  Am.  St.  Rep. 
660 ;  Wilson  v.  Minn.,  etc.,  Ry.  Co.,  31  Minn.  481,  18  N.  W.  291. 

Missouri.— Bgger  v.  Nesbitt,  122  Mo.  667,  27  S.  W.  385,  43  Am.  St.  Rep.  590 ; 
Lungstrass  v.  German  Ins.  Co.,  48  Mo.  201,  8  Am.  Rep.  10 ;  Lancaster  v.  Elliot, 

42  Mo.  App.  503 ;  Greeley-Burnham  Gro.  Co.  v.  Capen,  23  Mo.  App.  301 ;  Wha- 
ley  V.  Hiuchman,  22  Mo.  App.  483  ;  Noyes  v.  Phoenix  Mut.  L.  I.  Co.,  1  Mo.  App. 
584 ;  Ashford  v.  Schoop,  SI  Mo.  App.  539 ;  Haubelt  v.  Rea,  etc..  Mill  Co.,  77 
Mo.  App.  672 ;  Taylor  v.  Steamboat  Robert  Campbell,  20  Mo.  254. 

Mo7itana.— Long  v.  Needham,  37  Mont.  408,  96  Pac.  731. 

New  Hampshire. — Abbott  t.  Shepard,  48  N.  H.  14;  Howley  v.  Whipple,  48 
N.  H.  487. 

New  Jersey. — Hallock  v.  Com].  Ins.  Co.,  26  N.  J.  Law,  268,  affirmed  in  27 
N.  J.  Law,  645,  72  Am.  Dec.  379;  Potts  v.  Whitehead,  20  N.  J.  Eq.  55. 

Nev:i  York.— Trevor  v.  Wood,  36  N.  Y.  307,  93  Am.  Dec.  511 ;  Schonberg  v. 
Cheney,  3  Hun,  677 ;  Mactier  v.  Frith,  6  Wend.  103,  21  Am.  Dec.  262 ;  Brisban 
V.  Boyd,  4  Paige,  17;  Chesebrough  v.  Tel.  Co.,  76  Misc.  Rep.  516,  135  N.  Y, 
Supp.  583 ;  Dunning  v.  Roberts,  35  Barb.  463 ;  Rose  v.  U.  S.  Tel.  Co.,  3  Abb. 
Prac.  (N.  S.)  408. 

Orefl^ow.— Williams  v.  Burdick,  63  Or.  41,  125  Pac.  844,  126  Pac.  603. 

Pennsylvania. — Hamilton  v.  Lycoming  Mut.  Ins.  Co.,  5  Pa.  339 ;  Barney  v. 
Clark,  22  Pittsb.  Leg.  J.  (O.  S.)  69 ;  N.  Y.,  etc..  Print.  Tel.  Co.  v.  Dryburg,  35 
Pa.  298,  78  Am.  Dec.  338. 

Rhode  Island.— Vervy  v.  Mt.  Hope  Iron  Co.,  15  R.  I.  380,  5  Atl.  632,  2  Am. 
St.  Rep.  902. 

Texas.— \yest.  Union  v.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep. 
835 ;  Tel.  Co.  v.  Land  Co.  (Tex.  Civ.  App.)  128  S.  W.  1162. 

Vermont. — Durkee  v.  Vermont  Cent.  R.  Co.,  29  Vt.  127. 

Wisconsi/n. — Washburn  v.  Fletcher,  42  Wis.  152 ;  Saveland  v.  Green,  40  Wis. 
431. 

United  States.— Patrick  v.  Bowman,  149  U.  S.  411,  37  L.  Ed.  790,  13  Sup.  Ct. 
811 ;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  390,  13  L.  Ed.  187 ;  Darling- 
ton Iron  Co.  V.  Foote  (C.  C.)  16  Fed.  646 ;  Minnesota  Linseed  Oil  Co.  v.  Collier 
White  Lead  Co.,  4  Dill.  431,  Fed.  Cas.  No.  9,635. 

Canada. — Prosser  v.  Henderson,  20  U.  C.  Q.  B.  438;  Magann  v.  Auger,  31 
C.  S.  C.  186 ;  Heckla  v.  Cunard,  37  Nova  Scotia,  97.     See  O'Donohoe  v.  Wiley, 

43  U.  C.  Q.  B.  350,  but  see  Flynn  v.  Kelly,  12  O.  L.  R.  440,  8  O.  W.  R.  120; 
Underwood  v.  Maguire,  6  Quebec  Q.  D.  237,  45  C.  L.  J.  383. 

England.— In  re  Imperial  Land  Co.,  L.  R.  15  Eq.  18,  42  L.  J.  Ch.  372 ;  In  re 
Jones  Tel.(2d  Ed,)— 60 


946  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  759 

contain  an  offer  at  a  less  price,  the  sender  is  bound  to  furnish  the 
merchandise  at  the  latter  price,^^  but  he  may  recover  from  the  com- 
pany the  damages  sustained  by  complying  with  the  order.*'*  So 
also,  if  a  land  agent  leaves  a  message  directed  to  his  principal,  nam- 
ing the  price  at  which  the  property  can  be  sold,  and  the  company 
through  error  in  the  transmission  raises  the  price,  and  the  principal 
accepts  the  offer  as  received  and  executes  a  deed  at  that  price,  the 
agent  is  compelled  to  conclude  the  sale  at  the  price  first  named  by 
him,^^  yet  the  company  would  be  liable  to  the  vendor  for  the  differ- 
ence between  the  prices.®"  The  reason  why  the  sender  is  bound  by 
the  terms  of  the  message  as  received  is  that  the  telegraph  company 
is  deemed  his  agent,  and  he  is  therefore  bound  by  the  acts  of  such 
company  with  respect  to  the  transmission  and  delivery  of  the  mes- 
sage.''^ 

§  759.  Within  the  meaning  of  the  statute  of  frauds. — We  have 
commented  at  some  length  in  a  separate  chapter  ®^  on  the  statute 
of  frauds  with  respect  to  a  written  message,  offered  for  transmis- 
sion, being  a  sufficient  writing  to  constitute  a  memorandum  and 
one  which  would  bind  the  parties  under  such  statute.  We  shall 
therefore  be  very  brief  at  this  place  in  discussing  the  part  telegraph 

Imperial  Land  Co.,  L.  R.  13  Eq.  148,  41  L.  J.  Ch.  198,  25  L.  T.  R.  (N.  S.)  692, 
20  Wkly.  Rep.  164.  See,  also,  §  487,  and  cases  cited  thereunder.  But  see 
Lewis  V.  Browning,  130  Mass.  173 ;  IMcCulloch  v.  Eagle  Ins.  Co.,  1  Pick  (Mass.) 
278.  But  see  Brauer  v.  Shaw,  168  Mass.  198,  46  N.  E.  617,  60  Am.  St.  Rep. 
387. 

fi3  West,  U.  Tel.  Co.  v.  Flint  River  Lbr,  Co.,  114  Ga.  576,  40  S.  E.  815,  88 
Am.  St.  Rep.  36 ;  Reed  v.  West.  U.  Tel  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R. 
A.  492,  58  Am.  St.  Rep.  609.  See,  also,  Hasbrouck  v.  West.  U.  Tel.  Co.,  107 
Iowa,  ICO,  77  N.  W.  1034,  70  Am.  St.  Rep.  181;  Rittenhouse  v.  Independent 
Line  of  Tel.,  44  N.  Y.  263,  4  Am.  Rep.  673 ;  West.  U.  Tel.  Co.  v.  Reals,  56  Neb. 
415,  76  N.  W.  903,  71  Am.  St.  Rep.  682 ;  Hays  v.  West.  U.  Tel.  Co.,  70  S.  C.  16, 
48  S.  E.  60S,  67  L.  R.  A,  481,  106  Am.  St.  Rep.  731,  3  Ann.  Cas.  424 ;  Pepper  v. 
Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  4  L.  R.  A.  660,  10  Am.  St.  Rep.  699 ;  West. 
U.  Tel.  Co.  V.  Dubois,  128  111.  248,  21  N.  E.  4,  15  Am.  St.  Rep.  109. 

6  4  Id.  See,  also,  Eureka  Cotton  Mills  v.  West.  U.,  88  S.  C.  498,  70  S.  E. 
1040,  Ann.  Cas.  1912C,  1273 ;  Younker  v.  West.  U.,  146  Iowa,  499,  125  N.  W. 
577 ;  West.  U.  v.  Fischer,  133  Ky.  768,  119  S.  W.  189 ;  West.  U.  v.  Milton,  53 
Fla.  484.  43  South.  495,  125  Am.  St.  Rep.  1077,  11  L.  R.  A.  (N.  S.)  560 ;  West.  U. 
V.  Robertson,  59  Tex.  Civ.  App.  426,  126  S.  W,  629 ;  Pegram  v.  West.  U.,  100  N. 
C.  28,  6  S.  E.  770,  6  Am.  St.  Rep.  557 ;  Bass  v.  Postal  Tel.  Cable  Co.,  127  Ga. 
423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  489 ;  Thorp  v.  West.  U.,  118  Mo.  App.  398, 
94  S.  W.  554. 

C5  See  Keller  v.  Meyer,  74  Mo.  App.  318;  Hasbrouck  v.  West.  U.,  107  Iowa, 
160,  77  N.  W.  1034,  70  Am.  St.  Rep.  ISl ;  Reed  v.  West.  U.,  135  Mo.  661,  37  S. 
W.  904,  58  Am.  St.  Rep.  609,  34  L.  R.  A.  492. 

6  6  See  cases  cited  in  note  64,  supra. 

6  7  See  cases  cited  in  note  59,  supra. 

«8  Chapter  XXVIII. 


§  760)  CONTRACTS  BY  TELEGRAM  947 

companies  take  in  effecting  such  results.  The  fact  of  the  telegraph 
company  being  the  agent  of  the  sender  will  bind  him  by  any  of  the 
former's  acts  in  this  respect.  Thus,  when  the  telegram  is  written 
out  by  the  operator  at  the  receiving  station  and  delivered  to  the 
addressee,  the  act  of  such  operator  in  writing  and  delivering  the 
telegram  is  the  act  of  the  sender.®^  The  rule  would  not  be  changed 
if  the  sender  fails  to  write  the  message.  If  he  delivers  it  orally  or 
communicates  it  by  telephone  to  the  company  and  it  is  written  out 
by  the  operator,  the  statute  will  be  sufficiently  complied  with.  This 
is  the  holding  both  of  the  state  and  federal  courts. '^° 

§  760.  Exception  to  the  rule. — There  are  some  exceptions  to  the 
rule  that  the  telegraph  company  is  the  agent  of  the  sender  in  con- 
summating business  transactions  through  the  means  of  such  com- 
pany.'^^  There  must  be  some  intention  shown,  either  express  or 
implied,  that  the  company  is  to  act  as  the  agent  of  the  sender,  since 
if  there  are  any  acts  or  indications  on  the  part  of  the  addressee  that 
the  company  shall  not  be  the  sender's  agent,  it  will  be  presumed 
that  it  acts  as  the  agent  for  the  former.  So  also,  if  there  is  a  con- 
tinued correspondence  by  telegraph,  it  is  not  presumed  that  the 
party  making  an  offer  or  proposition  has  appointed  the  company 
his  agent,  but  it  is  deemed  the  agent  of  the  party  who  first  makes 
it  the  medium  of  communication. ''-  When  this  is  the  case,  the 
party  making  the  off'er  is  not  responsible  for  errors  made  in  the 
transmission,  and  an  acceptance  of  the  offer  is  not  complete  until 
it  has  been  actually  delivered  to  the  offerer."^  As  it  has  been  seen, 
this  is  not  the  case  when  the  company  acts  as  the  agent  for  the 

6  9  In  Howley  v.  Whipple,  48  N.  H.  487,  the  court  said:  "When  a  contract  is 
made  by  telegraph,  which  must  be  in  writing  by  the  statute  of  frauds,  if  the 
parties  authorize  their  agents,  either  in  writing  or  by  parol,  to  make  a  propo- 
sition on  one  side,  and  the  other  party  accepts  it  through  the  telegraph,  that 
constitutes  a  contract  in  writing  under  the  statute  of  frauds,  because  each 
party  authorizes  his  agents,  the  company,  or  the  company's  operator,  to  write 
for  him  ;  and  it  makes  no  difference  whether  that  operator  writes  the  offer, 
or  who  accepts  in  the  person  of  his  principal,  and  by  his  expressed  direction, 
with  a  steel  pen  an  inch  long  attached  to  an  ordinary  penholder,  or  whether 
his  pen  be  a  copper  wire  a  thousand  miles  long.  In  either  case  the  thought  is 
communicated  to  the  paper  by  the  use  of  the  finger  resting  upon  the  pen ;  nor 
does  it  make  any  difference  that,  in  one  case,  common  record  ink  is  used, 
while  in  the  other  case  a  more  subtle  fluid,  known  as  electricity,  performs  the 
same  effect." 

7  0  Howley  v.  Whipple,  48  N.  H.  487.    See,  also,  chapter  XXVIII. 
71  See  §  4G7  et  seq. 

7  2  Durkee  v.  Vermont  Cent.  R.  Co.,  29  Vt.  127.  See,  also,  Sullivan  v.  Kuy- 
kendall,  82  Ky.  483,  56  Am.  Rep.  901 ;  Culver  v.  Warren,  36  Kan.  391,  13  Pac. 
577.    See,  also,  cases  in  note  98  under  §  487. 

73  See  Lucas  v.  West.  U.,  131  Iowa,  6G9,  109  N.  W.  191,  6  L.  R.  A.  (N.  S.) 
1016. 


'948  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  761 

party  making  the  offer.  Another  exception  to  the  rule  that  the 
telegraph  company  is  the  agent  of  the  sender  is  where  he  uses  such 
company  to  consummate  the  transaction  at  the  suggestion  of  the 
addressee,  or  the  party  to  whom  the  offer  is  made.''* 

§  761.  English  rule. — The  rule  in  England  is  dift'erent  from  that 
in  the  United  States.  It  is  held  there  that  the  company  is  not  the 
agent  of  the  sender/^  and  that  he  is  not,  therefore,  liable  for  any 
errors  made  in  transmission.  The  addressee  may  have  incurred 
great  expense  and  trouble  by  acting  on  an  erroneous  message,  still 
he  will  be  the  party  to  lose.^^  The  rule  there  is  accounted  for  by 
the  fact  that  the  telegraph  is  part  of  the  government  service,''^  and 
yet  it  seems  that  this  was  not  the  case  at  the  time  the  decisions 
above  cited  were  rendered.^^  This  rule  has  been  followed  by  a  few 
of  our  courts. 

§  762.  Telegraph  company  an  independent  contractor. — A  tele- 
graph company,  with  respect  to  the  transmission  of  news,  is  re- 
garded as  an  independent  contractor,  and  is  liable  to  either  party, 
the  sender  or  the  addressee,  for  its  negligent  transmission. '^^  It 
must  not  be  understood  that  this  statement  is  in  conflict  or  is  in- 
consistent with  the  principles  heretofore  discussed,  that  it  is  the 
agent  of  the  sender.  It  may  be  the  agent  of  the  sender  in  effecting 
a  contract  with  the  addressee,  as  has  been  said,  and,  at  the  same 
time,  be  an  independent  contractor  with  respect  to  the  contract 
made  for  transmitting  the  necessary  negotiations  to  effect  the  first 
contract.  In  other  words,  if  the  contract  is  negotiated  by  means  of 
a  telegraph  company,  the  latter  is  deemed  the  agent  of  the  party 
who  first  uses  this  means  of  effecting  the  contract,  but,  aside  from 
this,  there  is  another  contract  made  by  such  party  with  the  tele- 
graph company,  as  the  other  contracting  party,  whereby  it  is  agreed 
for  a  valuable  consideration  that  the  latter  will  transmit  the  news 
which  effects  the  making  of  the  former  contract.^"  It  is  in  this 
sense  we  consider  the  company  an  independent  contractor;  but  it 
seems  that  this  distinction  is  not  observed  by  some.^^     It  is  the 

7  4  Smith  V.  Easton,  54  Md.  138,  39  Am.  Rep.  355 ;  Durkee  v.  Vermont  Cent.  R. 
Co.,  29  Vt.  127. 

7  5  See  §§  471,  472. 

7  6  Herkell  v.  Pape  L.  R,  6  Exch.  7,  40  L.  J.  Exch.  15,  23  L.  T.  Rep.  U.  S.  419, 
19  Wkly.  Rep.  lOG. 

7  7  West.  U.  Tel.  Co.  v.  Shotter,  71  Ga.  7G0. 

7  8  S  Joe.  FiPh.  Dig.  (Telegraph). 

7  9  See  §  467  et  seq. 

80  See  §  467. 

SI  Mississippi.— Shing^euv  v.  West.  U,  Tel.  Co.,  72  Miss.  1030,  IS  South.  425, 
48  Am.  St.  Rep.  604,  30  L.  R.  A.  444. 


8  763)  CONTRACTS  BY  TELEGRAM  949 

rule,  as  we  have  said  elsewhere,  that,  where  a  contract  is  negotiated 
by  means  of  the  postal  system,  the  latter  is  deemed  the  agent  of 
the  party  who  first  selects  this  means  of  communication ;  and  it  is 
upon  this  theory  that  the  telegraph  company  is  considered  the 
agent  of  the  sender.  We  think  that  there  is  this  distinction — how- 
ever unimportant  it  may  be — between  these  two  means  of  com- 
munication with  respect  to  the  contract  made  for  communicating 
such  news:  The  postal  system  is  under  the  control  of  the  public 
service,  and  the  contract  made  with  it  for  delivering  a  letter  to  the 
addressee  is  not  similar  to  that  made  with  a  telegraph  company  to 
transmit  a  telegram.  In  one  the  consideration — if  it  is  deemed  that 
any  at  all  has  been  given — is  made  indirectly,  as  by  means  of  public 
revenues;  but  in  the  other  the  consideration  is  given  directly  by 
the  sender  in  the  way  of  charges  or  fees  for  the  transmission. 
Therefore,  if  it  should  be  held  that  the  postal  system  is  not  an  in- 
dependent contractor  in  this  light,  it  is  for  the  above  reason. 

§  763,  Same  continued — may  be  sued. — It  was  discussed  else- 
where that  a  telegraph  company  could  be  sued  by  the  sender  for 
failing  to  correctly  transmit  a  telegram  intrusted  to  its  care,  or,  in 
other  words,  it  may  be  sued  for  a  breach  of  contract.^^  Then,  how 
can  it  be  sued  in  such  a  case  unless  there  has  been  a  contract  made, 
and  how  can  a  contract  be  made  unless  it  is  an  independent  con- 
tractor in  that  particular  instance?  Where  it  acts  as  agent  for  the 
sender,  it  only  acts  as  such  to  the  extent  of  delivering  the  message 
in  the  words  in  which  it  was  accepted  for  transmission ;  however, 
as  between  the  sender  and  an  innocent  addressee,  all  losses  caused 
by  errors  or  mistakes  in  the  transmission  must  be  borne  by  the 
sender,  yet  he  may  recover  his  loss  from  the  company.^^  The  gen- 
eral rule  is  that  the  principal  is  bound  by  the  acts  of  his  agent  while 
acting  within  the  apparent  scope  of  his  authority.  Then,  when  a 
person  appoints  a  telegraph  company  as  his  agent  to  transmit  and 
deliver  a  message,  the  duty  of  such  agent  is  to  transmit  the  mes- 
sage as  received.     If  it  has  been  altered  in  its  transmission,  it  is 

North  Carolina.— Fegrsim  v.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770, 
6  Am.   St.   Rep.  557. 

Tennessee.— Fepi>er  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S,  W.  783,  10  Am. 
St.  Rep.  699,  4  L.  R.  A.  G60. 

See  West.  U.  v.  Sights,  34  Okl.  461,  126  Pac.  234,  Ann.  Cas.  1914C,  204,  42 
L.  R.  A.  (N.  S.)  419,  holding  that  an  action  for  damages  against  a  telegraph 
company  is  not  on  contract,  but  on  its  negligence  in  preventing  the  making 
of  a  contract. 

82  See  chapter  XVIII. 

88  Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  353. 
•See  §  387,  and  cases  cited  thereunder. 


950  TELEGRAPH  AND  TELEPHONE  COMPANIES  (§  764 

presumed  that  this,  as  deHvered  to  an  innocent  addressee,  is  the 
correct  message  or  the  one  which  it  was  employed  to  deHver.®* 
It  has  been  held  that  the  sender  is  bound  by  the  contents  of  the 
telegram  as  received  only  so  far  as  it  is  a  faithful  reproduction  of 
what  is  sent.®^  But  while  the  sender  should  not  be  bound  to  the 
company  in  such  manner  as  to  preclude  him  from  maintaining  a 
suit  against  it  for  a  breach  of  its  contract,  yet  he  should  be  bound 
to  an  innocent  addressee  who  has  incurred  great  expense  and  trou- 
ble by  acting  on  the  erroneous  message.  Because,  if  either  the 
sender  or  addressee  must  suffer  for  the  negligence  of  the  company, 
it  should  fall  on  the  one  first  using  the  company  to  efifect  such  trans- 
action.^® We  think  the  rule,  however,  would  be  otherwise  if  either 
of  the  parties  to  the  telegram  were  acting  in  the  capacity  of  agent 
for  the  other.  This  fact  has  been  fully  discussed  elsewhere,^^  and 
we  therefore  deem  it  unnecessary  to  say  more  about  the  subject. 

§  764.  Same — where  message  a  mere  step  to  negotiation. — Par- 
ties very  often  before  contracting  exchange  views  and  negotiate 
for  terms  by  means  of  telegraphic  messages.  It  is  not  unusual  to 
invite  persons  through  this  means  to  enter  into  such  negotiations 
without  making  or  intending  to  make  an  offer.  So  a  failure  of  a 
telegraph  company  to  transmit  or  deliver  a  telegram  which  only 
amounts  to  such  negotiations  is  not,  as  a  matter  of  law,  the  proxi- 
mate cause  of  the  failure  to  make  a  binding  contract.^*     In  other 

84  Pegram  v.  West.  U.  Tel.  Co.,  100  N.  C.  28,  6  S.  E.  770,  6  Am.  St.  Rep. 
557 ;  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep. 
699,  4  L.  R.  A.  660.  See  Cobb  v.  Glenn  Boom,  etc.,  Co.,  57  W.  Va.  49,  49  S.  E. 
1005,  110  Am.  St.  Rep.  734. 

8  5  Pepper  v.  West.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  10  Am.  St.  Rep. 
699,  4  L.  R.  A.  660. 

86  Ayer  v.  West.  U.  Tel.  Co.,  79  Me.  493,  10  Atl.  495,  1  Am.  St.  Rep.  358. 

87  See  chapter  XVIII. 

88  Alahama.— West.  U.  Tel.  Co.  v.  Bowman,  141  Ala.  175,  37  South.  493. 
California.— Kenyon  \.  West.  U,  Tel.  Co.,  100  Cal.  454,  35  Pac.  75. 
Colorado.— Postal  Tel.  Cable  Co.  v.  Barwise,  11  Colo.  App.  328,  53  Pac.  252. 
Georfiria.— Wilson  v.  West.  U.  Tel.  Co.,  124  Ga.  131,  52  S.  E.  153;    Bass  v. 

Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)  489; 
Mondon  v.  West.  U.  Tel.  Co.,  96  Ga.  499,  23  S.  E.  853 ;  Clay  v.  West.  U.  Tel. 
Co.,  81  Ga.  285,  6  S.  E.  813,  12  Am.  St.  Rep.  316;  Baldwin  v.  West.  U.  Tel. 
Co.,  93  Ga.  692,  21  S.  E.  212,  44  Am.  St.  Rep.  194. 

/otya.— Bennett  v.  West.  U.  Tel.  Co.,  129  Iowa,  607,  106  N.  W.  13. 

jl/fline.— Merrill  v.  West.  U.  Tel.  Co.,  78  Me.  97,  2  Atl.  847. 

Mississippi.— West.  U.  Tel.  Co.  v.  Adams  Mach.  Co.,  92  Miss.  849,  47  South. 
412 ;  West.  U.  Tel.  Co.  v.  Webb,  48  South.  408 ;  West.  U.  Tel.  Co.  v.  Pallotta, 
81  Miss.  216,  32  South.  310;  West.  U.  Tel.  Co.  v.  Clifton,  68  Miss.  307,  8 
South.  746 ;  Johnson  v.  West.  U.  Tel.  Co.,  79  Miss.  58,  29  South.  787;  89  Am. 
St.  Rep.  584. 

North  CaroZi'Hrt.— Clark  Mfg.  Co.  v.  West.  U.  Tel.  Co.,  1.52  N.  C.  1.57, '67 
S.  E.  329,  27  L.  R.  A.  (N.  S.)  643 ;   Cherokee  Tanning  Extract  Co.  v.  West.  U.. 


§  764)  CONTRACTS  BY  TELEGRAM  951 

words,  if  an  opportunity  for  making  a  contract  would  have  been 
given  if  the  message  had  been  promptly  and  correctly  delivered, 
but  which  contract  might  have  or  might  not  have  been  made,  and 
if  made  for  work,  the  amount  to  have  been  made  thereon  would 
have  been  subject  to  several  contingencies,  damages  claimed  in 
consequence  of  a  failure  to  transmit  or  deliver  such  message  would 
not  be  the  direct  result  of  a  breach  of  such  contract,®^  and  only 
nominal  damages  could  be  recovered  therefor.^"  So,  where  the 
message  merely  inquires  whether  a  certain  price,^^  or  position,^^ 
or  employment  ^^  will  be  accepted,  or  where  it  requests  a  quotation 
of  prices,''*  or  a  discontinuance  of  pending  negotiations,"^  and  such 
message  is  not  delivered,  only  nominal  damages  could  be  recovered. 

Tel.  Co.,  143  N.  C.  376,  55  S.  E.  777,  118  Am.  St.  Rep.  806;  Walser  v.  West. 
U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  306. 

South  Carolina.— Bivd  v.  West.  U.  Tel.  Co.,  76  S.  C.  345,  56  S.  E.  973; 
Mood  V.  West.  U.  Tel.  Co.,  40  S.  C.  524,  19  S.  E.  67 ;  Harmon  v.  West.  U.  Tel. 
Co.,  65  S.  C.  490,  43  S.  E.  959. 

Texas.— West.  U.  Tel.  Co.  v.  Connelly,  2  Willson,  Civ.  Cas.  Ct.  App.  §  113. 
See,  also.  West.  U.  Tel.  Co.  v.  Twaddell,  47  Tex.  Civ.  App.  51,  103  S.  W.  1120. 

8  9  Johnson  v.  West.  U.  Tel.  Co.,  79  Miss.  58,  29  South.  7S7,  S9  Am.  St.  Rep. 
584 ;  Bennett  v.  West.  U.  Tel.  Co.,  129  Iowa,  607,  106  N.  W.  13 ;  Walser  v. 
West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  306 ;  West.  U.  Tel.  Co.  v.  Connelly,  2 
Willson,  Civ.  Cas.  Ct.  App.  (Tex.)  §  113. 

90  Walser  v.  West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366;  Cherokee  Tan- 
ning Extract  Co.  v.  West.  U.  Tel.  Co.,  143  N.  C.  370,  55  S.  E.  777,  118  Am. 
St.  Rep.  806 ;  Clark  Mfg.  Co.  v.  West.  U.  Tel.  Co.,  152  N.  C.  157,  67  S.  E.  329. 
27  L.  R.  A.  (N.  S.)  643;  White  v.  West.  U.  Tel.  Co.,  153  App.  Div.  684,  138 
N.  Y.  Supp.  598.    See,  also,  other  cases  cited  in  notes  88  and  S9,  supra. 

91  Bennett  v.  West.  U.  Tel.  Co.,  129  Iowa,  607,  106  N.  W.  13. 

92  Walser  v.  West.  U.  Tel.  Co.,  114  N.  C.  440,  19  S.  E.  366. 

9  3  Johnson  v.  West.  U.  Tel.  Co.,  79  Miss.  58,  29  South.  787,  89  Am.  St. 
Rep.  584 ;  West.  U.  Tel.  Co.  v.  Connelly,  2  Willson,  Civ.  Cas.  Ct.  App.  (Tex.) 
§  113. 

According  to  one  line  of  authorities,  the  sendee  of  a  telegram  containing  an 
offer  of  employment  may  recover  compensatory  damages  for  the  failure  of  the 
telegraph  company  to  deliver  the  message.  West.  U.  Tel.  Co.  v.  Sights,  34 
Okl.  461,  126  Pac.  234,  Ann.  Cas.  1914C,  204,  42  L.  R.  A.  (N.  S.)  419;  West. 
II.  Tel.  Co.  V.  Valentine.  18  111.  App.  57;  West.  U.  Tel.  Co.  v.  Bowman,  141 
Ala.  175,  37  South.  493 ;  West.  U.  Tel.  Co.  v.  Fenton,  52  Ind.  1 ;  West.  U.  Tel. 
Co.  V.  McKibben,  114  Ind.  511,  14  N.  E.  894 ;  Stumm  v.  West.  U.  Tel.  Co.,  140 
Wis.  528,  122  N.  W.  1032.  See,  also,  Kemp  v.  West.  U.  Tel.  Co.,  28  Neb.  611, 
44  N.  W.  1004,  26  Am.  St.  Rep.  36.3.  On  the  other  hand,  other  authorities 
deny  this  right.  Merrill  v.  West.  U.  Tel.  Co.,  78  Me.  97,  2  Atl.  847 ;  Larsen 
V.  Postal  Tel.  Cable  Co.,  150  Iowa,  748,  130  N.  W.  813 ;  Jacobs  v.  Postal  Tel. 
Cable  Co.,  76  Miss.  278,  24  South.  535 ;  Walser  v.  West.  U.  Tel.  Co.,  114  N.  C. 
440,  19  S.  E.  366 ;  West.  U.  Tel.  Co.  v.  Connelly,  2  Willson,  Civ.  Cas.  Ct.  App. 
(Tex.)  §  113.  Compare  West.  U.  Tel.  Co.  v.  Partlow,  30  Tex.  Civ.  App.  599, 
71  S.  W.  584.    See,  also,  Wilson  v.  West.  U.  Tel.  Co.,  124  Ga.  131,  52  S.  E.  153. 

9  4  Postal  Tel.  Co.  v.  Barwise,  11  Colo.  App.  328,  53  Pac.  252. 

9  5  Fisher  v.  West.  U.  Tel.  Co.,  119  Wis.  146,  96  N.  W.  545.  See  McMillan 
v.  West.  U.  Tel.  Co.,  60  Fla.  131,  53  South.  329,  29  L.  R.  A.  (N.  S.)  891,  liable 
for  causing  discontinuance  of  contract. 


952  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  765* 

§  765.  Same — where  message  is  a  definite  oiTer. — A  telegram,  in 
order  to  constitute  an  offer,  must  be  made  with  the  intention  to 
form  a  legal  obligation  or  relation,  and  not  as  a  preliminary  nego- 
tiation. It  must  be  final,  free  from  fatal  ambiguity  or  indefiniteness, 
and  sufliciently  designate  the  parties.  And  in  determining  the 
liability  of  a  telegraph  company  for  failing  to  transmit  or  deliver 
a  message  relating  to  a  contract,  a  distinction  is  recognized  between 
those  messages  Avhich  relate  to  an  offer  and  those  containing  an 
acceptance  of  an  oft'er.*^^  This  distinction  is  based  on  the  fact  that 
an  oft'er  may,  but  an  acceptance  cannot,  be  subject  to  contingen- 
cies.^^ So,  in  accordance  thereto,  it  has  been  held  that,  where  a 
message  containing  an  offer  and  not  an  acceptance  is  not  trans- 
mitted or  delivered  as  a  result  of  the  company's  default,  there  can- 
not be  a  recovery  of  compensatory  damages,^**  unless  there  is  suffi- 
cient evidence  to  show  that  the  offer  would  have  been  accepted,^^ 
or  actual  damage  was  sustained.^""  If,  however,  there  is  proof 
that  the  offer  would  have  been  accepted,  such  damages  may  be 
recovered, ^°^  provided  the  company  had  notice  of  the  nature  of  the 

96  Riclimond  Hosiery  Mills  v.  West.  U.  Tel.  Co.,  123  Ga.  216,  51  S.  E.  290 ; 
Beauprg  v.  Pac,  etc.,  Tel.  Co.,  21  Minn.  1.55. 

9  7  Beatty  Lbr.  Co.  v.  West.  U.  Tel.  Co.,  52  W.  Ya.  410,  44  S.  E.  309. 

98  Richmond  Hosiery  Mills  v.  West.  U.  Tel.  Co.,  123  Ga.  21G,  51  S.  E.  290; 
Kiley  v.  West.  U.  Tel.  Co.,  39  Hun  (N.  Y.)  15S,  affirmed  in  109  N.  Y.  231,  IG 
N.  E.  75 ;  Beatty  Lbr.  Co.  v.  West.  U.  Tel.  Co.,  52  W.  Va.  410,  44  S.  E.  309 ; 
Cherokee  Tanning  Extract  Co.  v.  West.  U.  Tel.  Co.,  143  N.  C.  376,  55  S.  E. 
777,  118  Am.  St.  Rep.  806 ;  Wilson  v.  West.  U.  Tel.  Co.,  124  Ga.  131,  52  S.  E. 
153;  Bass  v.  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.) 
489;  West.  U.  Tel.  Co.  v.  Adams  Mach.  Co.,  92  Miss.  849,  47  South.  412; 
"West.  U.  Tel.  Co.  v.  Webb  (Miss.)  48  South.  408;    Clark  Mfg.  Co.  v.  West    U 

Tel.  Co.,  152  N.  C.  157,  67  S.  E.  329,  27  L.  R.  A.  (N.  S.)  643 ;  Kinghorne  v. 
Montreal  Tel.  Co.,  18  U.  C.  Q.  B.  60;  West.  U.  Tel.  Co.  v.  Lewis,  203  Fed. 
832,  122  C.  C.  A.  150,  49  L.  R.  A.  (N.  S.)  927 ;  West.  U.  Tel.  Co.  v.  Patty  Dry 
Goods  Co.,  96  Miss.  781,  51  South.  913 ;  McColl  v.  West.  U.  Tel.  Co.,  44  N.  Y. 
Super.  Ct.  487,  7  Abb.  N,  C.  151.  See.  also,  Bashinsky  v.  West.  U.  Tel.  Co., 
1  Ga.  App.  761,  58  S.  E.  91 ;  Hall  v.  West.  U.  Tel.  Co.,  59  Fla.  275,  51  South. 
819,  27  L.  R.  A,  (N.  S.)  639.  See  other  cases  cited  in  nott  90,  supra.  See, 
also,  Postal  Tel.  Cable  Co.  v.  Barwise,  11  Colo.  App.  328,  53  Pac.  252 ;  John- 
son V.  West.  U.  Tel.  Co.,  79  Miss.  58,  29  South.  787,  89  Am.  St.  Rep.  584; 
White  V.  West.  U.  Tel.  Co.,  ,53  App.  Div.  684,  138  N.  Y.  Supp.  598 ;  Fulkersou 
V.  West.  U.  Tel.  Co.,  110  Ark.  144,  161  S.  W.  168,  Ann.  Cas.  1915D,  221. 

99  Bass  V.  Postal  Tel.  Cable  Co.,  127  Ga.  423,  56  S.  E.  465,  12  L.  R.  A.  (N.  S.)- 
489 ;  Beauprg  v.  Pac,  etc.,  Tel.  Co.,  21  Minn.  155 ;  Fulkersou  v.  West.  U.  Tel. 
Co.,  110  Ark.  144,  161  S.  W.  168,  Ann.  Cas.  1915D,  221,  employment  at  will, 
not  presumed  that  employment  would  continue  for  given  time  so  as  to  entitle 
to  damages  for  this  time. 

100  Beatty  Lbr.  Co.  v.  West.  Union  Tel.  Co.,  52  W.  Va.  410,  44  S.  E.  309; 
Beggs  V.  Tel.  Cable  Co.,  1.59  111.  App.  247. 

101  West.  U.  Tel.  Co.  v.  Love  Banks  Co.,  73  Ark.  205,  83  S.  W.  949,  3  Ann. 
Cas.  712 ;  HeiTon  v.  West.  U.  Tel.  Co.,  90  Iowa,  129,  57  N.  W.  696 ;  Hoyt  v. 
West.  U.  Tel.  Co.,  85  Ark.  473,  108  S.  W.  1056 ;    Wallingford  v.  West.  U.  Tel.. 


g  765)  CONTRACTS  BY  TELEGRAM  953 

message  ^"^  and  the  consequential  damages  which  would  arise  from 
its  nondelivery.^"^  But,  in  the  absence  of  such  proof,  actual  dam- 
ages may  be  recovered  in  certain  cases. ^"*  It  sometimes  becomes 
difficult  to  establish  the  fact  that  the  ofifer  would  have  been  ac- 
cepted if  the  message  had  been  properly  transmitted  and  delivered ; 
but  this  may  be  done  by  the  admission  of  allegations  in  the  declara- 
tion by  demurrer/*'^  or  by  evidence  that  an  ordinarily  prudent  man 
would  have  accepted  the  offer  under  similar  circumstances.'"^  But 
in  some  cases  it  has  been  held  that,  where  the  action  is  by  the 
sendee,  it  cannot  be  sufficiently  shown  by  his  testimony,'"^  a  dis- 
tinction being  made  in  this  regard  according  to  whether  the  action 
is  brought  by  the  sender  or  by  the  sendee,'"^  it  being  held  that 
where  the  action  is  by  the  sender  the  fact  that  the  offer  would  have 
been  accepted  may  be  shown  by  the  testimony  of  the  sendee.'"" 

Co.,  53  S.  C.  410,  31  S.  E.  275;  Tex.,  etc.,  Tel.  Co.  v.  Mackenzie,  36  Tex.  Civ. 
App.  178,  81  S.  W.  581 ;  West.  U.  Tel.  Co.  v.  Nagle,  11  Tex.  Civ.  App.  539,  32 
S.  W.  707 ;  Barker  v.  West.  U.  Tel.  Co.,  134  Wis.  147,  114  N.  W.  439,  126  Am. 
St.  Rep.  1017,  14  L.  R.  A.  (N.  S.)  533.  See,  also,  Wallingford  v.  West.  U. 
Tel.  Co..  60  S.  C.  201,  38  S.  E.  443,  629 ;  West.  U.  Tel.  Co.  v.  Thompson  Milling 
Co.,  41  Tex.  Civ.  App.  223,  91  S.  W.  307 ;  Larsen  v.  Cable  Co.,  150  Iowa,  748. 
130  N.  W.  813;  West.  U.  Tel.  Co.  v.  Sights,  34  Okl.  461,  126  Pac.  234,  Ann. 
Cas.  1914C,  204,  42  L.  R.  A.  (N.  S.)  419 ;  West.  U.  Tel.  Co.  v.  Biggerstaff,  177 
Ind.  168,  97  N.  E.  531 ;  West.  U.  Tel.  Co.  v.  Allen,  30  Okl.  229,  119  Pac.  981, 
38  L.  R.  A.  (N.  S.)  348 ;  McLeod  v.  Pac.  Tel.  Co.,  52  Or.  22,  94  Pac.  568,  10 
Ann.  Cas.  1239,  15  L.  R.  A.  (N.  S.)  810,  rehearing  denied,  52  Or.  28,  95  Pac. 
1009,  16  Ann.  Cas.  1241,  18  L.  R.  A.  (N.  S.)  954 ;  West.  U.  Tel.  Co.  v.  Federolf 
(Tex.  Civ.  App.)  145  S.  W.  314 ;  West.  U.  Tel.  Co.  v.  Williams  (Tex.  Civ.  App.) 
137  S.  W.  148 ;  West.  U.  Tel.  Co.  v.  Kemp,  55  111.  App.  583 ;  Cain  v.  West.  U. 
Tel.  Co.,  89  Kan.  797,  133  Pac.  874 ;  Thorp  v.  West.  U.  Tel.  Co.,  118  Mo.  App. 
398,  94  S.  W.  555;  West.  U.  Tel.  Co.  v.  Williams,  57  Tex.  Civ.  App.  267,  122 
S.  W.  280.  Compare  West.  U.  Tel.  Co,  v.  True,  101  Tex.  236,  106  S.  W.  315, 
reversing  (Civ.  App.)  103  S.  W.  1180;  McNeil  v.  Postal  Tel.  Cable  Co.,  154 
Iowa,  241,  134  N.  W.  611,  38  L.  R.  A.  (N.  S.)  727,  Ann.  Cas.  1914A,  1294; 
Hise  V.  West.  U.  Tel.  Co.,  137  Iowa,  329,  113  N.  W.  819. 

102  McCoU  V.  West.  U.  Tel.  Co.,  44  N.  Y.  Super.  Ct.  487,  7  Abb.  N.  C.  151; 
West.  U.  Tel.  Co.  V.  True,  101  Tex.  236,  106  S.  W.  315,  reversing  (Civ.  App.) 
103  S.  W.  1180. 

103  Wallingford  v.  West.  U.  Tel.  Co.,  53  S.  C.  410,  31  S.  E.  275. 
io4Lathaii  v.  West.  U.  Tel.  Co.,  75  S.  C.  129,  55  S.  E.  134. 

10  5  Wallingford  v.  West.  U.  Tel.  Co.,  53  S.  C.  410,  31  S.  E.  275.  See,  also. 
Barker  v.  West.  U.  Tel.  Co.,  134  Wis.  147,  114  N.  W.  439,  126  Am.  St.  Rep. 
1017,  14  L.  R.  A.  (N.  S.)  533. 

106  La  than  v.  West.  U.  Tel.  Co.,  75  S.  C.  129,  55  S.  E.  134. 

107  Beatty  Lbr.  Co.  v.  West.  U.  Tel.  Co.,  52  W.  Va.  410,  44  S.  E.  309;  Rich- 
mond Plosiery  Mills  v.  West.  U.  Tel.  Co.,  123  Ga.  216,  51  S.  E.  290. 

108  See  Elam  v.  West.  U.  Tel.  Co.,  113  Mo.  App.  538,  88  S.  W.  115;  Rich- 
mond Hosiery  Mills  v.  West.  U.  Tel.  Co.,  123  Ga.  216,  51  S.  E.  290;  Tex., 
etc.,  Tel.  Co.  v.  Mackenzie,  30  Tex.  Civ.  App.  178,  81  S.  W.  581. 

10  9  Tex.,  etc.,  Tel.  Co.  v.  Mackenzie,  36  Tex.  Civ.  App.  178.  81  S.  W.  581; 
Lucas  V.  West.  U.  Tel.  Co.,  131  Iowa,  669,  109  N.  W.  191,  0  L.  R.  A.  (N.  S.) 
]016;    Elam  v.  West.  U.  Tel.  Co.,  113  Mo.  App.  538,  88  S.  W.  115;    West.  U. 


954  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  766 

It  may  be  said,  however,  that  contracts  formed  by  telegraphic  mes- 
sages are  governed,  the  same  as  all  other  contracts,  by  the  general 
rules  relative  to  offer  and  acceptance. 

§  766.  Same — acceptance  of  an  offer. — Where  there  has  been  a 
definite  offer  made,  and  the  telegraph  company  has  failed  to  trans- 
mit and  deliver  a  message  containing  an  unconditional  acceptance 
thereof,  thereby  preventing  the  contract  from  being  made,  the  loss 
of  the  contract  is  the  proximate  result  of  the  company's  negli- 
gence,^^°  for  which  recovery  may  be  had  from  the  company  ^^^  as 
agent  of  the  offerer,^^^  But,  under  the  same  circumstances,  the 
offeree  would  have  no  cause  of  action,  since  a  delivery  of  the  mes- 
sage of  acceptance  to  the  company  would  be  a  delivery  to  the 
sender,  and  therefore  binding  on  him,  regardless  of  the  default  of 
the  company.^^^  As  it  may  be  seen,  the  acceptance  must  be  un- 
conditional ;  otherwise  it  may  be  nothing  more  than  an  offer  and 
to  be  governed  by  the  rules  relating  to  the  original  offer.^^* 

Tel.  Co.  V.  Sights,  34  Okl.  461,  126  Pac.  234,  Ann.  Cas.  1914C,  204,  42  L.  R.  A. 
(N.  S.)  419.  But  see  Kinghorne  v.  Montreal  Tel.  Co.,  18  U.  C.  Q.  B.  60 ;  Tel. 
Co.  V.  Wenger,  55  Pa.  262,  93  Am.  Dec.  751. 

110  West.  U.  Tel.  Co.  v.  Way,  83  Ala.  542.  4  South.  844;  Dodd  Gro.  Co.  v. 
Postal  Tel.  Co.,  112  Ga.  685,  37  S.  E.  981 ;  West.  U.  Tel.  Co.  v.  Hoyt,  89  Ark. 
118,  115  S.  W.  941;  West.  U.  Tel.  Co.  v.  Kemp,  55  111.  App.  583;  Lucas  v. 
West.  U.  Tel.  Co.,  131  Iowa,  €69.  109  N.  W.  191,  6  L.  R.  A.  (X.  S.)  1016; 
Squire  v.  West.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157;  True  v.  Inter- 
national Tel.  Co.,  60  Me.  9,  11  Am.  Rep.  156 ;  Elam  v.  We.st.  U,  Tel.  Co.,  113 
Mo.  App.  538,  88  S.  W.  115;  West.  U.  Tel.  Co.  v.  Bowen,  84  Tex.  476,  19 
S.  W.  554 ;  West.  U.  Tel.  Co.  v.  Turner,  94  Tex.  304,  60  S.  W.  432 ;  Cable  Co. 
V.  Oil  Co.,  140  Ky.  506,  131  S.  W.  277 ;  Construction  Co.  v.  West.  U.  Tel.  Co., 
163  Cal.  298,  125  Pac.  242;  West.  U.  Tel.  Co.  v.  Williams  (Tex.  Civ.  App.) 
137  S.  W.  148;  Purdom  Naval  Stores  Co.  v.  West.  U.  Tel.  Co.  (C.  C.)  153 
Fed.  327.  See,  also,  West.  U,  Tel.  Co.  v.  Thompson  Milling  Co.,  41  Tex.  Civ. 
App.  223,  91  S.  W.  307. 

111  See  chapter  XVIII. 

112  See  §§  467,  487,  and  757. 

113  West.  U.  Tel.  Co.  v.  Burns  (Tex.  Civ.  App.)  70  S.  W.  784.  See  West 
U.  Tel.  Co.  V.  Turner,  94  Tex.  304.  60  S.  W.  432.     See,  also,  §§  467,  487. 

114  West.  U.  Tel.  Co.  v.  Burns  (Tex.  Civ.  App.)  70  S.  W.  784;  Cherokee 
Tanning  Extract  Co.  v.  West.  U.  Tel.  Co.,  143  N.  C.  376,  55  S.  E.  777,  118  Am. 
St.  Rep.  806.  See,  also,  Fisher  v.  West.  U.  Tel.  Co.,  119  Wis.  146,  96  N.  W: 
545 ;   Kinghorne  v.  Montreal  Tel.  Co.,  IS  U.  C.  Q.  B.  60. 


^   768)  rUKNISHING  TICKERS  955 


CHAPTER  XXXI 

DISTRICT  TELEGRAPH    COMPANIES   AND   SUCH   AS   FURNISH 

"TICKERS" 
§  767.     Introduction. 

768.  Same  continued — duties  and  liabilities  of. 

769.  Company  furnishing  "tickers." 

770.  Same  continued — duties  and  liabilities. 

771.  Cannot  discriminate. 

772.  Unreasonable  stipulations — unenforceable. 

773.  Protection  against  unfair  competition. 

§  767.  Introduction. — We  shall  very  briefly  discuss  in  this  chap- 
ter district  telegraph  companies,  and  companies  furnishing  "tick- 
ers." District  telegraph  companies  exist  in  most — if  not  all — of  the 
large  cities,  and  their  business  is  principally,  if  not  exclusively,  to 
furnish  messenger  boys  for  the  purpose  of  carrying  parcels,  mes- 
sages and  doing  other  errands  when  called  upon  at  district  stations 
of  the  company  in  the  city.  There  is  a  distinction  between  the 
business  purposes  of  these  and  ordinary  telegraph  companies.  One 
is  organized  for  the  express  purpose  of  transmitting  and  deliver- 
ing news  in  general  for  the  public,  and  the  other  is  to  transmit 
news  for  the  public,  but  the  news  is  generally  in  regard  to  employ- 
ing a  messenger  of  the  company  to  perform  message  duties  and 
such  as  is  given  above.  The  main  purpose  of  these  companies  is  to 
furnish  these  messenger  boys,  but  the  telegraphic  system  is  used 
as  a  means  of  obtaining  these  messengers.  It  is  not  necessary  to 
enumerate  the  many  and  different  services  which  may  be  rendered 
by  these  messengers ;  but  suf^ce  it  to  say  that  almost  au}^  commis- 
sion or  service  may  be  performed  by  them. 

§  768.  Same  continued — duties  and  liabilities  of. — The  duties 
and  liabilities  of  district  telegraph  companies  are  the  same  as  those 
imposed  upon  ordinary  telegraph  companies,  except  in  so  far  as 
both  may  be  affected  by  the  difiference  in  the  nature  of  their  respec- 
tive businesses  as  in  particular  cases. ^     Thus  such  a  company  is 

1  Feiber  v.  Manhattan  Dist.  Tel.  Co.  (Com.  PI,  Gen.  T.)  22  Abb.  N.  C.  121,  3 
N  Y.  Supp.  116.  See,  also,  West.  U.  Tel.  Co.  v.  Toledo  (C.  C.)  103  Fed.  746 ; 
Id.,  121  Fed.  734,  .58  C.  C.  A.  16. 

Municiiml  control  of. — Under  a  charter  authority  to  regulate  occupations 
within  its  limits,  a  municipal  corporation  may  require  one  undertaking  to 
transact  a  messenger  business  within  the  city  to  secure  a  license  and  furnish 
a  bond  for  the  faithful  performance  of  duties  incident  to  such  business.  Port- 
land V.  W.  U.,  75  Or.  37,  146  Pac.  148,  L.  R.  A.  1915D,  260. 

What  constitutes  undertaking. — A  telegraph  company  which  has,  incident 
to  its  business,  undertaken  to  furnish  messengers  to  carry  notes,  packages,  and 


956  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  769 

liable  for  the  loss  of  a  package  caused  by  one  of  its  messengers  de- 
livering it  contrary  to  the  instructions  of  the  sender.-  In  a  case 
against  one  of  these  companies  plaintiff  hired  a  buggy  and  horses 
and  on  returning  stopped  at  the  office  of  the  district  telegraph  com- 
pany and  asked  for  a  boy  who  could  drive  the  horses  back  to  the 
livery  stable.  A  boy  was  sent  out  who  took  charge  of  the  horses, 
but  owing  to  his  negligence  and  incompetence,  the  horses  ran  away 
and  injured  themselves  and  the  vehicle.  It  was  shown  in  proof  that 
the  company  had  performed  similar  services  for  the  plaintiff.  It 
was  held  that  the  company  was  liable  for  the  damages  thus  occa- 
sioned, also  that,  though  they  were  only  bailees  for  hire,  the  plain- 
tiff could  maintain  the  action  to  recover  such  damages.^ 

§  769.  Company  furnishing  "tickers." — We  have  had  an  occa- 
sion to  speak  of  this  subject  elsewhere;  *  therefore  it  shall  only  be 
lightly  considered  at  this  place.  As  seen,  the  ordinary  business  of  a 
telegraph  company  is  to  transmit  and  deliver  all  proper  news  ten- 
dered it,  after  the  charges  have  been  paid,  but  these  companies 
may  assume  greater  duties,  and,  of  course,  the  liabilities  imposed  for 
assuming  this  extra  business  is  greater.  Thus,  in  many  instances, 
these  companies  are  expressly  organized  for  the  purpose  of  collect- 
ing and  distributing  news,  such  as  market  reports  and  other  news. 
When  these  extra  duties  are  assumed,  the  company  is  not  only 
under  obligations  to  transmit  correctly  and  deliver  promptly  all 
news,  but  it  must  also  collect  and  distribute  accurately  and  cor- 
rectly all  of  such  news.  For  instance,  in  collecting  the  market  re- 
port, the  same  must  be  distributed  exactly  as  it  is  reported  on  the 
market,  and  any  deviation  therefrom  whereby  a  subscriber  suft'ers 
loss  will  be  a  loss  for  which  the  company  will  be  liable.  The  busi- 
ness of  these  companies  is  to  furnish  each  subscriber  with  an  in- 
strument, commonly  called  a  "ticker,"  by  means  of  which  the  re- 
port is  received. 

§  770.  Same  continued — duties  and  liabilities. — These  compa- 
nies have  the  same  general  powers  and  are  subject  to  the  same  lia- 
bilities as  ordinary  telegraph  companies,  the  difference  between  the 
two  being  merely  the  method  of  doing  business.^  While  the  meas- 
ure of  the  liability  of  these  companies  is  the  same  as  that  of  the 

similar  matter  for  patrons,  transacts  a  messenger  business  within  the  mean- 
ing of  a  municipal  ordinance  requiring  the  procurement  of  a  license  therefor, 
although  its  offer  to  transact  such  business  states  that  its  sole  undertaking  is 
to  furnish  messengers,  and  not  to  deliver  the  packages.  Portland  v.  W.  U., 
supra. 

2  American  Dist.  Tel.  Co.  v.  Walker,  72  Md.  454,  20  Atl.  1,  20  Am,  St.  Rep. 
479. 

3  Id.  4  See  §  429.  6  id. 


8   771)  FURNISHING   TICKERS  957 

ordinary  telegraph  companies,  so  far  as  the  nature  of  the  business 
of  the  two  is  the  same,  yet  when  the  additional  assumption  of  col- 
lecting and  distributing  is  undertaken,  the  liabilities  of  the  former 
to  this  extent  are  greater.  In  other  words,  as  stated,  these  com- 
panies must  exercise  the  same  care  and  diligence  in  transmitting 
the  messages  as  is  imposed  upon  ordinary  telegraph  companies,  and 
in  addition  to  this  duty,  they  must  also  collect  the  news  accurately. 
These  companies  may  also  make  and  enforce  reasonable  regulations 
with  respect  to  the  use  of  their  "tickers"  or  "stock  indicators"  by 
their  subscribers.  One  of  their  requirements  is,  that  the  subscribers 
shall  not  furnish  the  market  reports  to  non-subscribers.  It  has 
been  held  that  this  requirement  was  reasonable  and  therefore  en- 
forceable.® In  the  case  cited  it  was  held  that  the  report  could  not 
be  furnished  to  a  firm  of  which  the  subscriber  was  a  member. 

§  771.  Cannot  discriminate. — As  it  has  been  elsewhere  dis- 
cussed, an  ordinary  telegraph  company  cannot  discriminate  among 
those  who  engage  or  attempt  to  engage  its  services,  but  it  must 
show  the  same  favors  to  all  who  apply  to  it,  after  complying  with 
all  reasonable  regulations.'  As  has  also  been  seen,  telephone  com- 
panies cannot  discriminate  among  their  subscribers,  but  the  same 
privileges  must  be  enjoyed  by  all  alike.^  The  same  rule  applies 
to  these  companies.  They  are  engaged  in  a  public  employment, 
and  must  therefore  treat  all  their  subscribers  alike,  and  not  dis- 
criminate among  them.^  They  may,  however,  refuse  to  furnish 
their  instruments  to  parties  who  are  carrying  on,  through  this 
means,  a  gambling  house.^°  The  law  will  not  force  these  compa- 
nies to  perform  an  act  which  is  for  an  illegal  purpose ;  and  should 
they  have  contracted  to  furnish  a  gambling  house  with  the  market 
report,  they  may  refuse  to  perform  their  part  of  the  contract. ^^ 
When  the  plaintiffs  are  conducting  a  gambling  house,  equity  will 

6  Shepard  v.  Gold  &  Stock  Tel.  Co.,  38  Hun  (N.  Y.)  338. 

7  See  chapter  XT. 

8  See  chapter  XI. 

8  Friedman  v.  Gold,  etc.,  Tel.  Co.,  32  Hun  (N.  Y.)  4 ;  Smith  v.  Gold,  etc.,  Tel. 
Co.,  42  Hun  (N.  Y.)  454 ;  Metropolitan  Grain,  etc.,  Exch.  v.  Mutual  U.  Tel.  Co. 
(C.  C.)  11  Biss.  531,  15  Fed.  Sil ;  Bradley  v.  West.  U.  Tel.  Co.,  27  Alb.  Law  J. 
363. 

10  See  Cullen  v.  New  York  Tel.  Co.,  106  App.  Div.  250,  94  N.  Y.  Supp.  290, 
pool  rooms.  See  Tves  v.  Boyce,  85  Neb.  324,  123  N.  W.  318,  25  L.  R.  A.  (N.  S.) 
157,  not  a  gambling  device. 

11  Smith  V.  West.  U.  Tel.  Co.,  84  Ky.  664,  2  S.  W.  483.  Compare  Gray  v. 
West.  U.  Tel.  Co.,  87  Ga.  350,  13  S.  E.  562,  27  Am.  St.  Rep.  259,  14  L.  R.  A.  95. 

Cannot  be  mandamused  or  enjoined.  Bryant  v.  West.  U.  Tel.  Co.  (C.  C.)  17 
Fed.  S25.  See,  also.  West.  U.  Tel.  Co.  v.  State,  165  Ind.  492,  76  N.  E.  100.  3 
L.  R.  A.  (N.  S.)  153,  6  Ann.  Cas.  880 ;  Smith  v.  West.  U.  Tel.  Co.,  84  Ky.  664. 
2  S.  W.  483,  8  Ky.  Law  Ren.  672. 


958  TELEGRAPH  AND  TELEPHONE  COMPANIES         (§  772 

not  compel  these  companies  to  furnish  them  with  a  "ticker,"  giving 
the  quotations  of  prices  ruling  on  the  Chicago  board  of  trade,  al- 
though they  are  members  of  that  board.^-  If,  however,  the  com- 
pany is  merely  the  agent  of  an  exchange  to  communicate  the  mar- 
ket quotations,  the  rule  would  be  otherwise.  Under  these  circum- 
stances, the  exchange  would  only  be  the  sender  of  the  reports,  with 
the  right  to  name  the  addressee,  and  under  no  duty  to  furnish  its 
quotations  to  the  public/^ 

§  772.  Unreasonable  stipulations — unenforceable. — These,  as 
well  as  ordinary  telegraph  or  telephone  companies,  cannot  enforce 
an  unreasonable  stipulation.  Any  regulation  or  stipulation  which 
would  be  against  public  policy,  or  in  conflict  with  the  law  of  the 
land,  or  which  would  give  the  company  an  advantage  over  its  sub- 
scribers, could  not  be  enforced.  If  there  is  a  stipulation  incorpo- 
rated in  the  contract  made  with  the  subscriber,  which  provides  that 
the  company  may  discontinue  its  services  or  the  furnishing  of  its 
instruments  to  the  subscriber  without  notice,  whenever,  in  its  judg- 
ment, he  has  violated  the  contract,  it  cannot  be  enforced  on  account 
of  its  unreasonableness.  The  company,  under  such  a  stipulation, 
would  be  sole  judge  in  its  own  case,  and  this  could  never  be  the 
-case;  since  the  subscriber  would  be  deprived  of  his  rights  without 
due  process  of  law.^* 

§  773.  Protection  against  unfair  competiton. — The  market  quo- 
tations and  other  similar  news  collected  by  these  companies  and 
-distributed  or  disseminated  among  their  subscribers  are  not  within 
the  protection  of  the  copyright  laws,  yet  such  news  constitute  prop- 
erty, and  the  company  will  be  protected  in  a  court  of  equity  against 
rival  companies  which  seek  to  obtain  such  news  of  the  company 
without  proper  authority,  and  to  sell  to  their  customers  to  the  in- 
jury or  detriment  of  the  former  company's  services.^^  While  the 
news,  before  it  has  been  collected  by  the  company,  may  be  free  to 
all  who  may  desire  to  obtain  it,  yet,  as  the  company  has  worked  to 
gather,  compile  or  collect  the  same,  it  has  a  right  to  the  exclusive 
use  of  it  while  in  the  company's  possession. 

3  2  Bryant  v.  West.  U.  Tel.  Co.  (C.  C.)  77  Fed.  825.  West.  U.  Tel.  Co.  v. 
State,  1G5  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.)  153,  6  Ann.  Cas.  SSO. 

13  Matter  of  Renville,  46  App.  Div.  37,  61  N.  Y.  Supp.  549.  See,  also,  Chris- 
tie Grain,  etc.,  Co.  v.  Board  of  Trade,  125  Fed.  161,  61  C.  C.  A.  11,  reversing 
<C.  C.)  121  Fed.  60S. 

14  Smith  V.  Gold  &  Stock  Tel.  Co.,  42  Hun  (N.  T.)  454. 

15  National  Tel.  News  Co.  v.  West.  U.  Tel.  Co.,  56  C.  C.  A.  198,  119  Fed.  294, 
W  L.  R.  A.  805 ;  Illinois  Com.  Co.  v.  Cleveland  Tel.  Co.,  56  C.  C.  A.  205,  119 
Fed.  301.  See  West.  U.  v.  State,  165  Ind.  492,  76  N.  E.  100,  3  L.  R.  A.  (N.  S.) 
1.53,  6  Ann.  Cas.  880. 


1 


TABLE  OF  CASES  CITED 


(refeeences  are  to  page  numbers) 


Aaron  v.  Missouri,  etc.,  Tel.  Co.,  222,  235, 

283. 
Abbott  V.  Duluth,  7G,  85,  97. 

V.  Jolinstown,    etc.,   R.    Co.,    46,    47. 

V.   New    York,    etc^,    Rd.,    176,    177. 

V.   Shepherd,    915,    945. 

V.  West.  U.   Tel.   Co.,  417,    633,   638. 
Abeles    v.  West.    U.    Tel.    Co.,    536,    679, 

694. 
Abendroth  v.  Manhattan  R.   Co.,  57,  128. 
Abillne,     etc.,    Water    Co.    v.    Robinson, 

Abraham  v.  West.  U.  Tel.  Co.,  26.  29,  401, 

606,    611. 
Abrams  v.   Seattle,   86,   228,   246,   646,   663, 

664. 
Adams  v.  Gay,  571. 
V.  Lawson,    566. 
V.  Llndsell,   623,   931. 
V.  Louisville,    etc.,    R.    Co.,    157,    159, 

870. 
V.  Weakley,   237. 
Adams   Ex.    Co.   v.  Harris,   591,   592. 

V.  Haynes,   541. 
Adcox  V.   Tel.  Co.,   825,   835. 
Agincourt,  etc.,  Co.  v.  Eastern,  etc.,  Tel. 

Co.,    208. 
Agnew   V.  Steamer  Contra  Costa,   484. 
Ahern  v.   Oregon  Tel.,  etc.,  Co.,   214,   232, 

•-':;6,    244,    251,    252.    :.'55.    666. 
Akard  v.    West.    U.    Tel.   Co.,    765,    767. 
Akin    V.    Bradley,    etc..    Machinery    Co., 

267. 
Aiken  v.  City  of   Columbus,   86,   213,   245, 
246,   260. 
V.  West.  U.  Tel.  Co.,  cQ,  499,  515,  517. 
519,    531,     546,     605,    607,    610,     650, 
651.    653,    654,    656,    657,    650,    672. 
Alabama  City,   etc.,  Rd.   Co.  v.  Appleton, 
227,    228,     229.     230.    239,     240,    244, 
245,    633,    645,    646,    654,    657,    658, 
663,    664. 
V.  Brooks,  566. 

V.  Cumberland  Tel.,   etc.,   Co.,   16,   17, 
34,     141,     165,     191,     200. 
Albany    v.  Watervliet,    etc.,    R.    R.,    255, 

256. 
Albers    v.  West.    U.    Tel.    Co.,    516,    527, 

637,   845. 
Alden  v.  Murdock,  127. 
Aldrich   v.    Cheshire   R.    Co.,    191,    192. 

V.  Inhabitants    of    Pelham,    272. 
Alexander   v.    Nanticoke   Light    Co.,    228, 
233,    240,    646. 
V.  West.  U.  Tel.  Co.,  314,  388,  390,  403, 
478,  535,  539,  540,  569,  597,  598,   Oil, 
618,    635,    648,    051,    688.    697,    707, 
717,  723.  724,  725,  747,  757,  765,  790, 
791,    802,    829,    934,    936. 
Alford   V.   Wilson,   928,   930,   932. 
Alice,    etc.,    Tel.    Co.    v.    Billingsley,    219. 
Allegheny    County    L.    Co.    v.    Booth,    99, 
100,    295. 
V.  Shadyside  Electric  Light  Co.,   368, 
370. 
Allen    V.     Atlantic,    etc.,    Tel.     Co.,     261, 
266. 


Allen  V.  Bennett.  912. 
V.  Burnett.    915. 
V.  Jaquish,    909. 
V.   Leavens,     943. 
Allentown  v.   West.    U.   Tel.   Co.,  83,   246, 

312,     326,    329,     866,     867. 
Allsop   V.    Allsop,    752,    798. 
Alnutt   V.    Ingles,    320. 
Alt  V.    State,    74,    197,    198,    261,    295. 
Altman    v.    West.    U.    Tel.    Co.,    420,    649. 

651. 
Alton    Illuminating    Co.    v.    Foulds,    228, 

231,    632. 
Ambre    v.    Postal    Tel.     Cable    Co.,     277, 

278,   282. 
American  Dlst.  Tel.   Co.  v.   Oldham,   219, 
222,     224.     225,     235,     246,     267. 
V.   Walker,   956. 
American,    etc.,    Tel.    Co.   v.    Bower,    287. 
V.  Connecticut     Tel.     Co..     365. 
v.  Kersh,     261. 
V.  Jones,    114. 

V.  Harborcreek    Tp.,    63,    65,    97. 
V.  Mill    Creek    Tp.,    97,    297. 
V.  Morgan,    etc.,    Co.,    297. 
V.   Secretary    of    State,    40,    866. 
V.  Smith.    67,   141. 

V.  St.    Louis,    etc.,    R.    Co.,    168,    195, 
196. 
American    Express     Co.     v.     Postal    Tel. 

Cable   Co.,   507,   586,   684. 
American    Rapid    Tel.    Co.    v.    Hess,    63, 
64,    79,   91,   94,    98,   99,   100,  101,   124,   130, 
310. 
American  Union  Tel.   Co.  v.   Daugherty, 
495,    5116,     510,    514,    533,    5^6,     61U, 
698,    886. 
V.  Harrison,    63,    78,    92,    94,    327. 
V.  Pearce,    69,    138,    155,    157,    158,    159. 
V.  West.    U.    Tel.    Co.,    309,    311,    312, 
317. 
Ames    V.    McCamber,    623. 

V.  Union     County,     146. 
Amis  V.   Kyle,   571. 
Ammant    v.    New    Alexandria    Turnpike 

Co.,    46,    49. 
Amos    V.    West.    U.    Tel.    Co.,    634,    636, 

641,    642,    711,    785. 
Anderson    v.    Cin.    Sou.    R.    Co.,    48,    663, 
664. 
V.  Harold,    912. 

V.  Inland     Tel.,     etc.,    Co.,     273,     278. 
V.  Jersey   City,   etc.,  L.   Co.,   243,   273. 
V.  Mt.    Sterling  Tel.    Co.,   374. 
V    Seattle-Tacoma      Interurban       R. 

Co.,    232,    258. 
V.  State,    562. 

V.  West.    U.    Tel.    Co.,    396,    422,    423. 
424.    542.    556.    597.    686. 
Andreas    v.     Bergan    County    Gas,     etc., 

Co.,    130,    131,    200. 
Andrews    v.    Delhi,    etc.,    Tel.    Co.,    114, 
139. 
v.  North    River    Electric   Light,    etc., 

Co.,    368,    369,    377,    378. 
V.  Schreiber,    928. 
Anglea  v.  East  Tenn.   Tel.   Co.,  242. 


Jones  Tel. (2d  Ed.) 


(959) 


960 


CASES  CITED 
[The  figures  refer  to  pages] 


Anglin    v.    American    Const.,     etc.,    Co., 

276,    288. 
Anglo-American    Packing,     etc.,     Co.    V. 

Cannon,    888. 
Anheuser-Buscli   Brewing  Ass'n  v.   Hut- 

maclier,    883,    944. 
Annapolis,     etc.,    L.    Co.    v.    Fredericks, 

238,     254,     654. 

Annas    v.    Milwaukee,    etc.,    R.    Co.,    498. 

Anniston   Cordage   Co.    v.    West.    U.   Tel. 

Co.,    604,    607,    608,    609,    613,    691,    €97, 

706,    733. 

Antliony    v.    Cass    Co.    Home    Tel.    Co., 

225,    233,    234,    254,    654,    674. 
Apaits   V.    Poundstone.    567. 
Applegate   v.    Ernst,    850. 
Appleman   v.    Fisher,   562. 
Archambault      v.      Great      Northwestern 

Tel.    Co.,    463. 
Arenz   v.    Com.,    562. 
Arial  v.  West.   U.  Tel.   Co.,   648,   760,  768, 

787,    802. 
Arkansas,   etc.,   Rd.  Co.   v.   Lee,  574,   720, 
800. 
V.    Stroude,    183,    404,    421,     427,    428, 
433,     436,    448,     655,     660,    669,     670, 
671.    759,    787,    807,    818. 
Arkansas  Tel.   Co.  v.   Ratteree,   269. 
Armour   Packing   Co.   v.    Edison   Electric 
111.   Co.,   368,   369,   377. 
V.  Lacv,    868. 
Armsby    Co.    v.    Eckerly,    880,    912,    936. 
Arthur  v.    Commercial   Bank,   46,    49. 
Ashby  V.   White,   126,    821. 
Asher   v.    City    of    Independence,    214. 
Ashford    v.     Schoop,    945. 
Ashley  v.    Port  Huron,    105. 

V.  Rocky     Mountain     Bell     Tel.     Co., 

342,    376. 
V.  Rvan,    861. 
Ashton  V.   Boston,  etc.,   R.   Co.,   278,   289. 
Atchison,   etc..   R.   Co.   v.   Boerner,   191. 
V.  Fletcher,    175. 
V.  Forney,     191. 
V.  O'Connor,   871. 
V.  State,    315. 
V.  Temple,    540. 
Atkinson  v.    Cheatham,    219. 
Atlanta   Consol.    St.    Ry.    Co.    v.    Owings, 

231,    235,    249,    282,    673. 
Atlanta   Tel.,    etc.,   Co.    v.    Cheshire,    253, 
632. 
V.  Mayor,   867. 
Atlantic    Coast    Line    R.    Co.    v.    Postal 

Tel.    Cable    Co.,    166,    194,    196. 
Atlantic  Great  Western  R.   Co.  v.  Dunn, 

807. 
Atlantic,   etc.,   Rd.   Co.   v.   Dunn,    806. 
V.  Laird,    638. 
V.  Reynolds,    280. 
Atlantic,    etc.,    Tel.    Co.  v.    Chicago,   etc., 
R,    Co.,    68,   155,    156,    159. 
V.  Commissioners,    849. 
V.  Philadelphia,    64,    79,    83,    330,    866, 

867. 
v.  Savannah,     851. 
V.  Union     Pacific     Ry.,     23,     46,     48, 

50. 
V.  West.  U.  Tel.  Co.,  338,  384,  459,  463. 
Atlantic  Postal  Tel.  Cable  Co.  v.  Savan- 
nah,   864. 
Atlantic    Standard    Tel.    Co.    v.    Porter, 

374. 
Attorney    General    v.    Edison    Telephone 
Co.,    2,    3,   4,    7,    8.    9,    11,    15,    140, 
199 
V.  Haverhill   Gas   Co.,    40,    46,   49. 
V.  "^A^alworth  Light  Co.,   91. 
V.  "Western    U.    Tel.    Co.,    856,    869. 
Attwood  v.    Fricot,    126. 
Atwood  V.   Rose,    915. 

Auerbach  v.   Cuyahoga  Tel.   Co.,    93,   94, 
104.    327. 


Augusta,    etc.,    Elec.    Co.   v.  Weekly,   238, 

260. 
Augusta  Nat.   Bank  v.   Cunningham,  720. 
Augusta    Ry.    Co.    v.    Andrews,    251,    281, 

282,     291,     292. 
Ault  V.   Nebraska  Tel.  Co.,    280,  284,   286. 
Aument    v.    Pennsylvania    Tel.    Co.,    238. 
Austin    V.    Holland,    875. 

v.  Manchester   R.    Co.,   499. 
Austrian   v.    Springer,   910. 
Averill  v.   Hedge,    931,    938,    944. 
Avery    v.    Vermont    Electric    Co.,    142. 
Ayers   v.    Morris   etc.,    Ry.    Co.,   461,    462. 
V.  Russell,    615. 

V.  West.  U.  Tel.  Co.,  20,  390,  394, 
419,  420,  445,  40S.  505,  506,  507, 
509,    514,    529,    :  541,    570,    614, 

620,    646,    650,    l..,    672,    945,    949, 
950. 

B 

Backer  v.    Holt,   935. 

Badger    Lumber    Co.    v.    Marion    Water 

Supply,    etc.,    Co.,    23. 
Badger  Tel.  Co.  v.  Wolf  River  Tel.   Co., 

50. 
Bagby  v.   West.   U.    Tel.    Co.,    760. 
Bagley   v.   McMickle,    8S1. 
Bailey  v.  West.  U.  Tel.   Co.,  73,   434,  495, 
496,     515,    536,    548,    550,    578,     605,    647, 
649,     650,    655,    679,    681,    692,     697,    705, 
755,   780,    783,   786. 
Baird  v.  Daly.   270. 

v.  West.   U.   Tel.   Co.,  745,  746. 
Baker   v.    Haines,    878. 
V.  Holt,    939. 

V.  Selma   Street,    etc.,    R.    Co.,    115. 
V.  Town   of  Normal,    135. 
V.  West.    U.    Tel.    Co.,    386,    395,    443, 
641,    648,    666.    703. 
Balderston    v.     West.     U.    Tel.    Co.    401, 

622,    623,    664,    800,    801. 
Baldwin  v.    United   States   Tel.    Co.,    443, 
498,    535,    582,    584,    587,    588,    589, 
590,    591,    594,    595,    647,    680,    682, 
695,    701,    717. 
V.  West.    U.    Tel.    Co.,    392,    546,    680, 
737,    738,    950. 
Ballentine    v.    North    Missouri,    etc.,    R. 

Co.,    482. 
Baltimore  v.   Chesapeake,    etc.,   Tel.   Co., 

103. 
Baltimore,     etc.,     R.     Co.     v.    Board    of 
Commerce,    163. 
V.  Boyd,     125,     126. 
V.  Glenn,   175. 
V.  Nugent,    215,    257,    259. 
V.  P.   W.    &  Ky.    R.   Co.,   175. 
Baltimore,    etc.,     Tel.     Co.     v.    Morgan's 
Louisiana,    etc.,    R.    Co.,    70,    159. 
V.  State,    837. 
V.  ^"est.   U.    Tel.    Co.,    181. 
Bamberg   v.    International    Ry.    Co.,    255, 

289. 
Bancroft    v.    Merchants,'    etc.,    Co.,    592. 
Bank   v.    Bradstreet,    942. 
V.  Cameron,    903. 
V.  Kinloch,     etc.,     Tel.     Co.,     52,     54, 

364. 
V.  Oppenheim,    911. 
V.  West.  U.   Tel.  Co.,   576,   665. 
Bank  of  Augusta  v.  Earle,  175. 
Bank    of    California    v.     West.     U.    Tel. 

Co.,    577,    579,    580,    581. 
Bank  of  Middlesbury  v.   Edgerton,  46. 
Bank  of  New  Orleans  v.   West.   U.  Tel. 

Co      559 
Bank's   v.   Highland   St.    Ry.    Co.,    124. 

V.   Richardson,     884. 
Bannon  v.  Baltimore,  etc.,  R.  Co.,  815. 
Barber   v.    Hudson    River   Tel.    Co.,    131, 
133. 
V.  Ropbury,   92. 


CASES  CITED 
[The  figures  refer  to  pages] 


9G1 


Bardon     V,     Northwestern     Tel.     E^xch. 

Co.,    226. 
Bardstown,    etc.,    R.    Co.    v.    Metcalf,    46. 
Barefoot  v.   West.   U.   Tel.    Co.,   664. 
Barhite    v.    Home    Tel.    Co.,    42,    64,    72, 

"8,    92. 
Barker  v.   Boston   Elec.   L.   Co.,   282,   283, 
662,     663. 
V.  West.    U.    Tel.    Co.,    682,    737,    740, 
953 
Barnes    v.  '  West.    U.    Tel.    Co.,    397,    401, 

410,    416,     417,    436,    448,    510,    511,    517, 

547,    643,    665,     717,     755,    756,    764,     768, 

795,    797,    820. 
Barnesville    First    Natl.    Bank   v.    West. 

U.    Tel.    Co.,    680,    716. 
Barnett   v.    McCree,    911, 
Barney  v.   Clark,    945. 
Barons  v.   Brown,   884,  886,   887,   888. 
Barr  v.   Ins.    Co.   of   North   America,  944. 
Barre  v.  Perry,  145. 

Barrett   v.    Independent    Tel.    Co.,    261. 
V.  Magner,    893,    894,    899. 
V.  New    England,    etc.,    Tel.   Co.,   674. 
V.  Third,    etc.,    R.    R.,    290. 
V.  West.    U.    Tel.    Co.,    521,    635,    641, 
647,    845. 
Barthelemy  v.    People,   778. 
Bartlett    v.    West.    U.    Tel.    Co.,    25,    392, 

400,    401,    444,    445,    457,    458,    459,    495, 

506,    512,    514,    646,    651,    680. 
Barto    V.    Iowa    Tel.    Co.,    232,    244,    245, 

278,   281,   284,  664. 
Barton  v.   Cumberland  Tel.  Co.,  374,  376. 
Bartwell   v.   West.    U.    Tel.    Co.,    31. 
Bashinsky  v.  West.  U.  Tel.  Co.,  634,  635, 

636,    691,    716,    952. 
Bass  V.    Postal   Tel.   Cable   Co.,    631,    634, 

679,     681,     688,    723,     724,    733,    776,    946, 

950     952 
Bassett  v'.    West.    U.    Tel.    Co.,    574,    720. 
Bastin    Tel.    Co.    v.    Richmond    Tel.    Co., 

363. 
Eateman    V.     West.     U.     Tel.     Co.,     469, 

476. 
Bates    Maeh.    Co.    v.    Trenton    &    N.    B. 

R.    Co.,    23. 
Bathgate  v.    North  Jersey    St.  R.,    132. 
Battle    V.    West.    U.    Tel.    Co.,    755,    757, 

775,    776,    778. 
Eatton   V.    Watson.   778. 
Baxendale  v.    Eastern   C.    R.    Co.,    347. 

V.  Great  Western  R,   Co.,   346. 
Baxter  v.   Brown.   909. 

V    rwminion   Tel.    Co.,    26,    505,   535. 
Baxter    Tel.    Co.    v.    Mutual    Tel.    Ass'n, 

297. 
Bay   V.    Williams,    603. 
Bay   City,    etc.,    R.    Co.    v.    Austin,    847. 
Beach  v.   Raritan,  etc.,  Ry.  Co.,  882,  916, 

928,    931. 
Beal  V.   South  Devon   Co.,   499. 
Beal  V.  West.   U.    Tel.    Co.,   678,   768,   775. 
Beaning   v.    South    Bend    Elec.    Co.,    283. 
Beard   &   Sons  v.    111.    Cent.    R.    Co.,   590. 
Beasley   v.    West.   U.    Tel.    Co.,    393,    394, 

449,    480,     516,    519,    542,     546,    556,    593, 

606,    665,    666,    668,    7C8,    807. 
Beatty    Lumber    Co.    v.    West.    U.    Tel. 

Co.,    498,    505,    510,    678,    701,    721,    723, 

952,    953. 
Beauchamp    v.    Comfort,    571. 
Beaumont   Trac.    Co.   v.    State,    145. 
Beaupre    v.    Pacific,    etc.,    Tel.    Co.,    537, 

679,    681,    686,     G87,    688,    690,    694,     700, 

701,    706,    723,    724,    932,    952. 
Beaver   County   v.  Central  District,    etc., 

Tel.    Co.,    73,    202. 
Becker  v.  West.   U.  Tel.   Co..   25,  35,  458, 

495,    497,    498,    500,    507,    542. 
Ber.kwith    v.    Clark,    911,    916. 
V.  Talbot,    915. 

Jones  Tel.(2d  Ed.) — 61 


Beebe  v.    St.   I^uis   Tr.   Co.,    259,   285. 
Beggs  V.  Postal  Tel.   Cable  Co.,  384,  536, 

542,    665,    667,    698,    952. 
Behm    v.    West.    U.    Tel.    Co.,    393,    394, 

406,    695. 
Belger  v.   Dinsmore,  543. 
Bell  V.    David   City,   298. 

v.  Dominion    Tel.    Co.,    510,    606. 
V.  Packard,    624. 
Bellevue  v.   Ohio  Valley  Water  Co.,   328. 
Bellinger  v.  New  York,  etc..  R.   Co.,   225. 
Bellsdvke     Coal     Co.     v.     North     British 

R.    Co.,   346. 
Bell   Tel.    Co.    v.    Ascot   Twp.,    23,    850. 
V.  Commonwealth,     9,     12,     16,     325, 

338,    365,    373. 
V.  Detharding,    277,    278. 
V.  Montreal   St.   R.   Co.,   25. 
V.  Owen    Sound,    98,    99. 
V.  The     Rapid,     206. 
Belo   V.    Fuller,    811. 
Beman  v.    Rufford,  46. 
Bemberry  v.    Bemberry,    922. 
Benedict    v.    West.    U.    Tel.    Co.,    46,    48, 

52,   53. 
Benford  v.   Sanner,  879,  880. 
Bennett  v.    Northern   Pac.   Ex.    Co.,    540. 
V.  Northern   Pac.    R.   Co.,   653. 
V.  West.    U.    Tel.    Co.    529,    531,    686, 
688,    708,    710,    711,    724.    774,    775, 
950,    951. 
Benson  v.  American  Ilium.  Co.,  369,   378. 
Bentley   v.    IVlissouri,   etc.,    Tel.    Co.,    220, 

221. 
Benton    v.    North    Carolina    Public    Ser. 

Corp.,   241. 
Bergin    v.    Southern    New    England    Tel. 

Co.,    245,    277,    663. 
Berley  v.   West.    U.   Tel.    Co.,    277,    280. 
Bernier  v.   St.   Paul  Gas  L.   Co.,   674. 
Berry   v.    Kolwalsky,    916. 
Berstein  v.   Electric   Co.,   217,    228,    245. 
Bertuch  v.  Telephone,  etc.,  Co.,  405,  597, 

672. 
Bessette  v.  Conkey  Co.,   306. 
Betz  v.  Kansas  City  Home  Tel.  Co.,  131. 
Beveridge  v.  Lewis,   145,   177,  178. 
Bevis   V.    Vanceburg    Tel.    Co.,    212,    213, 

219. 
Bevmer  v.  McBride,    453. 
Bibb  V.  Allen,   915,   936. 
Bice  V.  Wheeling  Elec.  Co.,  228,  230,  245. 
Biddle  v.  Leavenworth,  etc.,  P.  Co.,  253, 

2S2. 
Bierhaus  v.   West.   U.  Tel.   Co.,   393,   476, 

634,    680,   693,    700,    703,   745. 
Billings   Mut.    Tel.   Co.    v.    Rocky   Moun- 
tain Bell  Tel.   Co.,   362. 
Billington    v.    Railroad,    etc.,    Co.,    273. 
Biloxi  City  R.  Co.  v.  Maloney,   805. 
Bird  v.  iSIunroe,  915. 

V.  West.    U.    Tel.    Co.,    688,    716,    724, 
951. 
Birkett  v.  West.  U.  Tel.  Co.,   25,  35,  497, 

505,   509,  546.  650. 
Birmingham  Ry.,   etc.,   Co.  v.  Baird,   817. 

V.  Cockrum,    247,    251,    257,    641. 
Birmingham    Traction    Co.    v.    Southern. 

etc.,    Tel.    Co.,    297. 
Birney    v.     New     York,     etc,    Ptg.     Tel. 
Co.,    25,    29,    31,    392,    393,    457,    469,    510, 
514,    541,    552,    680. 
Birsch    v.    Citizens'    Elec.    Co.,    211,    663. 
Bishop  V.   Riddle,  145,  367. 

v.  Rocky    Mountain    Bell    Tel.    Co., 
21S     269. 
Bisself  v'.    New    York    C.    R.    Co.,    127. 
Bi.«singer  v.    Prince,   932,    934. 
Bixby   V.    Dunlap,    804. 
Black  V.  Chester,   85. 

V.  Delaware,    etc..    Canal   Co.,    46,   47. 
V.  Metropolitan,    etc.,    R.    Co.,    259. 


962 


CASES  CITED 
[The  figures  refer  to  pages] 


Blackburn   v.    Kentucky   Central   R.    Co., 
721. 
V.  Southwestern     Missouri     R.      Co., 
247,   292. 
Blackwell   Milling-,    etc.,   Co.   v.    West.   U. 

Tel.    Co.,    34,    418,    419,   497,    507. 
Blair  v.    Brown,   SS6. 

V.  Perpetual    Ins.    Co.,    175. 
Blake  v.    Ins.    Co.,   933. 
Blanchard  v.  Power  Co.,  114. 

V.  West.    U.    Tel.    Co.,    124,    204,    206, 
223. 
Bland  v.    Adams    Express  Co.,    485. 

V.  Cumberland   Tel.,   etc.,   Co.,  54,  78, 

81,    82,    126. 
V.  Shreveport    Belt    R.    Co.,    280. 
Blashfioid  v.    Empire   State   Tel.    Co.,   57, 

198. 
Bliss    V.    Baltimore,    etc.,    Tel.    Co.,    418, 

429,    707. 
Block  V.   Fitchburg-  R.   Co.,   590. 

V.  Milwaukee    St.    Rv.    Co.,    215,    231, 
238,    249,    250,    256,    257,    652,    664, 
666. 
Blockow  V.    Seymour,   931. 
Blodgett  V.   Abbott,   582. 
Bloom  V.   Richaj'ds,   571. 
Bloomfield  &  R.  Natural  Gaslight  Co.  v. 

Calkins,    106. 
Blount    V.    West.    U.    Tel.    Co.,    756,    759, 

792. 
Bluefield  Waterworks,   etc.,   Co.  v.  Blue- 
field,    319,    331,    332. 
Blust  V.   Pacific   Tel.   Co.,   280,    285. 
Blythe   v.  Denver,   etc.,   R.    Co.,    482. 
Board    of    Commissioners    v.    Lafavette 

etc.,    Rd.    Co.,    47. 
Board  of  Trade  Tel.   Co.  v.   Barnett,   76, 
77,   114,  120,   127,  131,  136,  138,   198. 
V.  Darst,   125,    198. 
Bodkin    v.    West.    U.    Tel.    Co.,    686,    689, 

743. 
Bogart  V.   City,   840. 
Boland    v.    Washtenaw    Home    Tel.    Co., 

132,    137. 
Bolton   Case,    917. 
Bolton  V.  West.  U.  Tel.  Co.,  396,  409,  431, 

470,    476,    655,    669,    707,    714. 
Bond   V.    Hurd,    882. 
Bonn    V.    Bell    Tel.    Co.,    219. 
Bonaer  v.    West.    U.    Tel.    Co.,    394,    470, 

473,    474,    475,    478,    479. 
Booker  v.    Southwest.    Ry.    Co.,   236,   663. 
Borell  V.   Cumberland  Tel.,  etc.,  Co.,  233, 

236,    273,    288. 
Borland  v.   Barrett,    805. 
Borough    of    New    Hope   v.    Postal    Tel., 

etc.,    Co.,    329. 
Borough   of   Taylor  v.   Postal   Tel.,   etc., 

Co.,    329. 
Boston  V.    Richardson,    111. 

V.   Schaffer,    860. 
Boston,    etc.,    Co.  v.    Salem,   etc.,   R.   Co., 

173. 
Boston    &   Rapbury   Mill   Corporation  v. 

Newman,   105. 
Boston    Safe    Deposit    Co.    v.    Bankers, 

etc.,    Te'i.    Co.,    23. 
Bourget    v.    Cambridge,    €'64. 
Bourke  v.  Butte  Elec,  etc.,  Co.,  241,  245. 
Bowen  v.   I>ake  Erie  Tel.   Co.,   647. 

V.  West.   U.   Tel.   Co.,   778,   807. 
Bowers    v.    West.    U.    Tel.    Co.,    760,    766, 

771,    796. 
Bowie  V.  West.  U.  Tel.  Co.,  388,  389,  555, 

727,    733. 
Bowling  Green  Gas  Lt.  Co.  v.  Dean,  242, 

274,    283,    663. 
Bowman   v.    TeaJl,    482. 
Bowyer   v.    West.    U.    Tel.    Co.,    447,    707, 

717. 
Box    V.    Postal    Tel.    Cable    Co.,    396,    408, 

461,    471,    472,    476,    505,    510,    663,    665. 
Boyce   v.    Missouri,    etc.,    R.    Co.,    170. 


Boyd    V.    Portland    Gen.    Elec.    Co.,    214, 
233,    234,    237,    238,    239,    260,    264, 
632,   646,   663,   670,   673,   828. 
V.  West.    U.    Tel.    Co.,    801. 
Boynton  v.   Rees,    885. 
Bradford   v.    Citizens'    Tel.    Co.,    348,   353. 

V.  New   York,   etc.,    Tel.  Co.,    82. 
Bradford  City  v.  Pennsylvania,  etc.,  Tel. 

Co.,   52. 
Bradley  v.  Bower,   929. 
V.   Rea,    571. 
V.  Southern    New   England   Tel.    Co., 

136. 
V.  West.    U.    Tel.    Co.,    561,    563.    957. 
Bradshaw   v.   Telephone   Co.,    843,   837. 

V.  ^Vest.   U.    Tel.    Co.,   825. 
Braham  v.   Nassau  Elec.  R,   R.   Co.,  258, 

673. 
Brahan  v.   Meridian  Home  Tel.   Co.,  132. 
Branch  v.   Libhey,    271. 
Brandon    v.    Tel.,    etc.,    Co.,    665. 
Brandt  v.  Spokane,  etc.,  R.  iCo.,  104,  131. 
Brashears  v.  West.  U.  Tel.  Co.,  396,  408, 

416,    417,    826. 
Brauer  v.    Shaw,   928,   939,    946. 
Braun    v.    Buffalo    Gen.    Elec.    Co.,    232, 
239,  240,   243,  261,  273,  276,   291,  292,  662, 
664. 
Brazil,    etc.,    Co.   v.    Gibson,    284. 
Breckinridge    v.    Crocker,    912,    914,    915, 

934,    936.     . 
Breed   v.    Central  City  First  Nat.    Bank, 

874. 
Breese  v.   U.  S.  Tel.  Co.,   26,  29,  384,  401, 

443,  445,   505,  542,  543,  649. 
Brewer  v.   Horst   &   Lachmund   Co.,    916, 

930,    936,    941. 
Brewster  v.   West.  U.   Tel.   Co.,   451,   715, 

724,    727,    731. 
Bride   v.    Sunset    Tel.  'Cb.,   791. 
Bridges    v.    Los    Angeles,    etc.,    R.    Co., 

284,    285,    288. 
Bridgewater   Case,    917. 
Briggs   V.    Lewiston,    etc.,   Co.,    105. 
Bright    V.    West.    U.    Tel.    Co.,    396,    408, 
424,   428,   473,  474,  478,   710,  711,  713,  714, 
775,   786,    790. 
Brimhall  v.    Van   Campen,    571. 
Brinckkord    v.    West.    U.    Tel.    Co.,    262, 

269. 
Brinkman  v.   Hunteir,   942. 
Brisban  v.  Boyd,  945. 

Bristol   V.    Rensselaer,    etc.,    R.    Co.,   638. 
Bristow  V.   Lane,    603. 
British      Columbia      Elec.      Ry.     Co.      v. 

Crumpton,    233. 
Britton  v.  Central  U.   Tel.   Co.,    278,   281, 

284. 
Brockelsby  v.   West.   U.   Tel.  'Co.,    527. 
Brod  V.   St.  Louis  Tr.   Co.,  258. 
Broderick  v.   St.  Paul  City  R.   Co.,   279. 
Bronson  v.   Albion   Tel.  Co.,   57,    114,   128, 

131,    133,    136,    168. 
Bronx  Investment  Co.  v.  Bank,  911. 
Brooks  V.   Consol.   Gas  Co.,    241. 
V.  Grand  Trunk  R.  Co.,   590. 
V.  Miller,   915. 

V.  West.    U.    Tel.    Co.,    319,    517,    604, 
619,    687,    692,    701,    706,    721,    733, 
825,   826,    836. 
Broom  v.  West.  U.  Tel.  Co.  215,  517,  527, 

546,    605. 
Broome  v.   New  York,   etc.,   Tel.   Co.,   79, 

94,    114,    120,   129,   143. 
Brown  v.    Adams,    etc.,    Co.,    484. 
V.  Asheville   Elec.   Co.,    131. 
V.  Chesapeake    &    Ohio    R.    'Co.,    642, 

666. 
V.  Chicago,   etc.,   R.    Co.,    612,    613. 
V.  Consol.     Lt.,     etc..     Cot,     218,     233, 

237,    245. 
V.  Cumberland    Tel.,    etc.,    Co.,    348. 
v.  Duplessis,   105. 
V.   Easton  R.    Co.,   543. 


CASES   CITED 
[The  figures  refer  to  pages] 


963 


Brown  v.   Edison  Elec.  111.   Co.,    239,   241, 
645. 
V.  Gerald,    142. 

V.    Light  Co.,   96,   130,   245,   641. 
V.    Marliland,    603. 
V.  Maryland,    853,    863. 
V.  Northern   California  P.   Co.,   250. 
V.  Panola  L.,   etc.,   Co.,   249. 
V.  Postal    Telegraph    Cable    Co.,    495, 

507,    514.    5:{3. 
V.   Telephone    Co.,    807. 
V.  West  Riverside  Coal  Co.,   224,  825, 

S2S. 
V.  West.    U.    Tel.    Co.,    382,    393,    394, 
405,    406,    419,    470,    471,    472,    570, 
573,    574,    622,    649,    662.    665,    720, 
744,   747,    759,   798,   799,   801. 
Brownfield    v.    Phnenix    Ins.    'Co.,    880. 
Brownlee  v.   Reiner,   SS6,   887. 
Brubaker   v.    Kansas   City,    etc.,    Lt.   Co., 

235,    238,    240,   245,   662. 
Brucker   v.    Gainesboro    Tel.    Co.,    226. 
Bruffett  V.   Great  W.   R.  R.  Co.,   46. 
Brumfleld  v.   West.   U.   Tel.   Co.,  432,   661. 
Brunelle    v.    Lowell   Elec.    L.    Corp.,    229, 

247,    272. 
Brunke  v.    Missouri,    etc.,    Tel.    Co.,    272. 
Brunswick    Gaslight    Co.    v.    United    Gas, 

etc..   Light   Co.,    50. 
Brush  Elec.   Lighting  'Co.   v.   Kelley,   213, 
217,    218,   235,    274,    664. 
V.  Lefevre,    242,    243,    633. 
V.  Wells,    289. 
Brvan  v.  West.  U.  Tel.  Co.,  396,  408,  424, 

428,    502,   517,   531,    755.   798,    799. 
Bryant  v.  West.  U.  Tel.  Co.,   25,  355,  419, 

498,    560,   561,    563,    745,    944,    957,   958. 
Buchanan  v.  West.  U.   Tel.  Co.,  395,  763, 

781,    784,    787. 
Buck  V.   Pennsylvania  R.  Co.,  541. 
Buckbee   v.    Third   Ave.    R.   Co.,    258. 
Buckley  v.   Lighting  Co.,  274. 
Budd   V.    N.   Y.,   350. 
Buffalo   County    Tel.    Co.   v.    Turner,   338, 

342,    343,    353,    358,    359,    360,    477. 
Buffalo      Merchants'      Delivery      Co.      v. 

Frontier  Tel.   'Co.,   321,   331. 
Burgess  v.    West.    U.    Tel.    Co.,    309,    502, 

503,   568,    623,    854. 
Burke  v.  Mead,  369. 

V.   Union  Coal,  etc.,  Co.,  278. 
Burnham   v.    Cornwell.    810. 
Burns  v.   Campbell,   805. 

V.  City  of  Emporia,   238. 
v.  Delaware,    etc.,    Tel.    Co.,    249,   652. 
V.  Johnstown,   etc.,  R.  Co.,   259. 
Burnett   v.    Fort  Worth  Light,    etc.,   Co., 
241,    247,    273,    291,    646. 
V.  West.    U.    Tel.    Co.,    315,    392,    393, 
572,    573,    574,    720,    791,    824,    825, 
833,    836. 
Burrall  v.   American  Tel.,   etc.,   Co.,   114, 

129. 
Burt' v.    Douglas   Co.    St.   Ry.   Co.,    259. 

V.  Winona,    etc.,   R.    Co.,    877. 
Burtis  v.   Buffalo,  etc.,  R.   Co.,  586. 
Burton    v.    Cumberland    Tel.,    etc.,    Co., 
225     234. 
V.  L"arkin,    603,    607. 
Burton  Tel.    Co.  v.   Gordon,   238,   244,   257. 
Busbee   v.    Telephone   Co.,    667,    672,    756, 

790. 
Bush  V.  West.  U.   Tel.  'Co.,   634,   765,   786. 
Butler  V.   Cincinnati,    96. 
V.  Greene,   31. 
V.  Lee,    571. 
V.  Rahm,   48. 

V.    West.    U.    Tel.    Co.,    636,    639,    711, 

712,    785,    807,    814,    815,    816. 

Butner    v.    West.    U.    Tel.    Co.,    316,    569, 

605,   609,  709,  791,  795,  796,   825,  826,   829. 

Butte,  etc.,  R.   Co.  v.   Montana,   etc.,   R. 

Co.,  162.   173. 
Butterfield    v,    Spencer,    933. 


Byerly   v.    Consol.,    etc..    Ice    Co.,    243. 

V.  Light,    etc.,    Co.,    675. 
Byron  Tel.    Co.   v.    Sheets,   227. 


Cable  Co.   v.   County,    73. 

V.  Likes,    284. 
Cage   V.    Black,    928. 
Caglione   v.    Mt.    Morris   Elec,    etc.,    Co., 

2ol     235     293. 
Cahiil  V.  'New  Eng.,    etc.,    Tel.    Co.,    278, 

284. 
Cahn  V.  West.  U.  Tel.  'Co.,  397,  410,  563, 

564,   689,   706,  723,   731. 
Cain  V.  West.   U.   Tel.   Co.,   558,    681,  775, 

953. 
Cairo,  etc.,   Ry.  Co.  v.  Mahoney,   886. 
Calbe   Co.   v.    Christian,    666. 
Caldwell  v.    People,    562. 
Calhoun    v.    Atchison,    928,    930,    932,    943, 

945 
Callahan  v.    Stanley,    916. 
Callem  v.  Columbus,  etc..  Light  Co.,  115, 

130,    141,    200. 
California  v.   Bunceton  Tel.   Co.,  83. 

v.  Central  Pac.    R.   Co.,  870. 
California    Bank    v.    West.     L .    Tel.    Co., 

604. 
California    State    Tel.    Co.    v.    Alta    Tel. 

Co.,    40,   185. 
Galium    v.    District    of    Columbia,    308. 
Calumet  Elec.  SL  Ry.  Co.  v.  Groose,  242, 

282. 
Camer'in  v.    Palmer  Co.,    902. 
Cameron  v.   Lewiston,  etc.,  R.,  259. 

V.  W^est.    X\    Tel.    Co.,    652,    707,    759, 

760,    790. 
v.  Wright,    935. 
Camp  V.    West.   U.   Tel.   Co.,   25,   495,   506, 

541,   546. 
Campbell   v.    Chicago,    etc.,    R.    Co.,    271, 
570. 
v.  Delaware,   etc.,   Tel.,   etc..   Co.,  265. 
V.  Telephone,    etc.,    Co.,    813. 
V.  United   Ry.   Co.,    220,    221,    269,   274. 
V.  Western   Electee  Co.,   23. 
V.  West.    U.    Tel.    Co.,    396,    409,    422, 
425,    458,  465. 
Campbellsville  Tel.  Co.  v.   Lebanon,  etc., 

Tel.   Co.,  53,  363. 
Canadian,   etc.,  R.  Co.  v.  Moosehead  Tel. 

Co.,    73,    129.    155,   156,    163,    167. 
Canadian  Pacific  R.   Co.  v.  West.  U.   Tel. 

Co.,    70,    175,    179,    185. 
Canal  &  C.   R.  Co.   v.  St.  Charles  St.  R. 

Co.,   49. 
Candee   v.    West.    U.    Tel.    Co.,    495,    507, 

513,    536,   537,    541,    695,  696,   698,    702. 
Cannon    v.    West.    U.    Tel.    Co.,    418,    420, 

421,   537,   694,   702,   723. 
Cannon  River  Mfg.  Ass'n  v.  Rogers,  937. 
Cantril   Tel.   Co.  v.  Fisher,  24. 
Cape  May,   etc.,   R.    Co.   v.   Johnson,    892. 
Capers    v.    West.    U.    Tel.    Co.,    635,    701, 

716,    746,   760,    764,    767,    774,   802. 
Capitol    Gas,    etc.,    Co.    v.    Davis,    273. 
Cardwell   v.    American  Bridge  Co.,    204. 
Carli   V.  Stillwate'-  St.    R.,    etc.,   Tel.   Co., 

105. 
Carmichael    v.    Southern    Bell    Tel.    Co., 
338,   351,   352,  375,  376,   653,   656,   669,  671, 
681,    805. 
Carnahan  v.  West.  U.   Tel.  Co.,   568,   569, 

829,   830,  839. 
Carpenter  v.  Oswego,  etc.,   R.  Co.,  127. 
Carr  v.  Manchester  Elec.  Co.,  277. 
Carroll    v.    Grand    Roude    Elec.    Co.,    235, 
244,    260;    272,    273,   292,   646. 
V.  Southern    Express   Co.,    387. 
Carswell  v.    West.   U.    Tel.    Co.,    472.   477, 
707,    747. 


f)G4 


CASES  CITED 
[Tlie  figures  refer  to  pages] 


Carter  v.  Hibbard,  945. 

V.  West.    U.    Tel.    Co.,    396,    409,    410, 
471,    477,    648,    747,   775. 
Carland    v.   West.    U.    Tel.    Co..    388,    389, 

450,  480,  536,  552,  554,   555,   657,   660,  698, 

720,    936. 
Caron  v.   La  Cite  de  St.  Henri,   238. 
Carson  v.    Central   R.   Co.,   105. 
Carterville  v.   Gibson,  330,   870. 
Carthag^e  v.   Carthage  Lt.   Co.,   262. 

V.  Central   New   York   Tel.,   etc.,   Co., 

63,    78,    93,    102.  ^     ^„^ 

Cart-wright  v.   Liberty  Tel.   Co.,  104,   131, 

136. 
Caruso  v.  Troy  Gas  'Co.,  248. 
Carver  v.   West.   U.    Tel.   Co.,   725 
Cashion   V.   West.    U.    Tel.    Co.,    382,    708, 

709,    756,    758,    766,    768,    771,    785,    790, 

796 
Cason  V.  West.  U.  Tel.  Co.,  434,  452,  691, 

715.  746,  760.   767. 
Cassadv  v.    Old   Colony   St.   Ry.   Co.,   259. 
Cater  v.   Northwestern  Tel.  Ex.  Co.,  104, 

107,   108.   112,   113,   197. 
Gates  V.  West.  U.  Tel.  Co.,  470,  475,  755, 

756,    795. 
Cayley  v.  Walpole,   930 
Cedar  Rapids  Lumber  Co.  v.  Fisher,  920, 

930,  935.  „      ^ 

Central    Branch    Union    Pac.    R.    Co.    v. 

West.  U.  Tel.  Co.,   32,  48^ 
Central  Bridge   Corp.   v.   'City  of  Lowell. 

Central  District,    etc.,    Tel.   Co.    v.    Com- 
monwealth,   374,    629. 
Central,   etc.,    P.    Co.   v.   Pope,   209. 
Central     New     York,     etc.,     Tel.     Co.     v. 

Averill,    52,    53,    54,    182.    345,    364,    374. 
Central    Pennsylvania    Tel.,    etc.,    Co.    v. 
Wilkes   Barre,    etc.,    R.    Co.,    16,   d9,   9d. 
214,  251,  296,  297. 
Cent.   Rd.,  etc.,   Co.  v.   Bridger,   592. 
Central     Stock     &     Grain    Exchange     v. 

Board  of  Ti-ade,  560. 
Central   Tel.    Co.  v.   Fisher,  lo9. 
Central    Transportation    Co.    v.    Pullman 
Palace  Co.,   47,   49.       „^  ^     ^        ,„      r, 
'Central    Trust    Co.    v.    Wabash,    etc.,    R. 
Co.,    928,    930.  „      -.r,  K 

Central   Union   Tel.    Co.   v.    Bradbury,    5, 
20     21,    29,    318,   325,    337,   339,    349, 
350,  359. 
V.  Conneaut,   246,  262. 
V    Fallev     2,    307,    308,    337,    339,    345, 

348,    349,    352,    629,    853,    900. 
v    Fehring,    337,    352,    824. 
v!  Sokola    218,    235,    237,    238,   253,   292, 

V.  &,^^l:    7,     20,     21,     25,     29,    316, 

318,   322,   339,   348,   350,   373. 
V.   Swoveland,    25,    28,    384,     439,    495, 
506,    748. 
Cessna    v.    Metropolitan    St.    Ry.,    27b. 
Cetofonte   v.    Camden   Coke    Co.,    281. 
Chance     v.     Indianapolis,     etc.,     R.     Co., 

878 
Chaffee    v.    Tel.,    etc.,    Constr.    Co.,    213, 

223,    267.  ^ 

Chalmers    v.     Paterson,     etc.,     Tel.     Co., 

214     277. 
Chamberlain    v.    Iowa    Tel.    Co.,    63,    76, 

78 
Champer  v.    Greencastle,    90.  ,    ^  , 

Champion    Chem.    Wks.    v.    Postal    Tel. 

Cable  Co.,   686. 
Chandler    v.     Atlantic     Ooast     Elec.     K. 
Co.,    285. 
V.  West.  U.   Tel.   Co.,   591,   837,   841. 
Chant   V.    Clinton   Tel.    Co..    234. 
Chaperon    v.     Portland     Elec.     Co.,     214, 

233,    264,    632. 
Chapman   v.    New   Orleans,    etc.,   R.    Co., 
541. 


Chapman  v.   West.  U.   Tel.   Co.,   604,  607, 
680,  687,   716,   751,   753,  754,  755,  758,  759, 
765,   790,   793,   795,    796,   797,   802. 
Charette   v.   L'Anse,    249,    267,    272. 
Charles    Simons'    Sons    Co.    v.    Maryland 

Tel  .    etc.,    Co.,    5,   331. 
Charleston  v.   Postal   Tel.    Cable  Co.,    62, 

864. 
Charleston,   etc.,   R.    Co.   v.   Hughes,   191. 
Charlestown    Gas    Co.    v.    Kanawha    Gas 

Co.,   54. 
Chase  v.  West.   U.    Tel.   Co.,   757,   791. 
Chattanooga    Elec.    Ry.    Co.    v.    Mingle, 

220,     257,     264,    649. 
Chattanooga   Light,    etc.,   Co.  v.   Hodges, 

266. 
Cherokee  Tanning  Extract  Co.  v.   West. 
U.     Tel.     Co.,    678,    716,    950,    951,    952, 
954. 
Cherry  v.    Sprague,   503. 
Chesapeake    etc.,    Tel.    Co.    v.    Baltimore 
etc.,    Tel.     Co.,     2,    3,     9,     16,     17, 
39,    43,    44,    98,    99,    337,    361,    365, 
367.    373. 
V.  Mackenzie,    79,    80,    107,    120,    122, 

123,    126,    167,    215. 
V.  Manning.    20,   38,   142,  318,  322,   323. 
V.   State,    322. 
Chesebrough    v.    Tel.    Co.,    945. 
Chester    v.    Philadelphia,    etc.,    Co.,    866, 
867. 
V.  State,    876,    877. 
v.  West.  U.   Tel.   Co.,  329,  331. 
Chicago   V.    Chicago   Tel.    Co.,    42,   43,    44, 
870. 
V.  Martin,  808. 
Chicago,  etc..  Bridge  Co.  v.  Pacific  Mut. 

Tel.    Co.,    72,    160,    202,    203. 
Chicago    Gaslight    Co.    v.    People's    Gas- 
light  Co.,    47,   53. 
Chicago     Packing     &     Provision    Co.    v. 

Chicago,    860. 
Chicago,    etc.,    R.    Co.    v.    Carroll,    258. 
V.  Chicago,    149,    150.    193,    194,    195. 
V.  Gardiner,  504. 
V.  Jackson,    805. 
V.  Katzenbach,   540. 
V.  Milwaukee,    etc.,   R.   Co.,    115. 
V.  Moi-ehouse,    178. 
V.  Northern,   etc.,    Co.,    592,   595. 
V.  Russell,     884. 
V.  Scurr.    804,    805,    815. 
V.   Snvder,     156. 
V.  Stackweather,    162. 
V.  Whiting,     etc.,    R.    Co.,     112. 
V.  Wilson,    453. 
Chicago,    R.    I.    &    P.    R-    Co.    v.    State. 

316. 
Chicago    Tel.    Co.    v.    Illinois    Mfg.    Asso. 
359 
V.  Northwestern  Tel.   Co.,  42,   43,   130. 
Childers    v.     San    Jose,    etc..    Pub.     Co., 

812. 
Chiles    V.    Drake,    804. 

V.  Nelson,    945. 
Chisholm    v.     New    England,     etc.,     Tel. 

Co.,  278,   280,  284,   286. 
Chittick    v.     Philadelphia,     etc.,     Transit 
Co.,    230. 
v.  Rapid  Tr.    Co.,   259. 
Choate    v.    Crowninshield,    491. 
Choctaw   Elec.    Co.   v.    Clark,    284. 
ChoUette    v.    Omaha,    etc.,    R.    Co.,    48. 
Christensen     v.     Metropolitan,     etc.,     R. 

Co.,    259. 
Christian  Union  v.   Yount,   175. 
Christie    Grain,    etc.,     Co.    v.     Board    of 

Trade,     958. 
Christmon  v.  Postal  Tel.   Cable  Co.,   691, 

704,    709.      ■ 
Chung    Kee    v.   Davidson,    603. 
Church   V.    Hubbart,    881. 


CASES   CITED 

[The  figures  refer  to  pages] 


905 


Cincinnati    v.    White,    123. 
Cincinnati,    etc.,    Co.    v.    Wilson,    198. 
Cincinnati,     etc.,     Elec.     Co.     v.     Arcti- 

deacon,    242,    283. 
Cincinnati,    etc.,    R.    Co.    v.    Bank,    603. 
V.   IJowling   Green,    343,    3GS,   369,    370. 
V.  Cincinnati,    etc.,    R.     Co.,    261. 
V.  Disbrow,     885. 
V.  Pontius,    511. 
Cincinnati     Inclined     Plane     R.     Co.     v. 
City,    etc.,  Tel.   Ass'n,   9,    11,   15,    16,    72, 
73,    76,    141,    297,    298,    304. 
Cincinnati    Tr.    Co.    v.    Holzenkamp,    2oS. 
Citizens'    Bank  v.    First  Nat.    Bank,    903. 
Citizens'    Nat.    Bank    v.    West.    U.    Tel. 

Co.,    575,    578. 
Citizens'    St.    Ry.    Co.    v.    Batley,    215. 
Citizens'    Tel.    Co.    v.    Ft.    Wayne,    etc., 
Ry.,   298. 
V.   Thomas,     236,     244,     245,     251,     266, 

267,    641.    663,    674,    675. 
V.  Wakefield,    85,    221,     235,    284,    295. 
V    Westcott,   265,   274,  276. 
Citv   Electric   Street    Ry.   Co.   v.    Conery, 
213,   '^31,  232,  235,  249,  250,   251,  252,  253, 
256,    269,    292. 
Citv  of  Austin  v.  Nuchols,   657. 
City      of      Baxter      Springs      v.      Baxter 

Springs    Light    Co.,    43,    45. 
City    of    Bloomington    v.     Bourland,    212. 
City    of    Bavonne    v.    Lord,    45. 
City  of  Bradford  v.   Postal  Tel.   Co.,   866. 
City    of    Crawfordsville    v.     Braden,    92. 
City    of    Dayton   v.    City    Ry.    Co.,    305. 
Citv    of    Dubuque   v.    Chicago,    etc.,    Co., 

851. 
Citv    of    Louisville    v.    Louisville    Home 

Tel.   Co.,   43. 
Citv    of    Memphis    v.    Postal    Tel.    Cable 

Co.,   866. 
Citv  of  New  York  v.  Miln,   204. 
Citv    of    Plattsmouth    v.    Nebraska    Tel. 

Co.,    318. 
City    of    St.    Louis   v.    Bell    Tel.    Co.,    15. 

V.  West.  U.   Tel.   Co.,   870. 
City  of  Toledo  v.  West.  U.   Tel.   Co.,   63. 
Citv    of    Wichita    v.    Missouri,    etc.,    Co., 

199. 
City  "of  Wynnev.ood  v.    Cox,   657,    658. 
Clairain   v.    West.    U.    Tel.   Co.,    270,    277, 

280,    284. 
Clancy    v.    New    York,    etc.,    R.    R.    Co., 

235.    264. 
Clark  V.   Dales,   623. 

V.  Interstate    Independent    Tel.    Co., 

40,    41. 
V.  Johnson    Co.     Tel.    Co.,     278,     279, 

281,    674. 
V    Union    Iron,    etc.,    Co.,    281. 
V.  Wyatt,    878. 
Clark    Manufacturing    Co.    v.    West.    U. 
Tel.    Co.,    681,    691,    701,    716,    724,    929, 
950     951     952. 
Clarke   v.'  Nassau    Elec.    R.   R.    Co.,    265. 

V.  Omaha,    etc.,    R.    Co.,    46. 
Clarksburg,    etc..    Light    Co.,    v.    City   of 

Clarksburg,    43,    45. 
Claussen    v.    Cumberland    Tel.,   etc.,    Co., 

218,    233,    235,    674. 
Clay  V.  Allen,    562. 

V.  Postal    Tel.    Cable    Co.,    131,    133, 

134. 
V.  Ricketts,    935. 
V.  State,    907. 

V.  West.    U.    Tel.    Co.,    563,    724,    741, 
950. 
Cleburne  Elec,    etc.,    Co.    v.   McCoy,    673. 
Clement    v.    West.    U.    Tel.    Co.,    35,    505, 
509,    516,    531,    546,     553,     555,    556,     605, 
650,    845. 
Clements     v.     Louisiana    Electric    Liglit 
Co.,     92,     239,     240,     241,     247,     254, 
273,    274,    275,    644,    645,    673. 


Clements  v.  Potomac  Elec.  P.  Co.,  241. 
Cleveland    Burial    Case    Co.    v.    Erie    R. 

Co.,    121. 
Cleveland,    etc.,    R.    Co.    v.    Backus,    861. 
V.  Ohio    Postal   Tel.    Cable    Co.,    163, 

169,   195. 
V.  Speer,    179. 
Cleveland     Terminal,      etc.,      R.      R.      v. 

Cleveland    Steamship    Co.,    208. 
Clifton    V.    United    States,    8S1. 
Clinton-Dunn   Tel.   Co.  v.    Tel.,   etc.,  Co., 

53. 
Clio   Gin   Co.   v.   West.    U.    Tel.    Co.,    691, 

701,    716,    724. 
Clonts  V.  Gaslight  Co.,   284. 
Clough  V.   West.    U.    Tel.   Co.,   892,   901. 
Cobb    V.    Force,    928,    933,    944. 

v.  Glenn    Boom,    etc.,    Co.,    877,    882, 

886,    929,    932,    941,    950. 
V.  West.    U.    Tel.    Co.,    668,    773,    777, 
783,    784,    789. 
Coburn  v.   New  Tel.  Co.,   122. 
Cocke  V.  West.  U.  Tel.   Co.,  436,  658,  814. 
Cochranton   v.    Cochranton   Tel.   Co.,   867. 
Coe  V.   Columbus,   etc.,   R.   Co.,   46,  49. 
Coffman   v.    Campbell,    942. 
Cogdell    V.    West.    U.    Tel.    Co.,    382,    390, 
391,    396,    408,    409,     410,    418,    432,    433, 
434,    448,    465,    466,    598,    612,    648. 
Coit   V.    West.   U.    Tel.    Co.,    25,    401,    443, 
505,     546,    550,    555,    604,    609,     611,    613. 
Colbourn    v.    Wilmington,    219,    246. 
Cole  V.   Drew,   118. 
V.  Tucker,    805. 

V.  West.    U.    Tel.    Co.,    516,    519,    541, 
542. 
Coleman  v.   Applegarth,    939. 

V.  Hiler,    603. 
Coles  V.    Midland   Tel.,    etc.,    Co.,   143. 
Collar  V.   Tel.    Co.,    21G,    294. 
College   Mill    Co.    v.    Fidler,    927,    928. 
Collingdale    Borough    v.    Keystone    State 

Tel.,    etc.,   Co.,   84. 
Collins    V.    Dorchester,    272. 

v.  West.    U.    Tel.    Co.,    640. 
Colorado  Elec.    Co.   v.    Lubbers,    271,    284, 

288,    658,    664. 
Colorado    Tel.    Co.    v.   Fields,   44,   45,   3-U, 

349,    359,    360. 
Colton    V.    Cleveland,    etc.,    R,    Co.,    484. 
Columbus   Rd.    Co.   v.   Dorsey,   273,   283. 

V.  Kitchens,    227,    228,    231,    245. 
Colwell    V.    Colorado    Springs    Co.,    175. 
Commercial  Cable  Co.   v.   Attorney  Gen- 
eral,   203. 
Commercial    Elec,    etc.,    Co.    v.    Judson, 

851. 
Commercial  MilUng  Co.   v.   Tel.   Co.,   505. 
Commercial   Pacific  Cable   Co.   v.    United 

States,    208. 
Commercial    U.    Tel.    Co.    v.    New    Eng- 
land  Tel.,    etc.,    Co.,   338,    339,   349,   365, 
366,    367,    373,    384. 
Commonwealth  v.    Alger,    321. 
v.  Boley,    59. 
V.  Boston,   124. 
V.  Burton,    875. 
V.  Eastman,    878. 
V.  Electric    Light    Co.,    864. 
V.  Jeffries,     874,     875,     879,     883,     888, 

890,    921. 
V.  Louisville  Gas  Co.,  851. 
V.   Melville,    243,    254,    293. 
v.  New   Castle  Elec.    Co.,    849. 
V.  Pennsylvania    Tel.    Co.,    3,    6,   16. 
V.  Standard   Oil   Co.,   847. 
V.   Smith,    46,    47,    49,    313. 
V.  Vosburg,    880. 
V.  Warwick,    79,    95,    101. 
V.  Welch,    847. 

V.  West.    U.    Tel.    Co.,    384,    385,    391, 
561,    565,    849. 


9GG 


CASES   CITED 
[The  figures  refer  to  pages] 


Commonwealth    Elec.    Co.    v.    Rose,    247, 

662. 
Condon  v.    Marquette,    etc.,    R.    Co.,    589. 
Cone,    etc.,    Co.    v.    Poole,    175. 
Conkling   v.    Standard    Oil    Co.,    894,    897, 

§99     902 
Connell  v.    Keokuk  Ellec.   Ry.,   etc.,   Co., 
040    -Tgi 
V    West."  U.    Tel.    Co.,    366,    791,    795, 
796,    797,   824,    825,   826,    829,    836. 
Connelly   v.   West.   U.    Tel.    Co.,   606,   607, 

751,     753,     791,    793,     802. 
Conner  v.   Robertson,    562. 
Conrad    v.     Springfield    Consol.     R.    Oo., 
92,    247,    249. 
V.  West.    U.    Tel.    Co.,    525,    640. 
Consol.    Elec,    etc.,    Co.    v.    Koepp,    254, 
256,    282. 
V.  Healy,    241,   248,    267. 
V.  People,    262. 
V.  People's,    etc.,    Co.,    297. 
Consolidated    Gas      Co.    v.    Brooks     241. 
V.  Chambers,    222,    278,    279,    280,    281, 

903 

V.   State,    242,    271,    654,    658,    673,    674. 
Construction    Co.    v.    Tel.    Co.,    497. 
Conyers    v.    Postal    Tel.    Cable    Co.,    6u7, 

837,    841,    883,    884,    885. 
Cook    V.     Wilmington,     etc.,     Elec.     Co., 

9Qfi        9^7        ^1"^ 

Co"ole'y  "v.  Board  of  Port  Wardens    312. 
Cooper   V.    Lansing  VvTieel  Co.,   939. 

V.  Light    Co.,     253. 

V.   Smith,    127,    912. 

V.  Sun  Print.,   etc.,  Ass'n,  812. 
cooper    Mfg.    Co.    v.    Ferguson,    317. 
Co-operant    Tel.    Co.    v.    St.    Clair,    281, 

9g2 

Corby    v.    Missouri,    etc.,    Tel.    Co.,    279, 

o§5 
Co"rc6ran   v.    Postal   Tel.    Cable    Co.,    791, 

797 
Cordell    v.    West.    U.    Tel.    Co.,    384,    389, 
391     432,    450,    463,    598,    612,    666,    681, 
684!    707,    714,    761,    778,    805. 
Corsby  v.  Railroad  Co.,   673. 
Cosgriff    V.    Tri-State    Tel.    Co.,    114,    197. 
Costigan   v.   Mohawk   &  Hudson   R.    Co., 

453,    739. 
Cothran  v.    State,   562. 

V.  West.   U.   Tel.   Co.,   561,   563,   720. 
Couch    V.    Watson    Coal    Co.,    271. 
County   of    Mobile    v.    Kimball,    831. 
Coupland   v.    Arrowsmith,    875. 
Coventry    Case,    917. 
Coverdale    v.    Edwards^    124. 
Covington,    etc.,    Ry.    Co     v     Smith,    259. 
Cowan    v.    West.    U.    Tel.    Co.,    610,    613, 

639,    647,    753,    755,    763,    796. 
Cox  V.    Cynthiana,    358. 
v.  Maxwell,    930,    931. 
V.  Paul,    870.  ^     ^ 

Cragin   v.    New    York,    etc.,    R.    Co.,    498. 
Craig   V.  'Childress,    Peck,    484. 
Cramer  v.    Burlington,    270. 
Crandall   v.    Consolidated,    etc.,    Co.,    251, 
253,    269. 
V.  Nevada,    864.  ^^    ^„„ 

Cranford  v.   West.   U,   Tel.   Co.,   452,   609, 

617,    715. 
Cranson  v.    Goss,   571. 
Crawford  v.   Standard  Tel.    Co.,    212,   234, 

243,    244,    200,    265. 
Crawford   Electric   Co.    v.    Knox    County 
Power  Co.,   39,   40,    41,   77,    86,    139,   145, 

Craw'fordsville  v.   Braden,   85,    86,   262. 
Crawson  v.    West.  U.   Tel.   Co.,    757,    791. 
Crelly  v.    Missouri,    etc.,    Tel.    Co..   811. 
Crist   v.    Wichita,    etc.,   P.    Co.,    288. 
Cronheim  v.    Postal  Tel.    Cable   Co.,   716, 
717. 


Crooke   v.    Flatbush,    etc.,    Co.,    106. 
Crosby    v.    Fitch,    485. 
v.  Hawthorn,    827. 
v.  Portland    Ry.    Co.,    236. 
Crossett    v.    Carleton,    941. 
Crouch  v.   Arnett,   349,  373,  378. 

V.  Great  Western  Railway,   586. 
Crutcher    v.    Kentucky,    863. 
Crowe    V.    Nanticoke    Lt.    Co.,    228,    663. 
Culver  V.    Warren,    947. 
Cumberland   v.    Lottig,    241,    242. 
Cumberland     Tel.,     etc.,     Co.     v.     Ather- 
ton,    397,    409,    410,    421,    438,    585. 
V.  Avritt,    103,   107. 
V.  Baker,    352,    358,    376,    477. 
v.  Bills,     279,    281,    284,    287. 
V.  Brown,   384,   418,  420,  438,  773,  774, 

789 
V.  Calhoun,     867. 
V.  Carter,    747. 
V.  Cartwright     Creek     Tel.     Co.,     42. 

43,    45,    805. 
V.  Cassedy,     136,     814. 
V.  Coats,    213,    221,    261. 
V.  Cook,     214. 

V.   Cosnahan,    252,    253,    282. 
V.  EVansville,    20,    43,    44,    46,    49,    51, 

65,    71. 
V.  Graves,    282,    286. 
V.   Hartley,    825,    843. 
V.  Hendon,   376.    629,    814. 
V.  Hickman,    321. 
V.  Hicks,     375. 
V.  Hobart,     358,     359,     372,     374,     375, 

376. 
V.  Hopkins,    867. 
V.  Hunt,   215,    233. 
V.  Jackson,     352,     687. 
V.  Kelly,    338,    339,   344,    345,    346,    349, 

824. 
V.  Kranz,    251. 
V.  Loomis,     279. 

V.  Louisville,    etc.,   Co.,   297,    318,    323. 
V.  Martin,    132,    291,    293. 
V.  Maxberry,    401,    426. 
V.  Memphis,    323,    331,    333. 
V.  Mobile  &    Ohio   Rd.    Co.,    176. 
V.  Morgan's   Louisiana,    etc.,    R.    Co., 

182. 
V.  Mount  Vernon,   124. 
V.  Paine,    352,    805,    814. 
V.  Peacher  Mill  Co.,   663,   665,   674. 
V.  Pierson,    236,    260,    GUI. 
V.  Poston,    133,    809,    814. 
V.  Quiglev,  393,  632,  075,  681,  707,  755, 

763,    766,    767,    778,    784,    819. 
V.   Sanders,    462,   824,   825,   826,   827. 
V.   Shaw,    133,    814. 
V.  St.   Louis,   etc.,   R.    Co.,    166. 
V.   State,    29,    52,    53,    364. 
V.   Sutton,   351,  375. 
V.  United    Electric   R.    Co.,    9,    15,    16, 
17,   39,   199,   297,   298,  299,  300,   301, 
303,   304. 
V.  Ware,    253,    269,   281,    286. 
V.  Warner,    225,    234. 
V.  Woodham,    269. 
V.  Yazoo,  etc.,  R.  Co.,   168. 
Cullen   V.    New   York  Tel.    Co.,    957. 
Culver  V.    Warren,    619. 
Cunningham  v.   Williams,  911,   915. 
Curd  V.   Cumberland  Tel.,   etc.,  Co.,   608, 
708.  „   , 

Curtice  v.  London  City,  etc..  Bank,  942. 
Curtin  v.  West.  U.  Tel.  Co.,  546,  680,  782, 

791,    795,    797. 
Curtis    V.    Gibney,    928. 
Cutler  V.  Light,  etc.,   Co.,  641. 
Cutts   V.   West  U.   Tel.   Co.,   434,   661,   670, 

679,    686,    744. 
Cynthiana   Tel.    Co.   v.   Asbury,    218,    269. 


CASES   CITED 
[The  figures  refer  to  pages] 


967 


D 


Daflinger  v.  Pittsburg,  etc.,   Tel.   Co.,  57, 

128. 
Daggett  V.  State,    827. 
Dailv  V.   State,    25,    37,    62,    114,    129,    131, 

135,   137,    138,   307.  _  ^^     ^^ 

Dakota  Cent.   Tel.   Co.  v.   Huron,    42,    81, 

82. 
Dale  V.  Delaware,  etc.,  R.  Co.,  270. 
Dallas    Elec,    etc.,    Co.    v.    Mitchell,    282, 

Dallas,   etc.,   Ry.   Co.   v.   Broadhurst,   258. 
Dalton  V.  Atlantic,  etc.,  R.  Co.,  282 
Daltry  v.  Media  Elect.,  etc.,  Co.,  248,  250, 

253,    267,    293. 
Dambmann  v.  Lorentz,  939. 
Dana  v.   Short,  927. 
Dane    v.    Derby,    345. 

Daniel  v.  West.  U.  Tel.  Co.,  537,  636,  695. 
Dannemiller  v.  Leonard,   893. 
Dannenhower  v.   West.   U.   Tel.   Co.,    235, 

282 
Danville  v.   Thornton,    242,    274. 
Dansville    St.    Car    Co.   v.    Watkins,    2<3. 
D'Arcy    V.    Westchester    Elec.    Ry.    Co., 

259. 
Darling    v.    Newport    Elec.    1+    Co.,    132, 

143 
Darlington  v.  West.  U.  Tel.  Co.,  708,  755, 

760,    7G1. 
Darlington  Iron  Co.  v.  Foote,  945. 
Dartmouth   College   v.    Woodward,    31/. 
Daugherty  v.  American  U.  Tel.   Co.,   340, 
393    451,   452,  536,  567,  598,  610,   697,  715, 
730. 
Davenport  v.  Electric  Co.,  260,  673. 
Davidson  v.   Utah   Independent  Tel.   Co., 
212,   215,  220,   221,   265. 
V.  West.    U.    Tel.    Co.,    712,    713,    785, 
786. 
Davies   v.    Eastern   Steamboat  Company, 
437. 
V.  "West.   Steamboat  Co..  410. 
V.  West.    U.    Tel.    Co.,    686. 
I>avis  V.   Chicago,  etc.,   R.  Co.,  503. 
V.  Dudley,    266, 

V.  Electric  Reporting  Co.,  558,   560. 

V.  Pac.  Tel.,  etc.,  Co.,  2,  3,  9,  17,  295. 

V.  Port  Huron  Engine,  etc.,  Co.,    277. 

V.   West.    U.    Tel.    Co.,    340,    394,    419, 

455,    457,    469,    470,    472,    522,    523, 

708,    709,    710,    711,    791,    792,    795, 

805,    814. 

Davoust  V.  Alameda,  86,  87,  243,  246,  291, 

292,    293. 
Dawson  v.   Dawson  Tel.   Co.,  328,   334. 

V.  Lawrence    Gaslight    Co.,    281. 
Day  V.  Gieen,   294. 

V.  McAllister,    571. 
V.  Postal   Tel.   Co.,    177. 
Dayvis  v.  West.  U.  Tel.  Co.,  692,  708,  760, 

762,    765,    786. 
De  Castro  v.  Compagnie  Francaise,   etc., 

72,    202,    203,    209. 
Decatur  v.  Hamilton,   238,   246. 
Decatur,  etc.,  Co.   v.  Newsom,   253. 
Deere  v.   Bagley,   879,   880. 
Deerfleld  River  Co.  v.    Wilmington  Pow- 
er,   etc.,   Co.,   142,    209. 
Deering  v.   Shumpik,    899. 
De  Frates  v.  Central  U.  Tel.  Co.,  279,  284. 
Deighton  v.   Hover,  436. 
Dehou2;ne  v.  West.  V.   Tel.  Co..   669. 
De  Kalb   Co.  Tel.   Co.   v.   Dutton,   114. 
De    Kallands   v.    Washtenaw    Home    Tel. 

Co.,    262,    278. 
De  La  Grange  v.   Southwestern  Tel.  Co., 

649. 
Delahunt   v.    United   Tel.,    etc.,    Co.,    226, 

227,   229,   233,   244,   251,   256,   646. 
Delanev  v.  Hilton,  270. 
Delaware,   etc.,  R.   Co.  v.  Bowns,  488. 
Delaware,    etc.,    Tel.   Co.'s   Petition,    867. 


Delaware,     etc.,    Tel.    Co.    v.    Delaware, 
338,   349,   350,   361,   365,   378. 
V.  Fleming,    221. 
V.   State,    361. 
Dempsey  v.   West.    U.   Tel.   Co.,   408,  636, 

666,   668,   748,    749,    760. 
Denham   v.    West.    U.    Tel.   Co.,    678,    712, 

785,    786*. 
Denison,    etc..   Power  Co.   v.   Patton,  242, 

252,    281,   282,    283,    291,   674. 
Denison,  etc.,  Ry.  Co.  v.  Johnson,  259. 
Denson  v.  Electric  Co.,   228. 
Denton  v.   Chicago,   etc.,  PL   Co.,   484. 
Denver  v.    Sherrett,    219,   246,    274,   670. 
V.  United  States  Tel.  Co.,  115,  128. 
Denver  Consol.  Elec.  Co.  v.  Simpson,  213, 
232,   260,   645,   646,   654. 
V.  Lawrence,   227,    228,    230,   245. 
V.  Walters,  229,   248,   267,  654,  674. 
Denver   Tramway   Co.   v.   Reid,    257,    259, 

274,   674. 
De   Rutte   v.    New  York,    etc.,    Mag.    Tel. 
Co.,    26,    29,    384,    400,    401.    443.    455,    535, 
582,    584,    589,   591,    605.    609,    613,    733. 
Deseret   Irr.    Co.   v.    Mclntyre,    189. 
Deshon  v.   Fosdick,   934. 
Deslottes    v.     Baltimore,    etc.,    Tel.    Co., 

431,   433,    448,    449,    599,    600,    617. 
Detroit  City  R.   Co.  v.  Mills,   112. 
Devlin  v.    Beacon   Light  Co.,    252.   274. 
Devine  v.   Brooklyn,   etc.,  Co.,   235. 
De  Voegler  v.  West.  U.  Tel.  Co.,  746,  761, 
766,    767,    777.  „     „^„ 

Dickey   V.    Maine   Tel.   Co.,    213,    260,   263, 

269,   270. 
Dickson  v.    Kewanee   Elec.   L.,   etc.,    Co., 
294. 
v.  Renter's  Tel.  Co.,  26,  602,  930. 
Diller   v.    Northern   Cal.    Power   Co.,    213, 
216,  228,   23G,  260,   265,  269,   272,   273,   645. 
Dillingham   v.    Crank,    261. 
Dillon  V.  Allegheny,  etc.,  L.  Co.,  273,  274. 
District    of    Columbia    v.    Dempsey,    213, 

233,    246. 
Dixon  V.    Clow,    126. 

V.  Louisiana  Elec.  Lt.,  etc.,   Co.,   276. 
V.  West.    U.    Tel.    Co.,    279,    281. 
Doane  v.  Lake   St.,   etc.,   R.   Co.,   115. 
Dobbins   v.   West.   U.   Tel.   Co.,    226. 
Dotaoy,  etc.,  Tel.  Co.  v.  De  Magathias,  39, 

204,    207. 
Dock  V.   Elizabeth  town   Steam   Mfg.    Co., 

806. 
Dodd  V.   Consolidated  Tr.  Co.,  133. 
Dodd    Grocery    Co.    v.    Postal    Tel.    Cable 

Co.,   536,  599.   697,   698,   725,   726,   954. 
Dodge  V.   Council  Bluffs,  175,  176. 
Dodson  V.   West.    U.   Tel.    Co.,   517,   523. 
Domestic   Tel.    Co.    v.    Newark.    77. 
Dominion   Tel.    Co.   v.    Silver,    566. 
Donohue  v.   El  Paso,   etc.,   R.   Co.,  170. 
Donovan  v.  AUert,   114,   116,   118.   128,   130. 
V.  Kansas  City,   etc.,    Ry.    Co.,    257. 
V.  Schoenhofen   Brewing  Co.,   911. 
Dord  V.    Bonnaffee,   624. 
Dorgan    v.    West.    U.    Tel.    Co.,    340,    514, 

648,    693. 
Do.ster  v.  West.  TT.  Tel.  Co.,  712,  773,  775, 

776,   780,   781,   790,    807. 
Dotv    V.    American    Tel.,    etc.,   Co.,    5.    39, 

41",    73,   141,   142.    143.   148,   171,   199,   200. 
Dougan  v.    Champlain  Transp.,   270. 
Dovaston  v.   Payne,   116. 
Dover  v.  Elec.   Co.,   274. 
Dow   V.    Humbert,    822. 

V.  Sunset  Tel.,  etc..  Co.,  235,  251,  252, 
281,  633,  654,  658. 
Dowdv    V.    West.    U.    Tel.    Co.,    470,    473, 

755,  779,   780. 
Downs  V.   Andrews,    292,   633. 

V.   Missouri,  etc.,  Tel.   Co.,  283,  633. 
Drainage  District  v.   Knox,    114. 
Drown    v.    New    England    Tel.,    etc.,    Co., 

252.    274,    281,    674. 
Dry  Goods  Co.  v.  Pub.  Service  Corp.,  334. 


9G8 


CASES   CITED 
[The  figures  refer  to  pages] 


Duhle   V.    Batts,    928.    _  ,    ^       ,.„ 
Dn  Hose  V.   West.  U.  Tel.  Co.,  762. 
Dubuque  v.   I.   C   R.   Co.,   S5o 
Ducan  V.  West.  U.  Tel.  Co.,  <91. 
Duncan  v.  Beai-d,  5S. 

V.  Toledo,   etc..  Rd.   Co.,  316. 
V.  West.  U.  Tel.  Ca,  706.  748. 
Dudley    v.    West.    U.    Tel.    Co.,    825,    826, 

836. 
Duff  V.  Hopkins,  932. 
Dugan  V.  Erie  County  Elec.  Co.,  238,  245, 

Duke  V.  New  Jersey  Cen.  Tel.  Co.,  9,  141, 

143,    146,    147,   149,    188 
Duluth  V.   Duluth  Tel.   Co.,   45,    iG,   97. 
Dumont    v.    Peet,    361.  ^  ,         „^      c^. 

Dumphy   V.    Montreal   L      etc      Co      664. 
Dunbar  v.    American   Tel.,    etc.,    Co.,    oi. 

V.   United   States,    878. 
Dunham  v.   McMichael,    895    899 
Dunn  V.  Western  Union  Tel.  Co.,  20.  384, 
79  "> 

V.  Cavanaugh,  230,  274. 
Dunning  v.    Leavitt,    603. 

V.  Roberts,    619,    945. 
Dupree  v.  Alexander,    280. 
Durant  v.  West.  U.  Tel.  Co.,   837 
Durkee  v.  Vermont  Central  Ry.  Co.,  8S4, 

S86,    928,    944,    945,    947,    948. 
Dusenbury  v.  Mut.  U.  Tel.  Co.,  120 
Dutcher  v.   Rockland  Elec.   Co.,   2»o,   bid. 
Dutton  V.  Poole,  601. 

Dwver    v.    Buffalo,    etc.,    Eleo.    Co.,    214, 
225,    245. 


E 


Eagle  Mill  Co.  v.   Caven,   938. 
Eaker  v.  West  U.  Tel.   Co.,  517,   648. 
Earle  v.   Victoria,    253. 

itst  Boston  Freight  Co.  v.  Hubbard,  46. 
East  Boyer  Tel.  Co.  v.  \ail,    .7. 
Eastern,   etc.,    Tel.    Co.   v.   Capetown   T. 

Co      "^04 
Eastern  Kentucky  Home  Tel.  Co.  v.  Mel- 
lon,   280,    286.  ^  „     A 
Eastern  Kentucky  Tel.,  etc.,  Co.  v.  Hard- 
wick     212,    244. 
Eastern  Rd'.  Co.  v.  Benedict,  600. 
East  Grand  Forks  v.  Luck,  90 
Eastlick  v.   Southern  R.   Co.,   898. 
East  St.  Louis  v.   Wehrung,  861. 
East   St.   Louis,   etc.,    Ry.    Co.   v.    Steger, 

259 
East'  Tennessee,     etc..    Railroad    Co.    v. 
Bayliss,  530. 
V.  Rogers,  583.  ,     , 

East    Tennessee    Tel.    Co.    v.    Anderson 
County  Tel.  Co..   81,  82 
V     Board   of   Councilmen,    42,    44,    46, 

51,   97,    203. 
V.  Bowen,   276. 

V.  Frankfort,   42,   43,  51.  „^     „„, 

V.  Paris  Elec.  Co.,  56,   81,  90,  91,  327, 

328,  909. 
V.  Parsons,    218.  „    ^„„ 

V.  RussellviUe,  76,  81,  82,  126. 
V.   Sims,    217,    271,    657. 
Eckert  v.    Schoch,    92S,    932 
Economic  Gas  Co.  v.  Los  Angeles,  368. 
Economy  Light  and  Power  Co.  v.  Hiller, 
■^233     235,    245,    250,    251,    253,    254, 
269',   663. 
V.  Sheridan,  673,  675. 
Edichal    Bullion    Co.    v.    Columbia    Gold 
Min.   Co.,    936.  ,,       ^       .     , 

Edison  Elec.   L.,   etc.,  Co.  v.  Merchants, 

etc.,   Elec.   L.,    etc.,    Co.,    296. 
Edgerton  v.    State,    572. 
Edmundson  v.    Light  Co.,   272. 
Edwards  v.    Erwin,    875. 

I-  ^fst:  U.'-Tel.    Co.,    404.    424.    425, 

471,    477,    782. 


Eels  V.  American  Tel.,  etc.,  Co.,  114,  116, 
124,    198,   199.  ^^     ^         _^ 

Eells  V.    St.   Louis,   etc.,  Rd.   Co.,   495. 

Enrd  v.  West.  U.  Tel.  Co.,  454,  605,  783. 

Egger  V.    Nesbitt,    945. 

Eichels  v.   Evansville   St.  R.  Co.,   112. 

Eigenbrod  v.  Cumberland,  etc.,  iel.  Co., 
■'79 

Einiiig  v.    Georgia,    etc.,    Elec.    Co.,    253, 

Ela  V.  Postal  Tel.  Cable  Co.,  212,  214,  215, 

238 
Elam'  V.  West.  U.  Tel.  Co.,  953,  954. 
Eldridge  v.   Hargreayes,    880,    881. 
Ellis    V.    American    Tel.    Co  ,    2o.    28,    382, 
459,   546,    548,   605,   606,    684. 

V.  Hammond,  571. 
Elbert  v.  Los  Angeles  Gas  Co.,  9lo. 
Electric  Co.  v.  Cronon,  290. 

V.  Heve,   253. 

V.  Soper,   260.  „        -„         .  <,c. 

Electric  Emp.  Co.  v.  San  Francisco,  262. 
Electric,   etc.,  P.  Co.  y.   State,  2o5. 
Electric    Lt.    Co.    v.    Johnson,    221,    bl6. 

V.  Sullivan,    217. 

V.   Sutherland,    228. 
Electric  Power  Co.  v.  Metropolitan  Tel.. 

etc      Co      22. 
Electric  Ry.   Co.  v.   Shelton,   250,  256. 
Electric  Tel.   Co.  v.   Salford  Tp.,   -3. 
Electric  Welding  Co.  v.  Prince,  66s. 
Elizabethtown,  etc.,  R.  Co.  v.  Comus,  106, 

Elli'nwood  V.   Reedsburg,   86. 

Ellison    V.    West.    U.    Tel.    Co..    408,    654, 

667,   673,  766,  769,  775,  786. 
Elliott  V.    Fair  Haven,   etc.,   R.    Co.,   luo. 

V.  Newport,    259. 

V.  Van  Buren,  881,  882. 

V  West.    U.    Tel.    Co.,    599,    600,    61  <, 
■     695,  701,  825,  837,  838. 

Elsey  V.   Post.   Tel.   Co.,   434,   727.   728. 

Elwell  V.  Mersick,   886. 

Elwood  V.  West.  U.  Tel.  Co.,  2o,  575,  5(6, 

577,  581,  606,  877. 
Elv  V.  St.  Louis,  etc.,  R.  Co.,  270. 
Embler    v.    Hartford    Stream,    etc..    Ins. 

Co.,    603.  _,       TK 

Empii-e  Mills  v.  Alston  Grocery  Co.,  1(5. 
Emporia   v.    Burns,    246. 

V  Emporia   Telephone    Co.,    321,    6oi. 
V.  White,    260.  ..     ..     ^      . 

Enfield  Toll  Bridge  Co.  v.  Hartford,  etc., 

R.  Co.,  162,  172. 
Englewood  Connecting  R.  Co.  v.  Chicago, 

etc.,  R.   Co.,  179. 
Ennis   v.    Gray,    241. 
Ensign    v.    Central    New   York    Tel.    Co., 

212,    214,   238,    265.  ^   ^,      ^        n-r 

Epperson  v.  Postal  Tel.   Cable  Co..   2.6. 
Eppinger  v.    Scott,    874,    87_5,   8<7. 
Erb   v.    Telephone    Co.,    69o. 
Er°-o  v    Merced  Falls  Gas,  etc.,  Co..  Zli, 

^76,    669.  _   ^ 

Erie,  etc.,  Ry.  Co.  v.  Dater,  511. 
Erie   Tel.,    etc.,    Co.   v.    Grimes,    6a,   69... 

V.  Kenne^dy;    115,    126,    813,    816. 
Erwin  v.    Missouri,    etc.,    Tel.    Co.,    2i8. 
Escambia  Co.  Elec.  L.,  etc.,  Co.  v.  buth- 

erland,  204,  674. 
Eskridge   v.    Glover,    949. 
Essex  V.  New  England  Tel.  Co.,  59. 
Essex    County    Elec.    Co.    v.    Kelly,    279. 

280 
Estabrook  v.  Newburgh    etc     P.  Co  ,  214. 
Eureka  Cotton  Mills  v.  West.  U.  Tel.  Co., 

597,    732,    733,    946. 
Evans   v.    AUanta,    etc.,   R.    Co..   590. 

V.  Eastern    Ky.    Tel.,    etc.,    Co.,    217, 

''•14     2''6     227. 
V    West.    U".    Tel.    Co.,    396,    409     428, 
657,   663,   665,    700,   701.   721,    775. 
Evansville   Gas.    etc.,    Co.    v-    Robertson, 
284. 


CASES   CITED 
[The  figures  refer  to  pages] 


9G9 


Evansville,   etc.,  L.   Co.   v.  Raley,   279. 
Evansville    Traction    Co.    v.     Henderson 
Bridge  Co.,   363. 
V.   Montg-omery,    225. 
Evening    Journal    Ass'n    v.    McDermott, 

566,    811. 
Everett  v.  Elec.  Co.,  272. 
Everman  v.   Herndon,   911. 
Ewald  v.  Michigan  C.  R.   Co.,  279. 
Ewing  V.  Pittsburgh,   etc.,    R.   Co.,   798. 
Excelsior  Elec.   Co.  v.   Sweet,  674. 
Ex  parte  Pover,   210. 

EX  parte  Brown.    910,    911,    918,   921,   926. 
Ex  parte  Cramer,   83,   339. 
Ex   parte    Gould,    918,    925,    926. 
Ex  parte  Light   Co..   98. 
Ex  parte   Terrell,   906. 


Fail  V.  West.  U.  Tel.  Co.,  6R7,  801. 

Fairbairn  v.  American  R.   Elec.   Co.,   212. 

Fairlev  v.  West.  U.  Tel.  Co.,  740. 

Fait  Co.  V.  Anderson,   911. 

Fall  River  Iron  Works  Co.  v.  Oil  Colony, 

etc.,  R.  Co.,  179. 
Falls  V.  Gaither,  944. 
Fall.sburg  Power,   etc.,  Co.  v.  Alexander, 

142. 
Falls  Power  Co.  v.   Sims,   124. 
Falvey  v.  Georgia  R.,  402. 
Faris  v.  Hoberg,   262. 
Farmer  v.   Columbiana  County  Tel.   Co., 

331. 
Farmers'   Bank  v.  Duvall,   903. 
Farmers'    Loan,    etc.,    Co.    v.    Galesburg, 

145. 
Farnsworth  v.  West.  U.   Tel.   Co.,  23. 
Farthing  v.    Rochelle,   914. 
Pass  V.   West.   U.   Tel.  Co.,   635,    641,   707, 

708,   760,  765. 
Faubion  v.    West.    U.    Tel.    Co.,    394,    396, 

397,  409,  665. 
Fay  V.  Parker,  806. 
Feaver  v.  Montreal  Tel.  Co.,  602,  606. 
Fechet  v.  Drake,  23. 

Feiber  v.  Manhattan  Dist.  Tel.  Co.,  955. 
Feize  V.  Thompson,  821. 
Fererro   v.   West.    U.    Tel.    Co.,    451,    537, 

604.  607,  610,  695,  701,  705,  715. 
Fergusson    v.    Anglo-American    Tel.    Co., 

537,   635,    694. 
Ferrell    v.    Dixie    Cotton    Mills,    232,    273, 

294. 
Ferrier  v.    Storer,   937,   944. 
Fewings   v.    Mendenhall,    489. 
Fibre  Co.  v.  Meadows,  284. 
Fickeisen  v.  Wheeling  Klec.  Co.,  24,  216, 

236,  253,   293,  641. 
Fietsara  v.  Hay,  46,  48. 
Finchley,     etc.,     Co.     v.     Finchley,     etc., 

Council,  199. 
Findlay   v.    West.    U.    Tel.   Co.,    517,    546, 

606. 
Firebaugh  v.   Seattle  Elec.   Co.,  259. 
Fire    Insurance    Ass'n      of    England    v. 

Merchants'  &  Miners'  Trans.  Co.,  2. 
First  National  Bank  v.  Commercial  Sav- 
ings Bank.  929,   935,   942. 
V.  Musl'togee  Pipe  Line  Co.,  903. 
V.  West.  U.   Tel.  Co.,   682,  686,   690. 
Fish  V.   Electric  Co.,   236,   240,  294. 
V.   Kirlin-Gray  Elec.   Co.,   229. 
V.  Light,   etc.,  Co.,  654,   674. 
V.    ^Vaverly    Elec.    Lt.    Co.,    226,    228, 
229,  270. 
Fisher  v.  Beckwith,  903. 
V.  Kuhn,  915. 
V.  New  Bern,  86,  87,  212,  237,  240,  246, 

252,    646,    673. 
V.  West.  U.  Tel.  Co.,  597,  606,  682,  686, 
724,   727,   728,  951,   954. 


Fishkill  Savings  Institution  v.  Nat.  Bank, 

579. 
Fitch  V.  Central  New  York  Tel.,  etc.,  Co., 
237    245    269. 
V.  Telephone  Co..  691,  693.  706. 
V.    West.    U.    Tel.    Co.,    682,    684,    703, 
707. 
Fitchburg  Ry.  Co.  v.  Gage,  347. 

V.  Hanna,  483. 
Fitzgerald  v.  Benner,  893. 

V.   Connecticut  Paper  Co.,   278. 
v.    Edison    Elec,    etc.,    Co.,    217,    233, 
237,    239,    240,    241,    248,    256,    654, 
663. 
V.  West.  U.   Tel.   Co.,  788. 
Flack  V.  West.  U.  Tel.  Co..  265. 
Flaherty  v.  Butte  Elec.  R.  Co.,  275. 
Fleischner   v.    Pacific    Postal    Tel.    Cable 
Co.,   397,  408,   497.  498,  510,  650,  703,   745. 
Fleming   v.    Pittsburg,    etc.,    R.    Co.,    265. 
Flint  V.  Kennedy,   886. 
Flood  V.  West.  U.  Tel.  Co..  214.  277,  280. 
Flora  First  Nat.  Bank  v.  Clark,   942. 
Flynn  v.  Boston  Elec.  L.  Co.,  674. 

V.   Kelly,    620,   945. 
Fogg  V.  Boston,  etc.,  R.  Co.,  566,  811. 
Foley  V.    Northern  Cal.  P.   Co.,    233,   236, 

245,   260,   272,   280. 
Fonseca  v.  Cunard,  etc.,  Co.,  503. 
Ford  V.  Chicago,  etc.,  R.  Co.,  108. 

V.  Gebhardt,   934. 
Foreman  v.   West.   U.   Tel.   Co.,    691,   710, 

711,    714,   785,    786,    790. 
Forgey  v.  First  Nat.  Bank,  878. 
Forney  v.  Postal  Tel.  Cable  Co.,  517,  518, 

547. 
For.sythe  v.  Baltimore,  etc.,  Tel.  Co.,  312, 

327. 
Foftenbury  v.  State,  562. 
Fort  Smith  v.  Hunt,   329,  867. 
Fort  Worth  v.  Williams,  220.  221. 
Fort  Worth,  etc.,  Rd.  Co.  v.  Southwestern 
Tel.  Co.,   73,  140,   163,  164,   171,   174,   187, 
199. 
Foster  v.  Smith,  599. 

V.   West.   U.   Tel.  Co.,   814. 
Fowler  v.   West.    U.   Tel.   Co.,   25,   29,   30, 
384,  404,  406,  432,   443,  444,   445,  446,  533, 
648. 
Fox  V.  Borkey,  798. 

v.  Manchester,   238,   240,  244,   245,  246, 

25U,  252,  256,  262,  266,  276,  282,  664. 

T.  Postal    Telegraph    Cable    Co.,    507, 

622. 

Francis   v.    West.    U.    Tel.    Co.,    506,    522, 

614,   751,   765,  791,   793,  795,   802. 
Franklin    v.    Northwestern    Tel.    Co.,    11, 

16,    141. 
Franklin  Bank  v.  Lynch,  928. 
Franklin  Co.  v.   Nashville,   etc.,  Co.,  850. 
Frantz  v.  Electric  Co.,  274. 
Frazer  v.  West.  U.  Tel.  Co.,  717,  734. 
Frazier    v.    Tel.    Co.,    104,    537,    546,    609, 

695,  701. 
Frauenthal  v.  Laclede  Gaslight  Co.,  273. 
V.    West.    U.    Tel.    Co.,    825,    826,    832, 
837. 
Free  v.  West.  U.  Tel.  Co.,  516. 
Freeman  v.   Boyntcn,  903. 

V.  Brooklyn,  etc.,  R.  Co.,  249. 

V.   Minneapolis,   etc.,   R.  Co.,   47. 

V.  Missouri  Tel.  Co.,  221,  235,  244,  250, 

251,  252,   254. 
V.  West.    U.    Tel.    Co.,    742. 
Freejiort  Waterworks  Co.  v.  Prager,  145. 
Frtb-no  V.  Southern  Pacific  R.  Co.,  170. 
Friedman  v.  Gold,  etc.,  Tel.  Co.,  338,  392. 

558,    560,    957. 
Friend  v.  Woods,   482. 
Friesenhan  v.  Michigan  Tel.  Co.,  213,  221, 

237,  238,  265. 
Frink  v.  Potter,  638. 
Frith  V.  Lawrence,  931. 


970 


CASES  CITED 
[The  figures  refer  to  pages! 


Fritz  V.  Salt  Lake,  etc.,  Else.  Co.,  278. 
V.  West.  U.  Tel.  Co.,  2S6,  674. 

Fulkerson  v.  West.  U.   Tel.  Co.,  737,   738, 
952. 

Fulton  County,  etc.,  Co.  v.  Hudson  Riv- 
er Tel.  Co.,   290. 

Furnish  v.  Missouri,  etc.,  R.  Co.,   263. 

Fuselier  v.  Great,  etc.,  Tel.  Co.,  157. 

G 

Gaar,   Scott   &  Co.  v.   Shannon,   S71. 
Gaddis  v.  West.  U.  Tel.  Co.,   7G6. 
Gahan  v.  West.  U.  Tel.  Co.,  757,  802. 
Gaines  v.   McAdam,   914. 
Gainesboro  Tel.  Co.  v.  Buckner,   20,  25. 
Gainesville  v.   Gainesville  Gas,   etc.,   Co., 

21,  337,  368,  373,  374,   378. 
Gainey   v.    West.    U.    Tel.    Co.,    424,    425, 

426. 
Galehouse   v.    Minneapolis,    etc.,    R.    Co., 

811. 
Gallinano  v.  Pierre  &  Co.,  943. 
Gait  V.  Woliver.   893.  S94,  898. 
Galveston,  etc.,  R.  Co.  v.  Ball,  540. 

V.  Moore.   61S. 
Gambrill  v.   Schooley,   566. 
Gannett  v.   Tel.   Co.,   114. 
Gannon  v.  Laclede  Gaslight  Co.,  93,   214, 

232,    260,   264,    268,   633,   646,    655,   664. 
Ganz  V.   Ohio   Postal  Tel.   Cable  Co.,   63, 

Gardner    v.    Metropolitan,    etc.,    R.    Co., 
259 
Y.  Providence   Tel.  Co.,   339,   341,   342, 

349,   360.  361,   462,   466. 
V.  Springfield,   etc.,  Elec.   Co.,   374. 
Garner  v.  West.  U.  Tel.  Co.,  427,   648. 
Garretson   v.    Tacoma,    etc.,   P.    Co.,    221, 

236,    269. 
Garrett   v.    West.    U.    Tel.    Co.,    501,    662, 

665,  666,  700,  703,  705,  735. 
Garrettson  v.  North  Atchison  Bank,  624, 

928,   942,   944. 
Garrison  v.   Southern  R.  Co.,  483. 
Gas,   etc.,   Co.   v.  Clark,   654. 

V.    Davenport,    96. 
Gaudy  v.  Gaudy,   601,   602. 
Gay  v.  Mut.  U.  Tel.  Co.,  109,  111. 
Geer    v.    New   York,    etc.,    Tel.    Co.,    271, 

281,  658. 
Geismann   v.   Missouri-Edison  Elec.    Co., 

228,   241.   275,  670. 
General  Electric  Co.  v.  Murray,  277,  281, 
2S4. 
V.    Transit,   etc.,  Co.,    24. 
General    Hospital    Soc.    v.    New    Haven 

Rendering-  Co.,    896,   898. 
Geneva  v.  Brush  Electric  Co.,  219. 

V.  Geneva  Tel.  Co.,  100,  101,  102. 
Gentle  v.  West.   U.   Tel.   Co.,   800. 
Gents  v.  Coal  Co.,  251. 
Gentzkow   v.   Portland  Ry.    Co.,   233,   235, 

240,  245,  252,  255,  272,  2S3,  644,  645,  664. 
Georgetown  v.  Alexandria  Canal  Co.,  204. 
Georgetown  Tel.  Co.  v.  McCuUough,  267. 
Georgia    Rd.    Co.    v.    Atlantic,    etc.,    Co., 

166,   168,   181,  184,  191. 
Gerhardt  v.  Boatman's  Sav.  Inst.  910. 
Germain  Fruit  Co.  v.  West.  U.  Tel.  Co., 

451,   597,  604,   620,   715. 
German  v.  Ercok'yn,   etc.,  R.   Co.,   259. 
German»American    Ins.    Co.    v.    Electric 

L.,    etc.,    P.    Co.,    674. 
German   Savings  Bank  v.   Citizens'   Nat. 

Bank,  900,  901. 
Gerock  v.  West.  U.  Tel.  Co.,  665,  678,  709, 

784. 
Geroski    v.    Allegheny    County    L.     Co., 

244. 
Gibbons  v.   Brush  Elec.  111.  Co.,  280,  287, 
288 
V.  Ogden,  203,  204,  863. 


Gibbs  V.  Consolidated  Gas    Co.,  48. 
Gibson  v.   Holland,    911. 

V.   Leonard,   262. 
Giddens  v.  West.  U.  Tel.  Co.,  744. 
Gier  v.  Los  Angeles  Consol.  Elec.  R.  Co., 

285 
Giese  v.  Schultz,  752. 
Gifford   v.    Glenn  Tel.   Co.,    824,    832. 
Gilbert  v.  Duluth  Gen.  Elec.  Co.,  231,  232, 
233,    250,    274,   646. 
V.  Stockman,  606. 
Gilchrist  v.    Dominion  Tel.  Co.,   133,    136. 
Gilliland  v.   Southern  Ry.,  893,  894,  896. 
Gillis  V.  West.  U.  Tel.  Co.,  26,   28,   29,   30, 

31,   384,   459,   460,   495,   499,   507,  514,   651. 
Oilman   v.   Philadelphia,   204,   309. 
Gilpin  V.   Savage,   903. 

Gilson  v.   Delaware,    etc.,  Canal  Co.,   267. 
Giraudi  v.    San  Jose  Elec.  Imp.  Co.,   228, 

232,  241,   264,  274,   645,   664. 

Gist  V.    West.   U.   Tel.   Co.,   631,   632,   639, 

720,  944. 
Given  v.  West.  U.  Tel.  Co.,  394,  411,  412, 

416,  422,   469,  474,  476,  525,  571,   841. 
Gladstone  v.   Earl  of  Sandwich,   59. 
Glaize  V.  South  Carolina  R.  Co.,  630. 
Glass  V.    Garber,    821. 
Glavin  v.   Rhode  Island  Hospital,  468. 
Glawson  v.  Southern  Bell  Tel.,  etc.,  Co., 
351,   375,   797. 
V.  West.  U.  Tel.  Co.,  747. 
Gleeson  v.  Virginia,   etc.,   R.   Co.,  234. 
Glenn  v.   South.   Ex.   Co.,  540. 

v.  West.  U.  Tel.  Co.,  678,  790. 
Globe  Printing  Co.  v.  Stahl,  893,  896,  899, 

900. 
Gloster    v.    Toronto    Elec.    Lt.    Co.,    215, 

233,  236,   240,   241. 

Gloucester  Elec.  Co.  v.  Kankas,  270. 
Gloucester    Ferry    Co.    v.    Pennsylvania 

Co.,   863. 
Glover  v.  West.  U.  Tel.  Co.,  393,  394,  410, 

657,    665,   666,    671,    807. 
Godair  v.  Ham  Nat.  Bank,   894,  895,  897, 

898     S99 
Goddard  v.  Chicago,  etc.,  R.  Co.,  114,  130, 
141,    200. 

V.  Grand  Trunk  R.  Co.,   810. 

V.  Interstate  Tel.  Co.,  279. 
Godfrey  v.  Railroad  Co.,  235. 
Godwin  V.  Tel.  Co.,  345,  356. 
Gold  V.  Pittsburgh,   etc.,  R.  Co.,  163. 
Gooch  V.  West.  U.  Tel.  Co.,  746,  767,  778. 
Goodall  V.  Smith,  929. 
Goodhue  v.  West.  U.  Tel.  Co.,   765. 
Goodlittle  v.  Way,  909. 
Goodman  v.   Oregon,   etc.,   R.   Co.,   590. 

v.  Walker,  600. 
Goodsell  v.  West.  U.  Tel.  Co.,  558. 
Goodspeed  v.  East  Haddam  Bank,  808. 
Goodtitle  v.  Alker,   127. 
Goodwin  v.  Columbia  Tel.   Co.,   233,   235, 

238,    251,   252,    274,    672,    692. 
Gordon  v.  Ashley,  214,  25.^,,  294. 
Gorham  v.  Eastchester  Elec.  Co.,  131. 

V.   McArdle,   847. 
Gould  V.   Edison  Electric  111.   Co.,   372. 
Goulding  v.   Hammond,    934,   936. 
Graddy   v.    West.    U.    Tel.    Co.,    631,    634, 

635,   656. 
Graff  v.   Bloomer,   482. 
Graham  v.  Detroit,  etc.,  R.  Co.,  651,  672. 

V.   Mt.    Sterling  Coal   Co.,    850. 

V.    West.    U.    Tel.    Co.,    605,    636,    709, 
759,  762,  780,  795,  802. 
Grand  Rapids  B.  Co.  v.  Jarvis,  105. 
Grand  Trunk  R.  Co.  v.  McMillan,  586. 
Grangers',   etc.,   Insurance   Co.   v.    Kam- 

per,   175. 
Grant  v.  New  Departure  Mfg.  Co.,   915. 

v.    Sunset,   etc.,    Co.,    220,    221. 

V.    West.    U.    Tel.    Co.,   517,    519,    542, 
S25. 


CASES   CITED 
[The  figures  refer  to  pages] 


971 


Grant  v.  Willey,  752.  . 

Grants    Pass,    etc.,    Co.    v.    Mining    Co., 

23     24 
Gravel,  'etc..    Tel.    Co.   v.    Lebanon,    etc., 

Tel.  Co.,  363.  „_„ 

Graver    v.    Edison    Electric    111.    Co.,    370, 

371 
Graves  v.  City,  etc.,  Tel.  Ass'n,   221,   632. 

^•.^^^ifsStonV    CO..    240,    242,249, 
267.   292. 
Gray  v.  Jackson,  402. 
V.   Merriam,   468. 
V.  St.  Louis,  etc.,  R.  Co..  176. 
V     West.    U.    Tel.    Co..    309.    383,    384, 
385,  38G.  391,  407,  450,  464,  503,  561, 
564,     565,     598,    606,     612,    621,    623, 
756,   800,  801,  834,  854,  957 
V.  York   State   Tel.   Co.,   107,   114    128. 
Great  Falls  Power  Co.   v.  Webb,  142^  209. 
Great  Northern  R.   Co.  v.   Eastern  Coun- 

V.  We®s\.^U.*^Tel.^Co.,   21.   22.  166,  180, 
181 
Great  Northwestern  Tel.    Co.   v.   Fortier. 

849. 
Great  Western  Railway  v.  Crouch.  586, 

V.   Sutton,    347. 
Grebenstein   v.    Stone,    etc.,   Corp.,   288. 
Greeley-Burnham  Gro.  Co.  v.  Capen.  915. 

945. 
Greely,   etc..   R.   Co.   v.   Yeag-er,   806. 
Green  v.   Boston,    etc.,   R.    Co.,   653. 
V.  \Vest.    Penn.    R.   Co..    233,    245. 
V.    West.    U.    Tel.    Co.,    140,    280.    382, 
383,  396,  409,  598,  612,  648,  680,  709. 
755.    758,    762,    771.   772,   784.    796. 
Greenberg  v.  West.  U.  Tel.  Co.,  638.  826. 

837 
Greenville  v.  Pitts,  86.  239,  241,  246.  291. 
Gregory  v.    German  Bank.   847. 
Gregsten    v.    Chicago.    85. 
Oremnis    v.    Louisville    Elec.    Co.,    241. 
Grev  V.    Mobile   Trade  Co.,   484,    847. 
Griesemer  v.  Mut.,  etc.,  Ass'n.  624. 
Griffln  v.  Colver,  719. 

V.   Goldsboro  Water  Co.,  370. 

v.    United    Elec,    etc.,    Co.,    231,    238, 

239,    241,    645,   664. 
V.  West.    U.   Tel.    Co.,   561. 
Griffith  v.   New  England   Tel.  &  Tel.   Co. 

224,   226,    227,   228,   663,   664. 
Griggs  V.  Deal,  879. 
Grimm   v.    Omaha    Elec,    etc.,    Co.,    252, 

277. 
Grinnell    v.    West.    U.    Tel.    Co.,    25.    458, 
497,  498,  505,  541,  542,  653,  655,  656,   659, 
680. 
Grisham   v.   West.    U.    Tel.    Co.,   357.    566. 
Griswold  v.   New  York,   etc.,   R.  Co.,  498. 
Griveaud  v.   St.   Louis,   etc.,  Ry.  Co.,  258. 
Grogan  v.    Adams   Ex.    Co.,    541. 
Gue  V.  Tidewater  Canal  Co.,  46. 
Guess  v.   Telephone  Co.,  664.  665. 
Guest  V.  Edison  111.  Co.,  288. 

V.    Hannibal,    etc.,    R.    Co.,    893,    894, 
895     S96 
Guilford  v.'  West.  U.  Tel.   Co.,   691. 
Guinn    v.    Delaware,    etc.,    Tel.    Co.,    214, 
221,  229,  243,   249,   255,  257,  262,   291,  292, 
293. 
Gulf  Coast  Ice,  etc.,  Co.  v.  Bowers,  130, 

141,   200. 
Gulf,  etc.,   R.   Co.  V.  Baird.   582.  592. 
V.  Brown,  540. 
V.  Dwyer,   592. 
V.  Gear,    387,    450,    535,    542,    556,    583, 

584. 
V.  Holder,  590. 
V.    Levy,    572,    573,    574,    608,    720,    754, 

758,   764.    768,    807,   815,   816. 
V.  Loonie.    453,    693,    700,   725,    726. 
V.  Morris,    46, 
V.  Newell,    49,   50. 


Gulf,  etc.,  R.  Co.  V.  Richardson,  597,  709, 
770,  773,  77G. 
V.  Settegast,  915.  _   __ 

V.   Southwestern  Tel.  Co.,  9,  141.  171. 

176,   194,   196. 
V.  Todd,    599. 

V.  Wilson,  431,  507,   510,  655,   660.   671, 
675,  676. 
Gunderson  v.  Swarthout,   24. 
Gunn  v.  Ohio,  etc.,    R.   Co.,   262. 
Gurnsey    v.    Northern    California    Power 

Co.,   96,    130,   170'. 
Gwynn  v.  Citizens'   Tel.  Co.,  52.  338.  345. 
346,  360.  376,   628,  814. 

H 

Haas  V.   Myers,  928,  936,  937,  938,  944^ 
Haber    Hat    Co.    v.    Southern    Bell    Tel., 

etc.,   Co.,   352,   451,   715,  717,   805     814 
Hadd  v.   United  States  Express   Co.,   402. 
Hadden  v.    Southern  Messenger   Service, 

782. 
Hadley   v.   Baxendale,   679,   696. 

V    West.    U.    Tel.    Co..    618,    682,    686, 
693,  699,  719,  730,  829,  832,  835,  839, 
847. 
Haertel  v.   Light,  etc.,  Co.,  272 
Plaines  v.    Crosby,   140,    145,   367. 
Haldiman  v.  Tel.  Co.,  81.  _ 
Hale  V    N.  J.  Steam  Navigation  Compa- 
ny,  503. 
Hall  V.  De  Cuir,  204,  864. 
V.  Sullivan  R.  R.  Co.,  46,. 
V.  West.    U.    Tel.    Co.,    383,    391,    396, 
409,  622,  632,  635,  637,  642,  678,  682. 
686.    6«9,    706,    723,    724,    776,    798. 
952. 
Halleran  v.  Bell  Tel.  Co..   88. 
Hallet  V.  Aggergaard,   886,  887. 
Halliday   v.   St.    Louis,    etc.,   R.    Co.,   591. 
Hallock  V.   Commercial  Ins.  Co.,   928,  945. 
Halpern   v.    New    York    Edison    Co.,    369, 

Hals4y  V.   Rapid  Tr.   St.   R.   Co.,   114. 
HalRted    v.    Postal    Tel.    Cable    Co..    381. 
:;.S3,   400,  458,   488,  496,  497,  505,  515,   546, 
550,    649.   650. 
Hamill  v.   Ashley,  910. 

Hamilton  v.   Bordentown  Elec,   etc.,  Co., 
250,    251,    252,    255. 
V.  Lycoming  Ins.  Co.,  623,  934,  945. 
V.  McKenna,    349. 
V.  McPherson,    451. 
V.  Vicksburg,  etc.,  R.  Co.,  204. 
V.  West.   U.  Tel.   Co.,   765,  780. 
Hammond  v.   Beeson,  880,  928. 
Hampel  v.  Detroit,   etc.,   R.   Co.,   275. 
Hamrick  v.  West.   U.   Tel.  Co.,  763,  787. 
Hancock  v.    West.    U.    Tel.    Co.,    502,    766, 

767,    768,    769,   772,    775,    788,    789,    799. 
Hanna  v.    Chicago,    R.    L    &   P.    Ry.   Co., 

183. 
Hanniba;!  v.  Missouri,  etc.,  Tel.  Co.,  97. 
Ilannum  v.  Hill,  215. 
Hanson  v.   Olean  Tel.  Co.,  358. 
Hanton  v.  Light,  etc.,  P.  Co.,  228. 
Hardee  v.  Brown,  870. 

Hardwick  v.  Vermont,  etc.,  Tel.  Co.,  327. 
Hargrave  v.    West.    U.    Tel.  Co.,  404,   406. 

422.   425.   431.   433.  449.   651. 
Harkness  v.   West.   U.   Tel.   Co.,   418,   429, 
432,   444,  445,  465,  495,  506,  533,   599,  610, 
617,   648,   700,  706. 
Harmon  v.  Columbia,  etc.,  R.  Co.,  50. 

v.   West.    V.   Tel.   Co..   951. 
Harmony  v.   Bingham,   485. 
Harper  v.  West.  U.  Tel.  Co.,  418,  605,  675, 

719,    741. 
Harrelson  v.   West.  U.  Tel.  Co.,  474,  617, 

633,    634,   708,    774. 
Harrington    v.    Commissioners,    225,    271, 
657.    658. 
V.  Wadesboro,   274. 


972 


CASES  CITED 
[The  figures  refer  to  pages] 


Harris  v.  Howard,   31. 

V.  Louisville,  etc.,  R.  Co.,  819. 
V.  Rand,  482. 
V.  Scott,    939. 

V.  West.    U.    Tel.    Co.,    389,    505,    516, 
518,   556,   605,   640,  641. 
Harrison  v.  Detroit,  etc.,  R.  Co.,  278. 
V.  Electric  L.    Co.,   238,    669. 
V.  Kansas  City  Elec.  L.  Co.,  231,  253, 

268,   270. 
V.  Parmer,  909. 

V.  West.    U.    Tel.    Co.,    394,    470.    475, 
537,  635.  641,  648,  671,  692,  6S5,  709, 
710,    753,    766,    774,    775,    785,    786, 
789.    790,    795,    800,    801. 
Harrison  Granite  Co.  v.  Pa.  Ry.  Co.,  895. 
Harroun  v.   Brush  Elec,  etc.,   Co.,   -76. 
Hart  V.   Allegheny  Co.,  Lt.  Co.,  276,   289, 
290. 
V.  Chicago,  etc.,  R.   Co.,  491,  499. 
V.  Direct   U.    S.    Cable   Co.,    447,    455, 

'695,   717. 
V.  Pennsylvania  R.   Co.,  504. 
V.  Rensselaer,   etc.,  R.  Co.,  591. 
V.  Washington  Park  Club,  264,  265 
V.  West.  U.   Tel.   Co.,   25,  35,  497,  500, 
537,    666,    667,    694,    695,   766,    771. 
Harter  v.   Colfax  Elec.,  etc.,   Co.,   229 
Harton  v.  Forest  City  Tel.   Co.,   212,   225, 
^.33  "34    235    ■"'36,  244,   263,   265,  266,   267. 
Plartstein  v.  West.   U.   Tel.   Co.,   661,  745. 
Harty  v.  Gooderhan,  929.  r-,<.     r-i-r 

Hartzog  v.   West.    U.    Tel.   Co.,    516,    517, 
632,    636,    807.  ,    ^        ^^,     ^_ 

Hasbrouck  v.  V/est.  U.  Tel.  Co     451,  452, 
453,  454,  455,  581,   619,  620,  6ff5,  715,   716, 
727,   728,   946. 
Hastings  v.   Weber,   914,   936. 
Hatch  v.  American  U.  Tel.  Co.,   50,  51. 
Haubelt  v.   Rea,    etc..   Mill  Co.,    619,   621, 

944,    945. 
Haughton  v.   Maurer,  944. 
Hauler  v.  West.  U.  Tel.  Co.,  651,  652,  672, 

''88 
Hausler  v.   Com.   Elec.  Co.,  242,   247,   274, 

Ilave'lock  Bank  v.  West.  U.  Tel.  Co.,  575, 

Havener  v.   West.   U.    Tel.    Co.,    632,    634, 

Haverford    Electric    Light    Co.    v.    Hart, 

130,   141,    200,   20L 
Havens  v.  Hartford,  etc.,  R.  Co.,   822. 
Hay    V.     Columbiana    County    Tel.    Co., 

129 
Hayes  v.    Cliicago  Tel.  Co.,  254,   265,  290. 
v.  Houston  R.   Co.,    753,   806. 
V.  Hyde  Park,   246. 
V.  Jersey  City,   etc.,   R.   Co.,   288. 
V.  Power  Co.,  663. 
V.  Southern  P.  Co.,  243. 
Haymond  v.   Saucer,   752. 
Haynes    v.    Raleigh    Gas.    Co.,    214,    218, 
221,    232,    252,    255,    260,    264,    274, 
275,    645,    646. 
V.  Thomas,  123. 
Hays    V.    Columbiana    County    Tel.    Co., 
122. 
V.  Kennedy,  482,  484. 
V.  Ottawa,   etc.,  R.  Co.,  48. 
V.   Pennsylvania  Co.,    347. 
V    West.   U.   Tel.    Co.,    517,    526,    529, 
687,   688,  727,  733,  946. 
Haworth  v.  Mineral  Belt  Tel.  Co.,  277. 
Hawthorn  v.  Eraser,  937. 
Havwood  v.  Wait,  892. 
Hazard  v.  Day,  912,  913,  936. 
Hazlehurst  v.  Mayes,  131,  132 
Heald  v.  West.  U.  Tel.  Co.,  516,  637. 
Hearn  v.  West.  U.  Tel.  Co.,  824,  825,  826, 

829,   832,    835. 
Heat  Company  v.    Dolby,    251. 
Heath  v.    Postal   Tel.    &   Cable  Co.,    502, 
622,  692,  697,  715,  800,  SOL 


Heathcoat  v.  West.  U.  Tel.  Co.,  609,  707, 

788. 
Hebert  v.  Lake  Charles,  etc.,  W.  Co.,  224, 

228,  232,   233,  235,  239,  243,  250,  251,  253, 

254,    257,   260,    267,    269,   645,   646,  825. 
Heck  V.  Greenwood  Tel.  Co.,  88. 
Heckla   v.    Cunard,    929,    945. 
Hector    v.    Boston    Elec,    etc,    Co.,    242, 

o§3    290    291 
Hedrick  v.  West.  U.  Tel.  Co.,  400,  434. 
Heenan  v.  Parmele,  915. 
Keiberger    v.    Missouri,     etc.,    Tel.    Co., 

205,  218. 
Heidt    V.    Southern,    etc.,    Tel.    Co.,    234, 

236,    238,    243,    250,   257. 
Heil  V.  St.  Louis,  etc.,  R.  Co.,   638. 
Heimann  v.  West.   U.  Tel.   Co.,  461,   472, 

516,  517,   519,  524,  525,   638,  661,   662. 
Heirn  v.  McCaughan,  638. 
Heland  v.  Lowell,  326. 
Hellams   v.   West.   U.    Tel.    Co.,    417,    436, 

535,   646. 
Helms  V.  West.  U.  Tel.  Co.,   617. 
Hempstead  v.   Electric   L.    Co.,   124. 
Hendley  v.   Globe  Refinery  Co.,   633,   646. 
Hendrick  v.  Lindsay,   607. 
Hendershot   v.    West.    U.    Tel.    Co.,    404, 

407,  419,  420,  429,  430,  642,  701,  748. 
Henderson  v.  Ogden  City  R.  Co.,  145. 
Hendricks  v.  West.  U.  Tel.  Co.,  396,  398, 

405,  408,  409,  414,  418,  423,  428.  432,  444, 

648,    659,    734. 
Heneky  v.   Smith,  882. 
Henkel  v.   Murr,   270. 
V.  Pape,    620,    882. 
Henisler  v.   Freedman,  918,  920,  921. 
Henning  v.   West.   U.    Tel.   Co.,    21a,   233, 

244,    245,    251,    256,    266,    816. 
Henrietta  Nat.  Bank  v.  State  Nat.  Bank, 

942. 
Henry  v.  West.  U.  Tel.  Co.,  681,  727,  732, 

733. 
Herbert  v.   Lake  Charles,    etc.,  W.   Co., 

828 
Herendeen   Mfg.    Co.  v.   Moore,    898,    902. 
Herfurth  v.  Washington,   804. 
Herkell  v.  Pape  L.  R.,  948. 
Herkimer  County  L.,   etc.,  Co.  V.   John- 
son,   23,   849. 
Herlitzke    v.    La    Cross,    etc.,    Tel.    Co., 

218,    245,    671,    672. 
Herring  v.  West.  U.  Tel.  Co.,  617. 
Herron   v.    Pittsburg,    232,    233,    246,    664, 

V.    West.    U.    Tel.    Co.,   519,    551,    604, 
614,    692,    693,    703,    705,    719,    721, 
952 
Hersh  v.  Northern  C.  R.  Co.,  345. 
Hershfield  v.    Rocky   Mountain  Bell  Tel. 
Co.,  104,  111.  ^       „^, 

Herzog  v.  Municipal  Elec,  etc.,  Co.,  Z6l. 
Heskell  V.   Auburn  Lt.,   etc.,   Co.,  283. 
Hess  V.  Missouri  Pac.  R.  Co.,  540. 
Hesse  v.    Meridenn,    etc..    Tramway,    259. 
Hester  v.  Com.,   778. 
Hewett  V.  West.  U.  Tel.   Co.,   60,   61,   62, 

111.  120.  ^        „^,     „,„ 

Hewlett  V.   West.   U.    Tel.    Co..   341,    342, 

457,    459,   460,   467,   468. 
Hevneman  v.    Blake,   187. 
Hibbard   v.    West.    U.    Tel.    Co.,    26     4.08, 

507,  533,  536,  678,  680,  686,  688,  726,  727, 

838 
Hibernia  Bldg.  Ass'n  v.   McGrath,    469. 
Hickman  v.  Booth,  24. 
Hicks  V.  Tel.  Co.,  284. 
Higdon    V.    West.    U.    Tel.    Co.,    642,    686, 

689,   768,  774,  783.  ^  ^ 

Hildreth  v.   West.   U.    Tel.   Co.,    681,    686, 

687,   690,   707,   749. 
Hicgins   V.    New    Orleans,    etc.,    R.    Co., 

498, 


CASES  CITED 
[The  figures  refer  to  pages] 


973 


Hill  V.  Chesapeake,  etc.,  Tel.  Co.,  213. 
V.  Maupin,  752. 
V.    Pacific,    etc.,    Elec.    Co.,    24,    228, 

263. 
V.  Sturgeon,  482. 

V.    Svracuse,    etc.,  R.   Co.,  402,    511. 
V.    West.    U.    Tel.    Co.,    516,    519,    52fi, 
527,    52S,    537,    541,    546,    605,    641, 
694,   697. 
V.  Winson,   613. 
V.  Woodman,   909. 
Hill  Mfg.  Co.  V.  Boston,  etc.,  R.,  586. 
Hillev  V.   West.   U.    Tel.   Co.,   707,   826. 
Hillis  V.   Spolcane,   etc.,  R.  Co.,  286. 
Hiuie   V.    Wadlington,    334. 
Hinman  v.  Railroad  Co.,  252. 
Hinson    v.    Postal.    Tel.    Cable    Co.,    396, 
404,  406,  408,  413,  414,  669. 
V.    West.   U.    Tel.    Co.,    427,    640,    647, 
665. 
Hinchman  v.  Paterson,  etc.,  R.  Co.,  106. 
Hindley  v.   Manhattan  Ry.  Co.,  169. 
Hinnershitz  v.  United  Traction  Co.,   199. 
Hinton  v.   Dibtaon.    499. 
Hippie  V.  Edison  Elec,  etc.,  Co.,  242. 
Hirsch    v.    American   Dist.    Tel.    Co.,    25, 

37,    71. 
Hise  V.   West.   U.   Tel.  Co.,   433,   434,  448, 

646,  719,   741,   953. 

Hiss  V.  Baltimore,   etc.,  R.  Co.,  105.' 
Hoadley   v.    Northern   Transfer  Co.,    501. 
Hoaglin   v.   West.    U.    Tel.    Co.,    386,    446, 

647,  666,    670,    686. 

Hobbs  V.   Long  Dist.   Tel.,   etc.,  Co.,  103, 

111,  132,  197. 
Hoboken  Land,  etc.,  Co.  v.  United  Elec. 

Co.,  230. 
Hoboken  Printing  Co.  v.  Kahn,  807,  810. 
Hocker  v.    West.    U.    Tel.    Co.,    421,    563, 

687,   720,  730. 
Hockett    V.     State,    2.    3,    5,    20,    21,    28, 
29,   310,   318,   319,   322,   339,  349,   352,   359. 
Hocutt    V.    West.    U.    Tel.    Co.,    392,    447, 

452,  715,   717,  782. 
Hodges  V.  ^Vest.   U.   Tel.  Co.,   62,   63,  72, 
78,   83,   114,  155,  157,  159,   867. 
V.  Williams,    210. 
Hodgins   v.    Bay    City,    86,    239,    240,    242, 

246,  273,   274,   283,   664,   669. 
Hoffbauer  v.   Railway  Co.,  461. 
Hoffman  v.    Leavenworth   Lt.,    etc.,   Co., 

293. 
Holcomb  V.  Linn,  929. 
Holden  v.   Gary  Tel.  Co.,   279,  281. 
Holladay  v.    Kennard,    486. 
Hollor    V.    West.    U.    Tel.    Co.,    609,    617, 

70S. 
Holliday  V.   National  Tel.   Co.,   215. 
Hollis   V.    Burgess,    911. 
Hollock   V.    Commercial   Ins.   Co.,    928. 
Home  Tel.  Co.  v.  Carthage,  319,  321,  322, 
323,  324,  326,  331,  334,  353,  355. 
V.  Fields,   218,   234,   237,   253,   267,   269. 
V.  Gasper,  267. 

V.  Grantay,  etc.,  Tel.  Co.,  364. 
V.  Los  Angeles,  318,  323,  331. 
V.   Mayor,   200. 

V.   Nashville,   6,  17,  39,  73,  141. 
V.  North  Manchester  Tel.  Co.,   364. 
V.  People's    Tel.,    etc.,    Co.,    352,    361, 

363,    3G4,    824,   832. 
V.  Sarcoxie,    etc.,    Tel.    Co.,    52,    362, 
364. 
Hood  V.  New  York,  etc.,  R.  Co.,  590. 

V.  W^est.    U.    Tel.    Co.,    396,    408,    423, 
424. 
Hooker  v.  New  Haven  &  N.  Co.,  105. 
Hooper,   Tel.   Co.   v.   Nebraska  Tel.   Co., 

362. 
Hoover  v.  Kansas  City  Elevated  R.  Co., 

221,   235,    245. 
Hopkins   v.    Atlantic,    etc.,    R.    Co.,    807, 


Hopkins  v.  Michigan  Tr.  Co.,  259. 

V.   State,   894. 
Honpe  V.  Winona,  230,  232,  239,  240,  241, 

246. 
Horan  v.  Rockwell,  258. 
Hord  V.    Pacific    Tel.,    etc.,    Co.,   279. 

V.  West.   U.    Tel.    Co.,    706. 
Horn  V.   West.  U.   Tel.  Co.,   826,   843. 
Home  V.  Light,   etc.,  Co.,  284. 

V.  Niver,   938. 
Horner  v.  Oxford  Water,  etc.,  Elec.  Co., 

318,   319,   333,   343,   369,   370. 
Horning  v.  Hudson  R.  Tel.  Co.,  238,  255, 

257,    269. 
Horn   Silver  Min.   Co.   v.  New  York,  861. 
Horwich  Case,  917. 
Hot    Springs,    etc.,    Co.    v.    Hot    Springs, 

867. 
Houe;h  v.   Grants  Pass,  etc.,  P.  Co.,   288. 
Houston  V.   Durham  Tr.   Co.,    228. 
Houston,     etc.,     R.     Co.    v.     Postal    Tel. 
Cable  Co..  171,  188. 
V.  Randall,  753. 

V.  Davidson,    536,    695,    701,    721,    723. 
Houston    Lt.,    etc.,    Co.    v.    Hooper,    236, 

641. 
Hovey    v.    Michigan    Tel.    Co.,    213,    218, 

223,   234,   238,   274,    663. 
Howard  v.  Washington,  etc.,  P.  Co.,  294. 
V.  West.   U.    Tel.    Co.,    504,    622,    631, 
635,  678,  714,  766,  774,  789,  799,  800. 
Howard  Insurance  Co.  v.  Boon,  482. 

V.  Transportation  Co.,  482. 
Howe  v.   Howe,   778. 
v.  Plainfield,    326. 
Howley    v.    Whipple,    875,    876,    877,    882, 

884,   945,   947. 
Howser  v.  Cumberland,  etc.,  R.  Co.,  265. 
Howsmon   v.    Trenton,    etc.,    Co.,    603. 
Hoxsey  v.    St.   Louis,   etc.,  R.   Co.,  237. 
Hoyt    v.    Jeffers,    303. 

V.  West.   U.    Tel.  Co.,   719,  721,   952. 
Hubbard  v.  Central,   etc.,  R.  Co.,   276. 

V.  Concord,    271. 
Huber    v.    La   'Crosse    City   R.    Co.,    231, 

282,   666. 
Hudson  V.  Chicago,  etc.,  R.  Co.,  270,  271. 

V.  Northern    Pac.    R.   Co.,   540. 
Hudson,   etc.,   Tel.   Co.   v.   Linden,   80. 

V.   Township,    73. 
Hudson  River  Tel.   Co.  v.   Forrcstal,  114. 
V.  Johnstown,    103. 
V.  Railway  Co.,   10,   11. 
V.  Watervliet     Turnpike,     etc.,     Co., 
16,    39,    124,    199,    297,    298,    303. 
Hudson   Tel.    Co.    v.    Jersey   City,    44,    72. 

81,    318,   327,    328. 
Huev  V.   Gahlenbeck,   265. 
Huffman  v.    Marcy   Mutual  Tel.   Co.,  342, 

357,   373,   458. 
Hughes  V.    Lambertville  Elec,    etc,    Co., 
23. 
V.  West.    U.    Tel.    Co..    404,    537,    605, 
679,    681,    686,    694,    697,    728,    774, 
7S6,    800,   801. 
Hull  V.   Jones,   944. 
Hulse  V.   Home   Tel.   Co.,   280. 
Humes  v.   Ft.   Smith,   871. 
Humphreys   v.    Raleigh,    etc..    Coke   Co., 

243,   244,    289. 
Hunt  V.  Higman,  944. 

V.  Jennings,    847. 
Hunter    v.    West.    U.    Tel.    Co.,    434,    446, 
647,  665,  667,  707,  710,  711,  713,  769,  780, 
786. 
Hurlburt  v.   West.    U.-Tel.   Co.,   G65,   755. 
Iluscher  v.   Elec,    etc.,    P.    Co.,   245. 
Ilusey  V.  London  Elec.   Sy.   Corp.  379. 
Hussey  v.   Norfolk    South.    R.   Co.,   806. 
Huston   V.    Freemansburg    Borough,    791. 
Hutcheson   v.    Blalieman.    945. 
Hydro-Electric    Co.    v.    Listen,    142,    176, 
200. 


974 


CASES  CITED 
[The  figures  refer  to  pages] 


Hyde  Park  v.  Oak  Woods  Cemetery  As- 
sociation, 184. 

Hyde  Park,  etc.,  L.   Co.  v.  Porter,  124. 

Hvland  v.  Southern  BeU,  etc.,  Tel.  Co., 
284, 


Ice,   etc.,   Co.  v.   Moses,  96. 

Idaho    Postal    Tel.    Cable    Co.    v.    Oregon 

Short  Line  R.   Co.,  163,  164. 
Ide  V.   Leiser,   939. 

Ikard   v.    West.    U.    Tel.    Co.,    70S,    761. 
Illine:sworth  v.  Boston  Elec.  Lt.  Co.,   231, 

239,    242,    252,    283.    663,    664. 
Illinois  Central  R.   Co.  v.    Chicago,  196. 
V.  Frankenberg,    402,    543,    583. 
V.    Johnson,    640. 
V.  Morrison,  497,   512. 
Illinois   Com.    Co.  v.   Cleveland   Tel.   Co., 

958 
Ilfinois    Glass    Co.    v.    Chicago    Tel.    Co., 

359     377. 
Illinois   Smelting,    etc.,    Co.    v.    West.    U. 

Tel.    Co.,    691.    701. 
Illinois    Steel    Co.    v.    Klnnare.    277. 
Illinois  Tel.  News  Co.  v.   Meine.  151.  198. 
Illinois    Terminal    R.    Co.    v.    Thompson, 

219. 
Illuminating  Co.   v.    Grant,   98. 
Imlay  v.    Union   Branch    R.    Co.,    106. 
Indianapolis    v.    Consumers'     Gas    Trust 

Co.,   79,    S5. 
Indianapolis,   etc.,  R.  Co.  v.  Dolby,  675. 
V.  Ervin,    346. 
V.  Hartley,    106. 
Indianapoils   Tel.    Co.    v.    Sproul,    280. 
In  re  American  Atlantic  C.  Tel.  Co.,  203, 

208. 
In  re  Anthony  Ave.,   872. 
In  re  Bridgewater  Case,    917. 
In   re   Bolton   Case,   917. 
In  re  Brooklvn   Railroad,   198. 
In  re  Bryant.   892. 

In    re    Canadian    Pacific    Tel.    Co.,    850. 
In  re  City  of  Buffalo,    173. 
In    re    City    of   Gloversville,    168. 
In  re  City  of  Richmond,   61. 
In    re    Coventry    Case,    917. 
In   re   Dwight,    918. 
In  re  Horwich  Case,  917. 
In  re  Imperial  Land  Co.,   945. 
In  re  Jackson,  52. 
In  re  Kennett  Petition,   105,  117; 
In   re    London,    etc.,   939. 
In   re   Marks,    176. 
In  re   New   York  Rd.,   179. 
In  re  Northeast  Kansas  Tel.   Co.,  353. 
In  re  Opinion  of  Justices,   172. 
In  re  Passenger  Cases,    204. 
In   re   Pennsylvania   Tel.    Co.,  62,   63,   307, 

854,    866. 
In  re  Petition  of  United  Tel.  &  Tel.  Co., 

868. 
In   re  Provincial   Fisheries,    204. 
In  re  Power  Company,  142. 
In  re  Renville,    436,   558,   958. 
In  re  Rochester,   etc.,   Rd.,   168. 
In  re  Seaboard  Tel.,  etc.,  Co.,  41,  85,  95, 
In   re   Smith,    918. 
In  re  Sterlings'  Appeal,   106. 
In  re   Storror,   918. 
In  re  Stroud  Case,   917. 
In  re  Sunderland   Bridge,   162,  172. 
In  re  Superior  Rural  Tel.  Co.,  360. 
In  re  Tampston   Case,   917. 
In  re  Taxation  Penn.    Tel.   Co.,   37. 
In  re   The  Anita  Berwind,    206. 
In   re   The   Clara   Killam,    206,   208. 
In  re   The  Daniel   Ball,    210. 
In   re   The   Poughkeepsie,    208. 
In   re  The  William  li.   Bailey,    206,   207. 
In   re  Wheeling  Bridge  Case,    204. 
In  re  Whittenberg.   etc..    Tel.    Co.,  363. 


Insurance    Company  v.    Tel.    Co.,    29. 
International,   etc.,  R.  Co.  v.  Cock,  891. 
v.  Eckford,    48. 
v.  Prince,   880.    891. 
v.  Tel.,   etc.,   Co.,   806,   807. 
v.  Underwood.    540. 
International    Light,    etc.,    Co.    v.    Max- 
well,   250,    252. 
International   Ocean   Tel.    Co.    v.    Saund- 
ers,   604,    609,    778,    790,   795. 
Inter-Ocean      Pub.      Co.      v.      Associated 

Press,    337,    341,    559,    560. 
Iowa  Union  Tel.  Co.  v.  Board  of  Equali- 
zation,   11,    16. 
Irvin  V.   Rushville  Co-operative  Tel.   Co., 

342,    343,    352,    358.    359. 
Irvine  v.   Greenwood,   86,    214,   246. 
Irwin   v.    Great    Southern    Tel.    Co.,    104, 
111,    130. 
V.  Williar,   562. 
Isaac    Joseph    Iron    Co.     v.    Richardson, 

928. 
Israel   v.    Redding,   890. 
Ivanhoe    Furnace    Co.    v.    Virginia,    etc., 

Tel.  Co.,  346,  349,  361. 
Ives  V.  Boyce,  562,  957. 
Ivy  V.  West.   U.   Tel.   Co.,   802,  803. 


Jacks  V.   Reeves,    215,    234,    237,    264,    269. 
Jackson  v.   West.  U.   Tel.    Co.,   732. 

v.  Wisconsin    Tel.    Co.,    217,    223,    224, 

226,    227,    263,    269,    648,    717. 
V.  Wood,   909. 
Jackson,  etc.,  St.  R.  R.  v.  Simmons,  241. 
Jackson  Fibre   Co.  v.   Meadows,   279,   280. 
Jackson  Hazard  Tel.  Co.  v.  HoUiday,  77, 

78. 
Jacksonville  v.    Southern   Bell    Tel.    Co., 

331. 
Jacksonville  Elec.  L.  Co.  v.  Jacksonville, 
85. 
V.  Moses,   124,   245. 
v.  Sloan,   277,  288,  674. 
Jacksonville  Ice  Co.   v.   Moses,   274. 
Jacob  V.   West.   U.    Tel.    Co.,   25,   393,  394, 

505,    509,    541,    553,    650. 
Jacobs  V.    Lindsey,   890. 

V.  Postal    Tel.     Cable    Co.,    695,     701, 
738,    839,    951. 
James    v.    Marion    Fruit,    etc.,    Co.,    929, 
938. 
v.  Patten,    13. 

V.  West.   U.   Tel.  Co.,   687,   728. 
Jamestown   v.   Home   Tel.    Co.,   44,    84. 
Jaynes  v.    Omaha  St.   R.    Co.,    119. 
Jefferson  v.  Asch,   603. 
Jeffries  v.  West.  U.  Tel.  Co.,  383,  792. 
Jelks  V.   Barrett,   915. 
Jenderson  v.    Hansen,    892. 
Jenkins  v.   Telephone,   etc.,   Co.,   655. 
Jenney    Elec.    L.,    etc.,    Co.    v.    Murphy, 

277. 
Jennings  v.  Shertz,  915. 
Jennison  v.   Waltham   Gaslight  Co.,   279, 

280.    281. 
Jersev  City  v.  Fitzpatrick,  127. 
Jewell  V.  Excelsior  Powder  Mfg.  Co.,  230. 
Johns  V.  Cumberland  Tel.,  etc..  Co..  813. 
Johnson  v.   Alabama,  etc.,   R.  Co.,  ?55. 
V.  Arnwine,   885. 
V.  Bav  City,  214,  260,  663. 
V.  King,  930. 

V.  Manhattan  R.   Co.,  272. 
V.  Northwestern    Tel.    Co.,    221,    222, 

235,    269. 
V.  Pensacola,  etc.,  R.  Co.,  347. 
V.   State,   318,   322,   339,   349,  360. 
V.   St.  Louis  Dispatch  Co.,   566,   811. 
V.  Thomson-Houston      Electric      Co, 

131,    200. 
V.  United  States,  877,  878. 


CASES  CITED 
[The  figures  refer  to  pages] 


975 


Johnson   v.   West.    U.    Tel.    Co.,    392,   408, 
409,   522,   523,   621,   622,   672,    686,   688,  707. 
742,  765,  766,   768,  788,  790,  798,  799,  950, 
951    052. 
Johnston    v.    New    Omaha,    etc.,    L.    Co., 
249,  262.  267,  276. 
V.  Syracuse    Lighting    Co.,    273,    277, 
280. 
Jones  V.  Cumherland  Tel.,  etc.,  Co.,   354. 
V.  Finch.   250,   257,   269,   274. 
V.  North  Georgia  Elec.  Co.,  142,  200. 
V.  Postal    Tel.    Cable    Co.,    277,    279, 

605. 
V.  Rmch,  574,  586,  720. 
V.  Union  Ry.  Co.,   215,  218,   221. 
V.  West.    U.    Tel.     Co.,    20,    451,    4;i2, 
500,    531,    649,    692,    715,    748,    760, 
761,   762,    783. 
Jonesville  v.  Southern  Michigan  Tel.  Co., 

93. 
Jordan   v.    Delaware,   etc.,    Tel.    Co.,    132. 
Jordan  v.   Mahoney,    911. 
Jordan  v.  Missouri,   etc.,  Tel.   Co.,   276. 
Joseph  V.   Edison  Electric  Co.,   225. 
Joynes  v.  Postal  Tel.  Cable  Co.,  619. 
Julia   Bldg.    Ass'n   v.    Bell   Tel.    Co.,    104, 
109,  112,   120.  „„    ,„„ 

Julian  V.  West.  U.  Tel.  Co.,  418,  420,  429. 
Junior  v.   Missouri   Elec,    etc.,    Co.,    273, 
276,  277. 

K 

Kagv  V.  West.  U.   Tel.   Co.,  397,  410,  577, 

581,  680,   682,   707,   782,   790.   797. 
Kahn  v.  Kittanning,  etc.,  Co.,   255. 

V.  Walton,  942. 
Kankakee  Electric  R.  Co.  v.  Whittemore, 

250.  251.  254,   257,   269. 
Kansas  Citv  v.  File,  235,  246,  253,  260. 
V.  Gilbert,   246,   260. 
V.  Marsh  Oil  Co.,  162. 
Kansas  City,  etc.,  Ry.  Co.  v.  Kier,  805. 
V.  Le  Flore,  155. 

V.  Northwestern,  etc.,  162,  172,  179. 
V.  Payne,    155. 
V.  Rogers,   277,   284,   674. 
Kansas  City,   etc..  Bell  R.  Co.  v.  Kansas 

Citv,    etc.,   R.   Co.,   162. 
Kansas    City    Star    P.    Co.    v.    Standard 

Warehouse    Co..    S99. 
Kansas  Pac.  R.  Co.  v.  Kessler,  815. 
Kansas  P.  Tel.  Co.  v.  Leavenworth,  etc.. 

Bridge  Co.,   202. 
Kataflasz    v.    Toledo    Consol.    Elec.    Co., 

231     272     273. 
Katli'v.  East  St.  Louis,  etc.,  R.  Co.,  278, 

Kaufman  v.  Wilson,  892. 

Keui  by  V.  Hopkins,  915. 

Keating   Imp.    Co.   v.    Marshall   Elec.   L., 

etc.,  Co.,  23. 
Keator  v.   Scranton  Tr.  Co.,   258. 
Keefe  v.  Narragansett  Elec.  Co.,  241,  242, 

249,    267,    290. 
Kecley  v.  Boston  Elec.  Ry.  Co.,  284,   288, 

289. 
Keenan  v.   Cavanaugh,    613. 
Keenev  v.  Grand  Trunk  R.  Co.,  541. 
Keeting   v.   West.    U.    Tel.    Co.,    426,    535, 

843. 
Keith,    Prowse    &    Co.   v.    Nat.    Tel.    Co., 

179. 
Kellar  v.  Central  Tel.,  etc.,  Co.,  132. 
Keller  v.  Meyer,   946. 
Kellogg  V.    Denver    City    Tramway    Co., 

279. 
Kelly  V.  Electric  Co.,  275. 

V.  Erie,    etc.,    Tel.    Co.,   280,    284,   287. 
V.  McDonald.    805. 
v.  West.  U.  Tel.  Co.,  788. 
Kemp  V.  Div.  No.  241,  etc.,  488. 


Kemp  v.   West.  U.   Tel.   Co.,   25,  317,   398. 

403,  494,   495,  498,  506,   514,  567,  568,  605, 

738    951 
KemJDf  V."  Spokane,  etc.,  R.  Co.,  232,  245. 
Kempner  v.  Cohn,   938,   939,   944. 
Kendall   v.    West.    U.    Tel.    Co.,    395,    447, 

517,  640,   648,   673,  845. 
Kennebec,   etc.,   R.   Co.  v.  Portland,   etc., 

R.   Co.,   46. 
Kennelly  v.  Jersey  City,  96. 
Kennon   v.    West.    U.    Tel.    Co.,    610,    679, 

681,  683,   708,    755,   760,  822. 
Kenosha  v.  Tel.  Co.,  64. 
Kent    V.    Southern    Bell    Tel.,    etc.,    Co., 

213. 
Kenton   County   Court  v.   Turnpike   Co., 

47. 
Kentucky  Elec.  Co.  v.  Buechel,   858. 
Kentucky  Mut.  Ins.  Co.  v.  Jenks,  944. 
Kenvon   v.    West.   U.    Tel.    Co.,    687,    717, 

742    950 
Kern'odle'v.   West.  U.   Tel.   Co.,  401,   665, 

670. 
Kerns    v.    Telephone    Co.,    684,    688,    70.d, 

719. 
Kester  v.  West.  U.  Tel.  Co.,  65,  115,  124, 

159    757    791    796. 
Kevahd  v.  New  York  Tel.  Co.,  375. 
Key  v.   West.   U.   Tel.    Co.,    430,    452,    682, 

715,  760,  814. 
Kibbie  Tel.  Co.  v.  Landphere,  77,  91,  294, 

295. 
Ki'ckok   V.    Power   Co.,    273. 
Kightlinger  v.  West.  U.  Tel.  Co.,  791. 
KUbourn    City    v.     Southern    Wisconsin 

Power  Co.,  343,   368,   369. 
Kilby  V.  West.  U.  Tel.  Co.,  541. 
Kiley   v.    West.    U.    Tel.   Co.,    25,    35,    505, 

542,   552,    650,   687,   688,    716,    952. 
Killiner  v.  West.  U.  Tel.  Co.,  687. 
Kimbark  v.   111.   Car,   etc.,   Co.,  895. 
Kimbell  v.  Moreland,   927. 
King  v.  Kersey,  752. 

v.  West.  U.   Tel.  Co.,  417,   426. 
Kinesley  v.   Siebrecht,   914,   915. 
Kin?horne  v.  Montreal  Tel.  Co.,  686,  723, 

952,    954. 
Kingsbury  v.   Kirwan,   562. 
Kinney  v.   Central  R.   Co.,   498. 

v.  McDermot,   571. 
Kirby  v.  Citizens'   Tel.   Co.,   104,   111. 

V.  West.    U.    Tel.    Co.,    338,    341,    383, 
387,    388,    389,    393,    419,     443;     517, 
522,    536,     648,    681,     698,    748,     749, 
827,   834,   835,   845. 
Kirk  v.  West.  U.  Tel.  Co.,  392,  450,  631. 
Kirkpatriclv    v.    Bonsall,    561. 

V.  Metropolitan  St.  Ry.  Co.,  258. 
Kirton  v.   North  Chicago  St.   R.  Co.,  805. 
Kittanning    Borough    v.    West.    U.    Tel. 

Co.,    83. 
Kivett  V.  West.  U.   Tel.  Co.,  666,  668,  ".75, 

779,    780,    781,    789. 
Kline  v.  West.  U.  Tel.  Co.,  782,  791. 
Klopf  V.  West.  U.   Tel.  Co.,  428,  429.  430, 

432.   663,   664,  665. 
Kneffler  v.  Com.,  562. 
Knickerbocker  Ice  Co.  v.  Gardiner  Dairy 

Co.,   893,   896,   900. 
Knott  V.  Raleigh,  etc.,  R.  Co.,  589. 
Knowlton    v.    Des    Moines,    etc.,    Lt.    Co., 

240,    242,    243,    247,    275,    283,    662,    673. 
Knutter  v.  New  York,  etc.,  Tel.  Co.,  2S7. 
Koeing  v.  Chicago,   etc.,  R.  Co.,  177. 
Koerner  v.   Oberly,   804. 
Kolb  V.  West.  U.  Tel.  Co.,  768. 
Kolliner   v.   West.    U.    Tel.    Co.,    622,    681, 

683,   701,   706. 
Koons  V.   West.  U.   Tel.   Co.,    448,  449. 
Kojiperl    V.   West.    U.    Tel.    Co.,    682,    707, 

765,  766. 
Kost  V.   Ashland,    219. 


976 


CASES   CITED 
[The  figures  refer  to  pages] 


Kowalski   v.    Newark   Passenger   R.    Co., 

219. 
Kraatz  v.  Brush  Elec,  etc.,  Co..  250,  271, 

65S. 
Kramer  v.  Ricksmeier,  357. 
Krimmel  v.  Edison  Ilium.   Co.,   279. 
Krueger  v.  Wisconsin  Tel.   Co.,   115,   121, 

124. 
Kurtz  V.  Frank,  805. 
Kyes  V.  Valley  Tel.   Co.,   213,   235. 
Kyles  V.  Southern  R.  Co.,  763. 


Labombarde  v.   Gas  Co.,  252. 

Lacey  v.   Palmer,  854. 

La   Crosse  v.   La  Crosse   Gas,   etc.,   Co., 

866. 
Ladow  V.  Oklahoma,  etc.,  Elec.  Co.,  240, 

247. 
La    Duke    v.    Hudson    R.    Tel.    Co.,    279, 

281,  284. 
La  Grange  v.  Southwestern  Tel.  Co.,  445, 

446,  495,   506,  515,  535,   548,   605,   007,  623. 
Lake   v.    Campbell,    909. 
Lake    Shore,    etc.,    Ry.    v.    Chicago,    etc., 
Ry.,  303. 
V.  Foster,    910. 

V.  Pittsburg,   etc.,  R.  Co.,  186. 
Lakln  v.   Railroad  Co.,   47. 
Lamb  v.  Camden,  etc.,  R.  Co.,  484.  514. 
Lambert  v.   West.  U.   Tel.   Co.,   449. 
Lancashire,    etc.,    Tel.    Ex.    Co.    v.    Man- 
chester, 23. 
Lancaster  v.  Briggs,  83. 

V.  Central  City  Light,   etc.,   Co.,   285. 
V.  Edison  Elec.   111.  Co.,   96,   849. 
V.  Elliot,  945. 
Lancaster,    etc.,    Tr.    Road    v.    Columbus 

Tel.    Co.,   115. 
Landie  v.    West.    U.   Tel.,    etc.,    Co.,    382, 

713,    755. 
Landry   v.    West.    U.    Tel.    Co.,    669,    714, 

762,    768. 
Landsberger   v.    Magnetic   Tel.    Co.,    68'6, 

701,    702. 
Lane  v.   Montreal  Tel.   Co.,  400,  707,   721. 
Langley   v.    West.    U.    Tel.    Co.,    315,    465, 

826,    846. 
Lanning    v.    Pittsburg    R.    Co.,    258,    265, 
646. 
V.   "U^est.    U.    Tel.    Co.,    788. 
Lapslely  v.   United  Electric  'Co.,   277. 
LaiKUi   V.    Queensijorough  Gas,   etc.,    Co., 
276. 
V.   West.   U.   Tel.   Co.,   213. 
Larminie  v.  Carley,   880. 
Larmon   v.    Jordan,    938. 
Larsen  v.  Postal  Tel.   Cable  Co.,  662,  678, 

688,    951,    953. 
Larson  v.  Central  Ry.  Co.,  260. 
Lassiter  v.  West.  U.  Tel.  Co.,  26,  35,  497, 

498,    500,    507,    514. 
I^trobe  V.  West.  U.  Tel.  Co.,  22. 
Latliam  v.   West.   U.   Tel.   Co.,   701,  953. 
Latirrer  v.   General  Elec.   Co.,   276. 
Lattomus  v.   Farmers'   Mut.   F.   Ins.   Co., 

910. 
Laudie  v.  West.  U.  Tel.  Co.,  396,  397,  410. 
Laughlin    v.    Southern,    etc.,    Corp.,    236, 

256,    663. 
Lauman   v.    Lebanon    Valley   R.    Co.,    46, 

47. 
Lavelle  v.  West.  U.  Tel.  Co.,  516,  527,  542, 

543,    707. 
Lawrence  v.  Milwaukee,  etc.,  R.  Co.,  930. 
V.  Morgan    Louisiana,     etc.,    R.    Co., 

145. 
V.  Rutland  R.   Co.,   308. 
V.  Winona,  etc.,  R.  Co.,   402. 
Lay   V.    Postal    Tel.    Cable    Co.,    755,    763, 

764,    771,   778,   779,    784. 
Leach    v.    Central    New   York    Tel.,    etc., 

Co..   279. 


Leavell  v.  West.  U.  Tel.  Co.,  314,  324,  338, 

339,    345,    346,    353,    394. 
Lea\enworth  v.  Ewing,   867. 
Leavenworth  Coal  Co.  v.  Ratchford,   233, 

235,    260,    273,    274. 
Lebanon,  etc.,  Tel.  Co.  v.  Lanham  Lum- 
ber Co.,  351.    688. 
Le   Clercq   v.    Gallipolis,    123. 
Lecoul    V.    Police    Jury,    187. 
Lee  V.   Augas  L.   R.,   923. 
V.  Cherry,   911. 
V.  Maryland   Tel.,   etc.,   Co.,   213,    261, 

269. 
V.  Railroad  Co.,   663. 
V.  Selleck,   623. 

V.  Village  of   Sandy  Hill,   806. 
V.  West.    U.    Tel.    Co.,    445,    600,    605, 
617,  631,  635,  636,  639,  682,  706,  707, 
712,   762,  764,  785,  786. 
Leeds  v.   New  York  Tel.   Co.,   214,   272. 
Leedy  v.  West.  U.  Tel.  Co.,  505,  531,  548. 
Leeslev  v.   Fruit  Co.,  915. 
Lefler  V.  West.  U.  Tel.  Co.,  413,  414,  438, 

647. 
Lehman  v.  Brooklyn,  etc.,  R.  Co.,  798. 
Leland  v.   West.   U.  Tel.   Co.,  779. 
Leloup  V.  Port  of  Mobile,  62,  64,  329,  850, 

855,   858,   859,   860,   863,   864,   866,  '867. 
Leonard  v.    Hendrickson  483,    484. 

V.    New   York    Elec.    Magn.    Tel.    Co., 
-       25,   393,   400,   401.  443,  452,   490,  582, 
584,    588,    590,    594,    595,    599,    605, 
610,  619,  680,  682,  715,  729,  732,  735. 
Leppard  v.    Telephone   Co..   648,    649. 
Leque  v.    Gas,    etc.,    Co.,    654,    662. 
Leque  v.  Madison,   etc.,   Elec.  Co.,   283. 
Leslie  v.  Hervey,  918,  921. 
Lester  v.  West.  U.  Tel.  Co.,  517,  519,  527, 

546, 
Levering  v.   Union   Transp.   Co.,  511. 
Levet   V.    Creditors,    571. 
Levisohn  v.    Waganer,  944. 
Levy   V.    Cohen,    944. 

V.  West.    U.    Tel.    Co.,    647,    679,    705, 
741. 
Lewin-Cole  Comn.  Co.  v.  West.   U.   Tel. 

Co.,    691. 
Lewis  V.  Bowling  Green  Gas  L.  Co.,  216, 
232,  236,  238,  239,  243,  244,  245,  261, 
266,    293,    652,    657,    664. 
V.  Browning,   936,   946. 
V.  Gas  Light  Co.,  663. 
V.  Havens,    877,    878. 
V.  Ludwick,   485. 

V.  Southwestern  Tel.,  etc.,  Co.,  638. 
V.  West.    U.    Tel.    Co.,    517,    546,    605, 
785,   790,   791,    807,   814,   815. 
Lewisville  Lt.,   etc.,   Co.  v.  Lester,  377. 
Lexington  &  O.  R.  Co.  v.  Applegate,  123. 

V.  Fain,    235,   250,   6G3. 
Liddell   v.    Sahline,    910. 
Ligdon  V.  West.  U.  Tel.  Co.,  799. 
Light  Co.   V.   Brown,   96. 
Light,   etc.,   P.   Co.  v.   Lakeman,    228. 
V.  Laurence,    273. 
V.  Light    Co.,    372. 
V.  Sullivan,   663. 
V.  Thomas,   372. 
Ligon  v.  West.  U.   Tel.  Co.,  622,  798. 
Lincoln  v.  Erie  Preserving  Co.,   912,   936, 

940. 
Lincoln,    etc.,   Co.  v.   Lincoln,   867. 
Lincoln  Gas,  etc.,  L.  Co.  v.  Thomas,  280. 
Lincoln    Mill   Co.   v.    Wissler,    897. 
Lindley   v.    Richmond,    etc.,    R.    Co.,    586, 

590. 
Lindsay  Bro.  v.   Curtis  Pub.   Co.,    24. 
Lindsey  v.  Humbrc.  ht,  915. 
Linn  v.  Chambersburg  Borough,  85,  86. 

V.  McLean,   944. 
Linton  v.   Light,   etc.,   Co.,   663. 

V.  Weymouth,   etc.,   P.   Co.,    260. 
Lippitt  V.    St.    Louis   Dressed   Beef   Co., 
893. 


CASES   CITED 
[The  figures  refer  to  pages] 


977 


Lflttle  V.  Central  Dist.,  etc.,  Tel.  Co.,  214, 
219. 
V.  Chicago,   etc.,   R.   Co.,   624. 
V.  Dougherty,  910,  915. 
V.  Hyde  Park  Elec.  L.  Co.,  280. 
V.  West  U.   Tel.   Co.,    636,   642. 
L.ittle    Nestucca   Road    Co.    v.    Tillamook 

Co.,   162. 
Little  Roclt,  etc.,  R.  Co.  v.  Corcoran,  484. 

V.  Talbot,   541. 
Little   Rock,    etc.,    Tel.    Co.   v.    Davis,    29, 
434,  443,  444,  647,  680,   829,  835,   836,   838, 
839. 
Liverpool,   etc..    Steam  Company  v.  Phe- 

nix  Ins.   Co.,  503,   504. 
Livingway  v.  Houghton  Co.,  etc.,  R.  Co., 

277,   280,    286. 
Lockhart  v.  Craig  Street  R.  Co.,  112. 
Lock  Haven   Bridge   Co.   v.    Clinton,    202. 
Lockie  V.  Mutual  U.  Tel.  Co.,  56,  57,  143, 

149,    150. 
Loeber  v.    Butte   Gen.    Electric   Co.,    130, 

200. 
Lofton  V.   Electric  Co.,  272,   641. 
Logansport  v.  Smith,  238,  253,   282. 
Lomoe  v.   Superior,  etc.,  P.  Co.,  221,  236, 

238. 
London,  etc.,  R.  Co.  v.  Evershed,  347. 
London    Mills  v.    White,    44,    97. 
Long  V.  Johnson  Co.  Tel.  Co.,  285. 
v.  Needham,  945. 
V.  Penn.   R.   Co.,    264. 
Long  Bell  Lumber  Co.  v.   Nyman,   874. 
Long    Dist.    Tel.,    etc.,    Co.    v.    Schmidt, 

125,    165,    198. 
Loper  v.  West.  U.  Tel.   Co.,  597,  608,  636, 

709,    713,    754. 
Ijjrd  V.    Manchester   St.    Ry.,    259. 

V.   Wakefield,   280. 
Lord   Electric    Co.   v.    Mornll,    898,    901. 
Los    Angeles,    etc.,    Elec.    Corp.    v.    Los 

Angeles,     864. 
Lothian   v.    Tel.    Co.,   34,   648,   650,   706. 
Louisiana,    etc.,    R.    Co.    v.    Reeves,    608, 

707,   709,   818. 
Louisiana  Mut.  Ins.  Co.  v.   Tweed,  681. 
Louis  v.   Great  West.  R.   Co.,   519. 
Louisville   v.    Louisville    Home   Tel.    Co., 
44,  45.  50,  355. 
V.  Pooley,   SG7. 

V.  Wehmhoff,    384,   561,    563,    564,    565, 
832. 
Louisville  Coffin   Co.  v.   Stokes,   910. 
Louisville,   etc.,  R.   Co.  v.  Bowling  Green 
R.   Co.,   261. 
V.  Cumberland,   etc.,    Co.,    297. 
v.  Fleming,   461. 
v.  Grant.   495. 

V.  People's  St.  R.,  etc..  Imp.  Co.,  191. 
V.  Postal  Tel.  Cable  Co.,  143,  159,  160, 

167,    190,    196. 
V.  Railroad  Com.,  315. 
V.  "Warren  County,   851. 
v.  Weaver,  402. 
Louisville  Home   Tel.    Co.   v.   Beeler,   281. 

V.  Gasper,   213,    220,    269. 
Louisville  &  Nashville  R.  Co.  v.  Gillespie, 
294. 
V.  Manchester  Mills,  541. 
V.  Russellville  Home  Tel.   Co.,   77,   85, 
328. 
Louisville  Transfer  Co.  v.  American  Dis- 
trict  Tel.   Co.,  374,    629. 
Lovell  V.   Williams,   944. 
Lowenburg  v.  Jones,  589. 
Lowerv   v.    West.    U.    Tel.    Co.,    578,    581, 

686,    ■689,    690. 
Lowman    &    Co.   v.    Ballard,    906,    907. 
Lowrey  v.   Cowles  Elec,  etc.,   Co.,  305. 
Lowry  v.  Coster.  804. 
Lowther  v.    i:ridgeman,  21,  40,  41,  42,  104, 

107,    145,   367. 
Lucas  V.  Cannon,  778. 

Jones  Tel.(2u  Ed.)— 62 


Lucas  V.   West.  U.  Tel.   Co.,  731,  929,  933, 

937,    938,    945,    947,   953,    954. 
Luckey  v.   West.   U.   Tel.  Co.,  779. 
Ludwig  v.   Metropolitan  St.   Ry.   Co.,  258, 
673. 
V.  West,    U.   Tel.   Co.,    63,   329,   865. 
Luehrmarm  v.  Laclede  Gas  Lt.   Co.,  245, 

255,    269. 
Lundeen  v.  Livingston  Elec.  Lt.  Co.,  221. 
Lundy   v.    Southern    Bell   Tel.,    etc.,    Co., 

238,   256. 
Lungstrass  v.    German  Ins.    Co.,   945. 
Lutolf  V.  United  Elec,  etc.,  Co.,  230,  235, 

245,    641,    663. 
Lydon  v.  Ilium.  Co.,   274. 
Lydston  v.   Rockingham  County,   etc.,  P. 

Co.,  236,  663. 
Lyles  V.   Brannon,   etc.,   Co.,  263. 
Lyles  V.   West.   U.   Tel.  Co.,  396,   409,   417, 

425,   427,    428,    647.   663.   671,   691,   708,   709, 

711,    761,    763,    764,    706,    772. 
Lynch    v.    Forbes,    186. 
V.  Knight,    752. 

V.  Saginaw   Valley    Tr.    Co.,    278,    279. 
Lynchburg,     etc.,     Co.     v.     Booker,     218, 

237,    641,    657. 
Lyne  v.  West.   U.  Tel.   Co.,   404,  407,  414, 

429,    430,    665,    70S,    710,    711,    755,    786. 
Lytle   V.    West.    U.    Tel.    Co.,    547. 


M 


MacAndrew     v.     Electric     Tel.     Co.,     25, 

27,    497,    505. 
Machen    v.    West.    U.    Tel.    Co.,    636,    780, 

787,    807. 
Mackay   v.    West.    U.    Tel.    Co.,    340,    393, 

429,    680,    692,    694,    704. 
Mackay    Tel.     Cable     Co.     v.     Vaughan, 

768. 
Macklin  v.  Home  Tel.  Co.,  331,  332. 
Mackorell   v.    Telephone    Co.,    665. 
Maclay   v.    Harvey,    933,    937. 
Macon  v.  Paducah   St.   Ry.   Co.,   221,   235, 

260,    664. 
MacPherson    v.    West.    U.    Tel.    Co.,    26, 

390,    466. 
Mactier   v.    Frith,    623,   931,    933,    937,    945. 
Madden   v.    Louisville,    etc.,    R.    Co.,    190. 
Maddux  v.    West.    U.    Tel.    Co.,    451,    452, 

721. 
Madison   v.   Thomas,    238. 
Madisonville,    etc.,    Co.    v.    St.    Bernard, 

etc.,    Co.,    191. 
Magann  v.   Auger,   945. 
Magee    v.    Overshiner,    42,    103,    111,    114, 

138,    140,    145,    367. 
Maghee    v.    Camden,    etc.,    R.    Co.,    541, 

591. 
Magie  v.  Herman,   620,   884,   930,   944,   945. 
Magnin  v.   Dinsmore,    484. 
Magouirk    v.    West.     U.     Tel.     Co.,    ^77, 

5.D,    605,     807,     814,    815. 
Magiuder  v.   Cumberland,   etc.,   Tel.    Co., 

358. 
Mahady  v.   Bushwick  R.    Co.,    106. 
Mahan     v.     Newton,     etc.,     R.     Co.,     238, 
257,   282. 
V.  Mich.   Tel.  Co.,   51,  364,  373. 
Maine    v.    Grand    Trunk,    etc.,    Co.,    858, 

862. 
Majenica   Tel.    Co.    v.    Rogers,   78. 
Makay   v.    Southern    Bell   Tel.,    etc.,    Co., 

655. 
Malay   v.    Mt.    Morris,    etc.,    L.    Co.,    288, 

289. 
Maley  v.  West.  U.  Tel.  Co.,  755,  765,  766, 

782,    820,    821. 
Malochee    v.    Great    Southern    Tel.,    etc., 

Co.,    342,    358,     629. 
Maloiie  V.  Waukesha  Electric  Light  Co., 

134. 


^78 


CASES  CITED 
[The  figures  refer  to  pages] 


Mangan  v.  Hudson   R.    Tel.    Co.,    283. 

V.  Louisville    Elec.    Lt.    Co.,    230,    232, 
273     274     292. 
Manier    v. 'West."u.    Tel.    Co.,    517,    524, 

527,    528,    546,    547,    605. 
Manitowoc    v.    Manitowoc,    etc.,    T.    Co., 
2  >g     334 

Manker   v.   West.    U.    Tel.    Co.,    599,    609, 

753. 
Manly    Mfg.    Co.    v.    West.    U.    Tel.    Co., 

447,    454,    455,    717. 
Mann   v.    Birchard,    541. 

V.  Higgins,    916. 
Manning    v.     Interstate    Tel.,    etc.,     Co., 

Iilannon  v.   Camden,   etc.,  R.   Co.,   258. 
Mansfield    v.    Humphreys    Mfg.    Co.,    358. 
Manville    v.    West.    U.    Tel.    Co.,    25,    429, 
495,    506,    514,     682,     688,    693,     699,     700, 
701,    719,    722. 
Marab    v.    Telephone    Co.,    655,    666. 
Marroni  Wireless   Tel.   Co.   v.   De   Forest 

Wireless    Tel.    Co.,    4. 
Marietta,     etc.,     Rd.     Co.     v.     Telegraph 

Co.,    183. 
Marion     Elec,     etc.,     Co.    v.     Rochester, 

342,    379. 
IMarion  Lt.,    etc.,    Co.   v.   Vermillion,    276. 
Marlvel    v.    West.    U.    Tel.    Co.,    606,    608, 

614,    618. 
Markley   v.    West.    U.    Tel.    Co.,    419,    516, 
525,    528,    529,    548,    549,     610,    665,    670, 
778,    780,   781,    784,    798. 
Market   Street  R.   Co.   v.  Central  R.   Co., 

105. 
Marquette,    etc.,    Mfg.    Co.    v.    Williams, 

289. 
Marr  v.  West.  U.  Tel.  Co.,  20,  26,  28,   29, 
32,   384,   452,   495,   507,   514,   535,   536,   542, 
682,    715,    730. 
Marriott  v.    West.   U.    Tel.    Co.,    662,    691, 

692,    701,    732. 
Marschall    v.    Eisen    Vineyard    Co.,    928, 

936. 
Marsh  v.  West.  U.   Tel.   Co.,   666,   807. 
Marshall    v.     American    Tel.,     etc.,     Co., 
136. 
V.  Bayonne,    93. 
V.  Jamison,   928. 

V.  West.    U.    Tel.    Co.,    825,    826,    835, 
854. 
Marshfield    v.    Wisconsin    Tel.     Co.,     72, 

82    92     93     95     129. 
Martin"''v.    Chicago,'  etc.,    Elec.    Co.,    188. 
V.  Citizens'    General    Elec.    Co.,    282. 
V.  New  Jersey  St.   Ry.   Co.,   276. 
V.   Sheriff,    295. 
V.  Sunset    Tel.,    etc.,    Co.,    430,    519, 

640,   716,   745. 
V.  Towle,    270. 

V.  West.    U.    Tel.    Co.,    424,    430,    431, 
434,     588,     609,     617,    641,     660,    675, 
693,    701,    703.    788. 
Martin  Tel.  Co.  v.   Stratford  Tel.  Co.,  52. 
Martinek  v.   Swift,   654. 
Marvin    v.    West.    U.    Tel.    Co.,    489,    534. 
Maryland     Tel.,     etc.,     Co.     v.     Charles 
Simons  Sons  Co.,   323,   331,   339. 
V.  Cloman,    277,   280. 
V.  Ruth.    87,    139,    215. 
Mason   v.    Consumers'    Power   Co.,   373. 

V.  TS''arner,    624. 
Massachusetts     v.     West.     U.     Tel.     Co., 

64,    849,   856. 
Massengale    v.    West.    U.    Tel.    Co.,    516, 

517,    519,    524,    526,    527,    54G. 
Massy    v.    Milwaukee,    etc.,    L.    Co.,    288, 

289. 
Mathews   v.    West.    U.    Tel.    Co.,    807. 
Mathis  V.   West.   U.   Tel.   Co.,    841,   845. 
Matteson   v.   Noyes,   882,    884,    887. 
Maxville  v.   West.   U.   Tel.    Co.,    617,   708, 
761. 


Maxwell  v.   Central  Dist.,    etc.,   Tel.   Co., 

57,   104,    115,    128,    130. 
May    v.    Charleston    Interurban    R.    Co., 
258. 
V.  Ward,    912. 

V.  West.    U.    Tel.    Co.,    400,    615,    638. 
Mayberry   v.    Johnson,    909. 
Mayer  v.   Frobe,    805. 
Mavfield     Water,     etc.,     Co.     v.     Webb, 

220,    249,   267,   291. 
Mavnard    v.    Fireman's    Fund    Ins.    Co., 

566,    808. 
Mavne  v.   Fletcher,   567. 
Mayo  V.  West.   U.  Tel.  Co.,  .316,  318,  334, 

824,    837. 
Mayor   v.    Bailey,    225. 

V.  House,     246. 
Mayor   of    Mobile    v.    Tuille,    860, 
Mays   V.    Cincinnati,    860. 
Mavsville   Gas    Co.   v.   Thomas,    243. 
McAdam   v.    Central   Ry.,    etc.,    Co.,    250, 

257. 
McAllen   v.   West.    U.    Tel.    Co.,   636,    686, 

760,    767,   771,    772,    805,    814. 
McAllister    v.    Jung,    258. 
McAntire    v.    Joplin    Tel.    Co.,    131,    136. 
McArthur    v.    Dryden,    615. 
McAunich    v.    Mississippi,    etc.,    R.    Co., 

644. 
McBlain  v.   Cross,   910. 
McBride    v.     Sunset    Tel.    Co.,    680,    682, 

757,    795. 
McCabe  v.   Narragansett  Elec,   etc.,  Co., 

231,    274. 
McCall   V.    California,    864. 
McCann    v.    Johnson    County    Tel.     Co., 

103,    107. 
McCarlie   v.    Atkinson,    566. 
McCarn    v.    Int.,    etc.,    R.    Co.,    583,    584, 

586. 
McCarthy  v.   Peach,    894,   900. 
McCartv    v.    Gulf,    etc.,    R.    Co.,    402. 

V.  West.    U.    Tel.    Co.,    733,    765,    770. 
McCaughna    v.    Owosso,    etc.,    Elec.    Co., 

290. 
McCaul   V.    West.    U.   Tel.    Co.,    394,    422, 

426,   474,   475. 
McClarren   v.    Jefferson    School   Tp.,    1G6. 
McCloud   v.    Telephone   Co.,    835. 
McColl    V.    West.    U.    Tel.    Co.,    681.    686, 

690,    695,    701,   706,    717,    724,    952,   953. 
McConnel  v.   Kibbe,  126. 
McCord   V.    West.    U.    Tel.    Co.,    576,    577, 

579,    605. 
McCormick   v.   District   of    Columbia,    90, 
138. 
V.  Joseph,    886. 

V.  West.    U.    Tel.    Co.,    597,    616. 
McCranie    v.    Wood,    486. 
McCrea   v.    Beverly,    etc.,    Elec.    Co.,    240. 
McCuUey  v.    Cunningham,   191. 
McCulloch    V.    Eagle    Ins.     Co.,    934,    946. 
McDaniel   v.   Faubush   Tel.    Co.,    457,    477. 
McDonald    v.    Postal    Tel.    Co.,    214,    279, 

280. 
McDonough    V.     Boston,    etc.,    Ry.     Co., 

259. 
McDowell  V.  West.  U.  Tel.   Co.,   636,   642. 
McElrov   V.    Buck,   912,    916,    931. 

V.  Seery,    912. 
McFee    v.    Vicksburg,    etc.,    R.    Co.,    808, 
McGehee  v.   West.   U.   Tel.  Co.,   516,    520, 

541,   547,  549,    550,  753. 
McGowan    v.    State,    75,    261,    295. 
McGortv    v.     Southern    New    Bng.     Tel. 

Co.,  277,  279. 
McGraw  V  Baltimore,  etc.,  R.  Co.,  484. 
McGregor  v.  West.  U.  Tel.  Co.,  692,  737. 
McGuire  v.  Bell  Tel.  Co.,  278,  279,  281. 
Mclnturf  v.  West.  U.  Tel.  Co.,  706,  807. 
Mclsaac  v.  Northampton  Elec.  L.  Co., 
1      277.    279. 


CASES   CITED 

[The  figures  refer  to  pages] 


979 


McKay  v.    Southern   Bell   Tel.,    etc.,    Co., 

223,    249,    250,    251,    252,    253,    256,    269. 

McKee  v.   Grand  Rapids,   etc.,  S.  R.   Co., 

145. 

V.  West.    U.    Tel.    Co.,    597,    728. 

McKeon   v.    Citizens'    R.    Co.,    808. 

McKeesport     v.      McKeesport,      etc.,      R. 

Co.,    246. 
McKinley    Tel.    Co.    v.    Cumberland    Tel. 

Co.,    364. 
McLaren    v.    Detroit,    etc.,    R.    Co.,    583. 
McLaughlin   v.    Louisville    Elec.    Lt.    Co., 

232,     239,     240,     241. 
McLean    v.     Brush    Electric    Light    Co., 

130,    200. 
McLeod   V.    Pacific    Tel.    Co.,   3,    357,    439, 

440,   585,  605,  607,   609,  953. 
McMeeliin  v.  Central  Carolina  Power  Co., 

125.    142. 
McMillan  v.   Noyes,   142. 

V.  West.    U.    Tel.    Co.,    451,    682,    686, 
687,  688,  700,  705,  715.  951. 
McMullan  v.  Edison  Elec.   111.  Co.,   231. 
McNamee  v.   Tel.  Co.,  273. 
McNeil  V.  Postal  Tel.  Cable  Co.,  393,  604, 

641,  667,  691,  700,  701,  710,  724,  953. 
McPeek   v.    West.    U.    Tel.    Co.,    392,    444, 
47.".,   478,   604.   61-2.  642,  643,   684,   692,  693, 
700,   703,    741,   775. 
McQueen  v.  Middletown  Mfg-.  Co.,  630. 
McRae  v.   Metropolitan   St.   Ry.   Co.,    259. 
McSorlev  v.  Faulkner,  354. 
McWethy  v.    Aurora  Elec.    L.    &  P.   Co., 

86. 
Meador  v.   White,   571. 
Meadors  v.  West.  U.  Tel.  Co..  845. 
Meadows  v.    West.   U.   Tel.   Co.,   702,   710, 

711,   755,   787. 
Meek  V.   Nebraska  Tel.   Co.,  -93,   262,    270. 
Mecur  v.  Media  Electric  Light,  etc.,  Co., 

368,    370,    371. 
Meehan  v.  Holyoke,  etc.,  Ry.  Co.,  674. 
Meg-gett  V.    West.    U.    Tel.    Co.,    723,    727. 
Mehan   v.    Lowell   Elec,   etc.,   Corp.,    277. 
M^inett   v.    Snow,    928. 
Melchert   v.    American    U.    Tel.    Co.,    561, 

563,    720. 
Melican    v.     Missouri-Edison    Elec.     Co., 

641. 
Melson  v.  West.  U.  Tel.  Co.,  537,  695,  701, 

741. 
Memphis  v.  Postal  Tel.  Cable  Co.,  83,  84, 

867,   871. 
Memphis  Bell  Tel.   Co.  v.  Hunt,   131,  133, 

134.   136,  139,   143. 
Memphis  Consol.,  etc.,   Elec,   Co.  v.   Bell, 

242,   663. 
Memphis  Consol.  Gas.  etc.,  Co.  v.  Litson, 
228,  229,  231,  663. 
V.  Simpson,  277. 
V.   Speers,    243,    293. 
Memphis,    etc.,    R.    Co.    v.    Birmingham, 
etc.,  R.   Co.,   191. 
V.  Railroad  Com.,  145. 
V.  Reeves,   484. 
Memphis  St.  R.  Co.  v.  Kartright,  218,  235, 

257,    258,    264. 
Menacho  v.  Ward,  345,  347. 
Mentone   Irrigation  Co.    v.   Electric,    etc.. 

Power  Co.,  209. 
Mentzer   v.    West.    U.    Tel.    Co.,   604,    611, 

684,  755,   779,   780. 
Mercantile  Trust  Co.  v.  Atlantic,  etc.,  R. 

Co.,  72,  181,  183. 
Merchants'  Dispatch,   etc.,  Co.  v.  Moore, 

551. 
Merchants'   Mut.   Tel.   Co.   v.   Hirschman, 

223. 
Merchants'   Nat.  Bank  v.  Wheeling  First 

Nat.    Bank,   884. 
Merchants'    Police,    etc.,    Tel.   Co.   v.   Cit- 
izens'   Tel.    Co.,    81. 
Meridian  v.  W^est.  U.  Tel.  Co.,  72. 
Merrick  v.  Van  Santvoord,   175. 


Merrill  v.  American  Ex.  Co.,  540. 

v.  West.    U.    Tel.    Co.,    678,    737,    738, 
950      951. 
Merritt   v.  'Earle,    484. 

V.   Kinloch  Tel.  Co.,  213,  246. 
Meriwether  v.    Garrett.    850. 
Messenger  v.   Pa.   R.   Co.,   346. 
Metallic,    etc.,    Co.    v.    Fitchburg  R.    Co., 

613. 
Metropolitan  Electric  Supply  Co.  v.  Cin- 
der, 371. 
Metropolitan    Grain     &    Stock    Exch.    v. 

Chicago  Board  of  Trade,  355,   560. 
Metropolitan    Grain,    etc.,    Exch.    v.    Mu- 
tual U.  Tel.   Co.,  957. 
Metropolitan  St.   Ry.    Co.  v.   Gilbert,   235, 

257. 
Metropolitan    Tel.,    etc.,    Co.    v.    Colwell 

Lead  Co.,  114,  120. 
Metz    V.    Postal    Tel.    Cable    Co.,   236,    256, 

290. 
Mexican  National  R.   R.   Co.  v.  Jackson, 

503. 
Meyer  v.    Menominee,   etc.,   Tr.    Co.,    243, 
248. 
V.   Standard  Tel.  Co.,   132. 
Meyers  v.   Detroit,   etc.,   R.  R.,   261. 

V.  Hudson   County  Electric  Co.,  96. 
V.   Telephone    Co.,   825,    836. 
Michaels  v.   New  York,   etc.,  R.   Co.,   485. 
Michell  V.  West.  U.  Tel.  Co..  732. 
Michigan   City,   etc.,    Elec.    Co.   v.   Dibka, 

221,    274. 
Michigan   Tel.   Co.  v.  Benton  Harbor,   63, 
76,     78,     93,     94,    95. 
V.  Charlotte,    63,    97,   98,   310. 
V.   St.   Joseph,  49,  50,  51,  52,  93,  95. 
Mickelwait  v.  West.  U.  Tel.  Co.,  723,  728. 
Middle  Bridge  Corp.  v.   Marks,  175. 
Mlddleton  v.   West.  U.  Tel.  Co.,  691,   708, 

760,    765. 
Midland  Railway  v.  Bromley,  592. 
Miles   V.    Andrews,    900. 

V.  Postal  Tel.  Cable  Co.,  214,  223,  224. 
Miliani  v.  Tognini,  615. 
Miliken  v.   Pratt,   623. 
Millard  v.  Brown,   805. 
Millan  V.  West.  U.  Tel.  Co.,  405. 
Miller  v.   Butler,   566. 

V.  Centralia,  etc.,  P.  Co.,  289. 

V.  Detroit,    etc.,    R.    Co.,    132. 

V.  Ewer,   175. 

V.  Kansas   City,    etc.,   R.    Co.,   911. 

V.  Lewistown    Elec,     etc.,     Co.,     234, 

236,     276. 
V.  Light,  etc.,    Co.,   663. 
V.  Mariners'   Church,   451. 
V.  Nugent,  913,  928. 
V.  Ourav   Elec,    etc.,   Co.,   231. 
V.  Pulaski,    142. 
V.  Rutland,    etc.,    R.    Co.,   46. 
V.  Steam  Navigation  Co.,   482. 
V.  United  Ry.,   etc.,  Co.,   258. 
v.  West.    U.    Tel.    Co.,    400,    407,    429, 
432,   434,   452,   715. 
Miller-Brent  Lumber  Co.  v.   Stewart,   87. 
Milliken  v.    West.    U.    Tel.    Co.,   404,    405, 
432,  447,   599,   605,  609,   610,  613,  633,  638, 
639,    684. 
Milling  Co.    v.    West.    U.    Tel.   Co.,    686. 
Millington   v.   Loring,    752. 
Millor  V.   Spaterman,   126. 
Mills  V.  West.   I'.  Tel.  Co.,  595.  605,  727. 
Millville   Traction   Co.  v.   Goodwin.    294. 
Mims  v.  West.   T^.  Tel.    Co.,   387,  664,   066. 
Milne    v.    Providence    Tel.    Co.,    272,    274, 

283,   654. 
Milton  V.  Denver,  etc.,  R.  Co.,  483. 

V.  Hunter,    778. 
Milwaukee,  etc.,  R.  Co.  v.  Kellogg,  482. 
Miner  v.    Franklin   County   Tel.    Co.,    240, 

244,    273,    278,    281,    284,    292,    664. 
Minneapolis  General  Elec.  Co.  v.  Cronon, 
226,    228,    229,    239,    290,    291,    293. 
V.  Minneapolis,  342,  379. 


980 


CASES   CITED 
[The  figures  refer  to  pages] 


Minneapolis,    etc.,    Ry.    Co.    v.    Columbus 
Rolling-  Mill  Co.,   936. 
V.  Oppegard,    870. 
Minnesota  Canal  and  Power  Co.  v.  Pratt, 
75,     142,     165,    167,    200,     203,     209, 
210. 
V.   Koochiching-,   142,   200,   368. 
Minnesota  Land  Co.  v.  Hewitt  Inv.  Co., 
yi6. 

Minnesota    Linseed     Oil     Co.     v.     Collier 

White  Lead   Co.,   928,    929,   938,   945. 
Mississippi,   etc.,  R.  Co.  v.  Wai'd,   204. 
Missouri   v.    Bell   Tel.    Co.,   338,    361,    365, 
373. 
V.  Murphy,   98,    101. 
Missouri  Pac.   R.   Co.  v.   Breeding-,  590. 
V.  Heidenheimer,    893,    896,    900. 
V.  International,    etc.,   Co.,    499. 
v.  Riciimond,   812. 
V.   Sherwood,    499. 
V.  Texas,    etc.,    R.    Co.,    817. 
V.  Twiss,   595. 
V.  Wichita,  etc.,  Co.,  589. 
Missouri   River   Tel.    Co.   v.    Mitchell,    81, 

82,    295. 
Mitchell  V.    Abbott,   937. 

V.  Charleston,    etc..    Power    Co.,    236, 

23S. 
V.  Negaunee,    85,    86. 
V.  Power  Co.,   669. 
V.  Raleigh  Elcc.  Co.,  92,  238,  240,  242, 

247,    275,    666. 
V.  United  States  Coal,   etc.,   Co.,  284. 
V.  Wallace,  928. 

V.  West.  U.  Tel.  Co.,  83,  393,  452,  454, 
507,  593,  631,  669,  670,  715. 
Mitchiner  v.   West.  U.   Tel.   Co.,    452,   470, 

640,    715,    760,    762,    764,    768,    782. 
Mize  V.   Rocky  Mt.   Bell  Tel.   Co.,  92,   243, 
247,   250,   251,    252,   253,    255,  257,   267,   269, 
292,    646,    655,    664. 
Moberly    v.    Richmond    Tel.    Co.,    44,    83, 

331. 
Mobile   Elec.    Co.   v.    Sanges,    278,   279. 
Mobile,   etc.,    R.    Co.  v.   Copeland,   583. 
V.  Edwards,  890. 
V.  Hopkins,   495. 

V.  Postal  Tel.   Cable  Co.,  73,  140,  149, 
161,    163,    164,    167,    171,    173,    178, 
184,   186,    187,   194,   195,   196. 
V.  Weiner,  511. 
Moffat    V.    New    York   Edison    Company, 

368,    369,   378. 
Mogk  V.   New  York,   etc.,   Co.,   220. 
Monahan  v.   Miami  Tel.   Co.,   261. 
Mondon   v.    W^est.    U.    Tel.    Co.,    737,    738, 

950. 
Monds  V.  Dunn,  674. 

Monmouth    County    Electric   Co.   v.    Cen- 
tral R.   Co.,   22,   139. 
Monongahela    v.     Monongahela    Electric 

Light  Co.,  96. 
Monsees  v.  West.  U.  Tel.  Co.,  509,  650. 
Monson  v.    Lathrop,   566,   567. 
Montana  Postal  Tel.  Cable  Co.  v.  Oregon 
Shore  Line  R.  Co.,  140,  155,  159,  164,  196. 
Montclair  Light,  etc.,  Co.  v.  Montclair,  96. 
Montgomery  v.    Muskegon  Booming   Co., 
262. 
V.  Southwestern    Arkansas    Tel.    Co., 

375. 
V.  United   States,    879,   883. 
V.    West.   U.    Tel.   Co..    517,    845. 
Montgomery,    etc.,    R.    Co.    v.    Citizens' 
etc.,   Co.,  297. 
V.   Moore,   589. 
Montreal    v.    Standard    Light,    etc.,    Co., 

101. 
Montreal  Gas  Co.  v.  St.  Lawrence,  817. 
Mood  V.  West.  U.  Tel.   Co.,   635,  740,   951. 
Moody  V.  Leverich,  739. 
Mooney    v.    Luzerne,    219,    233,    238,    246, 

250. 
Moore  v.   Carolina,  etc.,  P.  Co.,  133. 
V.  Champlain  Electric  Co.,  368,  377. 


Moore  v.  East  Tennessee  Tel.  Co.,   219. 
V.  Eufaula,    62,    63,   313,   330. 
V.  Kendall,   571. 
V.  Mountcastle,   911. 
V.  Pierson,   945. 

V.  West.    U.    Tel.    Co.,    825,    826. 
Mooreland  Rural  Tel.  Co.  v.  Mouch,  348, 

353. 
Moran  v.  Corliss  Steam  Engine  Co.,  232, 
249,   281,   284. 
V.  New  Orleans  Ry.  &  Light  Co.,  92, 

247,  863. 
V.  Ross,  145. 
Morgan  v.  Louisiana,  46. 
V.  People,   883,   892. 
V.  Westmoreland   Elec.  Co.,   214,   242, 
632,    675. 
Morgridge  v.  Providence  Tel.   Co.,  288. 
Morhard  v.  Richmond  Elec,  etc.,  R.  Co., 

230. 
Morning    Journal    Ass'n    v.    Rutherford, 

812. 
Morrell  v.  Peck,  270. 
Morris  v.  Hermen,  923. 

V.  Missouri  Pac.  R.  Co.,  624. 
V.  West.  U.  Tel.  Co.,   563,  720. 
Morris  Canal,  etc.,  Co.  v.  Townsend,  176. 
Morris,    etc.,    Co.    v.     So.    Express    Co., 

870. 
Morrison  v.  Davis,  483. 

v.  American,   etc.,   Tel.   Co.,   147,  151. 

v.  West.    U.    Tel.    Co.,    765,    766,    771. 

Morristown  v.    East   Tennessee  Tel.  Co., 

43,   44,  77,   90,  295. 
Morrow  v.   W^est.   U.    Tel.    Co.,    609,    713, 

786. 
Morse  v.  Bellows,  937,  938. 

V.  Minneapolis,    etc.,    R.    Co.,    270. 
v.   Slue,    485. 
Morton  v.  West.  U.  Tel.  Co.,  788,  791. 
Moss  V.   Atkinson,   911. 
Mott  V.  Consumers'  Ice  Co.,  579. 

V.  West.  U.  Tel.  Co.,  410. 
Moulton   V.    Kershaw,    932.   936. 

V.   St.   Paul,   etc.,   R.   Co.,   496. 
Mount    Pleasant    Tel.    Co.    v.    Ohio,    etc., 

Tel.  Co.,  43. 
Mowry  v.  West.  U.  Tel.  Co.,  497,  510,  650, 

682,   700.   701,  725. 
Mulford   Co.    V.    Curry,   865. 
Mull  V.   Traction   Co.,   124. 
Mullen  V.  Otter  Tail  P.  Co.,   261,   268. 

V.  Wilkes-Barre  Elec.  Co.,  241,  248. 
Mulligan  v.   McCaffery,   276,   280,   285. 
Mullin  V.   Genesee,   etc..  Gas    Co.,   285. 
Mullinax  v.   Telephone  Co.,   652,  666,   755, 

777,    782,    783,   787. 
Munn  V.  Illinois.  318,   337,  860. 
Munroe  v.  Ley  &  Co.,  279. 

V.   Thomas,    47. 
Murphy  v.   Deane,    644. 
V.  Jack,   898,  906. 
V.  Pacific  Tel.,  etc.,  Co.,  280,  674. 
Murphy    Hardware    Co.    v.    Southern    R. 

Co.,    483. 
Murray  v.   Cowherd,  219,   225. 

V.  Flavell,   602. 
Muschamp  v.  Lancaster,  etc.,  R.  Co.,  583, 

586. 
Musgrove  v.  Vicksburg,  847. 
Muskogee   Nat.    Tel.   Co.   v.   Hall,    25,   59, 

184,    307. 
Musolf  V.   Duluth  Edison  Elec.   Co.,   232, 
•239,  242,  245,  252,   262,  265.  267,   270,  273, 
282,   2S3,   289,   290,   292,    662,   663. 
Musson  V.  Lake,   903. 

Mutual   U.   Tel.    Co.    v.    Chicago,   85,    129, 
130    328. 
V.  Katkamp,    151,    19S. 
Myer  v.  Union,  etc.,  P.  Co.,  242,    243,  249, 

291. 
iVIyers  v.  Union  Nat.  Bank,  942. 


CASES   CITED 
[The  figures  refer  to  pages] 


981 


Myhan  v.  Louisiana  Elec,   etc.,  Co.,   276, 

2S1,    64.5.  p 

Mynard  v.  Syracuse,  etc.,  R.  Co.,  49o. 

N 

Nachand  v.   Cumberland   Tel.,    etc.,    Co., 

Nacogdoches  T.ight,  etc.,  Co.  v.  Richard- 
son, 368. 

V.  Thomas,    372. 
Nagle  V.  Hake.  256    .654.  „     ^„      40 

Naglee   v.    Alexandria,    etc.,    R.    Co.,    is, 

49 
Nall'ey  v.  Hartford,   etc.,  Co.,  270. 
Nash  V.   Kreling,  S33. 

V.  Lowry,   145. 
Nashville,   etc.,  R.  Co.  v.  David,   482. 

V.  Estes,    485,   486. 

V.  King,   482. 

V.  Sprayberry,  402. 
National    Bank   v.    Nat.    L,.    Bank,    918, 

921  T-. 

National  Elect.  Signaling  Co.  v.  De  For- 

Nationa'l    Fire   Ins.    Co.    v.    Denver,    etc., 

Co.,  229,  293.  ^     ^ 

National  Foundry  Works  v.  Oconto  Wa- 
ter Co.,  49.  ^   , 
National  Tel.,  etc.,  Co.  v.  Baker,  15. 
V.  Denver,  223. 
v.  Griffin,   342. 
Neal  V.  Northern,  etc.,  R.  Co.,  286. 
V.   Saundeison,   483. 
V.  Wilmington,  etc.,  Ry.  Co.,  220,  253. 
Nebraska  Tel.   Co.  v.   Jones,  219. 

V    I.incohi,    44,    83,    329.    330.    864,    867. 

V.  State,   32,  318,   342,  352^  384 

V.  Western   Ind.,    etc.,    Tel.    Co.,    76, 

124. 
V.  West.  U.   Tel.   Co.,   168. 
V.  York  Gas,  etc.,  L.  Co.,  296,  302. 
Neet  V.   Telephone  Co..   843. 
Nelson  v.  Boynton.   881. 

V.  Branford,    etc.,    Co.,    241,    243,    293. 
Nesom  v.  Jackson,   885. 
Neuert  v.   Boston,   234. 
Neufville   v.    Stuart,    915. 
New  Brunswick,    etc..   Co.   v.    Tiers.    482. 
Newburg  Petroleum  Co.  v.  Weare,  175. 
New    Castle   v.    Central   Dist.,    etc.,    Tel. 

Co.,    93. 
Newcomb  v.  De  Roose,  939. 
New    England    Tel.,    etc.,    Co.    v.    Moore, 
237,   239,   253,   260,   282,   292. 
v.  Fleming,    269,    270. 
Newark,    Elec.    etc.,  Co.   v.  Garden,   239, 
240.   282.   2S3.   290,   292,   297. 
v.  McGilvery,    235. 
v.  Ruddy,   255,   260,   264,   646. 
New  Hope  v.  West.  U.  Tel.  Co.,  329,  866, 

867. 
Newman  v.  West.   U.  Tel.  Co.,   791. 
Newnom  v.  Southwestern,  etc.,  Tel.  Co., 

277. 
New  Omaha,   etc.,   Lt.  'Co.  v.  Anderson, 
242,    268,   291. 
v.  Baldwin,  286. 
V.  Dent.   242. 
V.  Johnson,   220. 
v.  Rombold,    284. 
New    Orleans    v.    Great    Southern    Tel., 
etc.,   Co.,  63,   78,   85,  318,   329,   860, 
861. 
v.  Kaufman,  852. 
New  Orleans  Bank  v.  West.  U.  Tel.  Co., 

605. 
New  Orleans,  etc.,   Rd.  Co.  v.  Gray,  1S<. 
V.  Hurst.  638. 
V.  Rabasse,    191. 
V.  Schneider,   817. 
V.  Statham,    804,    808. 


New  Orleans,    etc,   Rd.   Co.   v.    Southern, 

etc.,    Tel.   Co.,    8,    70,    140.    155.   164 
New    Orleans,     etc.,     Tel.    Co.    v.    Great 

Southern,    etc..    Tel.    Co..    80. 
New  Orleans  Gaslight  Co.  v.  Hart,  98. 
Newport    111.    Co.    v.    Newport    Tax    As- 
sessors, 23,  849.  ^  ^   ._ 
Newport    News,    etc.,    R.    Co.    v.    Griftin, 

763,    820. 
News  Co.  V.  Meine,  125 
Newsome  v.  West.   U.  Tel.  Co.,  402,  537, 

672,    683.    688,    695.   716. 
Newton  v.  Alabama,  etc..  R.  Co.,  191. 
New  York  v.  New  York  City  Ry.,  sbb. 
V.   Second  Ave.   R.   Co.,  860. 
V.   Squire.   310,    312. 
New  York  Central,   etc..   R.   Co.  v.  Met- 

ronolitan  Gas  Light   Co.,   172. 
New  York,  etc.,  Ins.  Co.  v.  Allison,  24. 
New    York.    etc..    R.    Co.    v.    Central    U. 
Tel    Co.,   160.  163,   164.   168.  172. 
V.  Electric  Co.,  73,   93,  202,  261. 
v.  Kip,  169. 
V.  Schuyler.    806. 
V.  Tax  Commissioners,   868. 
v.  Young,   176. 
v.  West.   U.   Tel.   Co.,  22. 
New    York,    etc..    Printing    Tel.    Co.    v. 
Drvburff.  26.  443.  445.  452.  548,  579,  597, 
605.   606.  610,   614.  619,  628,   945. 
New  York,  etc.,  Tel.  Co.  v.  Bennett,  214, 
235,    238,    243,    244,    250,    255,    2a7, 
265. 
V.  Bound  Brook,  9,  93,  95. 
v.  Dexheimer.    294. 
V    Siegel-Cooper  Co.,  330,  351,  354. 
V.  Spelcher,   281.  _  ^^    ^. 

V.  Township  of  East  Orange,   79,   85, 
93     328. 
New  York  Rubber  Co.  v.  Rothery,  821. 
Nicholas  V.  New  York,   etc.,   R.  Co.,   498. 
Nichols  V.   Hubbard,   58. 

V.   Minneapolis,      217,     218,     219,     235, 


Nicholsen   v.    Dover,    911.       _  ,     ^        „., 
NicoU    v.    New    York,    etc.,    Tel.    Co.,    71, 

114.   116,    143,   168,    197. 
Nickerson   v.    Spindell,    884,    886. 
Nitka  V.  West.  U.  Tel.  Co.,  7*6,   802,  818. 
Nolan    V.     Central    Georgia    Power    Co., 
142,    209. 
V.  Newton,  674. 
Nordstrom    v.     Spokane,     etc.,     K.     CO., 

2T8.  „ 

Norfolk,    etc.,    R.    Co.    v.    Pennsylvania, 
763. 
V.  Wysor,    638. 
Norfolk,    etc.,   Tr.    Co.   v.   Daily,   217,   228, 
252,    641,    654,    663.  ^^     ^,, 

Norman   v.    West.    U.    Tel.    Co.,   410,   411, 

415,    416,    417.  ^   ^^ 

Norman    Milling,    etc.,    Co.    v.    Bethurem, 

131,    134.    136. 
North  V.    Mendel,   936. 
North  Arkansas  Tel.   Co.   v.   Peters,   260, 

''69 
North  Atchison  Bank  v.  Garretson,   624, 

942 
North    Missouri,    etc.,     Co.    v.    Maguire, 

North    Packing,    etc.,    Co.    v.    West.    U. 

Tel.    CO.,    506,    510,    511,    622,    943. 
Northern,    etc.,    Co.    v.    Iowa,    etc.,    Co., 

297. 
Northern    Light,     etc.,     Co.    V.     Stacher, 

Northern  'Pacific   R.   Co.   v.    Murray,   170. 

V.  Smith,   170.  ^  t         i. 

Northwestern   M.    L.   Ins.    Co.   v.   Joseph, 

945 
Northwestern   Tel.   Exch.   Co.  y.   Ander- 
son,   43,    44,    294,    318,    327,    328. 


982 


CASES   CITED 
[Ttie  figures  refer  to  pages] 


Northwestern  Tel.  Exch.  Co.   v.   Chicago, 
etc.,   R.   Co.,  6,  7,  9,  10,   15,   IS,   63. 
71,    141.   159,    164,   167,    199. 
V.  Minneapolis,    76,    97,    103,   327. 
V.  St.    Charles,    81. 
V.  Twin    City    Tel.    Co.,    295,    297. 
Norris   v.    Blair,   912. 
V.   Litchfield,    644. 
Norton    v.    Sewall,    615. 
Norwood  Borough   v.   West.   U.   Tel.   Co., 

79. 
Noves  V.   Phoenix  Mut.  L,.  I.   Co.,   945. 
Nusbaum  v.   West.   U.   Tel.   Co.,   448,   455, 

717. 
Nye  V.   West.   U.   Tel.    Co.,   384,   385,   566, 
567. 


o 


Oakland     R.     R.     Co.     v.     Oakland,     etc., 

Co.,    40. 
Oakman   v.   Rogers,   913. 
Obermann    Brewing    Co.    v.    Adams,    897. 
O'Brien   v.    Tel.    Co.,    50. 

V.  White    &    Co.,    288. 
Ochs  V.   Public   Service   R.   Co.,    266. 
O'Conner   v.    Nova    Scotia   Tel.    Co.,    131. 
O'Donnel    v.     Louisville    Elec.     Lt.     Co., 

276. 
O'Donnell    v.    News    Co.,    915. 
O'Donolioe  v.  Wiley,  945. 
'»•  Flaherty  v.   Nassau  Elec.    R.    Co.,    230, 

264. 
O'Gara    v.    Philadelphia    Elec.    Co.,     243. 
Ogden  City  v.   Crossman,  330,  867. 
Ogilvie    V.    West.    U.    Tel.    Co.,    639,    641, 

648,    662,    663,    756,    763,    780. 
O'Hare   v.    Railroad  Co.,    179. 
Ohio,   etc.,   Rd.    Co.  v.  Applewhite,  397. 
Ohio   Life    Ins.,    etc.,    Co.    v.    Merchants' 

Ins.,   etc.,    Co.,   175. 
Ohrstrom   v.    Tacoma,    228,   654,    663,    675. 
Old   Colony  R.    Co.   v.   Tripp,    461. 
Old    Colony    Trust    Co.    v.    Wichita,    43, 

45,    85. 
Olds  v.    East   Tenn.,    etc.,    Co.,    932. 
O'Leary  v.   Glens  Falls,   etc.,   Elec,   etc., 

Co.,    245. 
Olson  V.    Nebraska  Tel.   Co.,    252,    281. 

V.  Sharpless.    915. 
Omaha    v.    Flood,    57,    128. 
O'Neil  V.    Crain.   912. 

V.  Lamb,    145. 
Oregon,    etc.,  R.   Co.  v.   Postal  Tel.,   etc., 

Co.,    163,    166,    172,    191,    196. 
Oregon    Steamship   Co.    v.    Otis,   874,    875, 

878,    883,    887. 
Oregonian   R.    Co.   v.   Oregon   R.    &   Nav. 

Co.,   49. 
Orr  V.    Bank   of   the   United   States,    806. 

V.  Tel.    Co.,    284. 
Osborne    v.    Auburn    Tel.    Co.,    114,    132, 
136. 
V.  Mobile,    859. 
V.  State,   313,    853,   856. 
V.  West.    U.    Tel.    Co.,    824. 
Oskamp   v.    Gadsden,    893,    902. 
Ottawa  V.    Sweely,    819. 
Oury    V.    Goodwin,    140. 
Ovenston   v.    Wilson,    876. 
Owen  V.    Portage   Tel.   Co.,    217,   226,    262, 

263,    666. 
Owensboro  v.  Knox,  244,  246,  673. 
Owensboro  Gas  Light  Co.  v.  Hildebrand, 

368,    369. 
Owensboro-Harrison    Tel.     Co.     v.     Wis- 
dom,  346,    352,    375,    376. 


Pacific    Mut.    Tel.    Co.    v.    Chicago,    etc.. 

Bridge    Co.,    61,    77,    186,    202. 
Pacific    Pine    Lumber    Co.    v.    West.    U. 

Tsl.    Co.,    614,    634,    688. 


Pacific  Postal  Tel.   Cable  Co.  v.  Fleisch- 
ner,    534,    655,    G76,    680,    703,    745. 
V.  Irvine,    115,    120,    142. 
V.  Oregon,    etc.,    R.    Co.,    163,    170. 
V.   Palo     Alto     Bank,     576,     577,     579, 

580,    581,    582,    606.    610. 
V.  West.    U.    Tel.    Co.,    70,    181,    182. 
Pacific    Tel.,    etc.,    Co.    v.    Anderson,   361, 
362. 
V.  Eshlem.an,    312,    334,    362,    363. 
V.  Parmemter,    225. 

V.  I'nderwood,    25,    520,    522,    523,    535. 
V.  Wright-Dickinson    Hotel    Co  ,    362. 
Packard    v.     Taylor,    482,    484. 
Packing    Co.    v.    Illuminating    Co.,    343. 
Paducah  Lt.,    etc.,    Co.   v.   Parkman,   232, 

250,    251. 
Paducah    Lumber   Co.    v.    Paducah,    etc., 

Co.,    603. 
Paducah    R.,    etc.,    Co.    v.    Bell,    284. 
Paine  v.   Electric  111.,    etc.,  Co.,   250,    252, 
275,    282,    673. 
V.   Tillinghost,    910 
Painter   v.    West.    U.    Tel.    Co.,    400,    808. 
Palestine   v.    Slier,    86,    213,    232,    239,    245, 

246,    292. 
Palmer  v.   Larchmont  Elec.   Co.,   92,   130, 
141,    200. 
V.  Marquett,    etc.,    Co.,    936. 
y.  M.    P.    Rolling   Mill   Co.,    913. 
Pan   Handle   Tel.    Co.    v.    Amarillo,    5. 
Panhandle,   etc.,   Tel.   Co.   v.   Harris,   256. 
Park  V.  Detroit  Free   Press  Co.,   567. 
V.  Telephone    Co.,    640. 
V.  Wbitnev,    938. 
Parker  v.   Flagg,    482,    826,    827. 
Parkinson    v.    State,    827. 
Parks    V.    Atla    California    Tel.    Co.,    25, 

27,    680,   682,   693,   703,   745. 
Parmelee    v.     Tri-State,     etc.,     Tel.     Co., 

237. 
Paris  V.  Johnson,  915. 
Paris  Elec.   L.   Co.  v.  Southwestern  Tel.» 

etc.,    Co.,    296. 
Parsons    v.    Charleston    Cons.    Elec.    Ry. 
Co.,     232,     234,    236,    237,    240,    243,    249, 
250,    253,    257,    664. 
Passmore   v.    West.   U.   Tel.   Co.,    26,  505, 

542. 
Pate  V.   Wright,   572. 
Paterson,    etc.,    Elec,    Co.    v.    Board    of 

Assessors,    864. 
Paterson  Ry.    Co.   v.    Grundy,   124. 
Patton   V.    Chattanooga,    111. 
Patrick  v.   Bowman,  927,   945. 
Paul  V.  West.   U.   Tel.   Co.,  521. 
Payne    v.    Witherbee,    Sherman    &    Co., 

377. 
Pearce   v.    The   Thomas  Newton,    482. 
Pearsall   v.    TVest.    U.    Tel.    Co.,    393,    400, 
401,    403,    444,     445,    497,    542.    551,    552, 
556,    647,    651,    689,    701,    725.    726. 
Peavey    v.    Railroad    Co.,    179. 
Peay  v.  West.   U.  Tel.  Co.,   790,  795. 
Peck   V.    Chicago,    etc.,    R.    Co.,    315. 
Peck  v.   Indianapolis  Heat  Co.,   324. 
V.  Newburgh,    etc.,   P.    Co.,    124. 
V.  Smith,    116. 
V.  Vandemark,   915. 
Peddicord    v.     Baltimore,     etc.,     R.    Co.,^ 

105. 
Peebles    v.    Patapsco    Guano    Co.,    806. 
Peet  V.    Dougherty,   903. 
Pegram    v.    West.    U.    Tel.    Co.,    398,    463, 
498,     500,    597,     605,    620,    621,    689,    727, 
884,     946,    949,     950. 
Pelham   v.    Pelham    Tel.    Co.,    81,    82. 
Peninsula     Tel.     Co.     v.    McCaskill,     223, 

226,    228,    234,    263. 
Penn  v.   West.  U.   Tel.   Co.,  &16,  517,  528, 
538,    547,     549,     550,     596,    605,    612,    618,. 
684,   707,   755. 


CASES   CITED 
[The  figures  refer  to  pages] 


983 


Pennebaker    v.     San    Joaquin,     etc.,     P. 

Co.,    221,    243,    268,    270,    272,    291,    922. 
Pennington    v.    West.    U.    Tel.    Co.,    679, 

723. 
Pensacola     v.     Southern     Bell     Tel.     Co., 

330,    867. 
Pensacola    Tel.     Co.     v.     West.     U.     Tel. 
Co.,    60,    61,    62,    63,    65,    69,   71,    155,    184, 
848,    854,    863. 
Pennsylvania    v.    Wheeling    Bridge    Co., 

204. 
Pennsylvania     etc.,      Ins.      Co.      v.      Me- 
chanics',   etc.,    Co.,    624. 
Pennsylvania    R.    R.    Co.    v.    Lilly    Bor- 
ough,   183. 
v.  St.   Louis,   etc.,    R.    Co.,    46,    47. 
Pennsylvania    Tel.     Co.     v.     Hoover,     15, 
170. 
V.  Varnau,     214,     260,     263,     270,     271, 
294.    658. 
People  V.   Albany,  etc.,  R.  Co.,   46. 
V.  Assor.,    851. 
V.  Breen,    566. 
V.  Budd,    318,    319,    320. 
V.  Central    N.    Y.    Tel.    Co.,    362,    373. 
V.   Central    IT.    Tel.    Co.,  .42,    43,    44. 
V.  Chicago  Tel.   Co.,   40,  42,  43,  44,  77. 
V.  Chicago   Trust   Co.,    47. 
V.  Dolan,    850,    857,    858. 
V.  Eaton,    104,    111,    112,    145,    849. 
.  V.  Gold,    etc.,    Tel.    Co.,    849,    856,    868. 
V.  Hall,    850,    868. 

V.  Hammond,    875,    876,    879,    880,    886. 
V.  Hudson    River    Tel.    Co.,    338,    360, 

3G1,    365,    373,  378,   477,   478. 
V.   Lambert,    881. 

V.  Manhattan    Gaslight   Co.,    350,   358. 
v.  J.JcKane,   S94,   895,   899. 
v.  Metropolitan    Tel.,    etc.,    XJo.,    129, 

130. 
V.  New   York   Tax,   etc.,    Com'rs,   849. 
V.  Sohmer,    864. 
V.  Squire,   63,  90,  98,  99,  100,   102,  120. 

310,    311. 
V.  Strollo,    894,    899. 
V.  Supervisors     of     Oneida     County, 

105. 
V.  Tierney,    857. 
V.   Thompson,    130,    141,   200. 
V.  Todd,   562. 

V.  Transit    Development    Co.,    124. 
V.  Vanderbilt,    204; 
V.  Village   of    Brighton,    186. 
V.  Wabash,    etc.,   R.   Co.,   345. 
V.  Wade,   562. 
V.  Ward,   893,    894. 
V.  Webb,    918. 
V.  Wemple,   212. 
V.  West.    U.    Tel.    Co.,    342,    387,    388, 

462,    478,    841. 
V.    Willox,    21,    334. 
V.  Wirsching,   562. 
V.  Woodberrv,    868. 
V.  Zundel,    871. 
People's  Land,  etc.,  Co.  v.  Beyer,  297. 
People's    Tel.,    etc.,    Co.    v.    Berks,    etc.. 
Turnpike    Road,    15,    73,    76,    141, 
199. 
V.  Gainesville,  73,  97. 
Peoria  Gen.    Elec.    Co.   v.   Gallagher,    279. 
Peoria    Waterworks    Co.    v.    Peoria    Rv 

Co.,   305,  306. 
Pepper    v.    West.    U.    Tel.    Co.,    403     452 
495,    507,    514,     536,     597,    611,    620,     62l' 
682,   69_3,   698,  700,  705,  706,  733,  936,  946 
94  9,    9.3O. 
Percy   Summer  Club  v.   Astle,    191. 
Perham    v.   Portland  Gen.   Elec.    Co     23'' 

239,    240,    241,    291,    646,    664,    669 
Perkins  v.   Portland,   etc.,   R.,  586. 
Perry   v.    Dickerson,    739. 

V.  German  American  Bank,   874,   875. 


Perry  v.  Mt.  Hope  Ins.  Co.,   624,  933,  939, 
944,    945. 
v.  New   Orleans,   etc.,   R.  Co.,   127 
V.  Ohio    Valley    R.    Co.,    288     293 

Persall  v.  West.  U.  Tel.  Co.,  416. 

Peters ^v.    Lynchburg:    Light,     etc.,     Co., 

Petersen   v.    Case,    589. 

V.  Chicago,    etc.,  R.   Co.,   591. 
V.  West.    U.    Tel.    Co.,    385,    565,    566, 
567,   811,   812,  817. 
Petty  V.    Telephone  Co.,   662 
Petze  V.  West.    U.  Tel.   Co.,  832, 
Phelps  V.  StiUings,  912. 

V.  Winona,    etc.,    R.    Co.,    271. 
Phenix  Ins.    Co.   v.    Schultz,    933,    935. 
Philadelphia   v.    Atlantic,    etc.,    Tel.    Co., 
329. 
V.  Postal     Tel.     Cable     Co.,     83,     159, 

329,    866. 
V.  West.    U.    Tel.   Co.,    46,    50,   52,    92, 
93,   329. 
Philadelphia    BeU    Tel.    Co.    v.    Common- 
wealth,   361. 
Philadelphia,    etc.,    R.    Co.    v.    Anderson, 
265. 
V.  Hoefich,    808. 
V.  Pennsylvania,   863. 
V.  Quigley,    812. 

V.  Wilmington,    etc.,    R.    Co.,    261. 
Philadelphia   Fire    Assoc,    v.    New    York, 

317. 
Philadelphia,      etc..      Steamship      Co.     v. 

Pennsylvania,    863. 
Philbin    v.    Marborough    Elec.    Co.,    240, 

Phillips  V.  Denver,   90. 
V.  Hoyle,    753. 
V.  N.    C.    Co.,    586. 
V.  Postal  Tel.  Cable  Co.,  65,  155,  156, 

157. 
V.  Southwestern    Tel.,    etc.,    'Co.,    824. 
V.  We.st.    U.    Tel.    Co.,    517,    530,    531, 
683,    773,    783. 
Philipson  v.   Bates,    885,   888. 
PhcBnix  V.    Gannon,    145. 
Phoenix    Lt.,    etc.,    Co.    v.    Bennett,    223, 

2:0,    228,    232,    239. 
Pickard  v.  Pullman,   etc..   Car  Co.,  863. 
I'iedmont  Elec.   111.   Co.   v.  Patterson,   277. 
Pierce  v.  Drew,  62,  104,  111,  112,  113,  120, 
138,    140,    143. 
V.  Emery,    47,    49. 
v.  Gas,    etc.,    Co.,    274,    663,    670. 
V.  United,   etc.,  Elec.  Co.,  238,  250. 
Pierson   v.    West.    U.    Tel.    Co.,    707,    709, 

783,   790. 
Pinckney    v.    West.    U.    Tel.    Co.,    26,    28, 
29,   31,   399,    401,    402,    443,    446.    542,   605, 
697. 
Piollet  V.  Simmers,  271. 
Pioneer   Tel.,   etc.,   Co.   v.    Grant  ^County 
Tel.    Co.,    362. 
V.  State,    334,    362. 
V.  Westenhaver,    318,    324. 
Pitlock  V.   Wells,   588. 
Pittock  V.   Central,   etc.,   Tel.  Co.,   157. 
Pittsburg,     etc.,     R.     Co.     v.     Allegheny 
County,    46. 
V.  Hazen,    489. 
V.  Higgs.    263. 
V.  Listen,   176,    200,   209. 
V.  Lyon,   461. 
V.  Nuzum,    397. 
V.  Slusser,  809. 
V.    State,    852. 
Pixley  V.  Boynton,  562. 
Plaisted  v.    Palmer,   571. 
Plant   V.    Tel.    Co.,   622. 
Planter's  Cotton  Oil  Co.  v.  West.  U.  Tel 

Co.,   387,   389,    539,   S93,   896.    SUS. 
Plattsburg  v.  People's  Tel.   Co.,  83. 


984 


CAST3S   CITED 
[The  figures  refer  to  pages] 


Plattsmouth    v.    Nebraska    Tel.    Co.,    45, 

77,    90,    91. 
Playford    v.     United     Kingdom    Electric 

Tel.  Co.,  26,  596,  602,  618. 
Plumley  v.   Birge,   618. 
Poe   V.    West.    U.    Tel.    Co.,    668,    783. 
Poel  V.   Brunswick,  etc.,  Co.,  915. 
Point    Pleasant    Electric    Light    Co.    v. 

Bayhead,   96. 
Polito  V.   Pitriello,   255. 
Politowitz  V.   Citizens'   Tel.   Co.,   212,   213, 

235,    238,    243.    244. 
Pollard   V.    Mo.,    etc.,    Tel.    Co.,    824,    826, 

827,    837. 
Pomeroy  v.  Boston,  etc.,  R.   Co.,   259. 
Pomona  v.    Tel.    Co.,   IS,  77. 
Poor  V.  Madison  River  P.  Co.,  276. 
Pope  V.   Lewis,   847. 

V.  West.    U.    Tel.    Co.,    395,    404,    40S. 
410,    429,    430,    451,    639,    647,    693, 
704. 
Porter   v.    Patterson,   915. 

V.  Thom,    903. 
Portland  v.  New  England  Tel.,  etc.,   Co., 
S50. 
V.  West.   U.    Tel.   Co.,   91,  955,  956. 
Portsmouth,    etc.,    Ry.    Co.    v.    Forsaith, 

345. 
Posey   V.    North    Birmingham,    86. 
Post  V.   Davis,   915,   928,   933. 
V.  Light,  etc.,   Co.,   130.  131. 
V.  Suffolk,   etc.,   Co.,   201. 
Postal   Tel.    Cable   Co.   v.   Adams,    62,    64, 
849,    855,    856,    861. 
V.  Akron  Cereal  Co..  452,  620,  715. 
Iv,  Alabama,    etc.,    R.    Co.,    167,    192, 

196. 
V.  Barv/ise,    537,    680,     686,     6S7,    690, 

717,    724,    741,    950,    951,    952. 
V.  Baltimore,   65,   83,  330,  866,  867. 
V.  Beal,    707,    70S,    711,   714. 
V.  Bruen,,  126,    198. 
V.  Charleston,    62,    79,     851,    859,    860, 

864,    S66,    867. 
V.  Chicago,  etc.,   R.  Co.,  142,  163,  166, 

303. 
V.  Chicopee.    79.    80,    83,    98,    309,   324, 

330. 
V.  City   of   Cordele,    856. 
V.  Cleveland,    etc.,    R.    Co.,    71,    170, 

175,   191. 
V.  Coote,    215,    277,    287. 
V.  Crook,    724. 
y.  Cumberland    Tel.,     etc.,    Co.,    346, 

.348. 
V.  Eaton,    114,   127,    138,    197. 
V.  Farmville,  etc.,  R.  Co.,  73,  74,  163, 

172. 
V.  Fleischner,    537. 
V.  Ford,    607,    60S. 
V.  Grantham,    284. 
V.  Jones,    212,    213,    218,    225,    235,    237, 

244,    260.    262,    264,   265,    269,    270. 
V.  Kelly,   225,   672. 
V.  Lathrop,     398,     536,     537,    670,     675, 

687,    693,    695,   698,    699,    704,   705. 
V.  Levy,    609,    610,    692,    706. 
V.  Likes,   247,    282,    284,    287,    289. 
V.  Louisiana,    etc.,    R.    Co.,    75,    161, 

166. 
V.  Louisville  Cotton  Oil  Co.,   405,  536, 

691.    C98.    945. 
V.  Louisville,    etc.,    R.    Co.,    191,    194, 

196. 
V.  Mayor,    858,    868. 
V.  Mobile,    307,    867,    871. 
V.  Mobile,   etc.,   R.  Co.,   166. 
V.  Morgan's    Louisiana,    etc.,    R.    Co., 

62,  71,   73,   74,    143,   154,  166,   194. 
V.  Moss,    516,    527,    531. 
V.  New   Hope,    84,    867. 
V.  Newport,    45,    65,    81,    330,   867. 


Postal    Tel.    Cable    Co.    v.    Nichols,    409, 
497,     507,     519,    524,     525,     542,     650, 
681,   703,   719,   737. 
V.  Norfolk,    etc.,    R.    Co.,    72,    74,    79, 

124,    143,    154,   160. 
V.  Oregon    Short    Line    R.    Co.,    142, 
143,    160,    163,    164,    168,    171,    172, 
1T3,     177,    178,     179,    186,    187,    188, 
1S9,   191,   193,   194,    196. 
V.  Pevton,    151,    198. 
V.  Pratt,    404,    430,    665,   708,    711,    777, 

782,    786. 
V.  Railroad  Co.,  163. 
v.  Rhett,  692,   719,   722. 
v.  Richmond,    307,    329,    848,    851,    855, 

856,  867. 
V.  Robertson,  501,  536,  650,  698. 
V.   Schaefer,    451,    452,    506,    597,    715, 

727,  72S,  733. 
V.  Shannon,  824. 
V.   Southern  R.  Co.,  67,  71,  73,  75,  154, 

168,  169,  172,   1S8,  189. 
V.  State,  832. 
v.  Sunset  Construction  Co.,   434,  507, 

651,  681,    692,   728. 
V.  Talerico,    703,    726. 
V.  Taylor,  84,  867. 
V.   Terrell,   760,    762,    764,    772. 
V.  Texas,  etc.,  R.  Co.,  188. 
V.   Traders   State  Bank,   577,   578,   579. 
V.  Wells,    34,    497,    506,    536,    537,    605, 

695,  697,   698. 
V.  Worcester,    98. 
V.  Zopfl,    214. 
Poteet  V.  West.  U.  Tel.  Co.,  28,  397,  409, 

410,  609,   616,   683,   761,   796. 
Potera  v.    Brookhaven,    237,   260. 
Potter  V.    The   Majestic,   503. 

V.   Springfield    Milling    Co.,    910. 
V.  West.    U.    Tel.    Co.,    432,    648,    649, 
664,   665,   776,  779,   781,    817. 
Potts    V.    Shreveport,    etc.,    R.    Co.,    221, 
232,   239. 
V.  West.  U.  Tel.  Co.,  710,  711,  714. 
V.  Whitehead,    945. 
Potulni   V.    Saunders,    579. 
Potwin  Place  v.  Topeka  R.  Co.,  628. 
Poulnot    V.   West.    U.    Tel.    Co.,    401,    648, 

665,  807. 
Poulsen  V.  Nassau  Elec.  Ry.  Co.,   259. 
Poumeroule    v.    Postal    Cable    Tel.    Co., 

220,   221,  265. 
Powell  V.   Brunner,   880. 
Power  Co.  v.  Toronto,  96. 
Powers   V,    Independent   Long  Dist.   Tel. 

Co.,   226. 
Prather    v.    Jeffersonville,    etc.,    R.    Co., 
155,   461. 
V.  West.  U.  Tel.  Co.,  140. 
V.  Wilkins,    886. 
Preble  v.  Abrahams,  916. 
Presbyterian  Church  v.   New  York  City, 

311. 
Presley  v.  Kinlock  Tel.  Co.,  247. 
Press  Pub.   Co.  v.  Monroe,  805. 
Previsich  v.  Butte,  etc.,  R.  Co.,  259. 
Prewitt  v.  Southwestern  Tel.   Co.,   821. 
Price  v.  Easton,  567,   601. 
Prijrose  v.   West.   U.    Tel.    Co.,    517. 
Primrose    v.    West.    U.    Tel.    Co.,    26,    29, 
384,  401,  463,  505,  537,  542,  649,   680,   695. 
Prince    v.    Lowell    Elec.    Lt.    Corp.,    200, 

274,   674. 
Pritchard  v.  Edison  Elec.  111.  Co.,  124. 
Propeller  Tow  Boat  Co.  v.  West.  U.  Tel. 

Co.,   599. 
Prosser  v.  Henderson,  945. 
Providence -Washington  Ins.  Co.  v.  West. 
U.   Tel.    Co.,   29,    393,    401,    642,   666,   681, 
6S9,    700,    705,    723. 
Public    ."Service    Commission    v.    Pacific,. 
etc.,  L.  Co.,  370,  372. 
V.  Westfield,  44. 


CASES   CITED 

[The  figures  refer  to  pages] 


985 


Public  Service  Elec.  Co.  v.  Public  Utility 

Com.,   368. 
Pugh  V.    City,    etc.,    Tel.   Ass'n,   341,    342, 

3r,7,   457,    462,   466,   477,   478. 
Pullman  v.  Cincinnati,  etc.,  R.  Co.,  48. 
Pullman  Palace  Car  Co.  v.  Pennsylvania, 

855,    858. 
Purcell  V.  St.  Paul  City  R.  Co.,  798. 
Purdom    Naval    Stores    Co.    v.    West.    U. 

Tel.    Co.,   510,   599,   6^5,   719,   725,  954. 


Queen  v.   Peters,    653. 
Queen  City  Tel.  Co.  v.  Cincinnati,  98. 
Quill  V.  Bmnire   State,  etc.,  Co.,   222. 
Ouimby  v.   Boston,   etc.,   R.   Co.,   498. 
Quincy,   etc.,    Elec.    Co.  v.    Bauman,    234, 
272. 

R 

Raab  v.  Hudson  River  Tel.  Co.,  277,  281. 
Ragan  v.  Aiken,  46,  347. 
Raiford  v.  West.   U.   Tel.   Co..   755. 
Railroad    Commissioners    v.    Cumberland 
Tel.  Co.    324. 
V.  West.  U.'Tel.  Co.,  316.  318,  334. 
Railroad  Company  v.  Railroad  Co.,  184. 
Raines  v.  East  Tennessee  Tel.  Co.,  220. 
Rambo  v.  Empire,  etc.,  Elec.  Co.,  242. 
Ramey  v.   West.  U.   Tel.  Co.,   808. 
Ramsdale   v.    Horton.    603. 
Randall  v.  Ahearn,  274. 
V.  Electric  Co.,    273. 
V.  Northwestern    Tel.    Co.,    265,    271, 

272,   658. 
V.  West.  U.   Tel.  Co.,   712,  785,   786. 
Rasmussen  v.  Wisconsin,  etc.,  Co.,  256. 
Ratterman  v.  West.  U.   Tel.  Co.,   62,  849, 

856,  863,  864.  869. 
Ravenswood  Bank  v.   Reneker,   942. 
Raymond  v.   Strickland,   24. 
Read  v.  City,    etc.,   R.   Co.,   236,   237,   253. 

V.   Spaulding,  482,   484,  485. 
Readfleld,    etc.,    Tel.    Co.    v.    Cyr,    23. 
Readman  v.   Conway,   271. 
Reagan  v.  Boston  Elec.  Lt.  Co.,  241,  293. 

V.  Mercantile   Trust   Co.,    S70. 
Realty,  etc.,  Co.  v.  Tel.,  etc.,  Co.,  269. 
Rector  Prov.    Co.    v.    Sauer,    936. 
Redington  v.  Pacific  Postal  Tel.  Co.,  650. 
Red    Line    Mutual    Tel.    Co.    v.    Pharris, 

349. 
Redpath   v.    West.    U.    Tel.    Co.,    35,    497, 

498,   505,   541. 
Reed  v.  Burlington,  etc.,  R.  Co.,  896. 

V.  West.  U.  Tel.  Co.,  25,  2G5,  269,  278, 
337,  339,  400,  403,  444,  445,  451,  495, 
501,  503,  504,  506,  605,  620,  621, 
622,  647,  651,  670,  686,  716,  727, 
733,  946. 
Rees  V.  Warwick,  943. 
Reese  v.  West.  U.   Tel.  Co.,  418,  419,  447, 

598,  612,   708,   709,    790,   837,   838. 
Reeve  v.  Colusa  Gas,   etc.,   Co.,   276,   281. 
Reichwald  v.  Commercial  Hotel  Co.,  175. 
Reiff  V.  West.  U.  Tel.  Co.,  46,  51,  52. 
Reis   V.    Hellman,    890. 
Reiser    v.    Edison    Electric   111.    Co.,    368, 

369,   377,  378. 
Regina  v.  Moss,  204. 
V.  Osborne,    563. 

V.  United    Kingdom    Elec.    Tel.    Co., 
129. 
Reliance   Lumber    Co.    v.    West.    U.    Tel. 

Co.,  686,  723,  885,  887. 
Renihan  v.  Wright,   752. 
Renter  v.  Electric  Tel.  Co.,  340. 
Requena   de   Molina   v.    Light,    etc.,    Co., 

273. 
Rex  v.  Johnson,   778. 
Reynolds  v.  Hinriclis,  877. 


Reynolds     v.    Narragansett     Elec,    etc., 

Co.,    229,    ■_:30. 

V.  West.    U.    Tel.    Co.,    422,    425,    426, 

432,    452,    664,    678,    698,    715,    723, 

735. 

Rhodes-Buford  Home,  etc.,  Co.  v.  Union 

Light,   etc.,   Co.,  372. 
Rhyne  v.  West.  U.  Tel.  Co.,  506.  531,  548. 
Rice  V.  Kansas  Pac.   R.   Co.,  540. 
Rich  V.   West.  U.  Tel.    Co.,   387,   712,   763, 

765,    766,    771,    790. 
Rich    Grain    Dist.    Co.    v.    West.    U.    Tel. 

Co.,  701,  716. 
Richards  v.   Merrimack,  etc.,   R.   Co.,    46, 

48. 
Richardson  v.   Sibley,   46,  47,  49. 
Richie  v.  Bass,  877,   878. 
Richmond  v.  New  York,  etc.,  R.  Co.,  282. 
V.  Southern   Bell    Tel.    Co.,    8,    18,    59, 

60,    61,    71,    72,   73. 
v.   Sundburg-,    880,    928. 
Richmond,  etc.,  Elec.  Co.  v.  Bowles,  259. 
Richmond,   etc.,  R.   Co.  v.  Jefferson,   810. 
V.  Rubin.    223,    226,    238,   252,   256,    257, 
274,  663. 
Richmond    Hosiery    Mills    v.     West.     U. 

Tel.    Co.,   604,   619,   678,    776,   952,   953. 
Richmond  Waterworks  Co.  v.  Richmond, 

47. 
Rickerson    R.    M.    Co.    v.    Grand    Rapids, 

etc.,  R.   Co.,  586. 
Ricketts  v.   Chesapeake,  etc.,  R.  Co.,   50. 
V.  West.    U.    Tel.    Co.,    50,    676,    746, 
760,    766,    771,    778. 
Riedel  v.  West  Jersey,  etc.,  R.   Co.,   258, 

290. 
Rigney  v.   City  of  Chicago,   105. 
Riker  v.  New  York,  etc.,  R.  Co.,  225,  279, 

280. 
Riley  v.    City  of  Independence,    261,    271, 
272,  674. 
V.  Farnsworth,   913. 
V.  New  England  Tel.,  etc.,  Co.,  219. 
V.  West.  U.   Tel.   Co.,   534,   650,  851. 
Riordan  v.   Guggerty,   886. 
Rippey  v.  Miller,  805. 

Rittenhouse    v.    Independent    Tel.    Line, 
400,   445,  452.  453.   620,   647.  692,  699,  703, 
705,    715,    726,    727,    729,   946. 
Rixke  v.  West.  U.  Tel.  Co.,  826,  836,  837. 
Roach  V.  Jones,  704,  754,   776,  777,  787. 
Roake  v.  American  Tel.,  etc.,  Co.,  9,  122, 

150. 
Robert  v.  Sadler,  127. 

Roberts   v.    Missouri,   etc.,    Tel.    Co.,    276, 
280. 
V.  Northern   Pacific  R.   Co.,    170. 
V.  West.    U.    Tel.    Co.,    394,    443,    470, 

665,   608,  675,   780,   783. 
V.  Wisconsin   Tel.  Co.,   8,   15,  73,   141, 
215,    261,    631. 
Robertson  v.  Telephone  Co.,  472,  473,  666, 

671. 
Robinson  v.  Weller,   913. 

V.  West.    U.    Tel.    Co.,    394,    746,    747, 
764,    767,   775,    778,    786. 
Robinson  Match   \^'orks  v.   Chadler,   928. 
Rocap  V.  Bell  Tel.   Co.,   227,   229,   231. 
Roche  v.  New  York  Edison  Co.,  214. 

V.  West.    U.    Tel.    Co.,    422,    423,    425, 
426,    457,    469. 
Rochester  v.  Bell  Tel.   Co.,  102. 
Rochester  Tel.  Co.  v.  Ross,  321. 
Rockingham    Light,    etc.,    Co.    v.    Hobbs, 

142. 
Rock   Island   v.   Central  U.    Tel.    Co.,    42, 

43    44    295. 
Rock  Island,  etc.,  Rv.  Co.  v.  Potter,  896, 

898,    900. 
Rocky    Mountain    Bell    Tel.    Co.   v.    Utah 

Ind.   Tel.   Co.,   366,   678. 
Roddy  v.   Missouri  Pac.   R.   Co.,    262. 


986 


CASES  CITED 
[The  figures  refer  to  pages] 


Rodgers  v.  Union  !>.,  etc.,  Co.,  290. 
Rogers   V.    Gosnell,    603. 

V.  Pere  Marquette  R.  Co.,   286. 
V.  West.    U.    Tel.    Co.,    393,    571,    572, 
574,    609,    720,    829,    830,    831. 
Rolseth  V.   Smith,  278. 
Romana  v.  Boston  Elev.  R.  Co.,  293. 
Rondeau  v.  Sayles,  271. 
Rood  V.  Cliicago,   etc.,  R.  Co.,  847. 
Root  V.  Great  Western  R.,  586. 
Roper  V.   Clay,   752. 

V.  McWhorter,  46,  47. 
Rose  V.   United  States  Tel.  Co.,   598,  616, 
619,  945.  „    „^^ 

Ross  V.   West.  U.  Tel.  Co.,   404,   643,   644, 

686,   689. 
Rosser   v.    West.    U.    Tel.    Co.,    427,    445, 

647,   768,   778.  ^      ^ 

Rough  River  Tel.  Co.  v.  Cumberland,  etc., 

Co..   81. 
Rowan    v.    Portland,    123. 

V.  West.    U.    Tel.    Co.,    614,    757,    791, 
795,  802. 
Rowe  V.   Electric   Co.,   662. 

V.  New  York.   etc..  Tel.   Co.,   243,   251, 
252,    255,   256,   257. 
Rowell   V.    West.    U.    Tel.    Co.,    680,    764, 

7G5,    766,    770.    771. 
Uowley  V.  Newburgh,  etc.,  P.  Co.,   243. 
Roy  V.  Great  Northwestern  Tel.  Co.,  131, 

133    134 
Royal  Elec.  Co.  v.  Heve,  229,   231. 
Rucker    v.    Sherman    Oil,    etc.,    Co.,    243, 

654. 
Ruehl  V.  Lidgerwood  Rural  Tel.  Co.,  213, 

267. 
Rugg  V.  Commercial  Union  Tel.  Co.,  104, 

198 

Runyan  v.  Kanawha  Water  Co.,  228,  233 

239,    240,    241,    264,   646.  ^       „^^ 

Rural  Home  Tel.   Co.  v.  Arnold,  226,  273. 

V.    Kentucky,    etc.,    Tel.    Co.,    40,    81, 

363.  ^      . 

Rushville  Co-operative  Tel.  Co.  v.  Irvm, 

342,   358,    359,    477. 
Russ  v.  Penn.  Tel.  Co.,  129. 
Russell  V.   Sebastian,   44. 

V    West.    U.    Tel.    Co.,    516,    546,    547, 
604,    790,    795,    802. 
Russellville   Home   Tel.    Co.   v.    Common- 
wealth.  132,  135. 
Rutland  Elec.  L.  Co.  v.  Marble  City  Elec. 

L.    Co.,    ZW. 
Rutledge  v.   Swinney,   280. 
Kyan   v.    Oshkosh   Gas  L.t.   Co.,   221,    236, 
256. 
V.  Missouri,  etc.,  R.  Co.,  484. 
V.  St.  Louis  Transit  Co.,  240,  243,  273, 

274,    292. 
V.  United  States,  915. 
Kyno  V.   Darby,   571. 
Rynyan  V.   Kanawha,   etc.,   Co.,  669. 


Sabine  Val.  Tel.  Co.  v.  Odom,  774. 
Sabine  Valley  Tel.  Co.  v.  Oliver,  589,  591, 

655,   770. 
Saginaw  v.  Swift  E.  L.  Co.,  867. 
Salem  v.   Anson,   90,   93. 

V.  Home  'iel.,  etc.,   Co.,  81. 
Salinger  v.   West.   U.  Tel.  Co..  662,  706. 
Salmon  v.  Elec.  Ry.  Co.,  259. 
Samuels  v.   Richmond,   etc.,   R.    Co.,    806, 

809. 
San  Antonio  Edison  Co.  v.  Dixon,  280. 
San    Antonio    Electric    Co.    v.    Badders, 

236,   242,   247. 
San  Antonio  Gas.   etc.,   Co.  v.   Ocon,   215, 
236,    293,    654. 
V.   Speegle,   250.   269. 
San  Antonio,  etc..   Railroad  Co.  v.  Lim- 
burger,  115. 


San     Antonio,      etc.,      Railroad      Co.      v. 
Southwestern   Tel.,   etc.,   Co.,    9,   13,  14, 
15,   17,   141,  143,  171,   176,  194,  199. 
Sanborn  v.   Nockin,   915. 
Sanders  v.  Pottitzer  Bros.  Fruit  Co.,  933. 

v.   Stuart,    695. 
Sandquist   v.    Independent   Tel.    Co.,    277. 

286. 
Sanford  v.  Howard,  937. 
San   Francisco   v.    Spring  Valley  Water- 
works, 40. 
V.  West.    U.    Tel.    Co.,    854,    856,    86&, 
870. 
Sangamon,  etc.,  Co.  v.  Morgan,  851. 
San  JMarcos   Elec,   etc.,   Co.  v.  Compton, 

236,   252. 
Sargent  v.    Boston,    etc.,    R.    Co.,    347. 
Sarno  v.  Atlantic  Stevedoring  Co.,  287. 
Savannah,  etc.,  R.   Co.   v.   Harris,   590. 
v.  Mayor,   etc.,  of  Savannah,  105. 
V.  Postal    Tel.    Cable    Co.,    166,    174, 
178,    187. 
Savannah,  etc.,  Towboat  Co.  T.  West.  U. 

Tel.    Co.,    687. 
Saveland  v.  Green,  619,  882,  883,  928,  929, 

930. 
Savings  Bank  v.   Thornton,   603. 
Saxton  V.   Northwestern  Tel.    Exch.    Co., 

279. 
Scales  V.  State,  562. 
Schaaf    v.    Cleveland,    etc.,    R.    Co.,    115, 

130. 
Schearer  v.  Harber,   902. 
Scheiber  v.   United  Tel.   Co.,   294,   632. 
Schellsburg   v.    West.    U.    Tel.    Co.,    83. 
Schenkel  v.   Pittsburg,   etc.,  Tr.  Co.,  218. 
Schippel  V.    Norton,    812. 
Schneider  v.    Sansom,   571. 
Schmidt  v.   Chicago,   246. 

V.  Conev  Island,   etc.,  R.   Co.,   259. 
Sclmiitt  V.  Edison  Electric  111.  Co.,  368. 
Schnitzer  v.  West.   U.   Tel.   Co.,  720. 
Schonberg   v.    Cheney,   928,    945. 
Pchultz  v.  Phenix  Ins.  Co.,  928. 
Schurmeir  v.   St.   Paul,   etc.,   R.   Co.,   123. 
Schwartz  v.    Atlantic,    etc.,   Tel.    Co.,    26, 

531,  542. 
Schofield    v.    Horse    Springs    Cattle    Co., 
892 
V.  Lake   Shore,  etc.,   R.  Co.,  346,  347. 
V.  Poughkeepsie,    124. 
Scothorn  v.  South,  etc.,  R.,  586. 
Seaboard  Mfg.   Co.  v.  Woodson,  821. 
Sears  v.   Crocker,  131. 
Seaton  Mountain  Elec,  etc.,  Co.  v.  Idaho 

Springs  Inv.  Co..  368,   373,   374,   459. 
Seattle  Elec.   Co.  v.   Snoqualmie,   etc.,  P. 

Seddon  'v.    West.    U.    Tel.    Co.,    636.    648, 

665.    GG6.    707,    710,    711.    768. 
Seffel  V.  West.  U.  Tel.  Co.,  395,  670. 
Seifert  v.  City  of  Brooklyn,  105. 

V.  West.    U.    Tel.    Co.,    3ul,    OlO,    iii, 
790. 
Seith   V.    Commonwealth   Elec    Co.,    266, 

267,   663. 
Selden  v.   Cashman,  805. 
Selev  v.   Williams,   935. 
Seneca  Road  Co.  v.  Auburn,  etc.,  R.  Co., 

821. 
Sewell  v.  Cohoes,   270,  271. 
Sliaaf  V.   Cleveland,    etc.,   R.   Co.,   ^00. 
Shackford  v.  New  England  Tel.,  etc.,  Co., 

•'13 
Shade   v.   Bay    Counties   Power   Co.,    230, 

273. 
Shaffer  v.    Sawyer,   944. 
Shank  v.    Butsch,   878. 

v.  Edison   Elec.   111.   Co.,   2S!?,    Gb3. 
Sharp  v.  Jones,  599. 
Shasta    Power  Co.   v.    Walker,    200. 
Shavelane  v.   Green,  928. 
Shaw  V.  Postal  Tel.  &  Cable  Co.,  502,  503, 
504,   537,   621,    622,   695. 
V.  West.   U.  Tel.  Co.,   709,  755,  780. 


CASES   CITED 
[The  figures  refer  to  pages] 


987 


•Shawnee,  etc.,  P.  Co.  v.   Sears,   221,  246. 
Shawver  v.   Chamberlain,    893,   898,   900. 
Sheffield    v.    Central   Union    Tel.    Co.,    78, 

215,  219. 

Sheffield  Co.  v.  Morton,  242,  243,  267,  6.33. 

Shelbvville  Water  Co.  v.  People,   23,  849, 

Sheldon    v.    West.    U.    Tel.    Co.,    214,  220, 

310. 

Shepard  v.   Gold,  etc.,   Tel.   Co.,   461,  559, 
560,   957. 

V.  West.    U.    Tel.    Co.,    363,    443,  444, 
648,    671,    780. 

Shepherd  v.   Baltimore,  etc.,   R.   Co.,  125, 

i-'i;. 

Shepley   V.   Atlantic,    etc.,   R.    Co.,    46. 
Sherlock   v.   Ailing,   831. 
Sherman,   etc..   Elect.   Co.  v.  Belden,   152. 
Sherrerd   v.   West.   U.    Tel.    Co.,  400,   597, 

619,    620,   06G,    929. 
Sherrill    v.    West.    U.    Tel.    Co.,    396,    408, 
413,   419,   431,   445,   495,   507,   517,    519,   520, 
523,   525,   530,   546,   551,   605,   60S!,    ci  7.   nsfi. 
637,  648.   651,   657,  670,  675,  708,   755,  756, 
758,   769,    776,   777,   780,   786,   789,   7t)6. 
Sherwln  v.   Nat.  Cash.   Reg.   Co.,   93b. 
Shields  v.   Washington  Tel.  Co.,   537,  695. 
Shingleton  v.  Hill,   911. 
Shingleur  v.   West.   U.   Tel.   Co.,   403.  404, 
452,  537,  597,   605,  607,  611,   612,   698,  715, 
728,  948. 
Shinzel  v.  Philadelphia  Bell  Tel.  Co.,  104, 

265. 
Shobe  V.  Luff,  935. 
Shore  v.    Spokane,    etc.,    R.    Co.,    278. 
Short   V.    Treadgill,    928,    930,    931. 
Shuster  v.  Tel.  Co.,  140. 
Sias   V.   Consol.   L.   Co.,    279,   281,   287. 

V.  Lowell,  etc.,   St.   R.  Co.,  213,  283. 
Siebold  V.  Davis,  944. 
Simonds  v.  Maine  Tel.,  etc.,  Co.,  78,  124, 

218. 

Simmons    v.    Shreveport    Gas,    etc.,    Co., 

212,  233,  234,  243,  244,  252,  253,  254. 

V.  West.    U.    Tel.    Co.,    632,    635,    759, 

782,   802. 

Simonton  v.  Citizens'  Elec,  etc.,  Co.,  249, 

267. 
Sims  V.  West.  U.  Tel.  Co.,  733. 
Singer  Mfg.  Co.   v.  Hardee,  317. 

V.   Holdfodt,   944. 
Singleur  v.   West.  U.   Tel.  Co.,  620. 
Skinner  v.  Ft.  Wayne,  etc.,  R.  Co.,  22. 
Slabaugh    v.    Omaha   Elec.    L.,    etc.,    Co., 

131,    136. 
Slater  v.   South  Carolina  R.  Co.,  482. 
Slaughter  v.   West.   U.  Tel.  Co.,  651,  672, 

744,    747,    773. 
Sledge  V.  West.  U.  Tel.  Co.,  709,  805. 
Slingerland  v.   Gillespie,   87. 
Slockbower  v.    East  Orange  Tp.,   133. 
Smart  v.    Louisiana  Elec.   Lt.    Co.,    277. 
Smith  V.   Arnold,  912. 
V.  Banker,    847. 

V.  Brooklyn    Heights   R.    R.   Co.,    264. 
V.  Bouvier,     562, 
V.  City    of    Nashville,    85, 
V,  East    Etid    Elec.     Light    Co,,     238. 
V,  Easton,     876,     877,     S7S,     882,     884, 

886,    888,    910,    942,    948. 
V.  Gold   and  Stock  Tel.   Co.,   461,   558, 

580,    957,    958. 
V.  Milwaukee    Elec,     etc.,     Lt.     Co., 

276,    289. 
V.  Mis.souri,    etc.,    Tel.    Co.,    266,    267. 
V,  New  York,    etc.,    R.    Co,,    498. 
V,  North    Carolina    R.    Co.,    541. 
V.  Postal    Tel.    Cable    Co.,    707,     708, 

767. 
V.  Printing,    etc.,    Co.,    115. 
V.  Southwestern    U.     Tel.     Co.,     458, 

462. 
V.   Telephone    Co.,    274,    654,    672. 
V.  Theobald,    915. 
V.  Turner,    803. 


Smith  V.  Twin  City  Rapid  Transit  Co., 
242,  675. 
V.  West.  U.  Tel.  Co.,  25,  355,  382, 
385,  393,  395,  399,  402,  407,  419, 
423,  425,  441,  444,  446,  452,  463, 
465,  470,  473,  474,  478,  479,  490, 
491,  495,  506,  510,  513,  517,  530, 
535,  537,  560,  561,  563,  567,  582, 
588,  589,  595,  662,  678,  680,  681, 
682,  683,  684,  685,  686,  687,  688, 
690,  692,  695,  704,  705,  706,  715, 
717,  720,  721,  723,  746,  768,  774, 
776,  957. 
Smith    &    Elliott    v.    Mo.,    etc.,    R.    Co., 

592. 
Smith-Frazier    Boot,    etc.,    Co.    v.    West. 

U.  Tel.  Co.,  517. 
Smithgall    v.    American    Union    Tel.    Co., 

276. 
Smithpon  v.    United   States   Tel.    Co.,    31, 

443. 
Snee    v.    Clear    Lake    Tel.    Co.,    73,    218, 

20."). 
Snell  V.   Clinton  Electric  Light,  etc.,  Co., 

343,    368,    369,    370,    372,    459. 
Snyder  v.   Mutual  Tel.   Co.,   221,   270,    271, 
273,    275,    290,    663,    669. 
V.  Wheeling  Elec.    Co.,    233,    260,    264. 
632,    646,    673. 
Snyder,    etc.,    Co.    v.    Bowron,    290. 
Snyer   v.   New   York,    etc.,    Tel.    Co.,    282. 
Soby   V.    People,    562. 
Soci§t6  Anonyme  v.  Old  Jordan  Co.,  930, 

931. 
Soles   V.   Hickman,   912. 
Somner  v.  Public  Service  Corp.,  241,  274, 

So  Velle   V.   West.    U.    Tel.   Co.,    607,   632, 

634,    753,    757,    758,    768,    769. 
Souch   V.    East  London   R.    Co.,    131. 
Soumet   V.    National,    etc.,    543. 
South    Carolina   v.    Georgia,    204. 
South    Carolina,    etc.,    R.    Co.    v.    Ameri- 
can   Tel.,    etc.,    Co.,    73,    74,    171. 
South   Covington,    etc.,    R.    Co.    v.    Berry, 

90. 
South    Eastern    Ry.     v.     European,    etc., 
Tel.    Co.,    159,    198. 
v.  National    Tel.    Co.,    203. 
South    Omaha    Waterworks    Co.    v.    Vo- 

casek,    220. 
South    Texas   Tel.   Co.    v.    Tabb,    221,    265. 
Souther    v.    Northwestern    Tel.    Co.,    87, 

96,     140,     142,     808,     811. 
Southern   Bell  Tel.   Co.   v.   Beach,   20,    29, 
334,    337. 
V.  Clements,    277,    279. 
V.   Constantine,    133,    137. 
V.  D'Alemberte,   5,   329,  313. 
V.  Davis,    236,    237,    251,   253,    274,   632. 
V.  Earle,    374,    376. 

V.  Francis,     124,     133,     136,     137,     328. 
v.  Glawson,    351,    652. 
V.  Harrisonburg,    866. 
V.  Howell,    213,    234,    244,    632,    875. 
V.  Lynch,    237,    269. 
V.  McTyer,     217,     224,     226,     227,     262, 

265.    268,    293. 
V.  Mobile,    43,    44,    77,    90,   97,    295. 
V.  Nalley,    104. 
V.  Parker,     226,     227. 
V.  Revnolds,    351,    747,    768. 
V.  Richmond,   62,  72,   81,  82. 
v.  Shamos,     277. 
v.  Starnes,    280. 
V.  Watts.    273, 
Southern  California  Ry.   v.    Slauson,    170. 
Southern   Electric,    etc.,   Co.    v.    Philadel- 
phia,   749. 
v.  Rolla    Light    Co.,    23. 
V.  State,   54. 
Southern     Express     Company    v.     Cald- 
well,  517,    518,   520. 


988 


CASES  CITED 
[The  figures  refer  to  pages] 


Southern    Express    Company    v.    Mobile, 
849,    856. 
V.  Moon,   514. 
V.  McVeigh,    612,    638. 
Southern    Florida    Tel.    Co.    v.    Maloney, 

631,    632,    638. 
Southern    Kansas    R,    Co.    v.    Rice,    792, 

815. 
Southern  Pacific  R.   Co.  v.  Reed,   106. 
V.  Southern    Cal.     R.     Co.,     163,    164, 
173. 
Southern   R.    Co.   v.    Barr,    804. 
V.  Carr,    282. 

V.  Cumberland    Tel.,    etc.,    Co.,    353. 
V.  Henlein,    944. 
V.  Kendrick,    804. 
V.  McLendon,    815. 
V.  Postal  Tel.   Co.,  169,  189. 
V.  T\^omack,     486. 
Southern    Tel.,    etc.,    Co.    v.    Evans,    22, 
226,    269,    657. 
V.  King,    17,    348,    351,    375,    376,    801, 

805. 
V.  Newby,    484. 
Southwark    Nat.    Bank    v.    Smith,    893. 
Southv.estern    Tel.,    etc.,    Co.    v.    Abeles. 
224     226,    227,    654,    664,    669. 
V.  Allen,   352,  375. 
V.  Andrews,    375. 
V.  Branham,    133,    134. 
V    Bruce,    224,    226,    229,    251,    292,    663. 
V.  Corbett,    261. 
V.  Crank,     261. 
V.  Dale,    438,    597,    713. 
V.  Dallas.    331. 

V.  Danaher,    337,    342,    358,    832. 
V.  Davis,    226. 
V.  Doolittle,    218. 
V.  Flood,     439,     585. 
V.  Garrigan,    832. 

V.  Gehring,     351,     608,     782,     783,     787. 
V.   Givens,    636,     761,    774,    777,    782. 
V.  Gotcher,     437,     454,     585,     617,     656, 

671,    713. 
V.  Gulf,    etc.,    R.    Co.,    9,    16,    17,    163, 

194. 
V.  Ingrando,    215,    225. 
V.  Jarrell,   351,  591,  606,   668,  672,   782, 

783. 
V.  Kansas   City,    etc.,  R.    Co.,    73,    74, 

163,    166,    175,    194. 
V.  Keys,     225. 
V.  Krause,    290. 
V.  Luckett,    359. 
V.  Luckie,    674. 
V.  McCov,     439,     666. 
V.  Murphy,    341,     824,     832,     835. 
V.  Mvane,    238,    247,    251,    257. 
V.  Owens,    439,    675,    783. 
V.  Pearson,    351,    754. 
V.  Priest,    295. 
V.  Robinson,    215,    218,    225,    227,    233, 

234,   256,   261,   264,   268. 
V.   Shirley,    251,    354,    479,    663. 
V.  Solomon,    352. 
V.  Southern,    etc.,    Tel.     Co.,    68,    70, 

80,    155,    156,    159,    160,    165. 
V.  State,    362. 
V.  Smithdeal,     115,     675. 
V.  Tavlor,   352,  439,   440,   452,   453,   585, 

592,    761,    762. 
V.  Thompson,    294,   295,   658. 
V.  Tucker,    279,    280. 
V.  Wbiteman,    270,    813. 
V.  Wilcoxson,    761. 
V.  Woughter,    278,    279. 
Spangler   v.    Danforth,    911. 
Sparkman    v.     West.    U.    Tel.    Co.,    708, 

709,    760,    765,    770. 
Speight    v.     Rocky    Mountain    Bell    Tel. 

Co.,    282. 
Spellman     v.     Richmond,     etc.,     R.     Co., 
806,    807,    808. 


Spires    V.     Middlesex,     etc..     Power    Co., 

ogg       ogg       ojy 

Sp'rague    v.  "west.    U.    Tel.    Co.,    498,    6S2, 

692,    703,    706. 
Spratt   V.    Transmission    Co.,    142. 
Spring    Creek    Dr.    Dist.    v.    Elgin,    etc., 

R.    Co.,    872. 
Springfield  v.    Postal  Tel.    Cable   Co.,   65, 

83,    84,    867. 
Springfield    Bank    v.    First    Nat.    Bank, 

943. 
Spokane  v.    Colby,   115,    157. 
Spokane    Falls    Gas    L.    Co.    v.    St.    Paul 

Ry.,    298. 
Spokane    Truck    &   Dray   Co.    v.   Hoefer, 

806. 

Squire   v.    New   York,    etc.,    R.    Co.,    495. 

v.  "West.    U.    Tel.    Co.,    535,    588,    589, 

592,    594,    680,    C82,    686,    701,    705, 

719,    725,    726,    934,    954. 

Staab  v.  Rocky  Mountain,  etc.,  Tel.   Co., 

242,    290,    675. 
Stafford   v.    TVest.    U.   Tel.    Co.,    634,    635, 

694,   748,    757,    802,    824,    839. 
Stamey    v.    West.    U.    Tel.    Co.,    25,    28, 
389,    457,    464,    516,    538,    539,    541,    546, 
547,    604.    609,    613. 
Stanard,    etc.,    Co.    v.    White    Line,    etc., 

Co.,    495. 
Standard    L.,    etc.,    Co.    v.    Muucey,    269, 

282,    283. 
Stansell    v.   West.    U.    Tel.    Co.,    746,    757, 

791. 
Staring   v.    West.    U.    Tel.    Co.,    217,    235. 
Stark    v.    Lancaster,    etc.,    Co.,    256. 

V.  Muskegon     Trac,     etc.,     Co.,     242, 

247,    249,    254,    267,    273. 
V.  Pennsylvania    Tel.    Co.,    255. 
v.  Railroad    Co.,    179. 
Starkey    v.    West.    U.    Tel.    Co.,    470. 
Starr    v.    Southern    Bell    Tel.,    etc.,    Co., 

217.    227,    263. 
St.  Albans  v.  Vermont  P.,  etc.,   Co.,  371. 
St.  Jos.  &  D.  C.  R.  Co.  V.  Drj'den,  157. 
St.  Louis  V.   Bay  State,  etc.,  R.  Co.,  258, 
264,   646. 
V.  Bell    Tel.    Co.,    8,    9.    77,    109.    155. 

318,   331.    333. 
V.  Herthel,    326. 
V.  jMcLaughlin,   326. 
V.  West.    U.    Tel.    Co.,    60,    61,    62,    65, 
66,    79,    80,    83,    84,    329,    330,    331, 
866,   867. 
St.    Louis    Consol.    Coal   Co.    v.    Haenni, 

805. 
St.  Louis,  etc.,  R.  Co.  v.  Batesville,  etc., 
Tel.  Co.,   75,  88,   165,   198,   261,  295. 
V.  Cape  Girardeau  Tel.  Co.,  163. 
V.  Foltz,   176. 

V.  Hannibal  U.  Depot  Co.,   162. 
V.  Hardy,    461. 
V.  Hill,   345. 
V.  Kennedy,   893. 
V.  Knight,    640. 
V.  i\Iarrs,     582. 

V.  Missouri    Pac.    R.    Co.,    595. 
V.  Newell,    315,   334. 
V.  Parks,   447. 
V.  Petty,    179. 

V.  Postal  Tel.  Co.,  53,  73,  74,  149,  150, 
151.    163,    164,    166,    184,    188,    193, 
194     195 
V.  Southwestern    Tel.,    etc.,    Co.,    165, 

172,   173,   174,   175,   178,   187. 
V.  State,    483. 
V.  Weakley,  591. 
St.  Paul  V.  F^eedy,  82,  93,  95. 
St     Paul,    etc.,    R.    Co.    v.    West.    U.   Tel. 

Co.,  21,   22,   166,   170,  180,   181. 
State  V.  Allen,   141. 

V.  American    News    Co.,    336. 

V.  American   Tel.,   etc.,   Co.,   168,   199. 

V.  Anderson.   849, 


CASES  CITED 

[The  figures  refer  to  pages] 


989^ 


state 


V.  Archer,    826. 

Atlantic    Coast,    etc.,   R.    Co.,   337. 

Bank,    S47. 

Bell    Tel.    Co.,    16,    25,    73,   338,    361, 
364,  365. 

Board  of  "U'ater  Com"rs.  372. 

Boston,    etc.,    R.    Co.,    175. 

Brainerd,    372. 

Brotzer.    295. 

Butte    Electric,   etc.,    Co.,   368,    369, 
370     459 

Cadwalla'der,    21,    41,    53,    54,    140, 
145,   358,   361,   362,   363,   364,  367. 

Cassidv,    860. 

Central  U.  Tel.   Co.,  95,   331,   850. 

Central    New    Jersey    Tel.    Co.,    6, 
14,    15,    16,    17,    39,    72,    141,   199. 

Chesapeake,     etc.,    Tel.     Co.,     290, 
291. 

Chicago,    etc.,    R.    Co.,   308,    317. 

Chovin.   461. 

Citizens'   Bank.   867. 

Citizens'    Tel.   Co.,    32,    33,    45,    338, 
345,    346,    360,    373,    378,    629. 

Citv  of  Hiawatha.   S5. 

Consolidation  Coal  Co.,  46. 

Consumers'     Power    Co.,     21,     263, 
368,   369.  379. 

Cook,    183. 

Corcoran,    562. 

Crisfield,    etc..    Mfg.    Co.,    235,    260. 

Cumberland  Tel.,   etc.,  Co.,   40,  50, 
51,    72,   75,    76. 

Delaware,    etc.,    Tel.    Co.,    20,    25, 
29. 

Duncan,    562. 

East    Cleveland    R.    Co.,    43. 

Electric,   etc.,   Co.,  343. 

Espinozei,    880. 

Flad,    72,   81,   82. 

French,    313. 

Galveston,   etc.,   R.,   870. 

Gantz,  339,  868. 

Graeme,    131,    132,    136. 

Gritzner,   562,   874. 

Harbourne,  563,  854. 

Hayworth,    851. 

Helena,    263. 

Herod,   860,   861. 

Holmes,   892. 

Hopkins,    882,   888,    890. 

Independent  Tel.  Co.,  342,  358,  360. 

Janesville   St.   R.   Co.,   93,   100,   24;i. 

Jollv,    S79. 
.  Jones,   368,   369,    373. 
,  Kentner,    562. 
,  Kinloch    Tel.    Co.,    20,    21,    29,    338, 

349,   350,   359,  373. 
,  Kring,  778. 
,  Laverack,    106,    116. 
.  Litchfield,    918,    919. 
.  Logan,  562. 
,  McCrystol,    826. 
,  McGinnis,     562. 
.  McKee,   295. 
,  McMillan,   562. 
,  Massee,  876,   877,  879. 
,  Mavor,  etc.,   of  Mobile,   106. 
.  Milwaukee,  92,  94,   95. 
.  Milwaukee    Independent    Tel.    Co., 

43,    82,   331. 
.  Missouri,    etc.,    Tel.    Co.,    331,    332. 
.  Murphy,   92,    98,    101,    102,   263. 
.  Nebraska  Tel.  Co.,  20,  29,  338,  345, 

34S,    350,   :;59,    367,    373,   378,    629. 
.  Nelson,    894,    906. 
.  New  York,  etc.,  Tel.  Co.,  189. 
.  Nordskog.   295,   296. 
.  Northwestern  Tel.    Exch.  Co.,   850. 
.  Overton,    461.    462. 
.  Patterson,    810. 
.  Port  Roval,  etc.,   Ry.,   871. 
.  Postal    Tel.    Cable  Co.,    316. 
.  Power   Co.,    142,   337,    343. 


State   v.   Red    Lodge,   63,    78,    93,    95,    102. 
V.  Scott,   177. 

V.  Sheboygan,   76,  93,  94,   95,  331,  333. 
V.  Sherman,    176. 
V.  Skagit    River    Tel.    Co..    362,    363, 

438. 
V.  St.    Louis,    25,    26,    93,    98,    99,    101, 

104,    111. 
V.  Standard  Oil  Co.,  47, 
V.   Spokane,    72,   82. 
V.  Sunset  Tel.,  etc.,   Co.,   40,  350,  373. 
V.  Superior    Court,    34,    140,    142,    200, 
310,    311,    318,    319,    321,    323,    326, 
328.    331,    333,    334. 
V.  Telephone  Companies,  325. 
V.  Twin  Village  Water  Co.,   139,   145, 

367. 
V.  Usher,    894,    898. 
V.  T\'alsh,    827. 
V.  AVaseca,  86,   368,   378. 
V.  Vi^ater  &  Light  Com'rs,  368,  372. 
V.  ^Vatts,    295. 
V.  Weber,    91,    96,    197. 
V.  West.    U.    Tel.    Co.,    63,    175,    310, 
324,  329,  386,  404,  422,  458,  465,  467, 
824.    825,    832,    833,    849,    851,    856, 
868,   869. 
V.  White   River   P.    Co.,   142,    200. 
State  Bank  v.  Bradstreet,  943. 

v.  Kennedy,    903. 
State    Bank    of    Commerce    v.    West.    U. 
Tel.  Co.,   575,  576,  577,   581,  611,  612,  645, 
647,    648,    649. 
Steamship   Co.   v.  Joliffe,  309. 
Steele  v.   Empson,   163. 
V.  McTj-er,   484. 
V.   Townsend,    484,    511. 
Stein   V.    Burden,    821. 
Steinberger  v.  Telephone  Co.,   807. 
Steindorff  v.   St.    Paul   Gas   Lt.    Co.,    241. 

Steinman  v.  Edison  Electric  111.  Co.,  368, 

369,   372. 
Stephens  v.   Pacific  Elec.   Ry.  Co.,  284. 
Stephens,    etc..    Trans.    Co.    v.    West.    U. 

Tel.   Co.,   205,   206,   207,  223. 
Stephenson    v.    Montreal    Tel.    Co.,    394, 

3:-i5,  397,  410. 
Stepp  V.   State,   894,   895. 
Sterne    v.    Metropolitan    Tel.,    etc.,    Co., 

374. 
Sterrett   v.    Philadelphia,    etc.,    Tel.    Co., 

355,   560,   563. 
Stevens    v.    United    Gas,    etc.,    Co.,    645, 

G64. 
Stevenson  v.    McLean,   928. 

v.  Montreal    Tel.    Co.,    474,    535.    582, 
583,    584,    595,    686,    701. 
Steverman  v.    Boston,   etc.,   Ry.   Co.,   257. 
Stewart  v.   Clark,  909. 

v.  Postal    Tel.    Cable    Co.,     336,     337, 
341,    383,    400,    604,    607,    610,    681, 
733,    734. 
v.  West.    U.    Tel.   Co.,    426,   636. 
Stewart-Morehead     Co.     v.     Postal     Tel. 

Cable   Co.,    381,    382,    383,    401. 
Stiles  V.   West.  U.   Tel.  Co.,  495,  506,  687, 

703,  746. 
Stockham    v.    Stockham,    945. 

V.  West.  U.   Tel.    Co.,   565,  567. 
Stockton  V.  Central  R.  Co.,   46. 
Stockton,  etc..  Elect.  Co.  v.  San  Joaquin 

County,    851. 
Stone  V.   Justice,   603. 

V.  Postal    Tel.    Cable    Co.,    401,    405, 
517,    519,    525,    546,    650,    664,    679, 
681,    691,    695,    706,    724. 
Stone   &    Company   v.    Postal    Tel.    Cable 
Co.,  404,  405.  419,   478,  502,   505.  515,  526, 
527. 
Storn   V.    Green,    881. 

Stowers  v.   Postal  Tel.   Co.,   SO,   114,  120,. 
138. 


990 


CASES  CITED 
[The  figures  refer  to  pages] 


Strack   v.    MissouH,    etc.,    Tel.    Co.,    233, 

234,   235,   238,   252,   254. 
Strahom-Hutton'-Bvans    Corns.     Co.     v. 

West.   U.   Tel.    Co.,   642,   689. 
Strauss  v.  Meetief,  739. 

V.  West.  U.  Tel.  Co.,  581. 
Stroud   Case,    917. 

Strouss  V.   Wabash,   etc.,   R.   Co.,   482. 
Strong  V.  West.  U.  Tel.  Co.,  395,  443,  444, 
499,  506,  555,  578,  597,   598,  604,  606,   607, 
612,   613,   620,   646,   681,   729. 
Stuart  V.  West.  U.  Tel.  Co.,  401,  754,  795, 

805,    814. 
Stuhr  V.  Tel.  Co.,  269. 
Stumm  V.   West.   U.   Tel.   Co.,   737,   951. 
Stnrtevant  v.  West.  U.  Tel.  Co.,  408,  426, 

6S6. 
Stuyvesant  v.  Wilcox,  806. 
Submarine  Tel.  Co.  v.  Dickson,  206. 
Suburban  Elec.   Co.    v.   Nugent,   214,    240, 

274,    644,   646,    650,    675. 
Suburban  Light,   etc.,  Co.   v.   Boston,   92, 

96. 
Sullivan  v.  Boston,  etc.,  R.  Co.,  241,   249, 
291. 
V.  First  Nat.  Bank,  905,  907. 
V.  Kuykendall,    900,   901. 
V.  Narragansett  Elec,   etc.,   Co.,  290. 
V.  New    York   Tel.    Co.,    213. 
V.  Postal    Tel.    Co.,    560. 
V.  West.    U.    Tel.    Co.,    484,    487,    488, 
489    534. 
Sultan  V.  West.  U.   Tel.   Co.,  664,   692. 
Summerfield   v.    West.    U.    Tel.    Co.,    791, 

802. 
Summit  Tp.  v.  New  York,  etc.,  Tel.  Co., 

63,  78,  94,  95,  327. 
Sumner  v.  Cole,  929. 

Sunset  Tel.,  etc.,   Co.  v.  City  of  Eureka, 
199     307 
V.  Medford,'329,  866,  867. 
V.  Pasadena,    17,    65,    77,   83,   867. 
V.  Pomona,   18,   65,  71,  73,  141,   199. 
Superior  v.   Douglas  Co.   Tel.   Co.,   44. 
Susquehanna  Canal  Co.  v.  Bonham,  48. 
Sutter  V.  Raeder,   929. 
Suttle    V.    West.    U.    Tel.    Co.,    419,    420, 

469,  472,   473,   478,   707,   765. 
Sutton  V.  Dundas,  252,   253. 

V.  West.   U.  Tel.  Co.,  774,  775. 
V.  West   Jersey,   etc.,   R.   Co.,   258. 
Swain  v.  West.  U.  Tel.  Co.,  527. 
Swan  v.  Salt  Lake,  etc.,  R.  Co.,  253,  654, 
663,  674. 
V.  West.    U.    Tel.    Co.,    395,    396,    397, 
408,   409,  410,   477,   606,   689,  726. 
Sweatland  v.    Illinois,    etc.,    Tel.    Co.,    25, 
443,  495,  506,  514,  534,  541,  546,  548,  650, 
651,   656,   672. 
Sweeney  v.    Chicago,   etc.,   Rv.,   204. 
Sweet  V.   Postal  Tel.,   etc.,   Co.,  394,   413, 

469,    470,    471,    474. 
Sweezo  v.  Cheboygan  Elec.  Lt.,  etc.,  Co., 
276. 


Taber  v.  West.  U.  Tel.  Co.,  518,  523,  547. 
Tackett  v.   Henderson,   245,   274. 
Tacoma  v.   Bonnell,   290. 

V.  Nisqually   Power  Co.,    209. 
Tacoma  Hotel  Co.  v.  Tacoma  Light,  etc., 

Co.,   358,    372. 
Taggart  v.  Interstate  Tel.   Co.,   9. 

V.  Newport   St.   R.   Co.,   157,  262. 
Talhert  v.  West.  U.  Tel.  Co.,   707,  780. 
Talbot   V.    Pettigrew,    938. 
Taliferro   v.   West.    U.   Tel.  Co.,    635,   679, 

716,   755,    768,   773. 
Tampston  Case,  917. 
Tandrup   v.    Sampsell,   254,    290. 
Tanner  v.  New  York,  etc.,  R.  Co.,  279. 
Taylor  v.  Bradley,  739,   821. 

V.  Carondelet,    326. 


Taylor  v.  Herniker,   126. 

V.  Maine  Cent.   R.   Co.,   586. 

V.  Merchants'  Fire  Ins.  Co.,  945. 

V.  Postal    Tel.    Cable  Co.,   330,   866. 

V.  Scott  &   Co.,   911. 

V.   Secur,    856. 

V.   Service   Corporation,   96. 

V.  The  Robt.   Campbell,  875,  879,  928, 

945. 
V.  West.    U.    Tel.    Co.,    393,    469,    471, 
474,    572,    574,    635,    662,    690,    720, 
763,   771,   827,   829,   831. 
Tedford   v.    Los   Angeles    Elec.    Co.,    281, 

287. 
Telegraph  Co.  v.  Wilt,  294,  295. 
Telephone  Co.   v.   Brown,   648. 

V.   Silver,   812. 
Temple  v.   McComb,  etc.,   Light  Co.,   221, 

232,    239,   241,    248,   267. 
Temple    Elec,    etc.,    Co.    v.    Halliburton, 

215,    250,   663. 
Tennessee,   etc.,  R.  Co.  v.  Danforth,  204. 
Terrace  Water  Co.  v.  San  Antonio,   etc., 

Co.,  24. 
Terre  Haute,  etc.,  R.  Co.  v.  Clem,  270. 
V.  Rodel,  127. 
V.   Stockwell,    884. 
Terrell  v.  Washington,  225,  277. 
Texarkana    v.    Southwestern    Tel.,    etc., 

Co.,   9,    15,    63,   73,    78,    141. 
Texarkana,    etc..    Light   Co.   v.    Orr,    253, 

260,    645,   664. 
Texarkana  Gas,  etc.,  Co.  v.   Texarkana, 

80. 
Texarkana    Tel.    Co.    v.    Pemberton,    284, 
286. 
V.  Seiders,   462,  480,   608. 
Texas,    etc,    R.    Co.   v.    Adams,    461,    590. 
V.  Postal  Tel.  Cable  Co.,   194,  196. 
V.   Scott,   170,   217,   227. 
V.  Southwestern,    etc.,    Co.,    171,    194, 
196. 
Texas,    etc.,    Tel.    Co.   v.   Mackenzie,    687, 
703,    705,   719,   725,   739,   953. 
V.  Prince,   237. 
Thomas   v.    Maysville   Gas  Co.,    239,    243, 
293,    294. 
V.  Raihoad  Co.,   47,  51. 
V.   Somerset,  86,  239,  243,  246. 
V.  Wabash,   etc.,   R.   Co.,  495. 
V.  Western  Jersey  R.  Co.,  49. 
V.  West.    U.    Tel.    Co.,    213,    218,    264, 
269,    665,    692,    762,    763,    791,    799, 
800,   801. 
V.  Wheehng  Elec.   Co.,   228,   240,   241, 

275. 
V.  Winchester,    615. 
Thomas  L.  &  T.  Co.  v.  Beville,   927. 
Thomas   Mfg.    Co.    v.    Prather,    603. 
Tliompson  v.  Electric  Co.,   374. 
V.  Light,   etc.,    Co.,    654. 
V.  New  Orleans,   etc.,  R.   Co.,   821. 
V.  Reed,    269,    272. 
V.  San  Francisco  Gas,   etc.,   Co.,  342, 

368,   369,  377,  378,   379. 
V.  Waters,   175. 

V.  West.  U.  Tel.  Co.,  26,  410,  415, 
445,  474,  495,  507,  510,  570,  571, 
574,  598,  630,  662,  666,  669,  670, 
671,  693,  700,  703,  719,  720,  721, 
756,  8:^2,  827,  828,  829,  835,  839. 
Thompson,     etc.,     Co.    v.    Appleby,     893, 

904. 
Thompson-Houston  Elec.  L.   Co.  v.  City 

of  Newton,   86. 
Thornburg  v.  City,  etc.,   R.  Co.,   241,   G63. 
Thorne    v.    Barwick,    928. 
Thorp  V.  Philbin,  876,   884. 

V.  West.    U.    Tel.    Co.,    417,    418,    517, 
721,  734,  946,   953. 
Thurlo  V.    Massachusetts,    863. 
Thurman  v.   West.   U.   Tel.   Co.,  691,   714, 
760,    762,   764,    768. 


CASES  CITED 

[The  figures  refer  to  pages] 


991 


Thurn  v.  Alta  Tel.  Co.,  824,  826,  829,  835, 

839,  841. 
Thurston  v.  Detroit,  etc.,  R.  Co.,  263. 
Tiffany  v.  U.  S.  Illuminating  Co.,  96,  114, 

141. 
Tilden  v.  Blair,  623. 
Tillinghast  v.   Boston,  etc..   Lumber  Co., 

624. 
Tinsley  v.  West.  U.   Tel.  Co.,  778. 
Tipi;ecanoe  County  v.  Lafayette,  etc.,  R. 

Co.,  48. 
Tismer    v.    New   York    iJdison    Co.,    230, 

458. 
Tissot  V.  Great  Southern  Tel.,  etc.,   Co., 

133,    134,   136,   138. 
Toale  V.  West.  U.  Tel.  Co.,  526,  527,  666, 

760,  772,  807. 
Tobin  V.   Shaw,   752,   810,   885. 

V.    West.    U.    Tel.    Co.,    454,    515,    548, 
605,    611,    619,    707. 
Todd   V.    City  of   Crete,    234. 

V.    West.    U.    Tel.    Co.,    748,    760,    764, 
767,  772,  814. 
Toledo  V.  West.  U.  Tel.  Co.,  2,  60,  61,  71. 
Toledo,  etc.,  R.  Co.  v.  Dunlap,  177. 
V.  Patterson,   808,   809. 
V.  Rippon,    229,    282. 
Tomblin    v.    Callen,    562. 
Tomkinson  v.  Cartledge,  892. 
Tomline  v.   Tyler,    917,   918. 
Tooney  v.   State,   907. 
Toronto  v.  Bell  Tel.  Co.,  64,  78. 
Towle  V.  Carmelo,  etc.,   Co.,   916. 
Towne  v.  United  Elec,  etc.,  P.  Co.,   280, 

285. 
Townsend  v.   Epstein,    294. 

V.  Norfolk,  etc.,   L.  Co.,  124,    125,   151, 

305. 
V.  Rackham,    603. 
Trammell  v.    Columbus   R.    Co.,    245,    251, 

252,   253,    269,   282. 
Trapp    V.    Telephone   Co.,    666. 
Treadwell   v.    Salisbury  Mfg.    Co.,    48,   49. 
Trenton  Passenger  R.  Co.  v.  Cooper,  258, 

■646,   652. 
Trenton,  etc..  Turnpike  Co.  v.  American, 

etc..   News   Co.,    140,   338. 
Trester  v.    Missouri  Pac.   R.    Co.,    177. 
Trevisani   v     Postal   Tel.    Cable   Co.,   775. 
Trevor  v.    Wood,    624,    882,    910,    916,   928, 

944,   945. 
Tri-Citv  Rv.  Co.  v.  Killeen,  273. 
Trigg  V.  West.  U.  Tel.  Co.,   634,  635,  759. 
Tri-State  Tel.,   etc.,   Co.   v.    Cosgriff,   12o, 

133,    137.    198. 
Troewert   v.    Decker,    572. 
Trounstine  v.    Sellers,    945. 
Trout  V.  Laclede  Gas  Light  Co.,  236,  242, 
274,    275,   283. 
V.  Philadelphia  Elec.  Co.,   249,  267. 
Trov  V.   West.   U.  Tel.  Co.,   867. 
Troy  &  Boston  R.  Co.  v.   Boston  Hoosac 

Tunnel,    etc.,    R.    Co.,    46. 
Trov,  etc.,  R.  Co.  v.  Kerr,   46. 
True    V.    International    Tel.    Co.,    25,    28, 
452,   457,   458,   459,    460,   461,   514.    532,  693, 
699,    701,    725,    928,    934,    945,    954. 
Tufts  V.  Plymouth  Gold  M.  Co..   739. 
Turner  v.  Hawkeye  Tel.  Co.,  400,  445,  559, 
586,  604,  646,  682,  725,  728,  733,  734. 
V.  Provost,   911. 

V.  Southern  Power  Co.,   227,   228,  229, 
231,  232,   261,  646-. 
Turtle  Creek  v.  Pennsylvania  Water  Co., 

328 
Turton  v.  Powelton  Elec.  Co.,  221,  235. 
Tuttle    v.    Brush    Elec.    111.    Co.,    85,    130, 
131,    200,    201. 
V.  Jefferson  Power,  etc.,  Co.,  142,  209. 
Tweddle  v.  Atkinson,  601. 
Tweed   v.    Hudson,    etc.,    Tel.    Co..    287. 
Twelfth    Market   Street   Co.    v.   Philadel- 
phia,  etc.,   R.   Co.,   162,    172. 


Twin  Valley  Tel.  Co.  v.  Mitchell,  458,  460, 

469,    472,    477,    570,   572. 
Twin  Village  Water  Co.  v.  Damariscotta 

Gaslight   Co.,    42. 
Twist  V.  Rochester,    237,   246,   269. 
Twombly   v.    Consol.    Elec.    Lt.    Co.,    284, 

287 
Tyler  v.  Todd,  270. 

V.  West.  U.  Tel.  Co.,  29,  384,  400,  444, 
445,  453,  458,  495,  506,  511,  512, 
513,  514,  536,  543,  544,  548,  680, 
682,  698,  699,  727,  728,  757,  782, 
791,    802. 

u 

Underwood   v.    Maguire,    945. 

V.  Stack,  913. 
Uline    V.    New   York   Cent.,    etc.,    R.    Co., 

740. 
Union   Bank  v.  Lea,    903. 
Union  Construction  Co.  v.  West.  U.  TeL 

Co.,    506,   954. 
Union    Electric   Tel.,    etc.,   Co.    v.    Apple- 

quist,   114. 
Union  Light,  etc..   Co.  v.  Arntson,   274. 

v.  Lakeman,   250,   659. 
Union  Nat.   Bank  v.  Miller,   938. 

V.  Mills,    937. 
Union  Pacific  R.   Co.  v.  City  of  Greeley, 
170. 
V.  Colorado    Postal    Tel.     Cable    Co., 
140,     142,     148,     149,     150,    161,    163, 
165,    174,    177,    178,    190,    193. 
Union   Railway,    etc.,    Co.   v.    Riegel,    653. 
Union   Tel.    Co.   v.   Ingersoll,    343. 

V.  New    England   Tel.,    etc.,    Co.,   373. 
Union   Trust  Co.  v.   Atchison,    Topeka  & 

S.   F.  R.   Co.,   37,   168,   181,  182. 
Union  Trust  &  Sav.  Bk.  v.  Kinloch  Long- 

Distance    Tel.    Co.,    345,    364. 
United    Electric    R.    Co.    v.    Shelton,    215, 
252,    253,    256.    269. 
V.   State,   238,   250. 
United   Railway    &    Elec.    Co.    v.    Corbin, 
674. 
V.   State,  674. 
United    States  v.   Babcock,    875,    890,   918, 
921,    923.    925. 
V.  Coal  Dealers'   Ass'n,    203. 
V.  Colt,    840. 
V.  Hartwell,   826. 
v.  Hunter,    8:^1,    91S. 
V.  La  Compagnie,   etc.,   Tel.   Co.,   208, 

209. 
V.  Moline,     204. 
V.  Northern    Pac.    Ry.,    46,    309,    310, 

594. 
V.  Palmer,    486. 
V.   The   Montello,   210. 
V.   Union    Pacific    Ry.,    46,    48,    50,    72, 

181,    182,    309,    310. 
V.  West.  U.  Tel.  Co.,  46,  48,  156,   309, 

310. 
V.  Wiltberger,    827. 
United   States   Express   Co.   v.   Backman, 
514. 
V.  Harris,  591. 
United   States  Tel.   Co.   v.   Central  Union 
Tel.  Co.,  364. 
V.  Gildersleve,    35,    445,    497,    505,    53  r, 
553,    600,    610,    650,    651,    652,    695, 
706. 
V.  Middlepoint  Tel.  Co.,  364. 
V.  Wenger.  392.  445.  453,  536,  659,  661, 
682,    689,    693,    698,    700,    701,    725, 
726,    954. 
V.  West.    U.    Tel.    Co.,    338,    384,    587, 
619,  827,  841. 
Utley  V.  Donaldson,  928,  929,  930,  932. 
Utica  V.   Utica  Tel.    Co.,   93,   129. 


<)92 


CASES  CITED 
[The  figures  refer  to  pages] 


V 


Valparaiso    Ltg.    Co.    v.    Tyler,    221,    274, 

-^-.   633. 
Van  Alstine  v.  Standard,  etc.,  P.  Co.,  288. 
Van  Baalen  v.  People,  860. 
Van  Dyck  v.   McQuade,    847. 
Van  Slclen  v.  Jamaica  Electric  Light  Co., 

133,    134,   136i. 
Van   Toll  v.    Southeastern   R.   Co.,   31. 
Van  Vehten  v.  New  York,  etc.,  Tel.,  etc., 

Co.,   213.  „     ^ 

Vanderkar    v.    Rensselaer,    etc.,    R.    Co., 

847 
Varnau  v.  Pennsylvania  Tel.  Co.,  2G5,  266. 
Vassar  v.   Camp,   623,  624,  933. 
Vaughn   v.    State,    894,    895. 
Vaucht  V.    East   Tennessee    Tel.    Co.,    29, 

338,   342,  343,   348,   352,  358. 
Veitch  V.   West.   U.   Tel.   Co.,   700. 
Virginia   Hot    Springs    Co.    v.    Harrison, 

936. 
Vermillion  v.  Exch.   Co.,  77. 
Vermilye    v.    Postal    Tel.    Cable    Co.,    29, 
383,    384,   389,    832,   836. 
V.  West.  U.  Tel.  Co.,  568. 
Vermont,  etc.,  R.  Co.  v.  Fitchburg  R.  Co., 

595 
Vicars  v.  Cumberland  Tel.,  etc..  Co.,  287. 
Vicksburg   Bank  v.    Worrell,    861. 
Vicksburg,  R.  &  L.  Co.  v.  Miles,   654. 
Victorian  R.  Co.  v.  Coultas,  798. 
Victory    Webb   Printing   Co.   v.    Beecher, 

847. 
Village  V.    Siler,    221. 

Village  of  London  Mills  v.  White,  43,  44. 
Vindquest  v.   Perky,   915. 
Vineland   v.    Fowler,    etc.,   Mfg.    Co.,   377. 
Vinson   v.    Southern   Bell   Tel.,    etc.,    Co., 

337,  351,  352,  375,   478,  479,  €62,  657,   659. 
Volquardsen    v.    Iowa   Tel.    Co.,    352,    648, 

649,    686,    688.  ,.   ^^  ^       „„„ 

Von  Trebra  v.  Laclede  Gaslight  Co.,  228, 

242,    283,    673. 
Vrooman  v.  Turner,  603. 


w 


Wabash,    St.   L.   &   P.   R.    Co.   v.  Brown, 
497. 
V.  Illinois,  864. 
Wade  V.   Carolina  Tel.,  etc.,  Co.,   198. 

V.  United  States,  562. 
Wadsworth    v.    West.    U.    Tel.    Co.,    382, 
568,   605,  606,  607,   611,  614,  615,   618,  756, 
758,    760,   768,    794,    795,    796,    802. 
Wagner   v.    Brooklyn   Hgts.   R.    Co.,    242, 
245,    282,    283,   663. 
V.  People's   Ry.   Co.,    233. 
V.  Portland,    286. 
V.  Tel.  Co.,  825,  829. 
Walden    v.    West.    U.    Tel.    Co.,    726. 
Wales    V.    Pacific    Elec.    Motor    Co.,    241, 

247. 
Walker  v.   Erie  R.   Co.,   819. 
V.  Power  Co.,  142. 
V.  West.  U.  Tel.  Co.,  783,  801. 
V.  York,   etc.,  R.  Co.,  31. 
Wall  V.   Telephone  Co.,  €66. 
Wallace  v.   Clayton,   482. 
Waller  v.    Leavenworth  Light,   etc.,   Co., 

294. 

Wallingford   v.    Columbia,    etc.,    R.    Co., 

484. 

V    West.    U.    Tel.    Co.,    645,    667,    701, 

719,    721,    724,    743,    775,    952,    953. 

Walser  v.    West.    U.    Tel.    Co.,    678,    686. 

687,  688,  717,   742  95L 
Walsh   v.    New    York,    etc.,    R.    Co.,    277, 

279,   290. 
Walter  v.    Baltimore  Elec.    Co.,   213,    21&, 

232,    236,    258,    260,    264,    645. 
Walters  v.  Denver  Consol.  Elec.  Lt.  Co., 
228,    248,    663. 
V.  Syracuse,  etc.,  Ry.  Co.,  272,  662. 


Walther   v.    American   District   Tel.    Co., 

212,    218,    244,    26S. 
Wampum  Cotton  Mills  v.   Carolina,   etc., 

R.    Co.,    483. 
Wampum   First  Nat.    Bank  v.   West.   U. 

Tel.    Co.,    651. 
Wann  v.  West.  U.  Tel.  Co.,  495,  497,  506. 
Ward  v.  Atlantic,  etc.,  Tel.  Co.,  214,  225, 
237,    268. 
V.  Kohn,    881. 
V.  Railway    Company,    886. 
V.  Ward,    805. 

v.  West.  U.   Tel.   Co.,   692,   704,   784. 
Waring  v.    Betts,    903. 
Warren    v.    City    Elec.    R.    Co.,    234,    238, 

244,    245,    663,    674. 
Washburn    v.     Fletcher,    945. 
Washington   v.    B.    &   O.   R.    R.    Co.,    644. 

V.   Eaton,     840. 
Washington,    etc.,     Rid.     Co.    v.    Brown, 

47. 
Washington,    etc.,    Tel.    Co.    v.    Hobson, 

443,    452,    453,    633,    670,    716,    727. 
Washington    Water    Power    Co.    v.    Wa- 
ters,   142,    209. 
Waterman  v.    Banks,    939. 
Waters-Pierce    Oil    Co.    v.    Texas,    870. 
Watson  v.   Ambergurt,   etc.,   R.   Co.,   583. 
v.  Baker,  910,   913,   916,   936. 
v.  Montreal  Tel.   Co.,   606. 
Watt   v.    Wisconsin    Cranberry    Co.,    93b, 

941 
Watts    V.    Southern    Bell   Tel.,    etc.,    Co., 
215,     219. 
V.  Weston,    821. 
Wayne-Monroe     Tel.      Co.      v.      Ontario 

Tel.    Co.,    52,    363. 
Weare   Comn.    Co.   v.    People,   562. 
Weatherford,    etc.,    R,.    Co.    v.    Seals,    5o5, 

585,    589,    592.    009,    714,    762. 
Weaver   v.    Bachert,    752. 
V.  Burr,    937. 
V.  Dawson     County     Mut.     Tel.     Co., 

197,     198,    234,     273,    260,    292. 
V.  Grand    Rapids,    etc.,    Co.,    824,    825, 
832     835     837. 
Webbe    v."' West.    u'.    Tel.    Co.,    516.    527, 
542,    544,    548,    549,    551,    604,     610,    611, 
648,    667,    808. 
Webster  v.   Light,   etc.,   R.   Co.,   228,   654, 
663. 
V.  Richmond    L.,    etc.,    Co..    674. 
V.   Susquehanna    Pole    Line    Co.,    209. 
Wehner   v.    Lagerfelt,    215,    235,    250,    256. 
Weiden  v.    Brush   Elec.   L.   Co.,   2r9,    284. 
Weir    v.    Hoss,    567. 

V.  Light  Co.,   272. 
Welch    V.    Wadsworth,    847. 
Weld    V.    Gas    Commissioners,    343,    368, 
369. 
V.  Postal     Tel.     Cable     Co.,     20,     505, 
650.    669,    715,    720. 
Weleetka  L.,   etc.,    Co.   v.   Northrop,   250. 
Wells   V.   Milwaukee,   etc.,    R.   Co.,    928. 
V.  Northeastern    Tel.     Co.,    223,    226, 

262,    269. 
V.  Thomas,    402. 

V.  West.    U.    Tel.    Co.,    219,    516,    575, 
577,    578,    579,    581,    604,    610,    617, 
662,    691,    942,    943. 
Welsh  V.  Brainerd,   913,   915. 
Welty    V.    Lake    Superior,    etc.,    R.    Co., 

Wertz  V.  West.  U.   Tel.   Co.,   26,  495,  507, 

514,    537,    647,    698. 
West  V.   Bayfield  Mill  Co.,   271. 

V.  West.    U.    Tel.    Co.,    604,    607,    680, 
791,    792,    797,    807,    815. 
West  Chester   v.    Postal   Tel.,    etc.,    Co., 

S6S.  .  ,,       , , 

West    Jersey,     etc.,    R.     R.    v.     Atlantic 
City,    etc.,    Co.,    297. 
V.  Camden,    etc.,    R.    Co.,    261. 


CASES   CITED 
[The  figures  refer  to  pages] 


993 


West    Kentucky    Coal    Co.    v.    Kuyken- 

dall,    277. 
West   Kentucky   Tel.    Co.    v.    Pharis,    212, 

218,   219,   233,   234,   235,   237,   244,   246. 
West    Orange    v.    Field,    105. 
West  River  Bridge  Co.   v.   Dix,   184. 
Wester    v.    Casein    Co.,    934. 

V.  Hurt,    905. 
Western    &    Atlantic    Rd.    v.    West.    U. 

Tel.    Co.,    166,    180. 
V.  West.     U.     Tel.     Co.,    68,    74,    146, 

154,  163,  174,  179,  196. 
Western   Coal,    etc.,    Co.    v.    Garner,    229. 
Western    Rd.    Co.    v.    Harwell,    591. 
Western   Twine  Co.   v.    Wright,   875,    929. 
Western   U.    Tel.    Co.    v.    Adair,   454,    608, 

755     757     795     796. 
V.  Adams,     405,  '418,'   495,     496.     506, 

537,    605,    607,    608,    610,    611,    618, 

639,    669,    671,    679,    684,    695,    710, 

711,    753,    774,    778,    779,    780,    787, 

788,    789,    790,    837,    839. 
V.  Adams     Machine     Co.,      776,     950, 

952. 
V.  Alabama     St.     Board     of     Assess- 
ment,   864. 
V.  Alford,     418,     427,     495,     496,     515, 

531,    593,    776. 
V.  Allen,    32,    404,    408,    605,    611,    614, 

616,    618,    620,    684,    724,    741,    839, 

953. 
V.  Allgood,    599,    609. 
V.  American   Bell   Tel.    Co.,    5,    54. 
V.  American    U.    Tel.    Co.,   53,    62,    68, 

70,    155,    159,    166,    181,    182,    184. 
V.  Anderson,    777,    782,    799. 
V.  Andrews,    63,    773,    871. 
V.  Ann   Arbor  R.    R.    Co.,    22,    65,    67, 

68,    69,    71,    154,    167,    180. 
V.  Anniston    Cordage    Co..    506. 
V.  Arant,   761,   763,    786,   787. 
V.  Archer,    421,    426,    465,    467,    670. 
V.  Archie,    766,    771. 
V.  Arnold,    760,    763,   764,   787. 
V.  Arwine,    556. 
V.  Ashley,    517. 
V.  Askew,    691. 
V.  Atlantic,     etc.,     Tel.     Co.,     60,     62, 

63,    70,    159,    171,    185,    307. 
V.  Atty.    Gen.,    61,    851,    855,    856,    857, 

870,    871. 
V.  Auslet,    687,    688,    719. 
V.  Axtell,   639,   825,   826,    837,   838,   839, 

844. 
V.  Avers,   396,    409,  419,   422,    423,   425, 

669,    712,    762,    764,    785,    786. 
V.  Bailey,    451,    715,    745,    746,    892. 
V.  Baker,    452,    531,    548,    715,    783. 
V.  Baltimore,    etc.,    Tel.    Co.,    50,    60, 

TO,     181,     182. 
V.  Bangs,     763,     766. 
V.  Bank,    413,    597. 
V.  Barefoot,    410,    414,    415,    416. 
V.  Barkley,    691,    695,    701,    706. 
V.  Barlow,    681,    686. 
V.  Barnes,    651,    652,    672. 
V.  Barrett,    754,    766. 
V.   Bass,    765,    770. 
V.  Bates,   707,  884,   885. 
V.   Beals,    403,    454,    494,    506,    620,    745, 

760,    946. 
V.  Beck,    616,    527. 
V.  Belew,    410. 
V.  Bell,    536,    632,    635,    660,    692,    70S, 

709,    714,    731,    733,    761,    766,    767, 

774,    779,    819. 
V.  Bennett,    445,    505,    650,    651,    657, 

6B8,    667,    669,    710,    714,    754,    786, 

818. 
V.  Benson,     387,     422,     427,     428,     542, 

667,    669,     670,     707,    709,     712,     714, 

769,    775,   780,   786,   789,   805. 
Jones  Tel.(2d  Eu.) — 03 


Western  U.  Tel.  Co.  v.  Berdine,  820,  821. 
V.  Beringer,    605,    607,    608,    616,    754, 

787. 
V.  Bertram,   647,    648,    651,   672. 
V.  Bibb,    429,    458. 

V.   Bierhaus,    395,   397,   408,   417,   534. 
V.  Biggerstaff,   395,   604,   614,   668,   670, 

691,    737,    768,    787,   820,   953. 
V.  Birchfield,    404,    433,    775,    787,    782. 
V.   Birge-Forbes     Co.,     394,     396,     397, 

409,   534,   536,    698,   703,   706. 
V.  Blackmer,    760,    817. 
V.  Blair,    667,    712,    778,   789. 
V.  Blake,    622,     798.     799. 
V.  Blance,    883,    884,    885. 
V.  Blanchard,    31,    339,    398,    400,    444, 

453,    459,    460,    495,    498,    506,    507, 

514,    528,    536,    561,    563,    604,    680. 

687,    699,    705,    720. 
V.  Blocker,    792. 

V.  Board    of    Assessment,    851,    864. 
V.   Bodkin,    755,    807. 
V.  Boots,    445,    648. 
V.  Boteler,    666. 
V.   Bouchell,    648,    819. 
V.  Bowen,      433,     434,     669,     703,     706, 

738,    763,    954. 
V.  Bowles,    769,    820,    821. 
V.  Bowman,    665,    739,    950,    951. 
V.  Bradford,    559,    733. 
V.  Braxtan,    824,    825,     826,     827,     832, 

833. 
V.  Brightwell,    846. 
V.   Briscoe,    452,    689,    715,    768,    775. 
V.  Broesche,    339,    392,    407,    471,    475, 

495,  507,  510,  599,  606,  609,  617,  709, 

710,    754,    819. 
V.  Brown,     401,     402,     446,      517,     519, 

527,    597,    600,    608,    019,    640.    647, 

667,    726,    753,    754,    792,    803,    805, 

814,    829,    835,    847. 
V.   Bruner,     396,     408,     409,     410,     451, 

475,    476,    533. 
V.  Bryant,     422,     425,     678,     694,     748, 

749,    760. 
V.  Bryson,   453,  471,  472,  473,  783. 
V.  Buchanan,    25,    434.    457.    496,    501, 

506,    556.    680,    763.    766.    799,    838, 

839,    846. 
V.  Bullard,    88,    295. 
V.  Burch,    772. 
V.  Burgess,     280,     287,     404,     406,     431, 

568,    709,    762,    764,    766,    797. 
V.  Burlington,    etc.,    Ry.    Co.,    22,    23, 

60,     70,     181,     182. 
V.  Burns,   423,    426,    662,   670,   727,    792, 

797      954. 
V.  Burriss,   606,  682,   757,   800,   801. 
V.  Burrow,   507,  510,  780. 
V.   Burskirk,    838. 
V.  I5urton,    278. 
V.   Butler,    787. 

V.   Byrd,    394,    422,    426.    474,    640.    641. 
V.  Cain,    404,    425,    428.    429,    430,    434, 

453,    707,    784. 
V.  Caldwell,    664,    667,    681,    774,    776, 

777,    818. 
V.  Calhoun,  640,   661. 
V.  Call    Pub.    Co.,    25,    324,    336,    338, 

341,    343,    345,    346,    353,    384,    632, 

682,    748,    874. 
V.  Campbell,    778.    779,    781,    784,    789. 
V.  Carew.     25,     28,    29.     384,    401.    444. 

497,    505,    535,    541,    582,    583,    584, 

680. 
V.   Carter,     426,     431,     445,     535,     586, 

594,    609,    631,    648,    669,    701,    709, 

710,    713,    754,    760,    763,    777,    778, 

779,    780,    787,    829,    830. 
V.  Carver,    180,    703.    706,   726. 
V.  Cashman,  357,  566,  567,  812. 


994 


CASES  CITED 

[The  figures  refer  to  pages] 


Western  U.    Tel.    Co.   v.    Gates,    652,    774. 
V.  Gavin,   473,   475,   766,  773. 
V.  Chambers,  776,  777. 
V.  Ghamblee,    272,    430,   451,    453,    506, 

620. 
V.  Champion  Electric  Light  Co.,  104, 

296,    297,   302. 
V.  Chicago,    etc.,    R.    R.    Co.,    53,    70, 

1S5. 
V.  Chilton,    648,    662,    669,    801. 
V.  Chouteau,    756,    759,    765,    791,    793, 

795     796. 
V.  Chri'stensen,  394,  422,  426,  474,  799. 
V.   Church,    680,    6S2,    702,    747. 
V.   City  of  Fremont,  859,  860. 
V.  Clark,   395,   411,   608,   773. 
V.  Clarke,   402,   843,   844. 
V.  Cleaver,  706. 
V.  Cleveland,    633,    655,    661,    667,   755, 

762,    779,    787,    818. 
V.  Clifton,   691,    695,    724,   740,   950. 
V.  Gline,   786,   885,   891. 
V.  Gobbs,   496,    516,    521,   754,   818,    839, 

845. 
V.  Cocke,  670. 
V.  Coffin,    607,    608,    609,    691,   693,    710, 

711,  712,  713,   784,  785,  789,  790. 
V.  Coggln,   26,   505,   517,   537,   650,   695, 

703. 
V.  Cohen,   397,  400,   534,  646. 
V.  Collins,     660,     721,     729,     730,     734, 

749,   820,   886. 
V.  Commercial    Milling   Co.,   307,    315, 

317,  507,   567,   568,   569,  831,  832. 
V.  Commonwealth,  864. 
V.  Conder,  670. 
V.  Connell   Land  Co.,  945. 
V.   Connelly,   688,   717,   742,   951. 
V.  Cook,    26,    607,    631,    632,    639,    647, 

648,  651,  741,   777. 
V.  Gooledge,  845. 
V.  Cooper.     395.     398,     404,     407,     429, 

430,     431,     432,    438,     440,    502,    530, 

537,     611,     618,     619,     653,     655,     657, 

661,     665,     670,     671,     672,    747,    754, 

768,  769,  772,  773,  775,  798,  799,  880. 
v.  Cordage    Co.,    797. 
V.  Cornwell,    604,    609,    613,    686,    687, 

695,    701,   744. 
V.   Corso,  637,  732. 
V.  Courtney,  517,  527,  531,  542, 
V.  County,   869. 
V.  Cox,  404,  406,   430. 
V.  Craige,  404,  419,  660. 
V.  Crall,    444,    445,    500,    506,    536,    646, 

648,   651,  686,   6S7,  688,   698,  716. 
V.  Craven,    591,    665,   762,    779. 
V.  Crawford,    451,    506,    517,    522,    530, 

655,    681,    686,    689,    728,    733,    749, 

777,  782,  817. 

V.  Crenshaw,   756,  800,  801. 

V.  Crider,   470,   471,    -:.2,  474,   662,   755. 

V.  Crocker,    714,     755,     768,     778,     784, 

785,   786,   819. 
V.  Cross,    406,   421,    423,   426,    430,    812, 

814. 
V.  Crovo,   569,   803,   830. 
V.  Crow,   790. 

V.  Crowley,   763,  772,  776,  807. 
V.  Crumpton,    394,    473,    477,    679,    680, 

735,   755,   786. 
V.  Culberson,   517,  519,  527,  546. 
V.  Cunningham,     390,     391,    392,     393, 

465,    466,    -468,    469,    478,    479,    608, 

609,   666,   680,  755,   815,  816,  817. 
V.  Daniels,  406,  428,  655,  665,  669,  704, 

783. 
V.  Dant,  505,  515,  547,  548,  569. 
V.  Davis,    393,    396,   397,    408,    409,    424, 

426,    427,    428,    429,    657,    660,    666, 

778,  779,   780,  829. 

V.   De   Andrea,    712,    762,    787. 
V.  De  Golyer,  667,  675. 


Western   U.    Tel.    Co.   v.    De   Jarles,    414, 

419,    420,   430,    475,    665,    763,    787. 
V.  Dickens,   157. 
V.  Dobyns,  506. 
V.  Dodson,    820,    821. 
V.  Dougherty,    516,    518,    519,    520. 
V.  Douglass,   417,  427,   518,   555,  779. 
V.  Downs,   384,   386. 
V.  Dozier,   387,   388,    834. 
V.  Drake,   423,    426,    655,    660,    670,   773. 

774,    779,    783. 
V.  Dubois,   390,   398,  403,  466,   548,  549, 

604,    607,    610,    611,    613,    646,    651, 

680,   684,   727,  729,  733,   734,  946. 
V.  Duke,    401,    672. 
V.  Dunfleld,    516,    519. 
V.  Edmonds,    707. 
V.  Eldmondson,     675,     680.     682,     760, 

761,    764,    765,    768,    770. 
V.  Edsall.    29,   387,  401,      403,   450,  536, 

542,    556,    621,    665,    666,    667,    687, 

693,    698,    701,    703,    704,    705,    945. 
V.  Elliott,   404,    406,   414,   430,   432,   446, 

6G1.    665,    667. 
V.   Emerson,    392,    422,    423,    686. 
V.  Engler,    218,    235. 
V.  Erwin,    408,    754,    763. 
V.  Eskridge,    574,    631,    640,    702,    709, 

720,    773,    774. 
V.  Eubanks,    25,   34,   494,  496,  504,   506, 

522,  523,  536,  537,  688,  695,  697,  719, 

722,   944. 
V.  E\'ans,   410,   419,   608,    666,   713,   779, 

781,    783,    817,    820. 
V.  Eyser,    213,    218,    219,   813,   816. 
V.  Fairbanks,     516. 
V.   Farrington,    691,    695,    701,    749. 
V.  Fatman,    429,    536,     648,    697,    703, 

741,    884,    885. 
V.  Federolf,    701,    721,    953. 
V.  Feegles,    616,    618,    710. 
V.  Fellner,    688,    726,    727. 
V.  Fenton,     495,     506,     510,     511,     514, 

548,    549,    604,    611,    614,    615,    619, 

684,   737,   738,  951. 
V.  Ferguson,    384,    385,    391,    431,    463, 

464,    465,    564,    565,    639,    751,    753, 

754,    776,    790,    793,    794,    795,    796, 

802,    824,    825,    826,    827,    829,    831, 

832,   833,    836,    837,    839,   846. 
V.  Ferris,    569,    832. 

V.  Fisher,    445,    048,   733,   755,   818,   946. 
V.  Flannagan,    20. 
V.  Flint  River  Lumber  Co.,   404,   597, 

620,    733,   946. 
V.  Fontaine,    25,    28,    29,    31,    495,    498, 

506,    680. 
▼.  Ford,    394,    433,    434,    471,    570,    623, 

662,   666,   670,   774,  793,  797,  800. 
V.  Forest,  631,  774. 
V.  Foster,    387,    450,   463,    542. 
V.  Foy,     677,     681,     782,     791. 
V.  Franklin,    410. 
V.  Franklin,    etc.,   Co.,    297. 
V.  Fremont,    62,    79,    866,    867. 
V.  Frith,    20,    655,    659,    756,    761,    807, 

S15,    818,    820. 
V.  Fuel,    622,    631,    640,    753,    755,    763, 

787,    789,    818. 
V.  Furlow,    570. 
V.  Gahan,    608,    774. 
V.  Garlington,   691,   707,   714,   766,    767, 

820,    821. 
V.  Garrett,    408,    711,    712,    713. 
V.  Gault,    388,    389. 
V.  Georgia  Cotton   Co.,   394,   469,    473, 

474,    476,    478,    479. 
V.  Gibson,   394,   469,   471,  472,  711,  784, 

790. 
V.  Gidcumb,   745,  761,   764,  767. 
v.   Giffin,    763,    765,    772,    819. 
V.  Gilkison,    829,    831. 
V.  Gilliland,    608,   669,    707,    708,    754. 


CASES  CITED 
[The  figures  refer  to  pages] 


995 


•Western   U.   Tel.   Co.    v.    Gillis.   418,    461, 

469,    470,    662,    665,    818. 
V.  Girswold,    430,    535,    807,    817. 
V.  Gla.ss,    777,    783. 
V.  Glenn.    648,    673,    779. 
V.  Glover,    691,    760. 
V.  Godsey,    636. 

V.  Goodbar,  495,  498,   500,  506,   647. 
V.  Gossett,    687,    764. 
V.  Gougar,     404,     405,     429,     430,     826, 

836,    838. 
V.  Graham,     443,     495,     496.     506,     510, 

514,    534,    682,    686,    687,    688,    725, 

V    Greer,    517,    521,   531,   542,    841,   845. 
V.  Griffin,    573.   574.    640,   692,    709,   720, 

761,    765,    786,    837. 
V.  Griffith,     244,     252,     665,     666,     668, 

774. 
V.  Grigsby,   713,   761. 
V.  Griswold,     26,     400,     444,     445,     459, 

460,    495,    507,    514,    535,    605,    647, 

648.    651,    680. 
V.  Guernsey,   etc.,   Elec.    L.    Co.,    296. 
V.  Guest,    818. 

V.  Guinn.    489,    608.    654,    669,    783. 
V.  Gulick,    665,    669,    768. 
V.  Gulledge,     447,    709,    717,     782,     783. 
V.  Hale,     763. 
V.  Hall,    537,    564,    682,    686,    688,    689, 

695,    716,    721,    723,    725,    726,    727, 

826,  836. 
V.  Haley,   665,   668,    678,   744,   747,    753, 

773. 
V.  Haltom,    790. 
V.  Hainan,     703,     721,     723. 
V.  Hamilton,    568,    647,    675,    763,    784, 

787,    819,    829. 
V.  Hammond    Elevator    Co.,    355. 
V.  Hankins,     432,    434,     450,     664,    714, 

761.   789. 
V.  Hanley,   419,    664,    762,    797,    800. 
V.  Hardison,    777,    783,    818. 
V.  Hargrove,    386,    396,    410. 
V.  Harding,     394,    396,     397,     457,    469, 

470,    471,    474,    571,    841,    842. 
V.  Harper,     445.     447,     454,     455,     456, 

563,    647.    717,    720. 
V.  Harris,    225,    235,    475,   476,   506,    514, 

r>33,    640,    682,    698,    699,    707,    725, 

775. 
V.  Hart,    400,    451,    646,   715,    733. 
V.  Harvey,   421,  425,   426,    474,   670. 
V.  Hayes,    420,   517,    529,   530,   546,    556, 

H37. 
V.  Hearne,    26,    35,    452,    471,    531,    540, 

544,    547,    548,    570,    572,    655,    716, 

743. 
V.  Heathcoat,    516,    526,   608,    712. 
V.  Henderson,    337,    339,    394,   406,    407, 

408,     421,     422,    423,     424,     447,     466, 

510,    511,    516,    530,    542,    556,    631, 

639,     640,    653,     G54,     655,    656,     661, 

704.    709,    755,    758,    764,    772,    773, 

778,   792,   880. 
V.  Hendricks,    401,    411,    415,    418,    678, 

773,   774. 
V.  Henley,  390,   391,   450,  465,  466,  510, 

572,     574,    631,     633,    639,     640,    6S0, 

692,  700,    706,'  720,    748,    749,    760, 
772. 

V.  Henrj',    761. 

V.  Herring,    609,   617,   669,  708,  761. 

V.   Hildalgo,    692. 

V.  Hill,  2,  4,  140,  337,  388,  390,  392, 
395,  418,  470,  472,  475,  476,  501, 
563,  598,  612,  621,  622,  623,  6CG, 
720,  753,  777,  783,  787,  799,  800, 
801,    SIS. 

V.  Hiller,    807,    821. 

V.  Hines,   400,    445,    507,    647,    667,    687, 

693,  700,    706,    738,    744,    763,    771, 
787,    819,    885.    88G. 


Western  U.   Tel.  Co.   v.   Hinkle,  547,   639. 
V.  Hirsch,    719,    725. 
V.  Hoffman,    448,    618. 
V.  Hogue,   614,    681,   6S3,    690,  709,   748, 

760,    761,    771,    802. 
V.  Holcomb,    423. 
V.  Holland,    656. 
V.  Hollev,    430,    434. 

V.   HoUingsworth,    759,    764,    765,    802. 
V.  Hollis,   517. 
V.  Holtby,    277.   279,    286. 
V.  Hope,    604,    607,    670. 
V.   Hopkins,    59,    63,    618,   635,   675,   817, 

883,    885,    886,   887. 
V.  Horn,   761. 

V.  Hosea,   419.  „_^     „„^ 

V.  Houghton,    410,    414,    817,    819,    820. 
V.  Housewright,     451,    661,     668,     67'0, 

773. 
V.  Houston  Rice  Mill  Co.,   692,  703. 
V.  Howell,   308,   500,   501,  604,  646,  830, 

854. 
V.  Howie,   756,   771. 
V.  Hoyt,   691,  954. 
V.  Huff,   840. 
V.  Hughes,    824. 
V.  Hughey,    762,    774. 
V.  Hutcheson,    572. 
V.  Hver,    393,    398,    408,    536,    537,    604, 

680,    694,    704. 
V.  Inman,     etc.,     Steamship    Co.,     59, 

61,    205,    206,    207. 
V.  Ivy,   393,  489,  648,  715,  716,  717,  782. 
V.  Jackson,     387,     414.     470,     542,     604, 

616,    632,    655,    666,    707,    755,    756, 

779,  780,  781,   792. 

V.  James,    407,   429,   431,    516,    521,    546, 

569,    654,    655,    660,    697,    721,    818, 

829,    830.    831,    832,    845. 
V.  Jeanes,    451,    452,    715,    763,    782. 
V.  Jenkins,  761. 
V.  Jennings,    422. 
V.  Jobe,    392,    517,    523,    680,    692,    693, 

703,    754,    761,    780. 
V.  Johnsev,     404,     419,     471,     474,     478, 

479,    668,   669,    671,   777,    782.   783. 
V.  Jones,    386,    387,    388,    392,    394,    457, 

516,    518,    519,    520,    521,    535,    593, 

607,    608,    661,    666,    675,    828,    832, 

833,   834,   835,   841,    845. 
V.  Johnson,     453,     533,     632,     664,     670, 

671,    672,    755,    763,    773,    774.    777, 

780,  783,     818. 
V.  Jump,    604,    607,    706. 
V.  Kanause,    712,    786,    790. 
V.  Kansas,    63,    329,    865,    868. 
V.  Kansas  Pacific  Ry.,  23,   48,   181. 
v.  Kapp.    887. 
V.  Karr,    530,    654,    670,    694,    749,    775, 

807,    815,    816. 
V.  Kemp,    36,    400,    522,    523,    605,    647, 

680,    8S6,    953,    954. 
V.  Kemp   Grocer  Co..   701,    726. 
v.  Kendzora,    772. 
V.  Kerr,   599,    708. 
v.   Kibble,    419,    707,    709.    760,    762. 
V.  Kinney,   597,   619,    638,   S29,    837. 
V.  Kinsley,    527,    754,    777. 
V.  Kirchbaum,   404,    407,   429,   604,   610, 

753     792 
V.  Kirkpatrick,     609,     610,     617,     639, 

761,    785,   787,    827. 
V.  Kuvkendall,    396,    709.    760,    772. 
V.   Lacer,    607,   622,   799,   800. 
V.  Lakin.    856,    869,    870. 
V.   Landis,  515,  695,  697,  726,  728. 
V.  Landry,   392,    654,   807. 
V.   Lark,    569,    832. 
V.  Lavender,   453,   747,  783. 
V.  Lawson,   418.  604.   678,  679,  686.  688, 

693,   775,    807,    812,   815,    816,    822. 
V.  Lehman,    419,     516,    519,     528,     661, 

666,    669,    670,    675,    688,   703,   705. 
V.  Leland,   765,   768. 


996 


CASES   CITED 
[The  figures  refer  to  pages] 


Western   U.    Tel.    Co.   v.    T^evi,    213,    270, 

271. 
V.  Lewellingr,   838. 

V.  Lewis.    431.    433.    434,    448,    723,   724. 
V.  Liddell,   387,   388,   390,  448,  449,  466, 

834,    835. 
V.  Lieb,    851.  „     „„, 

V.  Lillard,    385,   539.  565,   651,   833.   834. 
V.  Lindley,  404,  431,  432,  836,  838,  839, 

843. 
V.  Linn,    510,    703,    754,    768,    773,    774, 

V.  Liiinev,    635,    639.    640,    729,    734. 
V.  Littlejohn,    5G3,    675,    720,    730,    731. 
V.  Lons,    672,    763,    766,    772,    785,    788, 

819. 
V.  I-X)ngwill,    507,     522,    605,    610,    737, 

740. 
V.  Los  Angeles   Elec.    Co.,    297. 
V.  Louisell.    665,    904.  ,„.     ,„. 

V.  Louisville,    etc.,    R.    Co.,    166,    181, 

191 
V.  Lov4-Banks  Co.,  394,  470,  662.  667, 

719,    721,    723.    952. 
V.  Lovely,    501,    590,    591. 
V.  Lovett,    770. 

V.  Lowrey,    506,  514,   703,  719.  ^^     ^^  ^ 
V.  Luck,    438,    440,    472,    709,    711.    714, 

760,   770. 
V.  Lvcan,    542,    549,    611. 
V.  LVdon,    453,    653,    655,   657,    659,   670, 

780,    781,    783. 
V.  Lyles.    670.  „^    ^^, 

V.  Lvman,   510,   588,  589.  595,  605,  774. 
V.  Lyon,   400.   605,  733. 

V  Mank'er,   431,  599,   604,  609,  613,   660, 

669,    753,    778,    780.   792. 
V.  Mansfield,    842.  .     „^     -ico 

V.  Marietta,    etc.,    R.    Co.,   4,    70,    182. 

185. 
v.  Martin.    537,   694,    695. 
V.  Massachusetts,    61,    62,    63,   64,    31Z. 

849,   855.   857.    858.   866,  869. 
V.  Matthews,    421,    423,    425     426     428, 

448,    452,    453,    474,   715,    755,   783. 

V  May,    394,    470,    476,    517,    667.    668, 

708,    709,    754,   775. 
V.  Mayor   of  New   York,   37. 
V.  McAllen.   686. 
V.  McCants,   733. 
V.  McCaull,     414,     415,     422,     426,     4*4, 

747.    762,    764,    787,    817. 
V.  McConnico,   394,   419,   420,    470,   476, 

V.  McCormick,    706,    743,    837,    840. 

V.  McCoy,   533. 

V.  McDariel,    433,    448,    449,    843. 

V.  McDavid,    754,    775,    818. 

V.  McDonald,    393,    396,    401.    409,    535, 

593,    669,    777. 
V.  McFadden,    709,    760. 
V.  McF"arlane,    764. 
V.  McFrancis,    415.    672. 
V.  McGown,    394,    665. 
V.  McGuire,    341,    342,    343,    457.    467, 

468. 
V.  Mcllvoy.     426,     445,    584,     755,     (64, 

819. 
V.  INIcKenzie.   766.   771. 
V    McKibben,    431,    432,    433,    448,    473, 

474      516,    521,     523,    548,    549,     604, 

614,   619,    737,    738.   740,   951. 
V.  McKinney,    529,    530,    695. 
V.  McLaurin,    436,    572,    574.    692.    719, 

720,   740,   837,    840. 
V.  Mcleod,     535,     593,     665.     779.    780, 

785,    789. 
V.  McMillan,    394,    457,    655,    711,    712, 

713,    784,    790. 
V.  McMorris,    395.    488.    534.    634.    635, 

712,    755,    763,    772,    779,    785,    788, 

789,   792. 


Western    U.    Tel.    Co.    v.    McMullen.    278, 

281.     282,     404,     428,     503,    660.     669, 

672,    714,    755,    759,    763,    766,    771. 
V.  McNairy,   623,   670,   763,  787,  799. 
V.  Meek,    25,    400,    445,    446,    447,    495. 

506,    514,    618.    633,    639,    646,   838. 
v.  Mellon,    26,    452,    522.    530,    569,    605, 

617,    655,    756.    780,    781,    783,    819. 

820,    829,    831,    832. 
V.  Mellor,    691,    695. 
V.  Meredith,     25,     325,    495.    506.     516, 

521,    639,    827,    837,    845. 
V.  Merrill,   394,   423,   428,   443,   470,   473, 

476,    647,    662,    664,   665,    667,   668. 
V.  Merritt.     400,     536,     575,     577,     633, 

635,    636,    667,    687.    692,    693,    694. 

698,    704,     705. 
V.  Michelson,    524,    829,    832. 
V.  Miller,   489,    805. 
V.  Milling  Co.,    505. 
V.  Millsap,    599. 
V.  Milton,    383,   496,   506,   508,   509,    634, 

641,    642,    681,    684,    685,    687,    689, 

690,  692,  693,  703,  721,  723,  727,  946. 
V.  Mississippi   R.    Co.,   309. 
v.  Missouri,    64,    849. 
v.  Mitchell,    410,    411,    414,    775. 
V.  Mooney,    780.  „     ,„, 

V.  Moore,    396,    405,    408.    418,    419,   424, 

425,    429,    467,    604,    622,    673,    710, 

761,  799. 
V.  Moran,    418,    419,    655,    754,    776. 
V.  Morgan,  669,   824. 
V.  Morris,    645,    672,    747,   815. 
V.  Morrison,    617,   693. 
V.  Moseley,    411. 
V.  Moss,    846,    847. 
V.  Mossier,    639,    825,    837,    846. 
V.  Motley,   610,   617,  713,   773,  774,  776. 
V.  Moxley,   516,   527,  528,   708,   710,   711, 

764,   786. 
V.  MuUins,  682. 
V.  Munford,    26.   29,   420,   535,   584,   589. 

590.  595,  686. 
V.  Murphey,  842. 
V.  Murray.    394,     517,     528.     680.     707. 

762,  764. 
V.  Myatt.  319,  323,  334. 
V.  Nagle,    507,    510,   536,    692,    698.    699. 

701.    703,    704,    705,    706.   953. 
V.  Nashville,    etc..    R.    Co.,    155,    159, 

171,    178. 
V.  National    Bank.    576,    577. 
V.  Nations,  709,   711,   714,   T54. 
V.  Neel,    394,    418,    419,    421,    457,    469, 

470,    473,    474,    475,    476,    546,    754. 
V.  Neill,  26,   29,  340,   384,   401,  402,  433, 

454,    455,    495,    499,    500,    507,    532, 

546,    548,   606,   650,    680. 
V.  Nelson,    528. 

V.  New   Hope,    79,    83.    330,    866. 
V.  Newhouse,    410,    413,    430,    670,    817. 
V.  Newnum,  774. 

v    New  York,   60,   62,   91,   98,   100,   101. 
v.  Nolan,    286,    287. 
V.  Norman,   40. 
V.  Norris,   445,    507,   637,  647,  773,   775, 

77fi      777      SIS 

V.  North,    755,    783,    820,    821. 

V.  Northcutt,    599,    617,    666,    669,    670, 

70S,    714,   756,    766,    779,   792. 
V.  North  Packing,   etc.,  Co.,  451,  726. 

715. 
V.  Norton,    670,    694,    744.   772. 
V.  Nve    &    Schneider    Grain    Co.,    719, 

721,   723. 
V.  Oakley,    414,    417. 
V.  Oastler,    691,    709,    766,    771. 
V.  O'Callaghan,    765,    766. 

V  Odom,    445.    507,    671,    758,    763.    771. 
787. 

V  O'Fiel,   404,    407,    429,    787. 
V.  O'Keefe.    425,    426,    754.    818. 


CASES   CITED 
[The  figures  refer  to  pages] 


997 


Western  U.  Tel.  Co.  v.  Olivarri,  404,  405, 
599,    608,    673,    707,    708,    714,    761, 
779. 
v.  Omaha,    40,    41. 
V.  Pallotta,    826,    836,   950. 
V.  Parham,    555,    665. 
V.  Parks,    679,    770. 
V.  Parsley,    623,    798,   799,   801. 
V.  Parsons,    406,    418.     419,    449,    648, 

777. 
V.  Partlow.    635,    737,    767.    951. 
V.  Patrick,  420,  431,  433,  434,  448,  449, 

836,    843. 
V.  Patton,   707,   744,  771,   819. 
V.  Patty  Dry  Goods  Co.,   952. 
V.  Peagler,    710,    779,    787. 
V.  Pearce,   415,    416,    417,   692,  695,   702, 

708,    760,   826,    836. 
V.  Pells,    517,    519,    633,    725. 
V.  Pelzer,  632.   637,  639. 
V.  Pendleton.    28,    307,    308,    312,    314, 

315,    325,    568,    569,    618,    803,    825, 

827,   828,   830,    831,    838,    839,    849. 
V.  Pennsylvania   Rd.    Co.,    59,    65,    67, 

69,    70,    71.    76,    88,    140,    161,    ItM, 

166,    167,    168,    170,    172,    173,    176, 

179,    181,    182,    340,    864. 
V.  Perrv,    473,    475. 
V.  Philadelphia,   89,   246,   312,  326,  329, 

860. 
V.  Phillips,  501,  546,  551,  552,  589,  662. 
V.  Pierce,    410,    428,    473. 
V.  Piner,   530,   637,   667,  787,  818,  820. 
V.  Pittsburg,    etc.,   Ry.,    179,    182. 
V.  Poe,  852. 

V.  Polhemus,   69,   77,  78,   169,  170,   197. 
V.  Porter,    762,    780,    785,    818. 
V.  Porterfield,    712,    763,    782,   783,    785, 

789,    818. 
V.  Potts,    598,    599,    603,    606,   607,    608, 

610,    614,    627,    707,    708,    709,    753, 

756. 
V.  Powell,   555,   556,  570,  617,   717,   749, 

775,    824,    826,    827,    832,    837.    842, 

845.    847. 
V.  Pratt,  622,   681,  691.   695. 
V.  Prevatt.    387,    519.   541.   542,    712. 
V.  Price,    417,    429,    430,    471,    663,    669, 

681,    755,    818. 
V.  Proctor,  609,  744,  764,  770,  788,  797. 
V.  Pruett,    539,  556,    693. 
V.  Rabon,    755,    779,    783,   818. 
V.  Raines,   516,   517,   519,  526,   527,   709, 

760,    761,    802. 
T.  Ragland,     400,    445,    507,    647,    694, 

748. 
V.  Railroad    Company,    316. 
V.  Randies,  607,  708,  761,  785,  789. 
V.  Rawls,    394,    433,   447,    448,   449,   470, 

471,    475,    669. 
V.  Redlinger,   411,  417,  418,  660,  670. 
V.  Reed,    680,    707,    762,    764,    766,    787, 

829,    830. 
V.  Reeves,    445,    510,    657,   791,   805. 
V.  Reid,    451,    715,    721,    729,    732,    734, 

760,    761,    764,    772,    773. 
V.  Relinger,    422. 
V.  Reynolds,   26.    28,   30,    340,   382,    392. 

393,    459,    460,    516,    525,    536,    5G7, 

606,    611,   680,   697.   782,   783. 
V.  Reynolds    Bros.,    698. 
V.  Rhett,    686. 
V.  Rhine,    755,    820,    821. 
V.    Rice,    818. 
V.  Rich,    137,    155,    156,    157,    158,    159, 

763,   766. 
V.  Richards,   631,   764. 
V.  Richman,    514,    567,    628,    733. 
V.  Richmond,    64,    79,    80,    83,    100,    867 
V.  Ridenour,    668,    776. 
V.  Robbins,    608,    668,    776,    788,    807. 
V.  Roberts,   419,   639,   827,   946. 
V.  Robertson,   618,   724,   733. 


Western    U.    Tel.    Co.   v.    Robinson,    396, 

409,    426,    428,    429,    738,    756,    763. 

779,   787,   819. 
V.  Rogers,  751,   752.   753,   765,  791,  792, 

793,    795,    796,    813. 
V.  Rosentreter,  476,  709,  710,  711,  754, 

783    818 
V.  Rountree,    398,    400,    403,    824,    825, 

826,    835,   836,   843. 
V.  Rowe,    631,    633,   635,    638,    774. 
V.  Rowell,   413,    608,   609,   613,   640,    657, 

665,    670,    708,    753,    763,    780,    805, 

896. 
V.  Russell,   388.   429.  431.  631.  632,  70S, 

710,    713,   760,    761,    776,   819. 
V.  Ryals,  846. 
V.  Salter,    452,    716. 
V.  Samuels,    636,   784,   790. 
V.  Sanders,    546. 
V.  Satterfield,    131,    133. 
V.  Saunders,    640,    661,    714,    755,    784, 

790,    792,    893. 
V.  Saxon,    400. 
V.  Schoonmaker,    414. 
T.  Scircle.   394,   395,    432,   444,    446,  521, 

648,    835,    836,    837,    838,    840. 
V.  Schriver,     2fl,    576,    577,     581,     599, 

610,   617,  619. 
V.  Scott,    421,    426,    474,    662,    701,    719. 
V.  Seals,    535,  584,    589, 
V.  Seay,   849,   864. 
V.  See,   800,   801. 
V.  Seed,    807,    815,    818. 
V.   Seffel,    395. 
V.   ShariJ.  313,   801. 
V.  Shaw,   414,   438,   647,  763.  784,  818. 
V.  Sheffield,    693,    700,    701,    745,    746. 
V.  Shenep.   759.   760,  764,   766,   767,  771, 

802. 
V.  Shockley,    425. 
V.  Shofner,  709.   775,  789. 
V.  Short,     25,     29,    401,    444,     445,     495, 

506,    514,    604,    646,    648,    680,    681, 

690,    692,    706. 
V.  Shotter,   597,  619,  621.  682,  882,  929, 

944,   948. 
V.  Shumate,    556,    584,    589,    591,    706, 

721,    743,    768. 
V.  Siddall,    772. 
V.  Sights,    521,   522,    523,    641,  644,   666, 

668,    706,    716,    724,    775,    934,    949, 

951    953 
V.  Simmons",    657,    768,    776,    777,    780, 

784,   789. 
V.  Simms,    542,    583,    584,    593,    594. 
V.   Simpson,    501,    642,    732,    754. 
V.  Sisson,    393,    667,    787. 
V.  Sklar,   751,  757,  793. 
V.  Sledge,   640,  662,  762,   764,  771. 
V.   Sloss,   622,   798,   799,    818. 
V.   Smith,    414,   418,    421,    431,    432,    438, 

445,    507,    518,    523,    591,    631,    632, 

640,    648,    651,    669,    673,    694,    707. 

708,    711,    748.    754,    761.    769,    773, 

777,  788,   789,   883,   885,  886. 
V.  Snell,    426,    648,    655,    666,    714,    755, 

7SS. 
V.  Snodgrass,    390,    391,    465,    466.    468, 

633,    701,    719. 
V.  Spivey,   727,   732,   733. 
V.  Spratley,    805,    814. 
V.   Sockwell,    755,    780. 
V.  Sorsby,    396,   397,   409,    417,  535,   585, 

591,    783. 
V.  South     &     North     Alabama    Rail- 
road.   164. 
V.   Stacy,    787. 
V.  State,    63,    213,    216,    218,    250,    251, 

254,    257,    263,    264,    266,    269,    334, 

336,    355,    378,    384,    558,    561,    563, 

645,    646,    673,    850,    857,    865,    866, 

871,    957,     958. 
V.  State  Board  of  Assmt.,  37. 
V.  State    Railroad    Commission,     334. 


998 


CASES   CITED 
[The  figures  refer  to  pages] 


Western  U.  Tel.   Co.   v.   Steele,   635.   709, 
714,   765,   769.   832,    835 
V.  Steenbergen.     472.     712.     755,     785. 

V.  Stephens,    675,    768.    773. 

■V.  Stevens,    729.    730     732     734 

V.  Stevenson.    403,    478,    479.    497.    543, 

544,    55R,    661,    667,    881 
V    Stiles,    394,    534.    655.   779.    780.    781. 
V.  Stracner,    406.    774. 
V.  Stratemeier,     52G,     535      584      586. 

5SS,    590,    593.    594,    595.    714.    764, 

770,    819.  „      ^         oQ      4Q 

V.  St.    Joseph,    etc.,    R.    Co.,    23,    48. 

182. 
V.  stokes.    807. 
V.  Stone,    773,    774,    776. 
V.  Stubbs,    669,    761. 
V.  Sullivan.    647,    682     701 
V.  Superior  'Court,    62,    71,   165.    176. 
V.   Swain,    832,    835. 
V.  Swearingen,^  422,   426,  427,   474.  527. 

V.  Swoetman,^396.    409.    424.    428.    608, 

710     782. 
V.  Syracuse.    43,    44.    99.   297. 

V  TaeK-art,  64,   849.   851.   855.   856,   869. 

V  TafkJ^    422,    426.   535,   588.   589,   595. 
■      761.   768.  783,   819,   840. 

ir.  Teague,    422,    426.   42S,    (55. 


HTr^!irtu!h29,    783.    784,    789. 

V  tIx^s,    62.    64,    307.    848,    849.    854, 

855,    863,    864,    865. 
V.  Thomas,    701,   726.  ^  ,^     ^ 

V  Thompson,    414.    670,    712.    (82,    <85, 

789,    818,    885. 
V.  Thompson    Milling    Co.,    671.    95i. 
954 

V  Thoin.    215,    239,    251. 

V  Timmons,  518,  555,  662,  665.  842. 
V.  Tobin.    400,    507.    647.  ^ 
V.  Todd,  388,   479.   480,   506,  548.  708. 
V.  Toledo.    85,    955. 
V.  Toms,  707,   708,  709.    (61. 
v.   Totten,    575,   576. 
V.  Tracy,   277,   279,   287. 
v.  Trapp,    849. 

V  THslal,^412,  413,    416,    432.   837.   843 
V.  Troth,    838,    875. 
V.  Trotter,    421,    422.    423. 

V  TrSe'  fs^S.    635,    667.    672.    691.    695, 

700,    724,    953. 

V.  Trumbuir'516.    520.    521.    523.    637. 
640. 

Z:^TV;^Ir,'l%,''U     641.     701.     763. 

77''     954 
V.  Twaddell',   681,   691.   701.   741,   951. 

V  Tvllr*^'25,"27.  32.   34.    400.    495.   506. 

508,    509,    513,    514,    604,  646,    648, 
651,    710,    829,    854. 

V.  Union    Pacific    Ry.    Co.,  23.    48. 

V  Uvalde    National    Bank,  553.    55b. 

605,    610. 
V.  Valentine,    682.   737.    935.    951. 

V  vln'^^eive,     337,     394,     469,     470, 

472     475,   533,    546,    570,   755,    795. 
V.  Vanway,    517,    692,    776,    777. 
V.  Vickery,    761,    766. 
V.  Virginia  Paper  Co.,    419.    • 
V.  Visalia,     59.     60.     62.     64.    856.     869, 

V  wkkefleld,   329.   851,    864. 
V.  Walker,     837. 

V  Waller.      407,      414,     429,     430,     602, 
^'      622,    655,    660.    670.    773.    775,    779, 

781.    783.    798,    799. 


Western  U.   Tel.   Co.  v.    Walter,    821. 

^     V    Ward     421,    444,    453,    784.    835.    838. 

V.'  Warren,  423,  426,  754,  768. 

V.  Waters,     450.    753.    792. 

V.  Watson,  687.  688,  724,  776,  791. 
807     815 

V.  Waxelbaiim.  516,  546.  553.  604, 
672,    733.  ^„„     .„, 

V.  Way,  451,  510,  516,  519,  523,  524, 
530,  5.^6,  537,  574,  588,  637,  653, 
655,  656,  657,  662,  697.  698.  715, 
720,    725,    805,    814,    934,   936,    954 

V.  Webb,    425,    429.    776.    777,   950,   952. 

V.  Weeks,     474.  „„„ 

V.  Wells,    633,    657.    747,    778,    797,    902. 

V  Weniski,     610,     616,     617,    671,     693, 

760,    762,    820,    821. 
V.  West,    654,    708,    760.    762. 
V.  W^est,,    etc.,    R.    Co.,    158. 
V.  Westmoreland,    654,    678,    679,    709. 

748,    760,    762,    764.    771,    792,    805, 

814. 
V.  White.   393.   533,   546,   655.   704.   772, 

777 

V  Whitson.     421,    422.     631.     639,    640. 
V.  Wilhelm.     631,     635,    688,    731. 

V.  Williams,     72,     115,     116,     119,     120, 
124     127,    138.    405,    672,    678.    688, 
70l!    703.    773,    776,    779,    780.    781, 
953     954 
V.  Williford.'    692.    693.    701.    703.    704, 

883,  886. 
V.  Wilson,  388,  389,  407,  408,  428, 
447,  462,  537.  572,  573,  574,  599, 
607.  608,  609,  633,  638,  665,  666, 
669,  670,  694,  703,  709.  711.  712, 
720,  755.  759,  760,  785,  787,  790, 
792,  827,  835. 
V.  Wingate,    394.    469.    470,    476,    768, 

769. 
V.  Wisdom,    454,    669,    783. 
V.  Witt,    451,    623,    716,    777,    782. 
V.  Wofford,    433,    448,    449,    656,    687, 

745. 
V.  Womack,    425.     428,    609,    708,     709. 
V.  Wood,    606,    608.    609,    757,    791. 
V.  Woodard,    604,    607,    614,    798,    799, 

800,    801. 
V.  Woods,  411,   660,-  691,   703,   704,   726, 

729,    732,    734.    735. 
V.  Wright,     406,     417,     447,     455,     456. 
672,    673.    717.    756,    774,    792,    869, 
874. 
V.  Yopst,    390,   391,   393,    465,    466,    479. 
516,  518,  519,  521,  523,  524,  526,  527, 
529,    530,    570,    571.    572.    574,    575, 
640,    720,    841,    845. 
V.  Toung,    392,   410,   414,   450,   496,   565, 
622,    682,    688,    766,    774,    776.    786. 
792.    797,    798,    890. 
V.  Zane,    776,    818. 
Wethertay    v.    Twin    State    Gas    Co.,    240, 

242,    249.    267.    291. 
Wetmore  v.   Mell,   778. 
Wettengel  V.  Allegheny,   etc..    Co..   297. 
Weymouth    v.    Goodwin,    915. 
Whalev    v.    Duncan,    910. 

v.  Hinchman,  911,  914.  915.  928.  936. 
Wheat  V.  Cross,  934,  939.  945. 
Wheaton  v.  Collins,  915. 
Wheeler  v.  Northern  Ohio  Tr.  Co.,  228. 
Wheelock  v.  Postal  Tel.  Cable  Co.,  505, 
516,  526,  537,  650,  667,  682,  686,  693, 
694,    695.  ^.  .     „      , 

Whilden  v.   Merchants',   etc.,  Nat.   Bank, 

886,    911,    942. 
Whipple    V.    Cumberland    Mfg.    Co.,    819. 
Whiston   V.    Stodder,    623. 
White  V.  Electric  Co.,   228,   275. 
V.  Fleming,     874. 
V.  Keystone    Tel.    Co.,    213. 
V.  Phelps,    31. 


I 


CASES  CITED 
[The  figures  refer  to  pages] 


999 


White  V.  Sanborn,  624. 

V.  West.    U.    Tel.    Co.,    29,    401,    402, 
446,    497,    500,    534,    537,    606,    631, 
650,   651,   652,   667,   695,   951,  952. 
White    Haven    v.    White    Haven    Water 

Co.,   328. 
Whitehill  v.   West.  U.   Tel.   Co.,   517,   527, 

546,    606,    607. 
Whiting  V.    West   Point,   90. 
"V\Tiitesides    v.    Hunt,     562. 
Whitfield   V.    Southeastern  R.    Co.,    812. 
Whittemore   v.    West.    U.    Tel.    Co.,    422, 

423,    428. 
Whitten    v.    Power,    etc.,    Co.,    632. 

v.  West.    V.    Tel.    Co..    654.    779,    781. 
Whittenberg,    etc.,    Tel.    Co.,    Matter   of, 

363. 
Wichelman    v.    West.    U.    Tel.    Co.,    824, 

832,    833,    835. 
Wichita    v.    Missouri,    etc.,    Tel.    Co.,    93. 
V.  Old   Colony   Trust    Co.,    51,   64,    78, 
97. 
Wichita,     etc.,     Lt.     Co.     v.     Cummings, 

259. 
Wickersham   v.    Johnston,    6G9. 
Wiggs    V.    Southwestern    Tel.,    etc.,    Co., 

439,    665,    668,    684,    693,    704. 
Wight    V.     Cumberland    Tel.,     etc.,     Co., 

285,    286. 
Wilbert  v.   Shebovgan  Lt.,   etc.,  Co.,   216, 

231,     236,     237,     250. 
Wilcox  V.    Cline.   945. 

V.  Moon,    567. 
Wilde   V.    Orleans,    822. 
Wilhelm  v.    Telephone  Co.,   648,    666,    807. 
Wilhite   V.    Huntsville,    233,    234,    245,    252. 
Wilkins    v.    Water    &    Lt.    Co.,    235,    242, 
282. 
V.  West.    U.    Tel.    Co.,    639,    826,    827, 
836,    839. 
Wilkinson    v.    Telephone    Co.,    825,    843. 
Will   V.    Postal   Tel.    Cable   Co.,    539,    540. 
Williamette    Iron    Bridge    Co.    v.    Hatch, 

204. 
Wihiams    v.    Brickell,    882,    886,    887,    936. 
V.  Brown,    821. 
V.  Burdick,    945. 
V.  Citizens'    R.    Co.,    85,    294. 
V.  City    of    Parsons,    220. 
V.  City  of  Talladega,   866,   868. 
V.  Creswell,    175. 
V.  Fulton,     241. 
V.  Grant,    484. 
V.  Louisiana  Elec.   L.,   etc.,    Co.,    260, 

274. 
V.  Lumber    Co.,    663. 
V.  Maysville    Tel.    Co..    374. 
V.  New    York    Central    R.     Co.,     106, 

259. 
V.  North      Wisconsin      Lumber      Co., 

284,    289. 
V.  Planters'    Ins.    Co.,    813. 
V.  Robinson,    912. 
V.   Smith,    915. 
V.  Tex.,    etc.,    R.    Co.,    618. 
V.  West.    U.     Tel.    Co.,     50,    318,    505, 
506,    681.    709.    747,    748.    760,    772. 
Williamson  v.  Postal  Telegraph  Co.,  607, 

622. 
Williamston,    etc.,   R.    Co.    v.   Battle,    911. 
Willingham    v.    West.    U.    Tel.    Co.,    393, 

570,    574,    720. 
Willis   V.    Erie   Tel.    Co.,    111. 

V.  Plymouth,   etc.,    Tel.    Co.,   104,    278, 

279,    281,    284. 
V.  Wps?tern     IT.     Tel.     Co.,     452,     454, 
664,    667,    668,    715,    765,    766,    775, 
776.    780,    783. 
Willner  v.   Silverman,    893,    901. 
Willock    V.    Pennsylvania    R.    Co..    495. 
Willoughby    v.    Telephone    Co.,    686. 
Wills    V.    Ross,    915. 


Wilson   V.    Beyers,   90. 
V.  Brett,    499. 
V.  Coleman,     902. 
V.  Great     Southern    Tel.,     etc.,     Co., 

213,    220,    221. 
V.  Minneapolis,   etc.,  R.  Co.,   620,  882, 

884,    893,    944,    945. 
V.  Weber,    851. 

V.  West.    U.    Tel.    Co.,    950,    951,    952, 
685,    742. 
Winch  V.    Birkenhead,   etc.,   R.   Co.,   46. 
Winchester    v.    Capron,    106. 
Winegarner  v.    Edison   Lt.,    etc.,    Co.,   94, 

213,    216,    232,    239,    242,    244,    260,    262. 
wnnfleld    v.    Dodv,     571. 
Winkelman    v.     Kansas    City    Elec.     Lt. 

Co.,    228,    241,    272,    641. 
Winter  v.   Ne\^  York,  etc.,  Tel.  Co.,   114, 

139. 
Wisconsin    Cent.    R.    v.    Taylor   Co.,    850. 
Wisconsin    River   Imp.    Co.    v.    Pier,    200. 
Wisconsin  Tel.   Co.  v.   INIilwaukee,   64,   78, 
329,    330,    866.    867. 
V.  City   of  Oshkosh,    6,   9,    12,    16,    39, 
64.    78,    140,    141.    199,   329,    866. 
Wise   v.    Yazoo   City,    86. 
Wissler  v.  Yadkin,   etc.,   P.   Co.,  139,   140, 

142,     200,     209. 
Witmer  v.  Buffalo,   etc.,  Elec,   etc.,  Co., 

231. 
Witting  v.   St.   Louis,  etc.,   R.   Co.,   541. 
Wittleder  v.   Citizens'   Elec.  111.    Co.,   242, 

658,    663. 
Woelflen    v.    Lewiston,    etc.,    Co.,    276. 
Wolf   V.    American,    etc.,    Co.,    484. 

V.  Western    U.     Tel.     Co.,     516,     517, 
519,    520,    542,    545,    605,    667,    680, 
687,    733,    826,    843. 
Wolfe   V.    Erie   Tel.    Co.,    215,    219. 

V.  Mo.    Pac.    Ry.    Co.,    893,    894,    896, 
897,    898,    899,    900. 
Wolfskehl   V.   West.   U.   Tel.    Co.,    25,    400, 

605,    610,    616,    647,    738,    743. 
Wolpers    V.    New    York,    etc.,    Co.,     238, 

274,    663. 
Wolsey  V.   Railroad  Co.,  461. 
Womack  v.    West.   U.    Tel.    Co.,    400,   452, 

469,    495,    499,    507,    542,    543,    650,    715. 
Wood  v.   Cumberland  Tel.,   etc.,   Co.,  223, 
263,    269. 
V.  Diamond   Elec.    Co.,    273. 
V.  Kennedy,    847. 
V.   State,    125,    126. 
v.  West.   U.    Tel.   Co.,   833,    837,    846. 
V.  Wilmington    City  R.    Co.,    258. 
Woodley   v.   Carolina  Tel.,    etc.,    Co.,  338. 

342,    396,    358,    458,    477. 
Woodman    v.    Hubbard,    571. 
Woods   V.   Miller,    436,   918,   921. 
V.  People,    24. 

V.  Western     U.     Tel.     Co.,     409,     410, 
430,    432,    433,    443,    598,    612,    647, 
655,   668.   763,  784. 
Woodward    v.    Taunton,    273. 
Wooley    v.    Grand    St.,   etc.,    R.    Co.,    270, 

271. 
Worcester  v.   Western  R.   Corp.,  49. 
Worth    V.     Edmonds,     739. 

V.  Whittington,     etc.,     Co.,     852. 
Wray    v.    Mott,    9. 
Wright    V.    Donnell,    804. 

V.  Glen    Tel.    Co.,    331,    374. 
V.  Southern   Bell   Tel.,    etc.,    Co.,    867. 
V.  Weeks,    912. 
Wyant  v.   Central  Tel.   Co.,   104,   132,   136, 

137,    143. 
"Wylie   V.    Cotter,    669. 
"\Vyman  v.    Chicago,    etc.,    R.    Co.,    590. 
^Vynne  v.   Atlantic   Ave.    R.   Co.,    817. 
^Vynnewood    v.    Cox,    271. 
Wyse   V.    Dandridge,    943. 


1000 


CASES  CITED 
[The  figures  refer  to  pages] 


Yadkin  Power  Co.    v.    Wissler,    142,   143, 

197. 
Tancey  v.  Batesville,   etc.,  Tel.  Co.,  342, 

352,    353. 
Yates  V.   Southwestern  Brush  Elec.  etc., 

Co.,    231. 
Yavapai   County  v.    O'Neill,   886,    912. 
Yazoo,    etc.,    R.    Co.    v.    Foster,    686,    694, 

748. 
Yeager  v.    Edison   Elec.    Co.,   241. 

V.  Tuning,   59. 
Yeiser  v.   Gathers,    877,    886. 
Yick    V.    Hopkins,    802. 
Yoe  V.    Power   Co.,   96. 
Younie    v.    Blackfoot    L.,    etc.,    Co.,    228. 

V.  Water    Co.,    654. 
Young  V.   Gravenhurst,   87,   246. 
V.  Harris,     943. 
V.  Seattle  Transfer  Co.,  892,  893,  898. 


Young  V.  West.  U.  Tel.  Co.,  507,  516,  517, 

519,    526,    529,    542,    553,    568,    598, 

605,    606,    607,    610,    618,    648,    684, 

753,    756,    795.    807,    815. 

Younker  v.   West.    U.    Tel.    Co.,   527,  604, 

614,     619,    733,    946. 
Younts   V.    Southwestern   Tel.,    etc.,    Co., 

349      378. 
York!    etc.,    R.    Co.    v.    Winans,    47,    49. 
York    Tel.    Co.    v.    Keesey,    4,    16,    20,   39, 
104,   140. 


Zang  V.  Wyant,    881. 

Zanesville    v.    Zanesville    Tel.,    etc.,    Co., 

79,    80,    93,    95. 
Zentner   v.    Oshkosh    Gas    Co.,    288,    289, 

657. 
Ziehm    v.    United    Elec,    etc.,    Co.,    271, 

658. 
Zimmerman    v.    Bonzar,    804. 


INDEX 

[References  are  to  the  section  numbers.] 


A 

ABANDONMENT, 

Of  property,  no  defense  by  company  for  injuries  done,  195. 
Of  injuries  from  abandoned  wires,  195. 

ABUSIVE   LANGUAGE, 

Telephone  company  may  refuse  service  to  one  using,  2o9. 

ABUTTING   OWNER, 

Rights  of,  in  city  streets  and  highways,  97-129. 

ACCEPTANCE, 

Stipulation  as  to  place  where  message  will  be  accepted.  409. 

Of  contract,  must  be  made  in  due  time,  752. 

Offer  by  telegraph  requiring  actual  receipt  of,  in  case  of  contract,  7.50. 

Of  messages  by  company,  see  Messages. 

ACCORD  AND  SATISFACTION, 

As  defense,  in  action  to  recover  penalty  imposed  by  statute,  654. 

ACT  OF  CONGRESS, 

Granting  telegraphs  right  of  way,  55-71. 

Granting  right  of  way,  56. 

No  exclusive  right  of  way,  68. 

Does  not  embrace  telephone  company,  70. 

Right  of  way  under,  145. 

Prohibits  grant  of  exclusive  right,  164. 

ACT  OF  GOD, 

Company  not  liable  for,  29,  357-359. 

Meaning  of  term,  357. 

Intervening  human  agency,  357. 

Duty  of  company  to  prevent  loss,  357. 

Express  contract  assuming  risk  of,  358,  365. 

Extra  compensation  for  assuming  extraordinary  risk,  358. 

Contracts  assuming  extra  risk  voluntary,  3.58,  305. 

Burden  of  proof  to  show  injury  due  to  act  of  God,  359. 

Burden  of  proof  as  to  concurring  negligence,  359. 

Proof  that  act  of  God  was  proximate  cause,  359,  511. 

Proof  that  act  of  God  was  sole  cause,  359. 

Contract  assuming  extraordinary  risk  does  not  bind  connecting  line,  365., 

ACTIONS  AGAINST  TELEGRAPH  AND  TELEPHONE  COMPANIES, 
For  errors,  delays  or  nondelivery  of  messages,  466—491. 
Right  of  sender  to  sue,  466-468,  763. 

When  message  is  sent  by  agent.  468. 

Company  not  agent  of  parties,  467. 

When  sent  by  agent  of  undisclosed  principal,  468. 
Right  of  addressee  to  sue,  469-486. 

Under  statutes,  434,  481,  485. 

When  sender  is  agent  of  addressee,  472,  476. 

May  sue  when  damaged,  417,  418,  474. 

Addressee  as  beneflcial  party  to  contract,  475. 

Company  as  agent  of  addressee.  480. 

For  breach  of  public  duty,  433,  477. 

Jones  Tel. (2d  E'D.)  (1001) 


1002  INDEX 

[The  figures  refer  to  sections] 

ACTIONS  AGAINST  TELEGRAPH  AND  TELEPHONE  COMPANIES— Con- 
tinued, 

Effect  of  sender  paying  charges,  483. 

Refunding  charges,  483. 

When  message  is  not  repeated,  486. 
Right  of  third  party  to  sue,  484. 

Under  special  statutes,  485. 
Right  of  action  by  strani^er  suffering  damage.  484. 

^Message  sent  by  husband  for  benefit  of  wife,  484. 

Message  sent  by  parent  for  benefit  of  child,  484. 
Actions  between  sender  and  addressee,  487. 
Conflict  of  laws.  488. 

What  law  governs,  488. 

Penal  statute  has  no  effect  in  other  states,  434,  488. 

Contract  to  be  bound  by  law  of  another  state,  488. 

Law  of  state  where  contract  is  made,  4SS,  490. 

Law  of  place  of  performance,  488. 

Law  of  place  where  breach  of  duty  occurs,  488. 

As  affected  by  character  of  action  whether  in  tort  or  on  contract,  488. 

Contract  made  where  final  assent  takes  place,  4S9,  490. 

Contracts  by  telegraph,  place  of  final  assent,  490. 

Place  where  suit  should  be  brought.  491. 
Character  of  action,  whether  in  tort  or  contract,  467,  474,  478,  488,  493, 
494,  503. 

Addi'essee  must  sue  in  tort,  493. 

Action  for  errors  in  delivery  distinguished  from  action   for  nonde- 
livery, 494. 
Mandamus,  495. 

To  compel  acceptance  of  message,  495. 

To  prevent  discrimination,  495. 

To  enforce  equal  facilities,  495. 

Inadequacy  of  other  remedies,  495. 
Injunction,  496. 

Against  discontinuance  of  service,  496. 
Specific  performance,  496. 
Service  of  process,  497. 

At  common  law,  497. 

Regulated  by  statute,  497. 

On  agent  or  operator  in  county  through  which  line  runs,  497. 

What  is  prima  facie  evidence  of  agency,  497. 
Pleadings  in  general,  498. 
Declaration  or  complaint,  499-504. 

Necessary  allegations,  499. 

Pleading  damages,  500. 

Pleading  general  damages,  500. 

Pleading  special  damages,  500,  506. 

Pleading  nominal  damages,  500. 

Pleading  exemplary  damages,  500. 

Notice  to  company  that  special  damages  will  result  from  nondelivery, 
500. 

Copying  telegram  in  complaint,  501. 

Attaching  telegram  to  complaint,  501. 
Declaration  in  action  for  penalty,  504. 

Statutes  strictly  construed,  504. 

Must  bring  case  within  letter  of  statute,  504. 

Penalty  for  negligent  transmission  does  not  apply  to  negligent  delay, 
504. 

Not  necessary  to  copy  telegram,  504. 

Negativing  matters  of  defense,  504. 

Variance  between  pleading  and  proof,  504. 
Declaration  in  tort  or  contract,  503. 

How  determined,  503. 


« 


INDEX  1003 

[The  figures  refer  to  sections] 

ACTIONS  AGAINST  TELEGRAPH  AND  TELEPHONE  COMPANIES— Con- 
tinued, 

When  contract  is  not  set  out,  503. 

In  action  on  contract,  public  duty  need  not  be  alleged,  503. 

In  action  of  tort,  breach  of  duty  how  allei^ed,  503. 

Joining  tort  and  contract  in  same  declaration,  503. 
Amendments  of  declaration  or  complaint,  502. 
Plea  to  declaration,  505. 

At  connnon  law.  505. 

General  issue,  505. 

General  denial,  505. 

New  matter  constituting  a  defense,  505. 

Failure  of  plaintiff  to  comply  with  conditions  of  contract,  505. 
The  issue  and  the  proof.  506. 

Evidence  must  be  limited  to  issues,  506. 

Evidence  of  breach  other  than  that  alleged,  506. 

Evidence  of  negligent  transmission  under  allegation  of  negligent  de- 
lay, 506. 
Proximate  and  remote  cause,  507. 

No  general  rule  to  determine,  507. 

Depends  on  facts  of  particular  case,  507. 

Presumption  of  injury  not  indulged,  507. 

Speculation  or  guesswork  not  indulged  in,  507. 

Particular  cases,  507. 
Contributory  negligence,  508. 

To  be  a  defense  must  contribute  proximately  to  injurj%  508. 

Injury  caused  by  act  of  defendant  unconnected  with  act  of  plaintiff, 
508. 

Burden  of  proof  as  to  contributory  negligence,  508. 

Whether  proximate  cause  is  a  question  for  the  jury,  508. 
Presumption  of  negligence  and  burden  of  proof,  509. 

Res  ipsa  loquitur,  509. 

When  injury  is  caused  by  electric  wires  out  of  place,  509. 

In  case  of  error  in  transmission  of  message,  509. 

Unreasonable  delay,  509. 

Nondelivery  of  message,  .509. 

Omission  of  material  word,  509. 

Burden  of  defendant  to  show  error  not  made  on  connecting  line,  509. 

Effect  of  stipulation  in  contract  upon  burden  of  proof,  510. 
Evidence,  511-518. 

What  necessary  in  order  to  recover,  511,  522. 

Rules  as  to  admissibility,  511. 

That  injury  was  caused  by  act  of  God  or  public  enemy,  511. 

That  injury  was  due  to  causes  excepted  in  the  contract,  511. 

Wealth  of  the  defendant,  512,  513. 

Wealth  of  defendant  where  exemplary  damages  are  claimed    512   513. 
020. 

Financial  condition  of  plaintiff,  512,  514. 

Financial  condition  of  plaintiff  where  exemplary  damages  are  claim- 
ed, 514. 

That  other  messages  sent  on  same  day  were  delivered,  512. 

Declarations  of  agents,  512,  515. 

Declarations  of  agents  when  a  part  of  the  res  gestae,  512.  515. 

Subsequent  acts  of  defendant,  516. 

Subsequent  discharge  of  operator  for  act  complained  of,  512,  516. 

Sub.soquent  discipline  of  oi)prator  for  act  complained  of,  512,  516. 

Subsequent  rejiairs  or  replacement  of  machinery,  516. 

Subsequent  act  of  plaintiff  in  furtlieranc(>  of  same  business,  516. 

Good  faith  of  plaintiff  in  acting  on  message,  517. 

Evidence  of  diligence  in  trying  to  find  addressee,  518. 

Evidence  in   various  other  cases,  518. 
Weight  and  sufficiency  of  tlie  evidence,  522. 

What  must  be  proved  to  make  out  a  case,  522. 


1004  INDEX  I 

[The  figures  refer  to  sections]  " 

ACTIONS  AGAINST  TELEGRAPH  AND  TELEPHONE  COMPAXIES— Con- 
tinued, 

Preponderance  of  the  evidence,  522. 

Burden  on  defendant  wtiere  plaintiff  has  made  prima  facie  case,  522. 
Expert  evidence,  522a. 

Opinions  of  witnesses  specially  qualified,  522a. 

In  matters  of  scientific  or  technical  knowledge,  522a. 

Matters  of  common  knowledge  and  experience,  522a. 

Electrical  experts,  522a. 
Questions  for  the  court,  519. 
Questions  for  the  jury,  520. 
Instructions  to  the  jury,  521. 
Appeal  and  error,  523. 
Damages,  524-628. 

Action  for  penalty  does  not  bar  action  for  damages,  645. 
Action  for  damages  does  not  bar  action  for  penalty,  645. 
Joinder  of  action  for  damages  and  action  for  penalty  in  one  proceeding, 

645.  1 

Who  may  maintain  action  for  penalty,  633.  I 

Against  company  on  contract  as  agent,  763. 
Actions  for  mental  suffering  do  not  survive,  607. 
Actions  for  statutory  penalties  survive,  644. 

See  Damages;    Measure  of  Damages;    Messages.  .'j; 

ADDITIONAL  SERVITUDE, 

On  railroad  right  of  way,  15,  62-66,  97-117. 

ADDRESS, 

Of  message  must  be  definite,  309,  326. 

AGENT, 

Agency  of  telegraph  and  telephone  companies  considered,  11-13. 

Company  liable  for  negligent  acts  of,  30. 

Contract  of  agent  of  telephone  company  to  deliver  message  beyond  its 

line,  299. 
Delivery  of  message  to  authorized,  297. 
Operator  writing  messages,  as  sender's  agent,  327. 

Liability  of  company  for  ■  fraudulent  or  forged  message  sent  by,  443,  444. 
Knowledge  of  agent  of  company,  425. 
Liability  for  defaults  of  common,  461. 
Message  sent  by,  principal  undisclosed,  who  may  sue,  468. 
Sender  of  message  as  agent  of  addressee,  476. 
Company  as  agent  of  addressee.  480. 
Measure  of  damages,  delay  of  message  directing  agent  to  sell  or  purchase, 

560. 
Malicious  acts  of,  as  act  of  corporation,  610. 
Declarations  of,  as  evidence,  512,  515,  707,  715. 
Company  as  agent  of  sender,  under  statute  of  frauds,  723. 
Telegraph  company  as  agent  of  sender  of  message,  745,  757,  758. 
Actions  against  company  on  contract  of  agency,  763. 
Where  operator  acts  as  interpreter,  714,  715. 

AGREEMENT, 

For  right  of  way,  67,  130. 

Necessity  of  effort  for,  in  condemnation  proceedings,  140,  170. 
See  Contracts ;  Sales. 

ALIENATION, 

Of  franchise  of  company,  45-48. 

ALTERED  MESSAGE, 

Distinction  between  and  one  not  sent  or  delivered  as  to  action,  494. 
Effect  of,  on  contract  considered,  742. 

Sender  bound  by  message  as  delivered  to  sendee,  745,  757,  758. 
See  Messages. 


INDEX  1005 

[The  figures  refer  to  sections] 

AMBIGUOUS  MESSAGE, 

Acting  ou  ambiguous  message,  333,  334. 

Company  cannot  demand  that  it  be  informed  of  nature  and  purport  of 

message,  341. 
Benefit  of  doubt  as  to,  430. 
See  Messages. 

AMENDMENT, 

Of  pleading  in  action,  502. 

ANIMALS, 

F  lightened  by  abandoned  wires,  195. 

ANSWER, 

In  actions,  505. 

APPEAL, 

In  condemnation  proceedings  over  railroad  right  of  way.  176. 
In  actions  against  telegraph  and  telephone  companies,  523. 

APPLIANCES. 

Duty  of  company  to  furnish  suitable  to  employ§,  212. 

ASSAULT  AND  BATTERY, 

Liability  for  exemplary  damages,  in  action  for,  621. 

ASSESSMENT  AND  TAXATION, 
See  License  Taxes  ;    Taxation. 

AUTHENTICITY, 

Proof  of,  of  message,  686. 

AWARD, 

Of  commissioners  in  condemnation  proceedings  over  railroad  right  of  way, 
175,  176. 
See  Eminent  Domain. 

B 

BAILMENT, 

Telegraph  and  telephone  company  not  ordinary  bailee  for  hire,  31. 
Telegraph  companies  distinguished  from  bailees  for  hire,  31. 

BLANK, 

Use  of,  in  sending  message.  277. 

Printed  stipulations  in,  367. 

For  message,  distinguished  from  bill  of  lading.  381. 

Proof  of  assent  to  stipulations  in,  412,  413,  420. 

Small  type  used  in,  415. 

Messages  written  on  blanks  of  another  company,  422,  423. 

Message  not  written  on,  action  for  penalty  imposed  by  statute,  639. 

BONT>S, 

Measure  of  damages,  erroneous  message  for,  559. 

BRIDGES, 

Lines  across,  78. 

Crossing  under  federal  grant,  59. 

BROKER, 

Suit  by,  for  damages  resulting  from  negligent  delays  in  transmission  of 
message,  468. 
See  Sales. 

BUCKET  SHOP, 

Companies  cannot  be  compelled  to  furnish  facilities  to,  258. 
See  Futures. 

BURDEN  OF  PROOF, 

In  negligence  cases,  209. 

In  action  for  injury  caused  by  delay  in  transmission  of  message,  282, 
320-322,  509,  510. 


1006  INDEX 

[The  figures  refer  to  sections] 

BURDKN  OF  PROOF— Continued, 

As  to  diligence  in  delivery  of  message,  308,  320-322,  509,  510. 
As  to  negligence  in  failure  to  deliver  or  erroneous  transmission  of  mes- 
sage, 321,  509.  510. 
Shifting  of  burden  of  proof,  322,  522. 
In  defense,  act  of  God,  359,  511. 

Defense,  that  loss  caused  by  mob  or  strike,  359,  511. 
When  defense  is  stipulation  in  contract,  389,  411,  510,  511. 
In  action  against  connecting  lines,  458. 
In  actions  generally,  509. 
In  actions  for  mental  suffering,  601,  604. 
See  Evidence. 

BUSINESS, 

Companies  must  have  sufficient  facilities,  249. 

Place  of,  of  foreign  corporation  within  state,  232. 

Of  company,  taxation  of,  665. 

License  tax  on,  as  interstate  business,  invalid.  669. 

Distinction  between  property  tax  and  privilege  tax,  670. 

BY-LAWS, 

Of  company  distinguished  from  rules  and  regulations,  339. 


CABLE, 

Obstrui^ting  navigation,  187-189, 

CALLS, 

At  telephone  exchange,  attended  to  in  order  in  which  they  are  made,  256. 

CANAL, 

Lines  along  or  across,  76. 

CAPITAL  STOCK, 

Taxation  on,  in  proportion  to  length  of  line  in  state,  666. 

CARE, 

Degree  of,  required,  30. 

To  be  exercised  by  company  in  locating,  constructing  and  maintaining 

line.  194. 
Duty  of  company  to  exercise,  309,  319. 
See  Due  Care;    Negligence. 

CHARGES, 

Power  of  state  to  regulate  charges,  234,  235. 

Telegraph  company  cannot  unjustly  discriminate  in,  251. 

Reasonable  discrimination  in,  252. 

Determination  of  reasonable,  254. 

Discrimination  in  by  telephone  company,  257. 

Necessity  of  prepayment  of,  279. 

For  delivery  of  messages  outside  of  free  limits,  302,  303. 

Nonpayment  of,  when  no  defense  to  action  for  negligence,  323. 

Rule  of  company  requiring  prepayment  of  charges  for  answer  to  mes- 
sage, 337. 

Rule  requiring  prepayment  of,  343. 

Extra,  for  delivery  beyond  free  delivery  limit,  344. 

Deposit  of,  for  answer  to  message,  345. 

Company  may  waive  prepayment  of,  346. 

Telephone  company  may  enforce  payment  of,  354. 

What  are  reasonable  regulations  of  telephone  company  concerning,  354. 

Extra  for  repeating  messages  does  not  increase  duty  of  company,  379. 

Extra  fee  or  charges  over  connecting  line  selected  by  sender.  464. 

Acceptance  of  all  charges  does  not  change  rule  as  to  transmission  of  mes- 
sage over  connecting  line,  449. 

Sender  paying,  effect  on  addi'essee's  right  of  action,  483. 


INDEX  1007 

[The  figures  refer  to  sections] 

CHARGES— Continued,  ^  x,     .t-of 

Necessity  of  prepayment  of,  in  action  to  recover  penalty  imposed  Dj  stat- 
ute, 655. 
See  Rates ;   Messages. 

CHARTER, 

And  franchise  distinguished,  42-43. 
Alienation  of  franchise,  45-48. 

CIPHER  MESSAGE, 

Stipulation  as  to,  406,  407. 

Measure  of  damages  in  case  of,  536-53S. 

Liability  for  penalty  imposed  by  statute,  in  case  of,  638. 

CITIES, 

Regulating  lines  in  streets,  power,  61.  „.  t,,.    *  w 

See  Municipal  Corporations ;    Streets  and  Highways ;    Right  of  Way. 

CLAIM 

Against  company,  stipulation  as  to  time  of  making,  386-399. 
Waiver  of  written  claim,  395. 
When  limitation  of  time  begins  to  run,  391-393. 
Form  of,  requisites,  396. 
Must  be  presented  to  proper  officer,  397. 
Commencement  of  suit  on,  as  notice  of,  398-399. 

Effect  of  stipulation  as  to  time  of  presenting  in  action  to  recover  penalty 
imposed  by  statute,  653. 
See  Limiting  Liability  by  Contract. 

COMBINATIONS,  .     .   .     ^  ^      ^ 

Contracts  between  companies  which  are  illegal  or  m  restraint  of  trade, 
49. 

COMMISSION, 

Regulation  of  telegraph  and  telephone  companies  by,  246. 

COMMISSIONERS, 

In  condemnation  proceedings  over  railroad  right  of  way,  1<2. 
In  condemnation  of  private  property,  138. 
Award  of  commissioners,  175,  176. 
Duty  of  commissioners,  173. 
See  Eminent  Domain. 

COMMON  CARRIER, 

Telephone  company  as,  23,  25-30,  35,  36,  356. 

Companies  are  not,  at  common  law,  25-30. 

Analogy  between  company  and  carrier  of  passenger,  29. 

Telegraph  company  is  analogous  to,  29. 

Telegraph  company  as  quasi  common  carrier  of  news,  32. 

When  declared  so  by  statute,  34-38. 

Must  serve  all  alike,  25. 

Telephone  company  not  at  common  law,  35. 

Made  so  by  statute,  34-37. 

Telephone  company  as,  34-37,  268. 

Telegraph  companies  as,  not  at  common  law,  35,  248. 

Telegraph  companies  made  so  by  statute,  248. 

Regulation  of  charges  of,  234. 

Discussion  of  status  of  telegraph  company,  270. 

Message  sent  in  care  of,  314. 

Status  of  telegraph  company,  356. 

Must  exercise  due  care,  28. 

COMMON-LAW  DUTIES, 
In  general.  3.56. 

Not  insurers  except  in  case  of  special  contract,  356. 
Duty  similar  to  that  of  carrier,  356. 
Limiting  common-law  liability,  356,  367-389. 
Contract  enlarging  common-law  liability,  356,  358. 
Contract  enlarging  common-law  duty  voluntary,  358. 


1008  INDEX 

[The  figures  refer  to  sections] 

COMMON-LAW  DUTIES— Continued, 

Extra  compensation  for  assuming  extraordinary  risl?,  358. 

Contract  assuming  extraordinary  rislc,  not  binding  on  connecting  com- 
pany. 365. 

Not  liable  at  common  law  for  act  of  God,  357-359. 

Not  liable  at  common  law  for  act  of  public  enemy,  360,  361. 

Not  liable  at  common  law  for  act  of  mob,  362. 

Not  liable  at  common  law  for  act  of  strikers,  363,  364. 

Not  liable  at  common  law  for  acts  of  sender  or  sendee,  366. 

Theories  as  to  legal  status  of  telegraph  and  telephone  companies,  26-33. 

No  duty  to  collect  and  transmit  news  except  under  special  contract,  426. 

No  duty  to  furnish  market  reports  except  under  special  contract,  426,  427. 

Duty  of  companies  organized  for  the  purpose  of  collecting  and  furnishing 
news,  428. 

COMPANIES, 

'    Distinction  between  telegraph  and  telephone  companies,  11-20. 
Organized  for  purpose  of  collecting  and  delivering  news,  428. 

COMPENSATION, 

Must  be  made  for  right  of  way,  52,  53,  62-67. 
To  abutting  lot  owners.  SO,  81. 
To  municipality  for  use  of  streets,  80,  81. 
To  municipality  for  right  of  way,  80,  81. 
Of  adjoining  owner,  on  city  streets,  discussed,  97-123. 
To  abutting  owner,  when  fee  title  in  owner,  111-114. 
When  fee  title  in  public,  114-116. 
When  fee  title  in  third  party,  117. 
Amount  of,  to  abutting  owner,  120. 

To  landowner  for  right  of  way  over  railroad  right  of  way,  146,  147. 
To  railroad  companies  for  right  of  way,  152,  153. 
Of  companies  for  services,  234. 

Of  telegraph  company  for  services,  no  unjust  discrimination,  252. 
For  delivery  of  messages  outside  of  free  limits,  302. 
Damages  in  nature  of,  525. 
See  Charges;    Rates. 

COMPETITION, 

Contracts  destroying,  49. 

CONDITIONS, 

Imposed  upon  grant  of  right  of  way,  78. 

Precedent,  to  exercise  of  right  of  eminent  domain,  132. 

CONDUCTION, 

Liability  of  electric  railway  for  interference  with  telephone  company  by, 
220,  221. 

CONFLICT  OF  LAW, 

With  reference  to  damages  for  mental  anguish,  614. 
In  cases  involving  contracts  exempting  company  from  common-law  lia- 
bility. 375. 
With  reference  to  action  for  negligence  in  transmitting  or  delivery  of 

messages,  4S8-491. 
Contracts  made  by  means  of  interstate  messages,  756. 
Contract  to  be  bound  by  law  of  another  state,  488. 

See  Actions  against  Telegraph  and  Telephone  Companies. 

CONNECTING  LINES, 

Liability  of  company  over,  365. 

Initial  company  not  liable  for  errors  or  delays  on  connecting  line,  447. 

Initial  company  is  forwarding  agent  of  sender,  447. 

English  rule  different,  448. 

Rule  also  different  in  some  states,  448. 

Duty  of  initial  company  in  case  of  nonacceptance  by  connecting  line,  447. 

Payment  of  initial  charge  to  initial  line  does  not  change  rule,  449. 

Initial  company  liable  for  delay  in  delivery  to  connecting  line,  450. 

Telephone  company  carrying  on  long-distance  business,  451. 


INDEX  1009 

[The  figures  refer  to  sections] 

CONNECTING  LINES— Continued, 

Contracts  for  delivery  beyond  terminus  of  line,  452,  453. 
As  to  lines  extending  in  other  states,  452. 
Agent  making  such  contract  presumed  to  have  authority,  453. 
Connecting  line  defined,  454. 
Duty  to  accept  message,  455. 
Duty  to  transmit  and  deliver,  456. 
Liability  of  connecting  line,  457. 
Duty  to  deliver  to  another  connecting  line,  456. 
Burden  of  proof  where  connecting  company  is  sued,  458. 
Partnership  arrangements  between  several  lines,  457,  459. 
Evidence  of  partnership,  459-461. 

In  case  of  partnership  each  liable  for  negligence  of  the  other,  459. 
.   Connecting  line  as  party  to  stipulations  in  contract  of  initial  company, 
460. 
Effect  of  statute  requiring  connecting  line  to  accept  message,  460. 
Negligence  or  faults  of  common  or  joint  agents,  451,  461. 
Sender's  right  to  select  route,  462. 
Refusal  to  accept  by  line  selected,  462. 
Delays  in  consequence  of  bad  selection,  463. 
Increased  cost  of  selection  to  be  paid  by  sender,  464, 
Liabilities  of  connecting  companies  among  themselves,  465. 
Duty  to  furnish  equal  facilities  in  case  of  connecting  or  competing  lines, 
263. 
See  Messages. 

CONSOLIDATION, 

Consolidated  company  succeeds  to  rights  of  constituent  companies,  159. 
Combinations  in  restraint  of  trade,  49. 

CONSTITUTIONAL  LAW, 

Rights  of  abutting  owner  on  city  streets  discussed,  97-123. 
Taking  of  property  for  public  use  discussed,  110. 
Constitutionality  of  statutes  regulating  rates,  225. 
Validity  of  statute  imposing  a  penalty  on  company,  634,  635. 

CONSTRUCTION  AND  MAINTENANCE, 

Of  lines  in  city  streets,  86-129. 

Control  of  the  state,  86,  226. 

Delegation  of  powers  to  city,  86. 

Extent  of  city  control,  88. 

Erection  of  lines  as  a  public  use,  97. 

Right  of  abutting  owner  to  compensation  for  lines  in  streets  discussed, 
97-123. 

Difference  between  city  streets  and  ordinary  highway,  101. 

Cutting  of  trees,  rights  of  owner,  etc.,  126-129. 

Must  not  interfere  with  movement  of  trains  of  railroad,  154. 

Duties    of    company   in    constructing    line    over    railroad    right    of    wav. 
74,  154. 

To  regulate  construction  of  lines  in  streets,  88,  89,  180. 

Lia4nlity   of  companies   for   injuries   caused   by  improper    location,    con- 
struction, and  maintenance  of  lines,  193-210. 

Company  must  exercise  reasonable  care  in,  194. 

Strength  and  stability  of  poles,  197. 

Failure  to  restore  line  after  storm,  199. 

Of  lines  crossing  highways,  railroads  and  streets,  204. 

Of  poles,  196,  197. 

Duties  of  company  generally,  194-204. 

What  proof  necessary  in  case  of  nonperformance  of  duty,  205-207. 

State  may  regulate  construction  of  lines,  226. 

Regulation  of  by  municipalities,  241. 

See  INIunicipal  Corporations ;  Streets  and  Highways ;  Liabilities  for 
Injuries  Caused  by  Improper  Location,  Construction,  and  Mainte- 
nance. 

Jones  Tel.  (2d  Ed.) — 64 


1010  INDEX 

[The  figures  refer  to  sections] 

CONTRACT, 

Franchise  of  corporation  as  a,  44. 

Companies  cannot  by  contract  exempt  themselves  from  their  negligence, 
37,  271,  3US. 

Franchise  as  a,  42,  55-79. 

In  restraint  of  trade,  49. 

To  divide  earnings  with  another  company,  49. 

Ultra  vires  agreement  does  not  release  company  from  contract  obliga- 
tion, 46.  47. 

Right  of  way  by  agreement,  130. 

Franchise  in  a  city  as  a,  79,  84. 

With  railroad  for  exclusive  right  invalid,  164,  165,  167. 

Limiting  liability  for  negligence,  36S,  309. 

State  cannot  impair  obligations  of,  2-33. 

Paper  on  which  message  is  written  considered,  381. 

Against  unavoidable  interruption,  404. 

Blank  of  company  as,  412,  413. 

In  case  of  special,  414. 

Small  type  used  in,  415. 

Of  telegraph  company  to  transmit  at  all  hazards,  557. 

Company  may  contract  against  negligence  in  some  states,  370. 

Prohibited  from  contracting  against  acts  of  negligence  in  some  states,  371. 

Enlarging  common-law  liability,  356,  358. 

To  insure  safe  transmission,  426. 

To  insure  correctness  of  intelligence,  426. 

To  furnish  market  reports,  etc.,  428. 

To  furnish  stock  quotations,  427. 

To  furnish  news,  427,  428. 

Messages  relating  to  gambling,  429. 

To  be  performed  on  Sunday  illegal,  435,  436. 

Sending  message  on  Sunday,  exception  necessity  and  charity,  436^38. 

To  become  liable  for  negligence  of  connecting  line,  452,  453. 

To  transmit  message  over  connecting  line,  453. 

To  be  bound  by  law  of  another  state,  488. 

Action  on  extraterritorial  contract,  488,  491. 

Effect  of  contract  of  sending  on  connecting  lines,  460. 

Action  for  damages  resulting  from  negligent  delays  in  transmissions  of 
message,  466,  467. 

Who  may  sue  on,  when  message  sent  by  agent,  principal  not  disclosed,  468. 

Right  of  third  party  to  sue  on  contract  made  for  his  benefit,  469^75. 

Where  made,  489-491. 

Measure  of  damages,  524-615. 

Measure  of  damages,  message  relating  to  sales  of  property,  552,  553. 
See  Sales. 

Secondary  evidence  of  unstamped  contract,  705. 

By  telegram  as  affected  by  statute  of  frauds,  720-728. 

Time  of  delivery  of  telegram  with  respect  to  making,  727. 

CONTRACTS  ENTERED  INTO  BY  TELEGRAPH, 
By  telegram,  rules  applicable  to  letters  apply,  741. 
Fact  that  telegraph  company  is  private  institution  does  not  affect  rule, 

743. 
Alteration  of  message  does  not  affect  rules,  742. 
What  message  must  contain,  744. 

An  offer  and  acceptance  by  telegraph  as  a  contract,  744. 
Reference  in  telegram  to  other  papers  or  contracts,  744. 
Contracts  partly  by  telegraph  and  partly  by  parol,  744. 
When  offer  is  complete,  745. 
Offer  complete  when  delivered  to  sender,  745. 
Order  made  by  telegram,  746. 
What  is  a  suflicient  acceptance  of  order,  746. 
Communication  both  by  post  and  telegraph,  747. 
Oral  statements  as  explaining  contracts,  747. 


INDEX  1011 

[The  figures  refer  to  sections] 

CONTRACTS   ENTERED   INTO    BY   TELEGRAPH— Continued, 

When  contract  takes  effect,  748. 

Delivery  of  acceptance  to  telegrapli  company,  748. 

When  delivery  of  acceptance  to  sender  is  necessary,  748. 

There  must  be  a  distinct  and  definite  offer,  749. 

Offer  and  acceptance  must  be  definite  and  unconditional,  749. 

An  agreement  of  the  parties  on  the  same  proposition  necessary,  749. 

Offer  requiring  actual  receipt  of  acceptance,  750,  751. 

When  authority  to  accept  by  telegraph  may  be  implied  from  the  offer,  751. 

When  authority  to  accept  by  telegraph  is  implied  from  circumstances,  751. 

Acceptance  of  offer  must  be  within  the  time  specified,  752. 

Acceptance  within  a  reasonable  time  when  no  time  specified,  752. 

Revocation  of  offer,  753. 

Revocation  must  be  made  before  acceptance,  753. 

What  is  sufficient  notice  of  revocation,  753. 

Duty  of  one  acting  as  agent  to  disclose  his  agency,  754. 

Personal  liability  of  agent,  in  case  principal  is  not  disclosed,  754. 

Promise  by  telegraph  to  accept  commercial  paper,  755. 

Acceptance  of  commercial  paper  by  telegraph,  755. 

Agreement  to  accept  draft  on  forged  telegram  delivered  through  negli- 
gence of  company,  755. 

What  law  governs  in  case  of  contract  made  through  interstate  messages, 
756. 

Telegraph  company  ordinarily  the  agent  of  the  sender,  742,  745,  749,  757- 
759,  763. 

In  case  of  error  in  transmission,  sender  bound  by  message  as  delivered 
to  sendee,  742,  745,  758,  763. 

Exceptions  to  rule  that  company  is  agent  of  the  sender,  760. 

When  company  is  considered  agent  of  party  who  first  adopts  method  of 
correspondence,  760. 

When  company  is  considered  the  agent  of  the  addressee,  760,  761. 

The  English  rule  as  to  agency  of  company,  761. 

Telegraph  company  as  an  independent  contractor,  762-766. 

Liability  of  company  to  sender  for  errors  in  transmission,  763. 

Loss  of  opportunity  to  make  contract,  as  damages,  764. 

Damages  for  nondelivery  of  message  making  definite  offer,  765. 

Damages  for  nondelivery  of  message  accepting  offer,  765,  766. 

Damages  for  nondelivery  of  message  making  offer  where  offer  would 
have  been  accepted,  765. 

Proof  that  offer  would  have  been  accepted,  how  made,  765. 

No  liability  to  offeree  for  nondelivery  of  acceptance,  766. 

Where  operator  writes  message  for  sender,  statute  of  frauds  satisfied,  749. 

CONTRIBUTORY  NEGLIGENCE, 
Of  sender  or  addressee,  324-334. 
As  a  defense,  207,  209,  210,  508. 
As  a  defense  in  action  for  penalty,  650. 
See  Negligence. 

CONTROL  AND  REGULATE, 

State  control  of  companies,  223,  226. 
See  Rules  and  Regulations. 

CONVERSATION, 

Over  telephone,  as  evidence,  709-719. 
See  Evidence. 

CORPORATIONS, 

Charter  and  franchise  distinguished,  42-44. 
Primary  and  secondary  franchise,  43. 
Exemplary  damages  in  action  against,  616-626. 
Malicious  acts  of  agent  of,  610. 
Liability  for  assault  and  battery,  621. 
For  libelous  message,  622. 
For  malicious  trespass,  624. 


1012  INDEX 

[The  figures  refer  to  sections] 

COR  PORATIONS— Continued, 

Taxation  of  property  of,  657-680. 

Taxation  of,  when  right  of  being  is  derived  from  federal  government,  677. 
See  F'rancliise  ;    Foreign  Coi-poration  ;    Taxation. 

CRIMES  AND  MISDEMEANORS, 

Obstructing,  injuring,  breaking,  or  destroying  lines,  220. 

Penalties  for  failure  to  deliver  message,  228-230. 

Telegraph   company   need   not   receive   message   which   would   render   it 

criminally  liable,  273,  274. 
Statute  imposing  duty  to  preserve  secrecy  of  message,  312. 
Object  and  purpose  of  statute  imposing  penalty  on  company,  629. 
Construction  of  such  statute,  630-632. 
See  Penalty. 

D 

DAMAGES, 

For  negligence,  29. 

For  failure  to  transmit  message  correctly,  37,  280, 

Act  of  Congress  does  not  affect  company's  liability  for  negligence,  71. 

For  right  of  way  along  railroad,  75. 

Measure  of,  to  abutting  owner,  119. 

For  building  line  without  authority,  53. 

For  cutting  trees  along  sidewalk,  126-129. 

Measure  of  in  condemnation  proceedings,  141,  146,  147. 

Measure  in  condemnation  proceedings  over  railroads,  152,  153,  173,  177, 

179. 
For  failure  to  furnish  equal  facilities,  256,  269. 
For  failure  to  receive  message,  280. 
For  error  in  transmitting,  under  statutes,  287. 
For  failure  to  inform  sender  of  nondelivery,  291. 
For  failure  to  deliver  message  promptly,  300. 
Limiting  liability  to  specific  amount,  400-402. 
Liability  in  furnishing  market  reports,  427,  770. 
For  error  in  message  relating  to  futures,  429. 
Message  for  unlawful  purpose,  429-431. 
For  sending  libelous  message,  432. 
In  case  of  interstate  message,  433. 

Failing  to  transmit  on  Sunday,  in  case  of  charity  or  necessity,  439. 
In  case  of  forged  or  fraudulent  message,  446. 
Negligent  delays  in  transmission.  479,  765,  766. 
Difference  in  actions  of  tort  and  in  actions  on  contract,  493. 
Pleading  damages,  500. 

Recovery  where  there  is  a  limitation  in  the  contract,  485. 
Action  for,  does  not  bar  penalty,  645. 
Action  for  penalty  does  not  liar  damages,  645. 

See  Measure  of  Damages ;    Actions  Against  Telegraph  and  Telephone 
Companies ;    Mental  Anguish ;    Eminent  Domain. 

DEBTORS, 

Failing,  messages  from  creditors  regarding,  576. 

DECLARATIONS, 

As  evidence  of  mental  anguish,  601. 

Of  employe,  as  evidence,  512,  515,  707,  714,  715. 

Message  of  sender  as  his,  688. 

Oral,  of  telephone  communication,  709-712. 

DEDICATION, 

Of  land  for  city  streets,  extent  of,  100. 

DEFINITION, 

Of  term  telegraph,  1. 
Of  right  of  way,  50. 
Of  negligence,  206. 


INDEX  1013 

[The  figures  refer  to  sections] 

DEFINITION— Continued, 

Gross  negligence  defined,  372. 

Of  connecting  line,  454. 

Of  due  care,  30. 

Of  wireless  telegraph,  2. 

Of  submarine  telegraph  or  cable,  3. 

Of  telegraphy,  4. 

Of  telegram,  5,  16,  682. 

Of  telegraph  stations,  6. 

Of  telephone,  7. 

Of  telephone  exchange,  8. 

Of  line,  9. 

Of  wireless  telephony.  10. 

Of  telegraph  and  telephone  companies  as  used  in  statutes,  13-22,  70. 

Of  federal  grant,  55,  56, 

Of  public  highway.  77. 

Of  public  roads,  77. 

DELIVERY, 

Of  messages,  270-318. 

Of  message  to  messenger,  278,  409. 

Duty  of  company  to  deliver  messages,  288-299. 

Excuses  for  nondelivery,  289,  290. 

Notice  to  sender  of  nondelivery,  292. 

Delivery  to  sendee  in  person,  292. 

Delivery  to  wife  of  sendee,  298. 

Delivery  to  hotel  clerk,  294. 

Delivery  to  authorized  agent,  297. 

To  wrong  person  of  same  name,  295. 

Message  sent  in  care  of  another,  296. 

Manner  of  delivery,  298. 

Time  of  delivery,  .300,  301. 

Where  sendee  lives  several  miles  from  office,  303,  304. 

Diligence  in  matter  of  delivery,  306-308. 

In  case  of  insufficient  address,  309-326. 

Sunday  messages,  290,  439. 

Free  delivery  limit,  302-305. 

Of  messages  to  company  by  telephone  or  verbally,  424. 

In  action  for  statutory  penalty,  defense  that  addressee  resided  beyond 

free  delivery  limit,  649. 
Of  message  to  company  as  affected  by  statute  of  frauds,  724. 
Of  telegram  to  addressee  as  affected  by  statute  of  frauds,  725. 
Time  of  delivery  of  telegram  with  respect  to  making  contract,  727. 
Delivery  to  connecting  line,  450. 

Duty  of  one  connecting  line  to  deliver  to  another,  456. 
Duty  of  connecting  line  to  deliver,  456. 
Penalty  for  failure  to  deliver,  222,  223,  228,  310,  629-656. 
Duty  of  telephone  company  to  deliver  to  telegraph  company,  262, 
See  Messages. 

DEMURRER, 

To  evidence  in  action,  519. 

DESCRIPTION, 

Of  route  in  condemnation  proceedings,  136. 
Of  poles  and  wires,  137. 

DILIGENCE, 

Companies  required  to  exercise,  28. 

Required  in  transmission  and  delivery  of  messages,  270. 

In  transmission  of  messages,  281. 

In  delivery  of  messages,  288. 

In  delivering  messages  promptly,  300-.308. 

Company  must  use  due  diligence  to  deliver  messages,  306,  307. 


I 


1014  INDEX 

[The  figures  refer  to  sections] 

DILIGENCE— Continued, 

Injured  party  must  exercise  reasonable,  to  minimize  loss,  330. 
Of  company  to  deliver  message  to  connecting  line,  450. 

DIRECTORY, 

Duty  of  telephone  company  to  furnish,  256. 
Publication  in,  as  a  libel,  622. 

DISCRIMINATION, 

Telegraph  company  not  allowed  to  discriminate  In  charges,  251. 

What  is  a  reasonable,  252,  253. 

Reasonableness,  how  determined.  254. 

Telephone  companies  must  not  discriminate  in  charges,  256. 

By  telephone  companies  in  rates,  257. 

Statutes  forbidding,   apply  to  both  telegraph   and  telephone  companies,. 

16,  21. 
Remedy  by  mandamus,  495. 
In  taxation  of  property  of  company,  662. 

Company  furnishing  "tickers"   cannot,  771-773.  *» 

Must  treat  all  alike.  25-30.  »« 

See  Equal  Facilities. 

DISPATCH, 

See  Messages. 

DISTINCTION, 

Between  telegraph  and  telephone  companies,  11,  22. 

DISTRICT  TELEGRAPH  COMPANY, 
Nature  of  business  of,  767. 
Duties  and  liabilities  of,  768. 
Company  furnishing  "tickers,"  769. 
Its  duties  and  liabilities,  770. 
Furnishing  reports  to  nonsubscribers,  770. 
Duty  to  collect  and  transmit  news  accurately,  770. 
Company  cannot  discriminate,  771. 

May  refuse  to  furnish  service  to  gambling  houses,  771. 
Unreasonable  stipulations  of  company  not  enforceable,  772. 
Rule  for  discontinuing  service  without  notice  for  violation  of  contract,, 

772. 
Protection  against  unfair  competition,  773. 
Market  reports  and  other  news  collected  not  within  the  copyright  laws,. 

773. 

DUE  CARE, 
Defined,  30. 

Companies  liable  for  failure  to  exercise,  28,  29. 
Required  in  transmission  and  delivery  of  messages,  27Q,  281,  288. 
Company  must  exercise  to  transmit  message  without  error,  2S4,  285. 
Duty  of  company  as  to,  370.  371. 
Required   of   companies,   379. 
In  laying  cable  under  streams,  190. 
See  Negligence. 

DURESS, 

Requiring  repetition  of  message  considered,  383. 

E 

EASEMENT, 

Grant  of  right  of  way  is  an,  56. 

In  highway  vested  in  public,  79. 

In  city  streets  discussed,  86. 

In  highways  and  streets,  uses  to  which  it  may  be  put,  101. 

Acquired  in  condemnation  proceedings.  141. 

Acquired  by  company  over  railroad  right  of  way,  155. 


INDEX  1015 

[The  figures  refer  to  sections] 

BASEMENT— Continued, 

Nature  of  easement  acquired  in  land  of  private  owner,  137,  141. 
Nature  of  easement  acquired  in  railroad  risM  of  way,  177. 
See  Streets  and  Highways ;    Eminent  Domain. 

EJECTMENT, 

Lies  against  company   for  building  lines  on  streets  when,  121. 
By  owner   after  wrongful  entry  of  company,  53. 

ELECTRIC  COMPANIES, 

Business  of  considered,  200-202. 

ELECTRIC  LIGHT  COMPANY, 

Interference  of  line  with  that  of  telephone  line  considered,  220. 

ELECTRIC  RAILWAY, 

Liability  of,  to  telephone  companies  for  "conduction"  and  "induction"  con- 
sidered, 221  et  seq. 

EMBARGO, 

Cities  cannot  lay  an  embargo  on  building  of  lines  in  streets,  90. 

EMINENT  DOMAIN, 

Acquiring  right  over  private  property  by  telegraph  and  telephone  com- 
panies, 130-144. 
Compensation  to  owner,  required,  130,  131. 
May  be  acquired  by  agreement,  130. 
Parol  license  therefor  revocable,  130. 
Over  premises  subject  to  mortgage,  130. 
Telephone  and  telegraph  a  public  use,  131. 
Statutes   conferring   right   to   telegraph   company   include   telephone 

companies,  16,  18,  131. 
Cannot  be  exercised  for  private  purpose,  131. 
Removing  trees,  131. 

Conditions  precedent  to  exercise  of  right,  132. 
Petition  to  court,  1.33. 

Contents  generally,  133. 

By  corporation,  134. 

By  individual,  134. 

Names  and  residences  of  landowners,  135,  136. 

Description  of  their  lands,  1.35. 

Description  of  owner's  interest,  135. 

Owners  acting  in  fiduciary  capacity,  135. 

Several  landowners  joined  in  one  petition,  135. 

Description  of  route,  136. 

Map  of  route,  137. 

Description  of  poles  and  cross-arms  and  distance  apart,  137. 
Nature  of  easement  acquired,  137,  141. 
Prayer  of  petition,   138. 
Notice  to  landowners,  138. 
Appointment  of  commissioners,  138. 
Oath  to  petition,  139. 
Failure  to  agree  with  landowner,  140. 
Fee  not  acquired,  141. 
Use  of  land  by  owner  retained,  141. 
Right   of  company  limited  to  repair  and  maintenance  of  poles  and 

wires,  141. 
Limited  to  reasonable  use,  141. 
Owners  not  bound  to  fence  line,  141. 
Measure  of  damages  to  owner,  142. 
Damages  in  case  of  line  on  railroad  right  of  way,  142. 
Same  rules  apply  to  electric  light  companies,  143. 
Wireless  telegraph  company  may  condemn  land  for  stations  and  tow- 
ers, 144. 
Compensation  for  transmission  of  wireless  messages  through  the  air, 
144. 


1016  INDEX 

[The  figures  refer  to  sections] 

EMINENT  DOMAIN— Continued, 

Acquiring  right  over  railroad  right  of  way,  145-184. 
Grant  l)y  act  of  Congress,  52,  53,  145. 
Acceptance  of  federal  grant,  145,  153. 
Grant  by  state  statutes,  72,  73,  77,  145. 
State   statutes   subordinate   to   federal   grant,   145. 
Condemnation  proceedings  must  be  under  state  laws,  145,  1.56. 
Compensation  to  railroad  company  necessary,  145,  146,  152. 
Use  for  such  puiTpose  an  additional  servitude,  146. 
Compensation  to  original  landowner.  62,  63,  146. 
Compensation  to  purchaser  from  original  owner,  147. 
Compensation  to  landowner  when  railroad  company  builds  telesraph. 

line,  148,  149. 
Construction  of  line  for  use  of  the  railroad  company,  150. 
On  a  partnership  basis,  1.50. 

Transfer  of  line  by  railroad  company  to  telegraph  company,  150. 
Taxation  of  line  on  railroad  right  of  way,  151. 
Effort  to  agree  with  railroad  company  a  prerequisite,  152.  J^'J 

State  or  federal  authority  a  prerequisite,  153,  156. 
Duty  of  railroad  company  to  transport  construction  material,  153^ 
Nature  of  interest  acquired  in  right  of  way,  154. 
Interference  with  operation  of  road,  154. 
Removal  of  poles  as  an  obstruction,  154. 
Proceedings  to  condemn,  64-69.  1.55. 
Property  already  devoted  to  public  use,  155,  156. 
Rights  conferred  by  general  statutes,  155. 
Right  of  way  not  a  highway,  155. 
Injunction   against   proceedings,    155. 
Acquiring  right  by  prescription,  155. 
Acquiring  by  adverse  possession,  155. 
Acquiring  right  by  estoppel,  155. 

Taking  property  necessary  for  future  use  of  railroad  company,  156. 
New  use  must  yield  to  enlargement  of  original  use,  156. 
Defenses  to  condemnation  proceedings,  157. 
Other  available  route  as  a  defense,  157. 
Right  of  foreign  company  to  condemn,  158. 

Rule  of  comity,  1.58. 

Must  be  conferred  by  local  law,  158. 

May  be  implied,  158. 

Successor  to  company  possessing  the  right,  158. 

Presumption  from  course  of  dealing,  158. 
When  right  passes  to  consolidated  company,  159. 
When  right  passes  to  lessee,  159. 

Condemnation  by  local  company  as  agent  of  foreign  company,  159,  ICO. 
Cannot  be  exercised  for  private  purpose,  160. 
Cannot  be  exercised  for  speculative  purposes,  160. 
Public  use  a  question  for  the  court.  160. 
Grant  of  power  a  legislative  function.  160. 
What  part  of  right  of  way  may  be  taken,  161. 
Acquiring  right  by  agreement  with  railroad  company,  162,  163. 
Revocation  of  agreement,  162. 
Injunction  against  revocation,  162. 
Specific  performance  of  agreement,  162. 
Revocation  of  license,  162. 

Effect  on  agreement  of  mortgage  foreclosure,  163. 
Proceeding  to  condemn  when  contract  expires,  163. 
Possession  pending  proceedings,  163. 

Where  railroad  company  requires  use  of  entire  right  of  way,  163. 
Exclusive  right  cannot  be  acquired  by  agreement,  164-167. 
State  cannot  divest  itself  of  power  of  eminent  domain,  165,  IQCi. 
Reason  for  rule  against  exclusive  right,  165. 
Separable  contracts,  164. 
Exclusive  right  under  acts  of  Congress,  164. 


INDEX  1017 

[The  figures  refer  to  sections] 

EMINENT  DOMAIN — Continued. 

Railroad  company  cannot  build  line  except  for  railroad  purposes,  1G5. 

Exclusive  right  a  monopoly,  165. 

Exclusive  right  cannot  be  granted  by  state,  166. 

Contrary  view  as  to  exclusive  right,  167. 

Exclusive  use  of  poles  as  distinguished  from  exclusive  right  on  right 

of  way,  167. 
The  petition  for  condemnation,  168. 

Description  of  route,  168. 

Location  of  poles,  168. 

Description  of  land  needed,  168. 

Alleging  the  necessity,  169. 
Necessity  for  taking,  169. 

A  judicial  question,  169. 

Waiver  of  question,  169. 

Other  available  route,  169. 
Failure  to  agree  with  railroad  company,  169. 
Joining  of  lands  in  several  counties,  170,  171. 
Joining  of  lands  of  several  owners,  170. 
Damage  to  railroad  property  as  a  whole,  170. 
The  venue,  171. 

Venue  in  either  of  several  counties,  171. 
Assessment  of  the  damages,  172. 

Right  of  jury  trial,  172. 

By  commissioners,  172. 

Jurisdiction  to  appoint  commissioners,  172.  . 

Qualification  of  commissioners,  172. 

Duty  of  commissioners.  173. 

Hearing  testimony,  17.3. 

Question  of  public  use  not  for  commissioners,  173. 

Question  of  necessity  not  for  commissioners,  173. 

Immediate  or  remote  damages  and  benefits,  173. 

Report  of  commissioners,  173,  175. 
Jurisdiction  of  federal  court,  174. 
Removal  of  proceeding  from  state  court,  174. 
The  award  as  a  judgment,  175. 
Conclusiveness  of  award,  175. 
New  award  or  trial,  176. 

Motion  for,  176. 

Regulated  by  statute,  176. 
Appeal,  176. 

Occupancy  pending  appeal,  176. 
Measure  of  damages,  173,  177-179. 
Extent  of  railway  easement,  177. 
Extent  of  telegraph  easement,  177. 
Nominal  damages,  177,  179. 

Probability  of  future  use  by  railroad  company,  179. 
Rule  of  damages  stated,  179. 

Damages  in  case  of  occupation  of  roads  and  highways,  ISO. 
Crossing  of  railroad  tracks,  181. 
Building  line  on  turnpike,  182. 

Same  rules  apply  in  case  of  telegraph  and  telephone  companies,  183. 
Statutes  embrace  both,  183. 
Electric  light  companies   may  condemn  right  of  way  for  poles  and 

wires,  184. 
When  line  is  used  for  lighting  streets  no  compensation  to  abutting 
owner,  184. 
Acquiring  right  over  or  tmder  navigable  streams,  184a-192a. 
Under  Post  Roads  Act,  184a,  185,  187. 

Acceptance  of  act,  lS4a. 

Compliance  with  conditions,  184a. 

Does  not  apply  to  foreign  oceanic  cable,  185. 

Condemnation  under  state  laws,  184a. 


1018  INDEX 

[The  figures  refer  to  sections] 

EMINENT  DOMAIN— Continued, 

Obstructing  navigation,  184a,  186-189. 

Control  of  Congress  over  navigable  waters,  186. 

Navigation  the  paramount  right,  187. 

Prima  facie  negligence,  187. 

Nuisance,  187. 

Laying  underground  or  on  bottom,  187. 

Location  of  cable,  188. 

Obstruction  and  interference  defined,  189. 

Degree  of  care  required,  190. 

Rights  and  duties  of  navigator,  190. 

Liability  of.  for  negligence.  190. 
Rights  and  duties  of  cable  company,  190. 

Liability  of,  for  negligence,  190. 
Burden  of  proof,  190. 
Protection  of  cable  under  treaty,  191. 

Punishment  for  violating  treaty,  191. 

Libel  against  vessel  damaging  cable,  191.  '"p; 

Injury  to  cable  by  United  States  officer,  191. 
Claim  against  United  States  for,  191. 
Landing  cable  on  shores  of  United  States,  192. 

On  shores  of  a  state,  state  and  federal  authority,  192. 

Injunction  against  landing,  192. 
Electric  power  companies,  192a. 

Construction  of  dams  and  reservoirs,  192a. 

Using  navigable  streams,  192a. 

Condemnation  proceedings.  192a. 

Protection  of  riparian  rights,  192a. 

Interference  with  navigation,  192a. 

State  and  federal  jurisdiction,  192a. 
Acquiring  right  over  streets  and  highways,  see  Streets  and  Highways: 
Right  of  Way. 

EMPLOYE, 

Liability  of  company  for  injuries  to,  211-217. 

Rule  under  statutes.  21.3-216. 

Company  must  furnish  suitable  appliances,  212. 

Companies  must  have  competent,  249. 

Distinction  between,  liability  for  injuries  caused  by  strikes  in  case  of  a 

common  carrier,  and  a  telegraph  company,  363. 
Liability  of  company  for  fraudulent  or  forged  message  of,  443. 
Loss  of  employment  resulting  from  negligence  of  company,  measure  of 

damages,  568-575. 
Liability  of  company  for  malicious  acts  of,  621-623. 
Assault  and  battery  by,  621. 

Exemplary  damages  in  case  of  improper  selection  of,  625. 
Declarations  of,  as  evidence,  512,  515,  707,  715. 
See  Master  and  Servant ;    Negligence. 

EQUAL  FACILITIES. 

Duty  to  furnish.  248-269a. 
As  public  carriers,  248. 
Impartial  service  to  all,  248. 
Business  impressed  with  public  use,  248. 
Sufficient  facilities  required.  249. 

In  matter  of  wires,  249. 

Instruments,  249. 

Competent  servants,  249. 

Extent  of  duty,  249. 

Best  equipment,  249. 

Latest  improvements.  249. 

Liability  for  failure,  249. 
Transmission  of  messages  in  the  order  received,  250. 

Statutory  requirement,  250. 


INDEX  1019 

[The  figures  refer  to  sections] 

EQUAL  FACILITIES— Continued, 

In  the  absence  of  statute,  250. 

Messages  having  right  of  preference,  250. 

Messages  pertaining  to  government,  250. 

Messages  of  public  interest,  250. 

Where  haste  is  important,  250. 
Unjust  discrimination,  251. 

In  charges,  251. 

In  facilities  afforded,  251. 

Reasonable  rules  for  conducting  business,  251. 

Time  of  payment,  251. 

Extending  credit,  251. 

Where  company  is  indebted  to  subscriber,  251. 

Not  every  discrimination  unjust,  252. 

Different  rates  where  conditions  are  not  similar,  2.52,  253. 

Rates  must  be  relatively  reasonable,  252. 

Undue  preference  or  advantage,  252. 

Difference  in  expense  or  difficulty  of  service,  252,  253. 

Reasonable  discrimination,  253. 

Burden  of  proof  to  show  discrimination  reasonable,  253. 

Different  hours  of  the  day,  253. 

Discrimination  in  favor  of  longer  distance,  253. 

Favoring  those  giving  exclusive  patronage,  253. 

Preference  to  railroad  over  others,  253. 

Favoring  those  having  large  volume  of  business,  253,  257. 

Discrimination  for  purpose  of  getting  business,  253. 

Contract  for  unreasonable  preference  void,  253. 
Question  of  discrimination  or  reasonable  rates,  how  determined,  254. 

Question  of  relative  reasonable  rates  where  conditions  are  dif- 
ferent, 254. 

Some  standard  of  measurement  for  guidance  of  jury,  254. 
Statutes  requiring  equal  facilities,  255. 

Declaratory  of  common  law,  255. 

Mandamus  a  remedy  irrespective  of  penalty  provided,  255,  257, 
269c. 
Duties  peculiarly  applicable  to  telephone,  256-260. 

Same  equipment  for  all  of  same  class  and  similarly  situated.  256. 

Payment  of  price  and  compliance  with  rules  a  condition,  256. 

Patrons  of  same  class  paying  same  rate  to  be  treated  alike,  256. 

Right  of  company  to  select  its  territory,  256. 

Furnishing  service  beyond  city  limits,  256. 

Rule  of  equality  in  case  of  public  pay  stations  and  private  sys- 
tem, 256. 

Existence  of  pulilic  pay  station  no  excuse  for  refusing  to  install 
private  phone,  256. 

Furnishing  same  directories  to  all,  256. 

Calls  to  have  attention  in  their  order,  256. 

Equality  in  attention  to  calls  and  connections,  256. 

Damages  for  refusal  to  furnish  service,  256. 

Damages  in  case  of  negligence,  256. 

Damages  in  case  of  willful  neglect,  256. 

Special  damages,  256. 
Charges  for  use  of  telephone,  257. 

Same  charge  for  similar  service,  257. 

Statutes  regulating  charges  constitutional,  257. 

Suit  for  penalty  a  cumulative  remedy,  2.j7. 

Mandamus  to  compel  service,  257. 

Difference  in  charge  for  single  and  party  line,  257. 

For  business  and  residence  phone,  257. 

Using  residence  phone  in  business,  257. 

For  city  and  rural  subscriber,  257.    . 

New  and  old  subscriber,  257. 

Long-distance  charge  same  for  subscriber  and  nonsubscriber,  257. 


1020  INDEX 

[The  figures  refer  to  sections] 

EQUAL  FACILITIES— Continued, 

Adding  cliarge  for  circuitous  route,  257. 

Cliarging  patron  for  long-distance  calls  by  others,  257. 

Demanding  pay  in  advance,  257. 

Special  rates  to  municipality,  257. 

Special  rate  to  charitable  institutions,  257. 

Special  rate  to  clergymen,  257. 

Discrimination  in  case  of  rural  lines,  257. 

Preference  to  one  having  several  phones,  257. 

Dividing  customers  into  classes  according  to  volume  of  business, 
257. 

Class  must  be  fixed  by  just  and  reasonable  rule,  257. 

All  in  same  class  to  be  treated  alike,  257. 

Party  lines,  vi^here  permitted,  257. 
Illegal  business,  duty  to  furnish  service  for,  258. 

Phones  not  used  in  conducting  illegal  business,  258. 

Furnishing  to  one  illegal  business  not  ground  for  demanding  it 
by  others,  258. 

Bucket  shops,  258. 
Abusive  language,  ground  for  refusing  service,  259. 

Libelous  or  slanderous  language,   259. 
Subscribers  in  arrears,  refusal  of  service  to,  260. 

Where  company  is  indebted  to  subscriber,  260. 

In  case  of  disputed  bills,  260. 

Refusal  to  pay  excessive  charge  or  rate,  260. 

Refusal  to  pay  for  installing  or  transferring  phone,  260. 
Subscribers  refusing  to  comply  with  rules,  260. 
Subscribers  refusing  to  enter  into  exclusive  contract,  260. 
Compelling  connection  vpith  private  system  of  subscriber,  261. 
Duty  of  telephone  company  as  to  receipt  and  delivery  of  messages 

of  telegraph  company,  262. 
Service  extended  to  one  telegraph  company  must  be  extended  to  all, 

262. 
Connecting  with  competing  lines,  263. 

When  required,  263. 

Extent  of  service  required,  263. 

Compensation,  263. 

Right  to  terminate  contract  for  connections,  263. 

In  case  of  consolidation,  263. 

Connecting  with  one  exchange  and  refusing  others,  263. 

Validity  of  contract  for  connections,  263. 
Leases  of  patented  inventions  as  a  ground  for  refusing  service  to 

entire  public,  264,  265,  268. 
Private  individuals  operating  telegraph  or  telephone  lines,  duty  of, 

266. 
Discrimination  by  light  and  power  companies,  267. 

Duty  of  installing  fixtures  in  private  premises,  267. 

Same  rates  for  same  kind  and  degree  of  service,  267. 

Prescribing  rules  for  conduct  of  business,  267. 
Remedies,  268. 

Mandamus  in  case  of  refusal  to  furnish  service,  255,  257,  268. 

Compelling  lessees  of  patented  instruments   to   furnish  service, 
268. 

Owner  of  patent  not  a  necessary  party,  268. 

Injunction,   268. 

Suit  at  law  for  damages,  256,  268. 
Measure  of  damages,  269. 

Not  subject  of  exact  measurement,  269. 

Loss  of  the  service,  269. 

Annoyance  and  inconvenience,  269. 

Humiliation  and  mental  anguish,  269. 

Loss  of  prospective  profits,  269. 

Punitive  damages  for  willful  act,  269, 


INDEX  1021 

[The  figures  refer  to  sections] 

EQUAL  FACILITIES— Continued, 
Statutory  penalty,  269. 
In  case  of  refusal  to  install  service,  269. 
Recovery  of  overcharges,  269. 
Penalty  in  case  of  electrical  company  refusing  to  furnish  service^ 

269b. 
Penal  statute  strictly  construed,  269b. 
Damages  recoverable  in  addition  to  penalty,  269b. 
Prepayment  of  charges,  269b. 
Excuses  for  refusing  service,  269c. 
Burdensome  ordinances,  269c. 
Until  wiring  is  inspected,  269c. 
Signing  a  contract  as  a  prerequisite,  269c 
Payment  of  charges  in  arrears,  269c. 
Physical  or  financial  inability,  269c. 
ERROR, 

In  messages,  liability  for,  284-287. 

Harmless  error  as  a  defense  in  action  for  penalty,  651. 
See  Messages. 

ESTOPPEL, 

Wrongful  entry  of  company  does  not  estop  owner,  53. 

Company  cannot  repudiate  conditions  imposed  on  right  of  way,  82. 

Of  landowner  to  enjoin  construction  of  line,  121,  123. 

EVASION, 

Of  rates  fixed  by  statute,  237. 
See  Rates. 

EVIDENCE, 

Telegrams  as  evidence,  681-708. 

"Telegram"  defined,  682. 

Telephone  message  when  a  telegram,  682. 

Telegrams  and  letters  compared,  683-685,  698. 

Presumption  that  telegram  was  delivered,  683,  704. 

Proof  of  authorship,  6S4-686. 

When  sent  in  reply  to  letter,  684,  686 

When  sent  in  reply  to  telegram,  684,  686. 

No  presumption  that  sender  was  at  place  of  sending,  685. 

Presumption  that  message  was  sent  from  place  from  which  it  pur- 
ports to  have  come,  685. 

In  case  original  telegram  is  offered,  handwriting  must  be  proved, 
686. 

Admissions  of  sender  as  to  authorship,  686. 

Method  of  proving  authorship,  686. 

Proof  of  signature  in  same  manner  as  other  documents.  687. 

Telegram  as  an  admission  or  declaration  of  the  sender,  688. 

Telegram  as  evidence  of  communication  between  the  parties,  689. 

Telegram  as  evidence  of  information  on  which  addressee  acted,  689. 

Necessity  of  comparing  copy  delivered  by  company  with  original,  689. 

General  rules  relating  to  documentory  evidence  apply  to  telegrams, 
690. 

Not  admissible  against  one  not  a  party  to  the  message,  690. 

Admissibility  against  one  not  a  party  to  the  message  where  intended 
for  and  received  and  answered  by  him,  690. 

Rule  requiring  proof  by  the  best  evidence  applies  to  telegrams.  691- 
693,  698,  701. 

Rule  requiring  the  best  evidence  applies  to  documents  only,  692. 

Original  telegram  the  best  evidence,  693. 

Which  is  the  original?  the  document  delivered  to  the  company  or  the 
one  delivered  by  company  to  addressee,  693. 
Where  the  sender  employs  the  company,  693. 
Where  the  sendee  employs  the  company,  693. 
As  depending  on  which  document  Is  in  issue,  694,  695,  697,  701. 


1022  INDEX 

[The  figures  refer  to  sections] 

EVIDENCE — Continued, 

Where  company  is  sued  for  tort  or  for  a  penalty  or  breach  of 

contract,  694,  695,  697. 
When  offered  as  a  declaration  of  the  sender,  694. 
When  the  existence  of  a  contract  made  by  telegraph  is  in  issue, 

695. 
Messages  given  orally  for  transmission,  696. 
Secondary  evidence,  69S-701. 
Proof  of  absence  of  the  original.  699,  700. 
Notice  to  produce  telegram  in  hands  of  opposite  party,  700. 
Subpoena  duces  tecum  when  message  is  in  hands  of  third  person,  700. 
Notice  to  produce  not  necessary  where  company  is  sued,  700. 
What  evidence  admissible  as  secondary,  701. 
Letterpress  copies,  701. 

Office  books  or  memoranda  of  telegrams  kept  by  company,  701. 
Copy  kept  by  company  or  by  connecting  company  at  other  end  of 

line,  701. 
New  improvements  by  which  sender  transmits  message  himself.  702. 
Wireless  messages,  ordinary  rules  relating  to  telegrams  as  evidence 

apply,  702,  703. 
Testimony  of  witnesses  when  original  cannot  be  had,  704. 
Telegrams  excluded  for  want  of  revenue  stamp,  proof  of  contents  by 

parol,  705. 
Unstamped  message  admissible  when  not  the  foimdation  of  the  ac- 
tion, 705. 
When  telegram  need  not  be  produced,  706. 
Delivery  of  message  may  be  proved  by  parol,  706. 
Delay  in  delivery  may  be  proved  by  parol,  706. 
Declarations   or  admissions  by   agents   of   company   not   admissible, 

except  as  part  of  the  res  gestee,  707,  715. 
Notice  by  telegram  where  notice  in  writing  is  required,  708. 
Telegrams  as  evidence  sufficient  to  satisfy  statute  of  frauds,  720-728. 
Telephone  communications  as  evidence,  709-719. 
On  same  basis  as  oral  communications,  709. 
Identity  of  the  other  party  to  the  conversation,  when  must  be  proved, 

710. 
Evidence  by  which  identity  of  other  party  may  be  proved.  710. 
Conversation  between  persons  unknown  to  each  other,  711. 
Conversations  between  persons  unknown  to  each  other  when  one  is 

acting  as  agent,  711. 
Presumptions  as  to  identity,  711. 
What  is  sufficient  proof  of  identity,  712. 

Proof  of  identity  by  direct  or  circumstantial  evidence,  712. 
Testimony  of  bystanders  as  to  purport  of  conversation,  713,  714,  715. 
Testimony  of  the  operator  or  a  third  person  who   acts  for  one  of 

the  parties,  714. 
Testimony  of  operator  at  intermediate  point  who  repeats  conversa- 
tion from  one  to  another,  715. 
Testimony  of  operator  acting  as  interpreter,  715. 
Presentation  for  payment  of  bill  or  note  over  the  telephone,  716. 
Administration  of  oath  over  telephone,  717. 
Acknowledgment  of  deed  over  telephone,  717. 
Notice  of  court  orders  given  over  telephone,  717. 
Service  of  subpfena  by  reading  over  the  telephone,  719. 
Information  received  over  the  phone  as  the  basis  of  an  affidavit  for 

attachment,  718. 
Information  received  over  the  phone  as  to  the  sickness  of  a  juror 
as  a  basis  for  his  discharge,  718. 
Telegrams  as  privileged  communications,  729-740. 
Secrecy  of  telegraph  messages,  311,  312. 
Secrecy  of  telephone  communication,  313. 
In  negligence  cases,  209. 
Burden  of  proof  and  sufficiency  of  evidence,  209. 


INDEX  102S 

[The  figures  refer  to  sections] 

^^^BuSenTf  iHoS^ln' action  for  failure  in  transmission  of  messages,  282, 

Burdel'S  proof'Jn'action  for  failure  to  deliver   308   320-322    509,  510. 
Evidence  of  wealth  or  poverty  of  defendant,  512,  ol3,  ol4,  biO. 
Evidence  of  poverty  of  plaintiff,  512,  514. 

Declarations  of  agents,  512,  515.  r-,o    >::ir 

Evidence  of  subsequent  acts  of  company  m  negligence  cases,  512,  51b 
Evidence   that   operator   sending   message   has   been   disciplmed   or    dis- 
charged, 512,  516. 
What  evidence  necessary  in  order  to  recover,  511,  D//. 
That  injury  was  caused  by  act  of  God  or  public  enemy,  511. 
That  other  messages  sent  on  same  day  were  delivered,  ol2. 
Evidence  of  subsequent  repairs  or  replacement  of  machinery    Sib. 
Subsequent  acts  of  plaintiff  in  furtherance  of  same  business,  51b. 
Good  faith  of  plaintiff  in  acting  on  message,  517. 

Evidence  of  diligence  in  trying  to  find  addressee,  518.  4.   ^a  r^n 

Evidence  that  injury  arose  from  causes  excepted  in  the  contract,  510,  Oil. 
Proof  of  assent  by  sender  to  stipulations,  412,  413. 
Proof  of  assent  by  addressee  to  stipulations,  420-424. 
Proof  of  mental  suffering,  GOl-604. 
Proof  of  malice  of  company,  how  shown,  618. 
Burden  of  proof  in  action  for  mental  anguish,  608. 
Proof  of  breach  of  duty  in  action  to  recover  penalty,  640,  642. 
Weight  and  sufficiency  of  the  evidence,  522. 

Preponderance  of  the  evidence,  522.  .        ^     .  ^oo 

Burden  on  defendant  where  plaintiff  has  made  prima  facie  case,  522. 
Export  GvidcncG*  5223.. 

Evidence  of  partnership  arrangement  between  connecting  lines,  459,  461. 
Proof  of  negligent  construction  or  maintenance,  205-207. 
Failure  to  notify  sender  of  nondelivery  as  evideute  of  negligence,  2h3. 
See  Actions;    Negligence;    Measure  of  Damages. 

ilXCESSIVE  DAMAGES, 

Discussed  and  commented  on,  627. 

EXCISE  TAX, 

On  companies  considered,  671. 

EXECUTION,  .     .  .- 

Franchise  of  company  cannot  be  seized  on,  45. 

EXEMPLARY  DAMAGES, 
See  Measure  of  Damages. 

FXFMPTION 

Company  cannot  contract  to  exempt  it  from  negligence,  37,  368,  369. 
See  Limiting  Liability  by  Contract. 

F 

FACILITIES, 

See  Equal  Facilities. 

FEDERAL  CONTROL, 

Of  companies,  222.  ,    ,  .  t 

Over  telegraph  line  over  Pacific  railroads  cannot  he  evaded  by  agreement 
between  companies,  224. 

FEDERAL  GRANT, 

Of  right  of  way  for  telegraphs,  55-71. 
See  Construction  and  Maintenance. 

FIXTURES, 

Injuring  or  destroying,  220. 

FOREIGN  CORPORATION, 

Right  of,  to  condemn  land,  158. 
Consolidation  of  companies,  159. 


1024  INDEX 

[The  figures  refer  to  sections] 

FOREIGN  CORPORATION— Continued, 
State  control  and  regulation  of,  225. 
Subject  to  state  regulation,  226. 
Taxation  of,  by  state,  227. 
State  may  regulate  to  what  extent,  232, 

State  law  requiring  foreign  corporation  to  appoint  agent  in  state,  232. 
See  Corporation ;    Taxation. 

FOREIGN  STATE, 

Binding  force  of  statute  in,  38,  222,  223,  228,  434,  488,  634. 

FORGED  AND  FRAUDULENT  MESSAGES, 

Liability  of  company  for  forged  or  fraudulent  message,  44(M146. 
When  operator  author  of  forged  message,  443. 
By  subagent  of  company,  444. 

Right  of  addressee  to  sue  for  negligently  transmitting  or  delivering  fraud- 
ulent message,  469. 
Duty  of  company  to  investigate,  440. 
In  case  of  suspicious  circumstances,  440.  441. 
Company  negligently  aiding  in  commission  of  fraud  or  crime,  441. 
Remedy  against  others  no  bar  to  suit  against  company,  445. 
Measure  of  damages,  446. 
Liability  to  sendee  acting  on  message  in  good  faith,  441. 

FRANCHISE, 

Term  defined,  42. 

And  charter  distinguished,  42. 

Primary  and  secondary,  43. 

Alienation   of,    45-48. 

Secondary  cannot  be  alienated,  46. 

Exception  to  rule,  46. 

Company  cannot  lease,  47. 

Statute  authorizing  alienation,  48. 

Alienation  of,  by  statute  authority,  4S. 

Conferred  by  federal  government,  55. 

Under  act  of  Congress  subordinate  to  public  and  private  rights,  62-67. 

Termination  of,  to  occupy  streets,  84. 

Subject  to  police  power,  225. 

Power  of  city  to  revoke,  44,  243. 

Special  franchise  taxes,  665,  676. 

Quo  warranto  to  test,  42. 

Forfeiture  of,  42. 

Nonuser  and  misuser,  42. 

May  be  granted  to  an  individual,  43. 

Individual  may  operate  without  a  franchise,  43. 

License  not  a  franchise,  44. 

Franchise  as  a  contract,  44. 

Acceptance,  44. 

Occupation  of  streets  before  incorporation  is  completed,  44. 

Alienation  by  mortgage  or  judicial  process,  45,  46. 

Liability  in  case  of  alienation,  46. 

Effect  of  alienation  on  contract  obligations,  46,  47. 

Contracts  and  combinations,  49. 

See  Lease ;    Streets  and  Highways. 

FRAUD, 

Blank  printed  in  small  type,  no  fraud,  415. 
Liability  of  company  for  fraudulent  message,  440-446. 
When  operator  author  of  fraudulent  message,  443. 

Right  of  addressee  to  sue  for  negligently  transmitting  or  delivering  fraud- 
ulent message,  469. 
Right  of  action  on  altered  message,  482. 

Statute  of  frauds,  as  applicable  to  telegraph  and  telephone  companies, 
420-428. 
See  Statute  of  Frauds. 


INDEX  1025 

[The  figures  refer  to  sections] 

FUTURES, 

Distinguished,  429. 

Damages  for  errors  in  messages  relating  to,  429. 

Damages  for  neglect  in  message  for  sale  or  purchase  of,  not  recoverable, 

560. 
Message  relating  to,  as  to  statutory  penalty,  637. 
Damages  for  error  of  message  relating  to  future  contracts,  429. 
See  Gambling. 

G 

GAINS, 

As  measure  of  damages,  messages  relating  to  sales,  551-561. 
Recovery  of,  as  damages,  553. 

GAMBLING, 

Companies  not  required  to  furnish  facilities  to  carry  out  gambling  con- 
tracts. 2.58. 
Company  not  obliged  to  furnish  news  for.  42S,  429,  431. 
"Futures"  and  gambling  transactions  distinguished,  429. 

Where  the  transaction  is  a  waser  only,  429. 

What  are  not  forbidden  by  statute,  429. 

Damages  for  errors  in  message  relating  to  future  contracts,  429. 
Statutory  penalty  applies  to  message  relating  to,  429. 
Information  concerning  horse  races,  to  pool  room,  431. 

See  Futures. 

GENERAL  DENIAL, 
In  actions,  505. 

GROSS  NEGLIGENCE, 
Defined,  372,  373. 

Exemplary  damages  in  case  of,  625. 
See  Damages ;    Negligence. 

H 

HIGHWAY, 

Police  power  of  states  over,  61. 
What  embraced  m  term,  77. 
See  Streets  and  Highways. 

HOTEL  CLERK, 

Delivery  of  message  to,  294,  297. 

HUSBAND  AND  WIFE, 

Delivery  of  message  for  husband  to  wife,  293. 

I 

ILLEGAL  PREFERENCE, 

In  rates,  253. 

See  Equal  Facilities. 

ILLEGAL  PURPOSES, 

Telephone  company  may  refuse  to  furnish  service  for,  258,  273,  274,  290, 
431,  432. 
See  Messages. 

IMMORAL  MESSAGE, 

Telegraph  company  need  not  receive,  273,  430,  431. 

See  Messages. 

IMPAIRMENT  OF  CONTRACTS, 

As  applied  to  franchise,  42. 
As  applied  to  federal  grant,  55. 
As  applied  to  nnuticipal  grant,  79. 
Jones  Tel.(2u  Ed.) — 65 


1026  INDEX 

[Vhe  figures  refer  to  sections] 

INCORPORATION, 
Of  companies,  41. 
By  telephone  company  under  statute  relating  to  telegraph  companies,  16, 

19,  21. 
By  wireless  company  under  law  relating  to  telegraph  company,  41. 
Of  companies  for  purpose  of  delivering  news,  428. 
See  Charter;    Corporation;    Franchise. 

INDECENT  LANGUAGE, 

Company  need  not  accept  message  containing,  273,  430,  431. 

In  case  of  doubt,  duty  to  accept,  430. 

Tending  to  subject  company  to  criminal  or  civil  action,  431. 

INDIVIDUAL, 

May  operate  telegraphs  and  telephones,  23,  43. 

INDUCTION, 

Liability  of  electric  railway  for  interference  with  telephone  company 
by,  221  et  seq. 

INDUCTIVE  ELECTRICITY, 

Considered  and  explained,  221a. 

Liability  of  electric  railway  company  for  "conduction"  and  "induction" 
considered,  221  et  seq. 

INJUNCTION, 

When  owner  estopped  to  enjoin  company  after  wrongful  entry,  53. 

Federal  court  cannot  use,  so  as  to  effect  an  equitable  condemnation  of  an 
easement  for  right  of  way,  69. 

Enjoining  company  from  use  of  streets  upon  termination  of  franchise,  84. 

Enjoining  company  from  erecting  poles  in  street,  without  consent  of  own- 
er, 121. 

Lies  for  building  lines  on  streets  without  authority,  124. 

By  landowner  against  construction  or  maintenance  of  line,  123,  124. 

Interference  by  one  company  with  another  constructing  line  in  streets,  220. 

Restraining  interference  with  or  obstructions  of  electric  current,  221c. 

Between  companies,  prior  right  of  occupancy,  221c-221e. 

Between  telephone  and  other  companies  for  injuries  caused  by  "conduc- 
tion" or  "leakage,"  221b. 

When  proper  remedy,  to  prevent  deprivation  of  patented  facilities,  268. 

To  preserve  secrecy  of  message,  311. 

Remedy  against  company  by,  496. 

Against  exercise  of  franchise,  42,  44. 

Against  proceedings  to  condemn,  155. 

Against  revocation  of  agreement  for  right  of  way,  161. 

INSTRUCTIONS, 

To  jury  in  actions,  521. 

INSTRUMENTS, 

Companies  must  have  suitable,  249. 
Duty  of  telephone  company  to  furnish,  256-258. 
See  Equal  Facilities. 

INSURERS, 

Telegraph  and  telephone  companies  as,  25-30. 

INSURGENTS, 

As  public  enemies,  361. 

INTEREST, 

When  payment  of  taxes  is  delayed,  680. 

INTERFERENCE, 

With  company  by  other  electrical  appliances,  220. 

Of  currents  of  electricity,  221  et  seq. 

Injunction  to  restrain,  obstructions  to  electric  current,  221  et  seq. 

INTERPRETER, 

Telephone  operator  as,  715. 


INDEX  1027 

[Tbe  figures  refer  to  sections] 

INTERSTATE  COMMERCE, 

Lines  over  post  roads,  public  lands,  etc.,  56-61. 

Company  as  instrument  of,  222. 

The  power  to  regulate,  223. 

Police  power  of  Congress  over,  227. 

State  cannot  regulate,  227. 

License  tax  on  interstate  business,  244. 

Liability  of  company  for,  penalty  in  case  of,  433,  434. 

Statute  imposing  penalty  on  company  has  no  extraterritorial  effect,  38, 

434,  634. 
Validity  of  statute  imposing  penalty,  635. 
Obstruction  of,  by  taxation,  664-679. 
Property  of  company  used  in,  subject  to  state  tax,  665. 
On  capital  stock  in  proportion  to  length  of  line  in  state,  666. 
On  mileage  basis,  667. 
License  tax,  669. 
Privilege  tax.  670. 
Excise  tax,  671. 
Special  franchise  tax,  676. 

Where  corporate  franchise  is  derived  from  United  States,  677. 
Taxation  on  gross  receipts  of  company,  672. 
Taxation  on  messages  of  company  generally,  673. 
Contracts  for  delivery  of  messages  in  foreign  states,  252. 
See  Regulation  and  Control ;   Taxation. 

INTERSTATE  MESSAGES,  433,  434. 
See  Messages. 

ISSUE, 

In  actions,  506. 

J 

JUDICIAL  NOTICE, 

Courts  will  take,  of  duty  of  company  with  respect  to  construction  and 
maintenance  of  lines,  207. 

JURY, 

Questions  for,  520. 

Instructions  to,  521. 

Withdrawal  of  case  from  jury,  519. 

Amount  of  damages  a  question  for,  541. 

Allowance  of  exemplary  damages  by,  619. 

Willful  intent  in  cutting  trees,  12S. 

See  Damages ;    Negligence ;    Law  and  Fact. 


LABOR, 

Lien  for,  on  property  of  telegraph  company,  24. 

LANDOWNER, 

Rights  of,  after  condemnation  proceedings,  141. 

Additional  compensation  for  line  over  railroad  right  of  way,  146  et  seq. 
In  case  of  lines  built  in  streets,  97-117. 
See  Eminent  Domain. 

LAW  AND  FACT, 

Questions  for  jury,  519,  520. 

Question  of  exemplary  damages,  619. 
See  Jury. 
LEASE, 

Of  franchise  of  company,  47. 

Company  cannot  lease  its  franchise,  47,  4S. 

Implied  from  statutory  authority  to  alienate  franchise,  4S. 

Of  patented  device  to  telephone  company,  264,  265. 
See  Franchise. 


I 


1028  INDEX  M 

[The  figures  refer  to  sections] 

LEGISLATURE. 

Power  over  public  highways,  79. 
May  delegate  authority,  79. 
Legislative  grant  may  be  unconditional,  81. 

Discretion  of,  in  classifying  property  of  company  for  taxation,  661. 
See  State;  Statute. 

LETTER, 

And  telegram  compared  as  evidence,  683. 
Contract  when  made  by  post  and  telegram,  747. 

LIABILITY   FOR  INJURIES   CAUSED  BY   IMPROPER  LOCATION,   CON- 
STRUCTION AND  MAINTENANCE. 
Injuries  to  persons  on  highways,  193-196. 

Care  required  in  location  and  construction,  194. 

Location  without  authority,  194. 

Maintenance  of  location,  194. 

Replacing  bad  material  and  structures,  194,  197. 

Degree  of  safety  required,  194. 

Prima  facie  case  in  case  of  down  wire,  194. 

Liability  for  system  maintained  by  another,  196. 

Abandonment  as  a  defense,  195. 

Injuries  from  abandoned  wires,  195. 

Obstructions  left  in  streets,  195. 

Wires  left  coiled  in  streets,  195. 

Contact  with  electric  railway  wire,  195. 
Poles  improperly  constructed,  196. 

Endangering  the  public  generally,  196. 

Endangering  other  enterprises.  196. 

In  traveled  part  of  street,  196. 

License  from  city  no  defense,  196. 

When  a  nuisance,  196. 

City,  when  jointly  liable,  196. 

Dangerous  location,  196.  xm 

Dangerous  guy  wires,  196.  fl 

Weak  poles,  196.  ^  ' 

Strength  and  stability  of  poles,  197. 

In  cities,  197. 

In  country  highway,   197. 

Providing  against  storms,  197. 

L'nusual  storms,  197. 

Changes  of  climate,  197. 

Stability  of  cross-arms,  197. 
Injuries  and  damage  from  lightning,  19Ga,  198. 

Providing  usual  safeguards  against  lightning,  196a,  198. 

Act  of  God  combined  with  negligence,  196a. 

Building  constructed   after  construction   of  line,   196a. 
Injuries  from  telephones  installed  in  buildings,  198. 

Approved  safeguards  against  lightning,  198. 

To  persons  using  telephones,   198. 

Electricity  discharged  from  wires,  198. 

Degree  of  care  required,  198. 

Res  ipsa  loquitur,  198. 

Fixtures  improperly  installed,  198. 

Injuries  from  defective  wiring  done  by  others,  198. 

Inspection  of  wiring  before  turning  on  current.  198. 
Degree  of  care  required  of  companies  furnishing  electricity,  l9Sb. 

Not  insurers,  198a. 
Fallen  wires,  194,  199. 

Broken  and  hanging  wires,  199. 

Duty  to  repair  after  storm,  199. 

Extraordinary  storm,   199,   208. 

Time  for  discovery  of  dangerous  condition,  199,  208,  209. 

What  is  a  reasonable  time,  199,  208,  209. 


INDEX  1029 

[The  figures  refer  to  sections] 

LIABILITY  FOR  INJURIES  CAUSED  BY  IMPROPER  LOCATION,  CON- 
STRUCTION AND  MAINTENANCE— Contiuued, 

Injuries  from  sagging  wires,  199. 

Injuries  from  fallen  poles,  199. 

Hanging  wire  as  a  nuisance,  199. 

Negligence,  a  question  for  jury,  199. 
Insulation  of  wires,  198a,  19Sb,  200. 

Degree  of  care,  200. 

Right  to  assume  that  wires  are  insulated,  200. 

Duty  towards  linemen,  200. 

To  what  places  duty  extends,  200. 

Contact  with  other  wires,  200. 

Municipality  operating  lines,  200.  • 

Degree  of  care  required  of  municipality,  200. 

Ordinances  prescribing  duty,  200. 

Violation  of  ordinance  as  evidence  of  negligence,  200. 

Brush  discharge,  198a. 

Injury  to  servant  of  company,  19Sa. 

Injury  to  person  on  highway,  198a. 

Injury  to  person  on  premises  of  company,  198a. 
Danger  to  children,  200a. 

Attractive  nuisances,  200a. 

Premises "  attractive  to  children,  200a. 

Trespass  by  children,  200a. 
Parallel  and  intersecting  wires,  201,  202. 

Guarding  against  contact,  201,  202. 

Degree  of  care  required,  201. 

Trolley  wires,  201. 

Duties  of  companies  having  contiguous  wires,  201,  202. 

Liability  of  both  companies,  201. 

Negligence  inferred  from  omission  of  guard,  202. 
Electric  railways  using  streets,  203. 

Degree  of  care  required,  203. 

Res  ipsa  loquitur,  203,  2Q5,  207. 

Presumption  of  negligence,  203. 

Injuries  in  attempting  to  avoid  danger,  203. 
Crossing  highways  and  railroads,  204. 

Height  of  wires,  204. 

Obstruction  and  danger  to  travel,  204. 
Negligence,  the  ground  of  action,  205-207. 

Presumption  of  negligence,  203,  205,  207. 

Negligence  per  se,  205,  207. 

Question  for  court  or  jury,  205.  207. 

What  constitutes  negligence,  206. 

Existence  of  duty,  206. 

Failure  to  perform  duty,  206,  207. 

Resulting  injury.  206,  208. 

Duty  to  public,  206. 

Judicial  notice  of  duty,  207. 

Failure  of  duty  as  a  question  of  law.  207. 

Failure  of  duty  as  a  question  of  fact,  207. 

Contributory  negligence,  207,  209,  210. 

Proximate  cause.  208. 

Public  prosecution,  208. 

Interference  with  extinguishment  of  fires,  208. 

Damage  caused  by  severe  storm,  208. 

Failure  to  repair  within  a  ivasonable  time,  190.  208,  209. 

Negligence  combining  with  other  causes,  196a,  208. 
Evidence  of  negligence,  200,  209. 

Burden  of  proof,  209. 

Negativing  contributory  negligence,  209. 

Rotten  poles  and  arms,  209. 

Subsequent  repairs  as  evidence,  209. 


1030  INDEX 

[The  figures  refer  to  sections] 

LIABILITY  FOR  INJURIES  CAUSED  BY  IMPROPER  LOCATION,  CON- 
STRUCTION   AND    MAINTENANCE— Continued, 
Defects  at  other  points,  209. 

Discliarge  of  uejiligent  servant  as  evidence,  209. 
Safe  passage  by  otlier  travelers  as  evidence,  209. 
Contributory  negligence.  207,  209,  210. 
Injury  to  person,  210. 
Damage  to  property,  210. 
Notice  of  danger.  210. 
Voluntary  exposure  to  danger,  210. 
When  a  question  of  law,  210. 
When  a  question  of  fact,  210. 
Imputed  negligence,   210. 
Parent  and  child,  210. 
Action  for  benefit  of  child,  210. 
Action  for  benefit  of  parent,  210. 
Negligence  of  servant  imputed  to  master,  210. 
Contributory  negligence  of  servant,  210. 
Injuries  to  servants  of  company,  211. 
Under  the  common  law,  211. 
Risks  assumed,  211. 
Breaking  of  poles   and  arms,  211. 
Defects  in  original  construction,   211. 
Custom  of  company  to  inspect,  211. 
Inexperienced  servant,  211. 
Using  appliance  of  another  company,  211. 
Duty  of  protection  from  electric  currents,  211. 
From  crossing  of  wires  with  wires  of  others,  211. 
From  wires  of  others  strung  on  company's  poles,  211. 
Duty  of  each  company  to  servants  of  the  other,  211. 
Use  of  poles  by  volunteers  or  licensees,  211. 
Duty  to  furnish  suitable  appliances,  212. 
Duty  to  furnish  safe  place  to  work,  212. 
Duty  cannot  be  delegated,  212,  214. 
Extent  of  duty  required,  212. 
Duty  to  keep  tools  in  good  condition,  212. 
Duty  to  furnish  the  best,  212. 
Duty  to  prescribe  rules  for  doing  the  work,  212. 
Fellow  servants,  213-216. 

Assumption  of  risk  of  injuries  by,  213, 
Care  in  the  selection  of  servants,  213. 
Who  are  fellow  servants,  213. 

Vice  principal  as  distinguished  from  fellow  servant,  213. 
Dual  capacity  of  fellow  servant  and  vice  principal,  214. 
Vice  principal,  negligence  of,  214,  215. 
Duties  to  servant  which  cannot  be  delegated,  214. 
Duty  of  inspecting  appliances,  214. 
Duty  of  instructing  inexperienced  servant,  214. 
Duty  of  selecting  careful  fellow  servants,  214. 
Duty  of  selecting  appliances,  214. 
Emploves  in  control  of  currents,  215.  ^    „^- 

Negligence  of  foreman  in  failing  to  cut  off  current,  215. 
Duty  to  notify  lineman  before  turning  on  current,  215. 
Employers'  liability  acts,  216. 
Joint  liability  of  several  companies,  217. 
Release  of  one,  217. 
Release  under  seal,  217. 
Covenant  not  to  sue,  217. 
Dismissal  of  suit  against  one,  217. 
Settlement  with  one  joint  tort-feasor,  217. 
But  one  satisfaction,  217. 
Recovery  over  by  one  company  against  another,  217. 


I 

I 


I 


INDEX  1031 

[Ttie  figures  refer  to  sections] 

LIABILITY  FOR  INJURIES  CAUSED  BY  IMPROPER  LOCATION,  CON- 
STRUCTION AND  MAINTENANCE— ContiDued, 
Liability  to  trespassers  and  licensees,  218. 

When  the  company  is  itself  a  trespasser,  218. 
Liability  as  between  vendor  and  vendee  company,  219. 

In  case  of  sale  of  electricity,  219. 

In  case  of  sale  of  plant,  219. 
Liability  as  between  landlord  and  tenant  for  injuries  from  wires,  219. 
Injuries  to  property  of  company,  220. 
Interference   with  operation,   220. 
Injunction  against  interference.  220. 
Indictment  for  malicious  mischief,  220. 
Interference  in  case  of  companies'  using  the  same  streets,  221. 

Injunction,  221. 

Adjustment  of  rights  in  court  of  equity,  221. 

Rights  between,  depending  on  franchises,  221. 
Induction,  injuries  by,  221. 
Conduction,  injuries  by,  221. 
Inductive  electricity  defined,  221a. 

Telegraph   and  telephone   lines  near  trolley   or  electric   light  wires, 
221a. 
Remedy  for  interference  by  induction,  221b,  221c. 

Damages,  221b. 

Ground  of  liability,  221b. 

Negligence  must  be  shown,  221b. 

Rights  of  both  companies  preserved,  221b. 

Injunction,  221b,  221c. 

Grounds  for  injunction,  221c. 
Distinction  between  induction  and  conduction,  221d. 
Prior  occupancy,  221e. 

In  case  of  conduction,  221f. 
Causes  of  interference  from  light  and  trolley  w'ires,  221g. 
Electrolysis,  221g. 

LIABILITY  IN  GENERAL, 

Statute  liability  of  company,  34-37. 

Of  companies  for  injuries  caused  by  improper  location,  construction,  and 

maintenance  of  lines,  193-221. 
Of  company  furnishing  "tickers,"  768-772. 

Liability  of  company  in  transmission  and  delivery  of  messages,  270-318. 
Of  company  for  negligence,  319-334. 
As  affected  by  rules  and  regulations,  335-355. 
Ijimiting  common  law  liability,  367-425. 

On  contracts  to  furnish  market  reports  and  other  news,  426-465. 
For  act  of  God  and  public  enemy,  356-366. 

Distinction  between  liability  of  telegraph  and  telephone  companies,  13,  33. 
In  conducting  fire  alarm  or  messenger  service,  39. 
After  alienation  of  franchise,  46. 
See  Messages;    Negligence. 

LIBEL  AND  SLANDER, 

Message  containing,  need  not  be  accepted,  432. 

Damages  in  action,  610. 

Liability  of  company  for,  622. 

Exem])lary  damages  in  action  for,  022. 

Messages  not  on  their  face  libelous  or  defamatory,  432. 

LICENSE, 

And  franchise  distinguished,  44. 
To  companies  by  cities,  86. 
Parol,  to  enter  land,  130. 

LICENSE  TAX, 

By  city  on  lines,  61. 
Imposed  by  city,  SO. 


1032  INDEX 

[The  figures  refer  to  sections] 

LICENSE  TAX— Continued, 

Rental  for  use  of  streets  not  a  license  tax,  83. 

Imposed  by  city  on  line  constructed  in  streets,  83. 

As  rental  charge,  244. 

Company  engaged  in  interstate  commerce  cannot  be  forced  to  pay  license 

tax  as  a  condition  to  do  business,  244. 
Within  police  ""power,  244. 

On  business  of  company  as  interstate  commerce,  invalid,  669, 
Distinction  between  property  tax  and  privilege  tax,  670. 
Of  city,  on  telegraph  company,  675. 

LIEN, 

Superior  to  mortgage  lien  on  telegraph  company,  24. 

For  taxes  on  property  of  company.  663. 

For  material,  on  property  of  telegraph  company,  24. 

LIGHT   COMPANIES, 

Business  of,  considered,  202,  219. 

LIMITATION, 

For  presenting  claims  against  company,  386-399, 
When  limitation  of  time  begins  to  run,  391-393. 
Compliance  with  stipulation,  394-396. 
Actions  for  mental  anguish  do  not  survive,  607. 

LIMITING  LIABILITY  BY  CONTRACT, 

Message  blanks,  printed  stipulations  on,  367. 

Negligence,  contract  against  liability  for,  void,  368. 

Statutory  liability  for  negligence  cannot  be  limited  by  contract.  369. 

Statutory  provisions  as  to  limiting  liability,  371. 

State  statutes  as  applying  to  interstate  messages,  371. 
Gross  negligence  distinguished  from  ordinary  negligence  in  some  states. 
370. 

No  real  distinction  between  negligence  and  gross  negligence,  372. 
Gross  negligence,  what  constitutes,  373. 
Willful  misconduct,  as  affected  by  contract,  370. 
Ignorance  of  operator  as  to  location  of  telegraph  stations  is  negligence, 

374. 
Conflict  of  laws,  in  case  of  interstate  message,  375. 

Law  of  place  of  contract  applies,  375. 

Intent  of  parties  to  be  bound  by  law  of  place  of  destination,  375. 

Foreign  law  must  be  proved,  375. 
Unrepeated  message,  stipulation  against  liability  for,  376-385,  402. 

A  device  for  avoiding  liability  for  negligence  and  willful  wrongs,  377. 

Reasons  for  holding  stipulation  void,  378. 

Delay  or  nondelivery  not  obviated  by  repeating  message,  380. 

Message  blank  containing  stipulation  not  a  contract  like  a  bill  of 
lading,  381. 

Element  of  duress  in  imposing  such  stipulation,  383. 

Payment  of  extra  charge  for  repeating  does  not  change  rule,  379. 

Sender  receives  no  consideration  for  repeating  charge,  382. 

Whether  request  for  repeating  has  been  made,  a  question  of  fact,  384. 

Effect  of  such  stipulation  as  binding  the  sendee,  385. 
Time  within  which  claims  for  damages  must  be  presented,  stipulation 
as  to,  386-399,  509. 

Stipulation  valid  if  time  limit  is  reasoliable,  386,  387. 

Stipulation  does  not  limit  time  for  bringing  suit,  387. 

Statutory  penalty,  whether  claim  for  is  included,  388.  389. 

Penalty  recoverable  by  civil  action,  and  not  public  prosecution, 
389. 

Addressee,  whether  bound  by  stipulation,  388,  389,  390,  416-420. 

Stipulation  as  to  time  of  presenting  claim  held  void  in  some  states. 
,  390. 

State  statutes  forbidding  stipulation,  390. 

When  limitation  begins  to  run,  391,  392. 


INDEX  1033 

[The  figurfts  refer  to  sections] 

LIMITING  LIABILITY  BY  CONTRACT— Continued, 

Delay  in  receiving  message  as  affecting  stipulation,  392. 
Message  never  delivered,  claim  by  addressee,  391-o93. 
Claim  for  damages  accruing  after  expiration  of  time  limit,  392. 
Time  limit  must  be  reasonable,  393. 

Failure  to  discover  wrong  in  time  to  present  cL-yni,  393. 
Claimant  unavoidably  prevented  from  filing,  393. 
Compliance  with  stipulation,  what  constitutes,  394-399. 
Claim  must  be  in  writing.  394. 

Should  set  forth  the  nature  of  the  demand,  394,  396. 
Claimant  not  bound  by  amount  stated,  396. 
Must  be  presented  to  proper  officer,  394,  397. 
Who  is  proper  officer  to  whom  claim  may  be  presented.  397. 
Commencement  of  suit  whether  sufficient  presentation  of  claim,  398, 
399. 
Amount  of,  liability,  stipulation  limiting,  400-402. 
Held  to  be  unreasonable  and  void,  400,  401. 
Held  valid  by  some  courts  as  liquidating  the  damages,  401. 
Limiting  amount  in  case  of  unrepeated  message.  402. 
Time  of  delivery,  stipulation  as  to,  in  night  message,  403. 
Unavoidable  interruption,  stipulation  as  to,  404. 

As  to  interference  by  strikes  or  climatic  changes,  valid,  404. 
Duty    of    company    to    notify    sender    of    interfering    conditions    if 
known,  404. 
Connecting  lines,  stipulation  against  liability  for  acts  of,  405,  44S. 
Agency,  stipulation  as  to,  405. 

That  company  is  agent  of  sender,  void,  405. 
That  company  is  agent  of  connecting  line,  valid,  405. 
Cipher  messages,  stipulation  against  liability  for  errors  in  transmitting, 
406,  407. 
Stipulation  held  void  by  some  courts,  406. 
Stipulation  by  other  courts  held  valid,  407. 
Stipulation  that  liability  does  not  attach  until  delivery  and  acceptance 

of  message  valid,  408. 
Delivery  to  messenger  boy,  stipulation  against,  valid,  409. 

Doe's   not   apply   where   messenger   is   directed   to   bring   back    reply 
message,   409. 
Waiver  of  stipulations  limiting  liability,  395.  403,  409,  410. 

By  directing  messenger  boy  to  bring  liack  reply  message,  409. 
By  receiving  and  acting  on  claim  presented  out  of  time,  410. 
By  receiving  and  acting  on  claim  not  in  writing,  395-410. 
What  amounts  to  waiver  of  written  claim,  395. 

By  agreeing  to  pay  a  larger  amount  than  that  liniited  in  contract,  410. 
Operator  waiving  stipulation   as  to  time  of  delivery  of  night   mes- 
sage, 403. 
Waiver  must  be  by  one  having  authority,  410. 
Burden  of  proof  to  show  that  loss  arose  from  excepted  causes,  411. 

To  show  that  loss  was  not  caused  by  negligence  of  company,  411. 
Proof  of  assent  to  printed  stipulations  on  message  blanks,  412. 

Sender  presumed  to  have  knowledge  of  printed  stipulation,  412. 
Sender    estopped    from    claiming    the    contrary    except    in    cases    of 

fraud,  412. 
Failure  of  sender  to  read  stipulations  no  excuse,  412. 
In  some  states  question  of  knowledge  and  assent   is  a  question  of 

fact  for  jury,  413. 
In  case  of  special  contract  or  contract  form   recently  adopted,  as- 
sent of  sender  must  be  shown,  414. 
Small  type,  not  such  an  imposition  or  fraud  as  avoids  contract,  415. 
Assent  of  addressee,  to  printed  stipulations,  388,  889,  390,  416-420. 
Cases  discussing  question,  416,  417. 

In  case  of  stipulation  as  to  presenting  claim,  417,  418. 
Stipulation  as  to  repeating  message,  417,  418. 


1034  INDEX 

[The  figures  refer  to  sections] 

LiailTING  LIABILITY  BY  CONTRACT— Continued, 

Where  sending  blank  and  delivery  blank  are  different,  417. 

Where  right  of  action  is  in  tort  stiiailations  not  binding  on  sendee, 

418. 
Correct  holding  is  that  sendee  is  bound,  if  stipulations  are  reason- 
able toward  him,  419. 
Proof  of  assent  by  addressee,  what  amounts  to,  420. 
Stipulations  posted  in  company's  office  not  binding,  421. 
Messages  written  on  blanks  of  another  company,  422,  42.3. 

Must  be  substantially  the  same  as  blanks  of  company,  in  order  to 

be  binding,  422. 
Knowledge  of  sender  of  stipulations  in  use  by  company  necessary, 
423. 
Knowledge  of  sender,  as  to  stipulations  where  message  is  received  orally 

or  over  the  phone,  424. 
Principal  bound  by  agent's  knowledge  of  stipulations,  425. 
In  case  sender  is  agent  of  sendee,  425. 
Where  operator  fills  out  message  as  agent  of  sender,  425. 
Under  what  circumstances  operator  is  considered  agent   of  sender, 
425. 
Stipulations  limiting  liability  must  be  pleaded  as  a  defense,  389. 
See  Messages. 

LINE, 

Defined,  9. 

LIVE  STOCK,  ^  ,.         .     ,     ^  K^a 

Delay  in  message  for  contemplated  shipment  of  live  stock,  damages,  5fab. 

LOCATION,  .         ^  ,.  ^.  , 

Company  must  exercise  reasonable  care  in  location  of  line  on  highways 
and  streets,  194. 

LOSS, 

Remote  and  speculative,  556. 
See  Damages. 

M 

MALICE, 

Defined,  618. 

Exemplary  damage  for  malicious  acts,  617. 

MALICIOrS  ACTS. 

Exemplary  damages  for,  616-621. 

MALICIOUS   PROSECUTION, 
Exemplary  damages  for,  623. 

MANDAMUS, 

To  furnish  service,  240. 

To  compel  transmission  of  message,  25.5. 

To  compel  telephone  company  to  comply  with  lawful  rates,  257. 

Enforcing  duties  of  telephone  company  by,  264. 

Proper  parties  in  proceeding  against  telephone  company,  268. 

Action  against  company  by,  495. 

To  compel  acceptance  of  message,  280. 

To  compel  eijual  facilities,  255,  257,  268. 

MARKET  REPORTS, 

Contract  to  furnish,  427.  _ 

Duty  and  lial)ility  of  company  in  furnishing  quotations,  7b»-77d. 

Liability  for  mistakes  and  errors  in  furnishing,  427. 

Furnishing  reports  for  gambling  purposes,  42S. 

Companies  organized  for  purpose  of  furnishing,  428. 

MASTER  AND  SERVANT.  .   .      ,  v,  .   on   oit 

Liability  of  company  for  injuries  sustained  by  servant,  211-217. 
Rule  under  statutes,  213-216. 


INDEX  1035 

[The  figures  refer  to  sections] 

MASTER  AND  SERVANT— Continued, 

Company  must  furnish  suitable  appliances,  212.  „„i.,^„ 

See  Employ^;    Ne:rlis;enee ;    Injuries  Caused  by  Improper  Location, 
Construction,  and  Maintenance. 

MATERIAL, 

Lien  for,  on  property  of  telegraph  company,  24. 

MEASURE  OF  DAMAGES,  ,  :,   ^  ,     t. 

Ordinary  rules  of,   applicable  in  suits  against  telegraph  and  telephone 

companies,  524. 
"Damages"  defined,  525. 

Are  compensatory,  525.  _ 

Charges  paid,  recoverable  where  no  actual  damages  shown,  525. 
General  rule  of  damages  for  breach  of  contract,  526.         _^ 

Excludes  remote  and  speculative  clam:r4<>s.  rv.it.  .u-.  •"■'■  •"^• 
Includes  those  which  are  the  natural  and  proximate  result. J^-b. 
Must  be  certain  as  to  their  nature  and  as  to  their  cause,  5-7. 
Such  as  were  within  the  contemplation  of  the  parties  to  the  con- 
tract, 527. 
Form  of  action  as  in  tort  or  contract,  528. 

General  rule  of  damages  applies  to  both,  528.  .^o   ^-m 

Character  of  damages  different  in  the  two  classes  of  actions,  47S,  479, 

528. 
On  contract— such  only  as  were  within  the  expectation  of  the  con- 
tracting parties,  527,  528. 
In  tort,  all  iaiuries  which  are  the  natural  result,  528. 
In  tort,  exemplary  damages  for  willful,  wanton,  or  malicious  act,  528. 
Notice  to  company  of  the  nature  and  importance  of  tlie  message,  im- 
portant in  suit  on  contract,  527,  529. 
Notice  of  importance  of  message,  presumed  in  action  of  tort,  529. 
Proximate  and  remote  cause,  526,  530,  532,  571,  572,  573,  577. 
Uncertain,  speculative,  or  contingent  profits,  531,  571-573. 
Profits  on  expected  bargains  never  made,  531,  535,  543,  572,  764. 
Gains  prevented  or  losses  sustained  as  the  certain  and  natural  result,  531. 
Losses  on  actual  transactions,  531. 

Subsequent  intervening  cause  producing  the  result,  531,  532,  550. 
Wrongful  act  of  third  party  contributing  to  result,  532,  550. 
Damages  which  were  within  the  expectation  of  the  contracting  parties, 

527,  528,  533,  571,  572. 
Notice  to  company   of  circumstances  tending  to   increase  the  damages, 

527,  529,  533-545,  548,  571,  578,  579,  605. 
Notice  to  company  of  nature  and  importance  of  message,  527,  529,  548, 
578,  605. 
Where  message  discloses  on  its  face  its  nature  and  importance,  534, 

539. 
Information  from  other  sources,  534,  539,  542. 

Proof  of  notice  from  other  sources  does  not  vary  written  contract,  534. 
Such  notice  docs   not   authorize  recovery  of  remote  or   speculative 

damages,  535. 
Information  as  to  all  the  facts  unnecessary,  539,  540. 
Information  as  to  details  of  transaction  unnecessary,  543. 
Importance  of  message  disclosed  by  extrinsic  facts  known  to  operator, 

541,  542. 
Information  from  other  sources  than  sender,  542. 
Knowledge  cf  operator  acquired  from  custom  or  course  of  business, 

541,  542. 
Cipher  or  other  unintelligible  messages,  damages  nominal,  536-538. 
Use  of  trade  language  sufficient  to  indicate  importance  of  message, 

539,  540. 
Question  of  sufficiency  of  notice  as  to  importance  of  message,  for  the 

jury,  541. 
Surrounding  facts  and  circumstances  to  be  considered,  541,  542. 


1036  INDEX 

[The  figures  refer  to  sections] 

MEASURE  OF  DAMAGES— Continued, 

Rule   of  notice   of  importance   of  message  applies  to   damages  for 

mental  anguish,  544,  545. 
Information  as  to  relationship,  540,  545. 

Information  to  company  of  interest  of  persons  not  a  party  to  the 
message,  547. 
Mental  anguish,  516,  546,  580. 

Loss  of  consolation  of  relative,  548. 
Notice  to  company  that  such  loss  is  likely  to  result,  548. 
Damages  which  the  injured  party  might  have  prevented,  549,  557,  560, 

560,  570,  574,  577. 
Damages  which  discharge  of  duty  by  company  would  not  have  prevent- 
ed. '550. 
Where  act  of  injured  party  contributes  to  the  damage,  550. 
Loss  of  profits,  551-560. 
Rule  stated,  551. 
Contract  prevented,  551,  567. 
Consummation  of  contract  prevented,  551,  764. 
Gains  prevented,  or  losses  sustained,  551. 
Sale  prevented.  552,  765. 

Measure  of  damages  where  sale  is  prevented,  553, 
Loss  must  be  actually  sustained,  554. 
Loss  must  be  proved  not  presumed,  554. 
Speculative  profits,  554. 
Purchase  of  goods  prevented,  555,  556,  765. 
Measure  of  damages  where  purchase  is  prevented,  556. 
Profits  of  resale  too  remote,  556. 

Message  containing  an  order  to  both  buy  and  sell,  556. 
Proof  that  order  would  have  been  filled,  556,  765. 
Orders  for  goods  erroneously  transmitted,  557. 
Goods  shipped  to  wrong  place.  558. 
Shipment  to  wrong  market,  563. 

Order  for  stocks  and  bonds  erroneously  transmitted,  559. 
Message  directing  agent  to  sell  or  purchase,  560. 
Order  to  close  option  of  purchase,  561. 
Loss  of  exchange  of  properties,  562. 
Damages  or  loss  from  deterioration,  564. 
Offers  of  sale  misquoted,  565. 
Market  price  misquoted,  565. 
Delay  or  nondelivery  of  market  report  causing  damage  to  one  about  to 

ship  live  stock,  566. 
Illegal   transactions,    552,   560. 

Message  relating  to  purchase  or  sale  of  "futures,"  560. 
Damages  for  nondelivery  of  message  making  definite  ofCer,  765. 
Damages  for  nondelivery  of  message  accepting  offer,  765. 
Damages  for  nondelivery  of  message  making  otfer  when  oflCer  would 

have  been  accepted,  765. 
Liability  to  offeree  for  nondelivery  of  acceptance,  766. 
Loss  of  employment,  568-573. 

Measure  of  damages  for,  5G9. 
Circumstances  tending  to  reduce  loss,  570. 
Duty  of  injured  party  to  seek  other  employment.  570. 
Earnings  from  other  employments  deducted,  570. 
Employment  which  is  conjectural  or  contingent,  573. 
Where  party  could  not  have  performed  the  service,  573. 
Loss  of  professional  fees,  571. 

Measure  of  damages  where  professional  employment  prevented,  571. 
Reduced  by  other  earnings,  571. 
Loss  of  reward  by  detective,  572. 
Loss  of  real  estate  commission,  572. 

Loss  of  opportunity  or  possibility  of  making  money,  572.  764. 
Proof  that  prompt  delivery  of  message  would  have  prevented  loss,  576, 
578,  598,  599. 


INDEX  l^^*^ 

[The  figures  refer  to  sections] 

MEASURE  OF  DAMACxES— Continued,  _ 

Message  from  creditor  relating  to  failing  debtor,  oi6. 

Loss  of  debt,  576.  _ 

Attorney  prevented  from  attending  lawsuit,  o7b 
Loss  occasioned  by  failure  to  transmit  money,  5.7. 
Measure  of  damages,  577. 
Mental  suffering,  GOO. 
Message  calling  a  physician,  578. 

Measure  of  damage  to  patient,  .578. 
Physical  and  mental  suffering,  5(8. 
Notice  to  company  of  importance  of  message,  57S. 
Message  calling  veterinary  surgeon,  578. 

Loss  of  animal,  578. 
Message  requesting  addressee  to  meet  sender,  5.9. 
:Measure  of  damages,   579. 
Mental  anguish,  579. 
Exemplary  or  punitiye  damages,  61b-b2b. 
Meaning  of  term,  616. 
Grounds  of  assessing,  616,  618. 

Aiinwprl  in  actions  of  tort  only,  olb.  . 

M^rbe  rS.m'ered  against  telegraph  and  telephone  companies.  61.. 
For  acts  of  agents  or  employes,  618. 
"Malice"  defined,  618.  ^n 

Malice  of  a"-ent  or  employS  imputed  to  comp.any,  618 
WhXreyTdence  waiants  recovery  a  questionfor  the  court    619^ 
Suffidency  of  evidence  to  establish  facts  a  question  for  the  jury,  619. 
Purpose  of  awarding,  620.  4.   «on 

Proof  of  financial  condition  of  defendant,  620. 
Discretion  of  .lury  as  to  amount,  620. 
In.iurv  to  feelings  of  plaintiff.  620. 
Injury  to  reputation  or  credit,  620 
Assault  and  battery  by  employes  of  company,  6-.1. 
Libel  wantonly,  recklessly,  or  maliciously  circulated,  622. 
Reckless  or  malicious  sending  of  libelous  message.  622. 
?ubSion  of  libel  in  other  ways  by  agents  or  employes   622. 
Malicious  prosecution  by  agents  or  employes  of  company,  623. 
Trespass  maliciously  done  by  agents  or  employes,  6-4. 
Trespass  accompanied  by  threats,  rudeness,  or  oppression,  624. 
Trespass  committed  in  good  faith  or  by  mistake,  624. 
Ordinary  negligence  not  ground  for  exemplary  damages,  62o. 
Willful  or  reckless  disregard  of  consequences,  625. 
Intentional  failure  to  deliver  message,  62o. 

Mnlicious  nurpose  in  neglect  of  duty,  6-5.  ,     ^  .         .  cok 

Wnif illy  endangering  life  by  neglect  of  down  electric  wires,  625. 
"Nptrli^'ent  employment  of  careless  servants,  b^i>.  . 

WheUie7ac?^^s  willfully,  wantonly,  or  maliciously  done  is  a  question 

for  the  jury,  625.  .  ,.^„ 

Cannot  be  recovered  without  actual  damages  sustained,  026. 
In  case  of  cutting  trees  along  sidewalk,  127. 
Excessive  damages,  627. 

When  verdict  will  be  set  aside  for,  627. 
Inadequate  damages,  627.  ^  ^  ^>  ^  cot 

When  new  trial  will  be  granted  for,  627. 
Nominal  damages,  628.  _ 

When  no  actual  damages  sustained,  bz>>. 
When  legal  right  has  been  violated,  628. 
Cost  of  sending  message,  628. 

See  Damages ;    Mental  Anguish. 

MENTAL  ANGUISH,  k^p  k4q    r^oo  fi15 

Damages  for  mental  suffering  and  anguish,  .546-548.  •I'^O-^ls. 
Not    generally    recoverable    in    the    absence    of    pecuniary    damage,    58_ 

Gr^omidrfor^denying  a  recovery  for  mental  anguish  alone,  611,  612. 


1038  INDEX 

[The  figures  refer  to  sections] 

MENTAL  ANGUISH— Continued, 

In  what  cases  recoverable  without  pecuniary  damage,  582,  610. 

Willful  wrong  affecting  liberty,   character,   reputation,  personal  se- 
curity, or  domestic  relations,  582. 
In  case  of  willful  or  malicious  wrong,  610. 
In  actions  for  libel  and  slander,  610. 
Willful  or  malicious  purpose  in  refusing  or  failing  to  transmit  and 

deliver  a  message,  610. 
In  action  for  assault  and  battery,  610. 
As  affected  by  form  of  action,  in  tort  or  contract,  583. 
Cases  holding  damages  for  mental  anguish  recoverable  without  pecuniary 
damages,  584^588. 
Rule  in  Texas,  584,  585. 
Rule  in  Louisiana,  588. 

Grounds  upon  which  the  ruling  is  based,  587. 

Notice  to  company  in  such  cases  of  the  nature  and  importance  of 
message,  587. 
Instances  in  which  such  damages  are  allowed,  589. 

Cases  relating  to  illness,  death,  or  time  set  for  funeral,  589. 
Limitation  of  rule  allowing  damages  for  mental  anguish,  590-595. 
DitBculty  of  fixing  the  amount,  590. 
Suffering  must  be  real,  591. 

Where  plaintiff  is  oversensitive  or  excitable,  591. 
Results  of  distorted  or  gloomy  imagination,  591. 
Worry  causing  inability  to  work  or  study,  591. 
Anger  or  resentment  of  plaintiff,  591. 
Delay  or  nondelivery  of  business  message,  591. 
Must  be  result  of  act  complained  of,  592,  593,  594,  603. 
Must  not  be  confused  with  grief  from  other  causes,  592. 
Limited  to  mental  suffering  of  plaintiff,  593. 
Effect  on  others  not  considered,  593. 
Anguish  resulting  from  independent  causes,  594. 
Anguish  suffered  in  consequence  of  unwarranted  apprehension,  595. 
Anguish  arising  from  failure  of  another  to  meet  plaintiff",  when  recov- 
erable, 579,  596. 
Relative  travelling  with  a  corpse,  596. 
Company  must  be  informed  of  circumstances,  596. 
Message  calling  a  physician,  578,  597,  612. 

Anguish   which   could   not   have   been   prevented   by  prompt   delivery   of 
message,  598,  599,  608. 
Whether  suffering  would  have  been  prevented  by  prompt  delivery  a 

question  for  the  jury,  598. 
Possibility  of  preventing  the  suffering  by  the  making  of  other  ar- 
rangements, 599. 
Anguish  caused  by  failure  to  transmit  money,  577,  GOO. 
Evidence  of  mental  anguish,  601-603. 
•  Statements  and  declarations  of  the  plaintiff  made  at  the  time,  601. 

Behavior  and  natural  expression  of  the  plaintiff,  601. 
Testimony  of  plaintiff"  as  to  his  suffering,  601. 
Evidence  of  facts  and  circumstances  tending  to  aggravate  the  suffering, 
602. 
Close  relationship  and  affection  between  the  parties,  602. 
Sickness  as  a  result  of  mental  suft'eiing,  603. 
Medical  expenses  of  such  sickness,  603. 
Physical  suft'ering  as  a  result  of  mental  suffering,  603. 
Matters  of  defense,  604. 

Want  of  affection  or  relationship  between  parties,  604. 
Division  of  plaintiff's  affection  among  other  relatives,  604. 
Relationship  between  parties  necessary,  605. 

Presumption  of  suffering  in  case  of  close  relationship,  605. 
In  case  relationship  is  remote,  suffering  must  be  proved,  605. 
Notice  to  company  of  relationship  necessary,  605. 
Nature  of  damages  for  mental  anguish,  600. 


1 


INDEX  1039 

[The  figures  refer  to  sections] 

MENTAL  ANGUISH— Continued, 

Survival  of  actions  for  mental  suffering,  607. 

Statute  of  limitations,  607. 

Burden  of  proof  and  presumptions,  608. 

In  what  cases  plaintiff  must  i^rove  mental  anguish  and  that  it  was 

the  proximate  cause,  605,  COS. 
In  what  cases  mental  anguish  will  be  presumed,  605,  60S. 
Right  to  nominal  damages  as  affecting  the  right  to  recover  for  mental 

anguish  alone,  612. 
Damages    for    mental    suffering,    if    connected    with    physical    suffering, 
may  be  recovered,  612. 
Mental  suffering  when  a  cause  of  physical  suffering,  612. 
Conflict  of  laws  with  respect  to  damages  for  mental  anguish,  614,  615. 

Message  sent  from   state  allowing  such  damages  to  another  wliere 

not  permitted,  614. 
Message  sent  from  state  not  allowing  such  damages  to  another  where 

they  are  permitted,   614. 
Where  both  the   states  from  and  to  which  message  is  sent  do  not 
allow  such  damages,  and  suit  is  brought  in  still  another  state,  014. 
Where  both  states  permit  such  damages,  614. 
Form  of  action,  tort  or  contract,  as  affecting  the  question,  614. 
Message   from   and  to   points  within  same   state  where  line  passes 

through  another  state,  614. 
Where  breach  of  duty  occurs  in  a  state  where  a  penalty  is  imposed 

therefor,  615. 
Whore  the  action  is  for  failure  to  deliver  in  another  state  in  case 
of  forwarded  message,  615. 
Statutes  permitting  recovery  of  damages  for  mental  anguish,  615. 
Such  statutes  held  constitutional,  615. 

As  applied  to  companies  authorized  by  Congress  to  occupy  public  do- 
main or  military  or  post  roads,  615. 
State  statutes  imposing  penalties  for  negligence  in  transmitting  or  de- 
livery of  messages  are  not  ground  for  damages  for  mental  anguish, 
615. 
See  Measure  of  Damages. 

MESSAGES, 

Duty  of  transmission  in  general,  270,  271. 

Similar  to  that  of  carriers,  270. 

Degree  of  care  required,  270. 

Facilities  required,  270. 

Negligence,  270. 

Not  contractual  alone,  271. 

Common-law  duty,  271. 

Duty  in  absence  of  statute,  271. 

Limiting  common-law  liability  by  contract,  271,  367—425. 

Contracts  in  conflict  with  public  duty,  271. 

Duty   of   prompt  and   correct  transmission,   271. 
Acceptance,  duty  of,  272-2S0. 

Failure  of  duty  a  tort,  272. 

Liability  for  damages  in  case  of  refusal,  272. 
Refusal,  grounds  for,  273-280. 

Subjecting  company  to  criminal  prosecution,  273,  290. 

Containing  indecent  or  profane  language,  273. 

Messages  not  improper  on  their  face,  273,  274. 

Subjecting  company  to  action  for  tort,  274. 

Refusal  when  wires  are  down,  275. 

Condition  of  lines  no  defense  after  acceptance,  275. 

No  office  at  place  of  destination.  275. 

Station  omitted  from  guide  boolv,  275. 

Omission  of  .station  from  guide  l)ook,  negligence,  275. 

Messages  addressed  to  places  on  other  lines  within  reach,  275. 

Accepting  message  as  agent  of  another  line,  275. 


1040  INDEX 

[The  figures  refer  to  sections] 

MESSAGES— Continued, 

Tendering  for  transmission,  276-280. 

At  company's  office,  276. 

Must  be  in  writing,  276. 

Duty  of  sending  oral  message,  276,  277. 

Operator  need  not  know  meaning,   276. 

Operator  must  linow  what  to  send,  276. 

Conforming  to  rules  of  company,  276. 

Receiving  over  telephone,  277. 

Must  be  signed  by  sender  or  his  agent,  277. 
Blanks,  use  of,  277. 

Rule  as  to  use  of  blanks  reasonable,  277. 

Attaching  message  to  blank  by  operator,  277. 

Duty  to  send  one  not  on  lilank  if  accepted,  277. 

Presumption  of  delivery,  277. 
Delivery  at  office,  278. 

Delivery  to  messenger  boy,  278. 

Stipulation  in  blank  as  to  agency  of  messencer  boy,  278. 

"Where  messenger  delivers  message  at  the  office,  278. 
Charges,  prepayment  of,  279. 

Tender  of  charge,  279. 

Acceptance  without  payment,  279. 

Sending  "Collect,"  279. 
Damages  for  refusal  to  accept  message,  280. 

Punitory  damages  for  willful  refusal,  280. 

When  refusal  is  in  good  faith,  280. 
Mandamus  to  compel  acceptance,  280. 
Delay,  duty  to  send  promptly,  281. 

Immediate  transmission  when  excused,  281. 

Where  prevented  by  act  of  God,  281.  357-.359. 

Where  prevented  by  public  enemy,  281,  .S60-364. 

Delay  caused  by  circuitous  route,  281. 

Sending  through  repeating  office,  281. 

Consent  to  delay  wrongfully  obtained,  281. 

Burden  of  proof  in  case  of  delay  or  error,  282. 

Presumption  of  negligence,  282. 
Notice  to  sender  of  inability  to  send  promptly,  283. 

Failure  to  do  so  as  evideuce  of  negligence,  283. 
Errors,  duty  to  transmit  correctly,  284,  285. 

Company  not  an  insurer  against  errors,  284,  285. 

Degree  of  care  required,  284,  285. 

Employment  of  suitable  equipment,  284. 

Employment  of  competent  servants,  284. 

Errors  due  to  causes  beyond  control  of  company,  285,  286. 

Climatic  hindrances  affecting  line,  285. 

Immaterial  errors,  285. 

Errors  not  misleading  or  causing  damage,  285. 

In  case  of  connecting  lines,  285. 

Statutes  relating  to  errors  in  transmission,  286,  287. 

Penal  statutes  strictly  construed,  286. 

Distinction  between  errors  and  delays,  287. 

Penalty  provided  for  delay  does  not  apply  to  error,  2S7. 

Company  not  liable  except  for  actual  damages  resulting,  287. 
Delivery  to  addressee,  288-299. 

Reasonable  diligence  required,  288. 

Liability  for  negligence,  288. 

Duty  of  delivery  as  groat  as  that  of  transmission,  288. 

Sufficient  number  of  messengers  for  prompt  delivery  of  all,  288. 
Excuses  for  delay  or  nondelivery,  289,  290. 

Insufficient  address,  289.  326.  327. 

Nonpayment  of  charges,  289,  290. 

Messages  received  in  the  night,  289. 

When  addressee  is  in  quarantine,  289. 

When  addressee  cannot  be  found,  289. 


INDEX  1041 

[The  figures  refer  to  sections] 
MESSAG^ES-Cx-ntinued,  ^^^^^^  ^^^^  ^^,_^.^^^  ,,^,^^^  ,3, 

Messages  relating  to  futures,  290. 

Sunday  as  an  excuse,  290. 

Failure  to  have  message  repeated,  ^yu. 

?a      re  o?  sender  to  disclose  importance  of  "^^ssage    290 

Company  not  the  judge  of  necessity  of  prompt  delivery,  _90. 

Insufficient  number  of  messenger  boys,  -90. 

Delay  of  sender  in  tendering  message,  29U. 

Message  not  in  writing.  290. 
Notice  to  sender  of  nondelivery,  291. 

When   convenient  or  practicable,  291. 

When  important  to  do  so,  291. 

Damages  recoverable  for  failure,  291. 
Deliverv  to  sendee  in  person,  292. 

Liability  for  failure,  292.  .     ,  ,      ^,      ,„,  ^,„  ooo 

To  persons  or  at  places  authorized  by  the  sendee.  29-. 

Anthoritv  for  delivery  to  others  should  be  m  writing    292 

R"ght"f  semler  in  case  of  delivery  to  person  designated  by  sendee. 

292. 
Making  messenger  agent  of  sendee,  292. 
Delivery  to  wife  of  sendee,  293. 

Whether  sufficient  depends  on  circumstances,  2JJ. 
Custom  of  wife  to  receive  messages,  293. 
Absence  of  husband  from  home,  293 
Effort  first  to  deliver  to  husband,  293. 

""'^T/case  o??us?im  or'arrangement  made  for  that  purpose,  294. 

Two  persons  of  same  name,  at  place  of  destination,  295. 

Deliverv  to  wrong  person  of  same  name.  295.  ,         ,    ,  ^.^ 

When  coinps^iy  his  knowledge  or  is  chargeable  with  knowledge  as  to 
which  is  the  sendee,  295. 

In  care  of  another,  296. 

Deliverv  to  person  thus  designated,  29b. 

No  effort  necessary  to  deliver  to  addressee   296.  ,^^__„.  ._  ^^t 

In  case  of  refusal  to  accept  by  person  in  whose  care  message  is  sent. 

In^care  of  railroad  company,  delivery  to  agent  of  company,  296. 
Where  person  in  whose  care  sent  is  not  found,  2Jb. 
Search  for  sendee,  296. 

MvSt'be'dlSvered  if  person  to  third  party  and  not  over  phone.  296. 
ArSngeniLts  for  delivery   of  one's  own  messages  do  not  apply   to. 
those  sent  in  his  care,  296. 
Delivery  to  authorized  agent,  297. 

To  member  of  firm  to  which  it  is  addressed,  29  < . 
To  wife  or  bu.siness  associate  in  case  of  absence  of  addressee,  _.)<. 
Manner  of  delivery.  298. 
Written  copy,  298. 
Waiver  of  right  to  copy,  298. 

Over  telephone,  298.  ^         m    ,.   oqq 

Necessity  of  copy  where  sent  in  care  of  another,  29S. 
Forwarding  messages,  299. 

No  duty  in  absence  of  agreement,  299. 
Time  of  delivery,  300.  .301. 

As  soon  as  reasonably  practicable,  oOO. 

Liabilitv  for  delay  in  delivery,  300. 

Circumstances  to  be  considered,   300. 

Rush  of  business,  300. 

Time  for  copying  and  addressing,  300. 

Distance  to  be  traveled,  300. 

Half  hour  reasonable  time,  300. 

Jones  Tel.(2d  Ed.)— 66 


1042  INDEX 

[The  figures  refer  to  sections] 

MESSAGES— Continued, 

Five  hours  unreasonable,  300. 

Negligence  question  of  fact,  300. 

Question  not  for  judgment  of  company,  300. 

Duty  in  case  of  several  messages  on  same  subject  coming  close  to- 
gether, 301. 

Reasonable  office  hours,  301. 

Sending  message  to  be  delivered  at  unusual  hour,  301. 

Duty  of  sender  to  make  inquiry  as  to  hours  of  delivery,  301. 

Duty  of  company  to  advise  sender  of  hours  for  delivery,  301. 
Free  delivery  limits,  302-30.5. 

Rules  as  to  must  be  reasonable,  302. 

Extra  compensation  for  delivery  beyond  limits,  302. 

Duty  of  delivery  when  extra  charge  is  unpaid,  302. 

Question  of  knowledge  that  sendee  resides  bf^yond  limits,  302,  804, 
Sendee  living  several  miles  from  telegraph  office,  303,  304. 

Extra  compensation  for  delivery,  303. 

Effort  to  deliver  within  free  delivery  limits,  303. 

Delivery  to  neighbor  offering  to  take  it,  303. 

Waiver  of  right  to  collect  extra  charge,  304. 

Custom  as  to  deliveiy  beyond  limits,  304. 

Custom  construed  strictly  as  against  company,  304. 

Notice  to  sender  that  sendee  lives  beyond  free  delivery  limits,  304. 
No  deliveiT  limit  fixed,  305. 

Delivery  within  reasonable  distance,  305. 

Reasonable  distance  a  question  for  jury,  305. 

Effect  of  blank  containing  rules  as  to  free  delivery  limits,  305. 
Diligence  in  matter  of  delivery,  306-308. 

Compared  with  diligence  in  sending,  306. 

Effort  to  deliver  at  place  of  business  not  sufficient,  307. 

Effort  to  deliver  during  business  hours  not  sufficient,  307. 

Question  of  negligence  when  for  court,  and  when  for  jury,  308. 

Burden  of  proof  on  company,  308. 
Inaccurate  or  insufficient  address,  309,  326. 

Delivery  to  wrong  person  on  account  of,  309. 

Contributory  negligence  of  sender,  309. 

Duty  of  company  in  case  of  insufficient  address,  309. 

Errors  in  address  due  to  act  of  company,  309. 
Penalty  for  failure  to  deliver,  310. 

Actual  and  nominal  damages,  310. 
Secrecy  of  message,  311-313.  . 

Duty  of  company  to  observe,  311.  \ 

Similarity  to  letters,  311.  J^ 

Injunction  against  use  or  divulgence  of  contents,  311.  .  i 

Liability  of  company  for  disclosing,  311.  i  ; 

Damages  for  disclosing,  311.  U 

Punitive  damages  for  willful  disclosure,  311. 

Disclosure  in  court  in  response  to  legal  process,  311. 

Statutes  prescribing  penalties  for  disclosing,  312,  733.  ■' 

Statutes  strictly  construed,  312.  ^  . 

Liability  of  company  for  act  of  servant  in  disclosing,  312. 

As  privileged  communications,  729-740. 
Secrecy  of  communication  over  telephone,  313. 

Liability  of  company  for  disclosing  same.  313. 
Messages  sent  in  care  of  common  carriers,  296,  314. 

To  passengers,  314. 

To  employes  of  carrier,  314. 

To  employes  of  sleeping  car  sent  in  care  of  railroad  company,  314. 

Under  special  arrangements  with  carrier,  314. 
Telephone  company,  duty  of  as  to  delivery  of  message,  315. 

Assumption  of  such  duty  by,  315. 

Arrangements  with  agents  made  with  knowledge  of  company,  815. 

Necessity  of  delivery  not  question  for  agent  to  decide,  315. 


INDEX  1043 

[The  figures  refer  to  sections] 

MESSAGES— Continued, 

Telephone  call  for  person  who  has  to  be  sent  for,  316. 
Duty  to  send  for  person  called,  316. 
Eoasouable  distance,  316. 
Statutes  relating  to  subject,  316. 
Whore  extra  charge  is  paid.  317. 
Duty  the  same  as  that  of  telegraph  companies.  317. 
Negligence  of  employg  in  failing  to  discharge  duty,  317. 
Long-distance  telephone  company,  318. 
Duty  to  furnish  connections,  318. 
Company  undertaking  to  furnish  such  service,  318. 
Liability  for  negligence  or  failure  of  duty,  318. 
Special  contract  for  correct  transmission,  426. 
Market  reports,  messages  transmitting,  427, 
Furnishing  news,  428. 
Gambling  transactions,  428,  429,  431. 
Relatin-  to  futures,  429. 

Futures  where  transaction  is  wager  only,  429. 
What  futures  are  not  forbidden  by  statute.  429. 
Damages  for  errors  in  message  relating  to  future  contracts.  429. 
Application  of  statutory  penalty  for  error  or  failure  to  deliver,  429 
Indecent  language,  273,  430. 

Messages  not  improper  on  their  face,  273,  430. 
Criminal  or  civil  lialjility,  subjecting  company  to,  273,  274,  290,  431. 
Libelous  and  defamatory  messages,  432. 
Messages  not  so  on  their  face,  432. 
Interstate  messages,  433-437. 

Common-law  duty  and  liability  obtains,  433. 
Place  where  failure  of  duty  occurs  immaterial,  433. 
Actions  of  tort  or  for  breach  of  common-law  duty,  4.33. 
Breach  of  statutes  declaratory  of  common  law,  433. 
Application  of  statutes  imposing  penalties  or  imposing  additional  du- 
ties, 434. 
Application  of  statutes  as  to  messages  delivered  within  the  state,  434. 
Messages  from  and  to  points  in  same  state  passing  through  other 
states,  434. 
Sunday  messages,  290,  435-437. 
No  duty  to  send  on,  435. 

Fact  that  office  is  open  on  Sunday  makes  no  difference,  435. 
Contract  to  send  message  on  Sunday  void,  436. 
Relating  to  matters  of  charity  and  necessity,  435,  437,  438. 
What  are  matters  of  charity  and  necessity,  437,  438. 
Illustrations,  438. 

Duty  of  sender  to  inform  operator  of  character  of  message,  437,  439. 
Sunday  as  an  excuse  for  delay  or  nondelivery,  290,  439. 
Statutory  penalties  when  applicable  to,  439. 
Forged  and  fraudulent  messages,  440-446. 
Duty  of  company  to  investigate,  440. 
In  case  of  suspicious  circumstances,  440. 

Company  negligently  aiding  in  commission  of  fraud  or  crime,  441. 
Liability  to  sendee  acting  on  message  in  good  faith,  441,  469. 
Liability  in  case  circumstances  affording  reasona))le  ground  of  sus- 
picion, 441. 
Negligence  of  operator  must  be  proximate  cause  of  injury,  442. 
Where  oi>erator  is  author  of  forged  or  fraudulent  message.  443. 
Message  forged  by  subageut  appointed  without  authority,  444. 
Remedy  against  others  no  bar  to  suit  against  company,  445. 
Measure  of  damages  in  case  of,  446. 
Connecting  lines,  messages  sent  over,  447-465. 

Initial  company  not  liable  for  errors  or  delays  on  connecting  lines, 

447. 
Initial  company  is  forwarding  agent  of  sender,  447. 
English  rule  different,  448. 


Partnership  arrangement  between  several  lines,  457,  459. 
Evidence  of  partnersliip,  459,  461. 


1044  INDEX 

[The  figures  refer  to  sections] 

MESSAGES— Continued, 

Rule  also  different  in  some  states,  448. 

Duty  of  initial  company  in  case  of  nonacceptance  by  connecting  line, 

447. 
Payment  of  entire  charges  to  initial  company  does  not  change  rule, 

449. 
Initial  company  liable  for  delay  in  delivery  to  connecting  line,  450. 
Telephone  company  carrying  on  long-distance  business.  451. 
Contracts  for  delivery  beyond  terminus  of  line,  452,  453. 
As  to  lines  extending  in  other  states,  452. 
Agent  malving  such  contract  presumed  to  have  authority,  453. 
Connecting  line,  defined,  454. 
Duty  of,  to  accept  message,  455. 
Duty  of  to  transmit  and  deliver,  456. 
Liability  of  connecting  line,  457. 

Duty  of  one  connecting  line  to  deliver  to  another  connecting  line,  456. 
Burden  of  proof  where  connecting  line  is  sued,  458. 

In  case  of  partnership  each  liable  for  negligence  of  other.  4.59.  ^ 

Connecting  line  as  party  to  stipulations  in  contract  of  initial  line,  4G0. 

Effect  of  statute  requiring  connecting  line  to  accept  messages,  460. 

Liability  of  several  companies  for  faults  of  common  agents,  451,  461. 

Sender's  right  to  select  route,  in  case  of  several  connecting  lines,  462. 

Refusal  to  accept  by  line  selected  by  sender,  462. 

Delays  in  consequence  of  bad  selection,  463. 

Increased  cost  of  selection  to  be  paid  by  sender,  464, 

Liabilities  of  connecting  companies  amons  themselves,  465. 
Penalty  for  delay  in  delivery,  222,  223,  228-230,  629-656. 
State  laws  regulating  sending  and  delivery  of  messages,  223,  232. 
State  laws  regulating  charges.  239. 
Duty  to  furnish  equal  facilities  to  all  in  the  transmission  of  messages, 

248-269. 
Limiting  liability  by  stipulations  in  contract  of  sending,  367-425. 
Negligence  in  the  transmission  and  delivery  of  messages,  319-334. 
Contributory  negligence  of  sender  or  addressee,  324-334. 
Rules  and  regulations  adopted  by  company  in  relation  to  the  sending  of 

messages,  325-355. 
Actions  for  damages  for  negligence  in  transmission  and  deliverv  of  mes- 
sages, 466-491. 
Damages  in  actions  for  negligence  in  the  transmission  and  delivery  of 

messages,  524-628. 
Telegrams  and  telephone  communications  as  evidence,  681-719.  ,i 

Telegrams  as  privileged  comnmnications,  729-740.  n 

Contracts  entered  into  by  telegrams,  741-766. 

Telegraphic  messages  as  sufficient  to  satisfy  the  statute  of  frauds,  720- 
728. 

MESSENGER,  ' 

Delivery  of  message  to,  278,  409. 
Duty  of  company  to  keep  at  station,  288. 
Exemplary  damages  when  messenger  intentionally  fails  to  deliver,  610. 

MILITARY  ROADS, 

Telegraph  lines  along,  56-61. 
Right  of  way  over,  145. 

MISTAKES, 

Liability  for  in  messages,  284-287. 

MOBS. 

Liability  for  injuries  caused  by,  362. 
Duty  of  company  to  make  use  of  other  lines,  362. 

Contract  assuming  liability  for  act  of  mob  does  not  apply  to  connecting 
line,  365. 


INDEX  1045 

[The  figures  refer  to  sections] 

MONEY, 

No  recovery  for  mental  anguish,  for  failure  to  transmit,  600. 
Failure  to  transmit,  577. 

MONOPOLY, 

Illegal  preference  in  rates,  253. 
Alienation  of  franchise  may  be,  45. 
Contracts  and  combinations  in  restraint  of  trade,  49. 
See  Discrimination ;    Equal  Facilities, 

MORTGAGE, 

Of  franchise  of  company,  45— IS. 

Authority  to  sell,  gives  right  to  mortgage,  48. 

MUNICIPAL  CORPORATIONS, 

Powers  of,  over  streets,  etc.,  79,  241-245. 

Terms  and  conditions  imposed  on  company,  80. 

May  impose  conditions  on  right  of  way,  81. 

When  legislative  grant  unconditional,  81. 

Lines  on  streets,  consent  of  city  necessary,  82. 

Termination  of  franchise,  84. 

Powers  to  regulate  construction  of  line  in  streets,  Gl. 

Power  of,  to  regulate  companies  and  their  lines,  241-242. 

Power  of  city  to  revoke  fi-anchise,  42,  44,  243. 

When  city  may  abate  line  as  a  nuisance,  87,  243. 

Power  to  impose  license  tax,  244. 

Taxation  by,  compensation  for  use  of  streets,  675. 

Petition  of  company  for  easement  in  street,  89,  242. 

Right  to  construct  lines  on  streets,  82,  83,   86. 

Powers  of  municipalities  considered,  44,  83,  88. 

Control  of  the  state  over  lines,  79-82,  87. 

Power  of  city  to  pass  ordinances,  79-82,  88,  89. 

May  license  company  to  build  lines  in  streets,  44,  79-82.  80-80. 

May  control  erection,  construction,  and  maintenance  of  lines,  88rS9. 

Lines  erected  without  authority  a  nuisance.  121-124. 

Right  of  abutting  owner  to  compensation  discussed,  97-117. 

Erection  of  lines  as  a  public  use,  98-101. 

Taking  of  property  for  public  use  discussed,  97-117. 

Dedication  of  land  for  streets,  extent  of,  100. 

Power  over  dedicated  streets,  100.  101. 

Difference  between  sti'eets  and  ordinary  highway,  101. 

Cases  with  reference  to  the  right  of  an  adjoining  owner  to  compensation. 

for  lines  in  city  streets,  referred  to,  97-117. 
Trees  on  sidewalks,  126-129. 

Liability  of  company  for  cutting  trees  on  city  streets.  126-129. 
Cannot   grant   exclusive  right  to  company   over   railroad   right  of  way. 

164-167. 
Liability  for  the  improper  construction  of  poles  in  streets.  194. 
Cannot  regulate  rates  without  express  authority,  241-245. 
Municipal  control  of  lines  in  streets,  79-96,  241,  242. 
Cannot  grant  franchise,  44. 
Consent  of  to  alienation  of  franchise,  48. 
Grant  of  franchise  to  electric  light  company,  85. 
Municipal  ownership  of  electric  light  company,  85. 
See  Streets  and  Highways. 

N 

NAME, 

Delivery  of  message  where  two  parties  have  same,  295. 
Proof  of  signature  to  message,  687. 

NAVIGABLE  STREAMS. 

Acquiring  right  of  way  over,  184-192. 

NAVIGATION, 

Obstruction  to,  by  lines,  78,  184a,  187-192. 


1046  INDEX 

[The  figures  refer  to  sections] 

NEGLIGENCE, 

In  transmitting,  in  general,  28,  270,  272,  281,  300,  319. 

Degree  of  care  required,  319. 

Terms  used  in  defining  care,  319. 
Prima  facie  evidence  of  negligence,  38,  282,  320. 

Errors  in  transmission,  .120,  321. 

Error  in  name  of  addressee,  320. 

Error  on  connecting  line,  321. 

Unreasonable  delay  in  delivering.  320. 
Presumption  of  negligence  may  he  rebutted,  322. 

What  evidence  required  to  rebut,  322. 
Negligence  a  question  for  the  jury,  322. 
Nonpayment  of  charges  as  a  defense,  323. 

Nonpayment  of  extra  charge  for  delivery  beyond  limits,  323. 
Contributory  negligence,  324-329. 

Need  not  be  sole  cause  of  injury,  324. 

Must  be  a  proximate  cause,  324,  508. 

Not  legibly  written,  32.5. 

Harmless  error  in  writing,  325. 

Inaccurate  or  insufficient  address,  326. 

When  operator  writes  message  for  sender,  327. 

Operator  writing  message  agent  of  sender,  327. 

Exceptions  to  rule  where  sender  is  unable  to  write,  327. 

Exception  where  message  is  received  over  phone,  327. 

Failure  to  attach  revenue  stamp,  328. 

Duty  of  operator  to  inform  sender  of  the  necessity  of  stamps.  328 

Delay  in  tendering  message,  when  contributory  negligence,  324,  329. 

Burden  of  proof  of  contributory  negligence,  508. 
Injured  party  should  minimize  loss,  330-334. 

Where  sender  has  notice  of  error  or  fact  of  nondelivery,  330-333. 
Anticipating  negligence,  331. 

Sender  may  presume  that  message  is  promptlv  and  correctly  deliv- 
ered, 331. 

Otherwise  where  sender  has  notice  or  ground  for  suspecting  mistake 
or  nondelivery,  332,  333. 
Addressee  not  responsible  for  act  of  sender  in  failing  to  prevent  damage, 

332. 
Responsibility  of  sender  for  contributory  negligence  of  sendee,  333. 
Sendee  responsible  for  acting  on  ambiguous  message,  333,  334. 
Sendee  may  act  on  message  which  is  apparently  intelligible,  334. 
Whether  sendee  has  actually  been  misled  is  a  question  for  jury,  333. 
Careless  reading  by  sendee,  334. 
Not  the  duty  of  the  operator  to  advise  sender  that  message  is  vague  or 

ambiguous,  334. 
Laws  imposing  penalties  for  negligence,  222,  629-656. 
Companv  cannot  contract  awav  its  liability  for  negligence,  37,  271,  368, 

369,  370,  371. 
Contracts  limiting  liability  of  company,  367-425. 
Distinction  between  telegraph  companies  and  telephone  companies  as  to 

negligence  in  transmitting  messages,  315. 
Long-distance  company  liable  for  failing  to  secure  connections,  318. 
Where  message  is  not  on  blank  of  company,  277. 
What  constitutes  gross  negligence,  372,  373. 
Negligence  of  company  in  transmitting  forged   or  fraudulent   messages, 

441-446. 
Liability  for  negligence  in  case  of  contract  to  furnish  news  or  market  re- 
ports, 426-428. 
Contracts  to  become  liable  for  delivery  over  connecting  line,  452. 
General  rule  as  to  messages  over  connecting  lines,  447. 
Burden  of  proof  in  action  against  connecting  line,  458. 
Liability  for  defaults  of  common  agent,  461. 
Liability  as  between  initial  line  and  connecting  line,  465. 


INDEX  1047 

[The  figures  refer  to  sections] 

NEGLIGENCE— Continued, 

Actions  for  damages  for  negligence  in  transmitting  or  delivery  of  mes- 
sages, 466-491. 

Measure  of  damages  in  actions  for  negligence,  524-62S. 

See  Messages ;    Actions ;    Measure  of  Damages ;    Liability  for  Inju- 
ries Caused  by  Improper  Location,  Construction,  and  Maintenance. 
NEWS, 

Contracts  to  furnish,  426-428. 

Liability  for  errors  in  furnishing,  427. 

Companies  organized  for  furnishing,  428. 

Same  duties  and  obligations  as  telegraph  and  telephone  companies,  428. 

May  make  reasonable  rules  for  conducting  business,  428. 

News  for  exclusive  use  of  subscribers,  428. 

Cannot  discriminate  between  subscribers,  428. 

Furnishing  reports  for  gambling  purposes,  428,  429. 

NEWSPAPER, 

Discrimination  in  rates  of  telegraph   company   for   service  to,   252. 

NIGHT  MESSAGES, 

Time  of  delivery  of,  403. 

NOTICE, 

In  condemnation  proceedings,  138. 

Of  claim  against  company,  386-399. 

By  telegram,  708. 

To  produce  telegram  for  use  as  evidence,  700. 

NUISANCE, 

Obstruction  of  streets  by  lines,  01. 
Lines  erected  without  authority,  82,  124. 
Lines  constructed  under  authority  are  not  a,  118. 
Building  of  lines  on  streets  when  a,  121. 
Remedies  of  landowner,  121,  122. 
Construction  of  line  without  authority  as  a,  124. 
Trees  on  sidewalk,  129. 

Improper  location  of  lines  on  highways  and  streets,  193,  194. 
Broken  and  hanging  wires  as,  199. 
State  may  remove  lines  as  a,  when,  226. 
City  may  abate  lines  as  a,  243. 
See  Injunction. 

o 

OATH, 

Administered  over  telephone,  717. 

OBSTRUCTION, 

Obstructing  lines  of  company,  220. 

Of  interstate  commerce  by  taxation,  664. 

OFFICE, 

Of  company  must  be  kept  open,  232. 

OFFICE  HOURS, 

Reasonable,  of  company,  301. 
Regulation  of,  .347-349. 
Waiver  of  regulation,  350. 
Of  other  company,   3r)l. 
As  affecthig  duty  of  eompnnv.  ?,^2. 
Knowledge  of  sender  as  to,  353. 

Defense  that  terminal  office  was  closed,  in  action  for  statutory  penaltv, 
648. 

OPTION, 

Delay  of  message  to  close,  measure  of  damages,  561. 


1048  INDEX 

[The  figures  refer  to  sections] 

ORDINANCES, 

Of  city  granting  right  of  way,  SO,  81. 
(Granting  franchise,  cannot  be  annulled  or  altered.  233. 
Relating  to   telegraph    companies   applicable   to    telephone   company,    20. 
See  Municipal  Corporations. 

P 

PACIFIC  RAILROADS, 

Right  of  way  for  telegraphs,  71. 

Telegraph  lines  over,  224. 
PARTIES. 

In  mandamus  proceedings  against  telephone  company.  265. 

Right  of  third  party  to  f^ue  on  contract  made  for  his  l)enefit,   470-475. 

To  actions  for  damages  resulting  from  negligent  delays  in  transmission 
or  delivery  of  messages,  466-491. 

PARTNERSHIP, 

Arrangements  between  the  several  lines,  459-461. 
PATENTS, 

Lessee  of  telephone  patent  cannot  evade  duty  to  public,  264,  263. 
PAYMENT, 

Necessity  of  prepayment  of  charges,   279. 
PENALTIES, 

Object  of  statutes  imposing  penalties  on  telegraph  companies,  629.  631, 
632,  644. 

To  provide  a  remedy  not  afforded  by  common  law,  631. 

To  enforce  performance  of  public  duties,  644. 

Duties  designed  to  be  enforced,  629,  632. 
Penalty  defined,  630,  632. 
Construction  of  statutes,  629-632. 

To  be  construed  strictly.  230,  630. 

Not  to  be  construed  in  strictest  manner,  631. 

Separate  statutes  not  to  be  construed  together,  630. 

Penalty  for  failure  to  deliver  does  not  apply  to  error  in  transmission, 
630,  642. 

Penalty  for  negligent  transmission  does  not  apply  to  failure  to  de- 
liver, 630,  642. 

Construction  must  not  defeat  purpose  of  enactment,  631. 

Act  must  be  within  letter  of  statute  and  also  within  the  mischief 
in  view,  230,  631. 
Who  may  maintain  suit,  632,  633. 

Depends  on  strict  language  of  statute,  632. 

Penalty  given  sender  not  recoA'erable  by  others,  4S5,  633. 

"When  given  to  party  aggrieved,  485,  633. 

Where  statute  is  silent,  rules  applicable  to  ordinary  actions  apply,  633. 
Extraterritorial  effect  of  statutes,  222,  223,  228,  434,  488,  634. 

Not  enforced  in  other  states,  634. 

Apply  to  interstate  messages,  222,  223,  228,  634. 

Where  breach  of  duty  occurs  in  the  state  where  sent,  634. 

When  act  or  neglect  occurs  in  a  foreign  state,  634. 
Constitutionality  of  statute,  635. 

As  interfering  with  interstate  commerce,  635. 

As   denying  telegraph  companies  the  eqaal  protection  of  the  laws, 
635. 

As  impairing  the  obligation  of  the  contract  of  sending,  635. 

In  case  of  excessive  penalties,  635. 
Penalties  against  discrimination,  6.^6,  &11. 

Apply  to  intentional  act  only,  636. 

Do  not  apply  to  negligent  acts  or  omissions,  636. 
Messages  to  which  statutes  apply,  637-639. 

Those  tending  to  subject  company  to  civil  or  criminal  action,  637. 


INDEX  1049 

[The  figures  refer  to  sections] 

PENALTIES— Continued, 

Immoral,   lilielous,    or  fraudulent  messages,   637. 
Messages  relating  to  "futures,"  637. 
Cipher  messages,  638. 
When  cipher  message  is  accepted,  638. 
Messages  not  written  on  company's  blanks,  639. 
When  message  not  on  company's  blanks  is  accepted,  639. 
Proof  required  in  order  to  recover,  6-10,  641. 

Breach  of  duty  within  the  statute  must  be  proved,  640,  650. 
Breach  of  duty  must  be  proved  as  alleged,  640. 
Proof  necessary  to  make  prima  facie  case,  040,  642. 
Proof  of  damage  or  loss  unnecessary,  640,  644. 
Proof  of  willfulness  or  bad  faith  unnecessary,  641. 
Bad  faith  where  partiality  is  charged,  641. 
Complaint  and  proof  must  fall  within  the  statute,  640,  642. 

Proof  of  mistake  in  transmission  under  statute  requiring  diligence, 

642. 
Proof  of  failure  to  deliver  under  statute  against  refusal  to  receive 

and  transmit,  642. 
Proof  of  delay  under  statute  against  error  in  transmission,  642. 
Complaint,  necessary  allegations  in,  643. 

Must  bring  case  within  letter  and  spirit  of  statute,  640,  643,  650. 
Allegation'^  that   defendant   was   engaged   in   telegraph   business    for 

the  public,  643. 
Allegation   that   defendant   was   engaged   in   transmitting   telegraph 

messages  for  hire  not  sufficient,  643. 
Allegation  of  prepayment  of  charges.  643.  655. 
Need  not  negative  exceptions  in  proviso,  643. 
Need  not  negative  matters  of  defense,  643. 
Actual  damages  need  rot  be  alleged,  &40,  643,  644. 
Suit  for  damages  does  not  bar  penalty,  645. 
Suit  for  penalty  does  not  bar  action  for  damages,  645. 
Action  for  damages  and  for  penalty  joined  in  one  proceeding,  &45. 
All  parties  who  signed  message  may  join  in  action,  645. 
Survival  of  actions  for  penalty,  646. 
Penalties  may  be  enforced  against  connecting  line,  647. 

When  initial  company  may  enforce  penalty  against  connecting  line, 
647. 
Defenses,  648-653. 

Sajne  as  in  actions  for  damages,  648-650. 
Tender  of  message  after  office  hours,  648. 
Delay  caused  by  unavoidable  casualty,  648. 
Residence  of  addressee  beyond  free  delivery  limits,  649. 
Contributory  negligence,  650. 

Failure  of  sender  to  give  sufficient  address  of  sendee,  641. 
That  connecting  line,  when  sued,  is  agent  of  initial  line,  647. 
Harmless  errors  in  transmission,  651. 
Sunday  messages,  whether  statute  applies  to,  439,  652. 
Contract  stipulations,  as  to  time  of  presenting  claim  apply  to  penalty. 

653. 
Accord  and  satisfaction  covering  all  claims  includes  penalty,  6.j4. 
Prepayment  of  charges  as  a  condition  of  I'ecovery,  643,  C55. 
Repeal  of  statute,  effect  on  pending  actions,  6.56. 

On  pending  action  for  damages,  656. 
Telephone   company   liable    under    act   relating    to    telegraph    companies, 

16,  21. 
For  unjust  discrimination,  255,  257,  269c. 

PETITION, 

For  right  of  way,  133. 

For  right  of  way  over  railroad,  168,  169. 

PLEADINGS, 

In  action  against  company,  49S-505. 
Under  special  statutes,  504. 


1050  INDEX 

[The  flgrures  refer  to  sections] 

PLEADINGS— Continued, 
Amendment  of,  502. 

In  action  for  statutory  penalty,  504,  642,  643. 
Stipulations  in  contract  of  sending,  389. 

POLES  AND  WIRES, 

Placing  underground,  93,  94,  96,  242,  243. 

Erected  under  agreement  witti  land   owner,  subject  to  prior  mortgage, 

130. 
Description  of,  in  condemnation  proceedings,  137. 
Removal  of,  by  railroad  on  its  right  of  way,  154. 
Strength  and  stability  of  poles,  195,  197. 
Construction  and  maintenance  of,  199. 
Injuring  and  destroying,  220. 
Power  of  city  over  in  city  streets,  242. 
Liability  for  falling,  194. 
Construction  of,  regulated  by  state,  226. 
SVhether  real  or  personal  property,  24. 

See  Liability  for  Injuries  Caused  by  Improper  Location,  Construction, 
and  Maintenance  ;   Streets  and  Highways ;   Regulation  and  Control. 

POLICE  POWER, 

Of  states  over  lines  on  post  roads,  etc.,  61= 
Lines  in  streets  and  highways,  93,  96. 
Of  municipality  over  streets,  80-82. 
Of  state  over  foreign  companies,  223. 
Of  state  to  control  and  regulate  companies.  225. 
Of  state  cannot  be  alienated  or  abridged,  225. 
Of  congress  over  interstate  commerce,  227. 
Of  cities  to  regulate  companies,  241,  242. 
Licenses  that  are  within,   244. 

See  Municipal  Corporations;    State. 

POSTAL  LAW, 

Not  applicable  to  telegraph  messages,  731,  732,  734. 

POST  ROADS, 

Telegraph  lines  along,  57-60. 
Include  streets  in  cities,  61. 
Right  of  way  over,  145. 

PRACTICE, 

In  actions  against  companies,  492-523. 

PREFERENCE, 

Telegraph  company  must  not  give  preferences  in  rates,  252. 
In  rates,  what  reasonable  discrimination,  253. 
See  Discrimination. 

PRESUMPTION, 

Of  negligence  of  company  on  failure  to  deliver  message,  320,  321. 

In  case  of  error  in  message,  320,  321. 

Company  presumed  to   perform   contract  in   transmission   and   delivery 

of  message,  331. 
Of  negligence,   509. 
See  Negligence. 

PRINCIPAL, 

^Message  sent  by  agent,  principal  undisclosed,  who  may  sue,  468. 
See  Agent. 

PRIVILEGED  COMMUNICATIONS, 

Mode  of  communication  does  not  determine  question  of  privilege,  729. 
When  in  hands  of  company  not  privileged,  730-732. 

Communications  otherwise  privileged  are  also  privileged  when  transmit- 
ted by  telegraph,  735. 
Telegrams  between  husband  and  wife,  735. 
Telegrams  between  attorney  and  client,  735. 
Telegrams  between  physician  and  patient,  735. 


INDEX  1051 

[The  figures  refer  to  sections] 

PRIVILEGED   COMMUNICATIONS— Continued, 

Postal  laws  not  applicable  to  telegraph  messages,  731,  732. 
Statutes  forbidding  disclosure  of  messages,  733. 

Statutes  against  disclosure  of  messages  do  not  make  postal  laws  appli- 
cable, 734. 
Steps  to  obtain  telegrams  as  evidence  in  court,  736-740. 

Bill  of  discovery,  736. 

Order  for  inspection  of  papers,  736. 

Notice  to  produce,  736. 

Subpoena  duces  tecum,  311,  736. 
To  obtain  telegram  bv  subpoena  duces  tecum  it  must  be  relevant  evidence, 

737. 
Rule  for  describing  message  in  duces  tecum,  738-740. 
Names  of  parties,  places  from  and  to  which  sent  and  subject-matter  to 

which  they  refer,  738. 
Illustrations  of  rule,  739,  740. 
Secrecy  of  messages,  311,  312. 

Duty  of  company  to  observe,  811. 

Similarity  to  letters,  311. 

Injunction  against  divulging  contents,  311. 

Liability  of  company  for  disclosing,  311. 

Punitive  damages  for  willful  disclosure,  311. 

Statutes  prescribing  a  penalty  for  disclosing,  312. 

Disclosure  in  court  in  response  to  legal  process,  311. 

Liability  of  company  for  act  of  servant  in  disclosing,  312. 
Secrecy  of  conversation  over  the  telephone,  313. 

See  Evidence. 

PROCESS, 

Service  of  against  company,  497. 

PROFITS, 

Loss  of,  as  damages,  551-566. 
As  damages,  when  sale  prevented,  553. 
As  damages,  on  order  for  bonds,  stocks,  etc.,  559. 
See  Damages. 

PROPERTY, 

Character  of  poles,  wires  and  lamps,  24. 
Character  of  interest  in  right  of  way,  51. 

PROXIMATE  CAUSE, 

Negligence  of  company  must  be  proximate  cause  of  injury,  208. 
Contributory  negligence  as,  324. 
Evidence,  when  defense  act  of  God,  359. 
Defense,  that  loss  was  caused  by  mob  or  strike,  360-364. 
Between  connecting  lines,  457. 
Proof  of  proximate  cause,  507. 
See  Negligence. 

PUBLIC  ENEMY, 

Company  not  liable  for  injuries  caused  by,  360,  361. 

Meaning  of  term.  360. 

Union  forces  in  Civil  War,  360. 

Confederate  forces  in  Civil  War,  360. 

Applicability  of  decisions  relating  to  carriers,  360. 

Insurgents  when  classed  as  public  enemy,  361. 

Duty  of  company  to  prevent  damage,  301. 

Burden  of  proof  to  show  cause  of  injury,  361. 

Burden  of  proof  to  show  that  loss  was  not  caused  by  negligence  of  com- 
pany, 361. 

Duty  of  company  as  "citizen"  to  protect  property  from  public  enemy,  361. 

Contract  assuming  liability  for  act  of  public  enemy  does  not  apply  to 
connecting  line,  265. 


1052  INDEX 

[The  figures  refer  to  sections] 

PUBLIC   LANDS, 

Telegraph  lines  over,  57-60. 

PUBLIC  USE, 

Business  of  companies  is  a,  23. 
Government  regulation  of  companies,  222. 
Erection  of  lines  as  a,  97. 
Taking  of  property  for,  98. 

Land  taken  for,  may  be  condemned  for  another  public  use,  155,  156. 
Private  business  not  connected  with  service  to  the  public,  40. 
See  Eminent  Domain. 


QUO  WARRANTO, 

To  test  franchise,  42. 
To  test  license,  44. 

R 

RAILROAD, 

Right  to  compensation  for  telegraph  line  along  its  right  of  way,  62-65. 

State  statutes  granting  right  of  way  along  railroad.  72-75. 

Lines  must  not  interfere  with  travel  over  railroad,  74. 

Must  be  compensated  for  use  of  its  roadbed,  75. 

Cases  relating  to  compensation  for  building  in  city  streets  referred  to, 
97-129. 

Construction  of  lines  crossing,  204. 

Telegraph  lines  over  subsidized  railroads,  224. 

Right  of  company  under  act  of  Congress  over  railroad  right  of  way,  145. 

Additional  burden  to  the  easement,  15,  146. 

Right  to  compensation,  145,  146,  152. 

Sul)seqnent  purchaser  may  recover  compensation,  147. 

Line  constructed  by  railroad,  148,  149. 

Must  be  in  good  faith  for  use  of  railroad,  150. 

Renting   by  railroad  to  another  company,   150. 

Railroad  lines  when  not  taxable,  151. 

Right  of  way  must  be  by  authority,  153,  156. 

Interest  acquired   by  company,   154. 

Removal  of  poles  by  railway  company,  154. 

Condemnation  over  railroad  right  of  way,  155. 

Exceptions  to  rule,  156. 

Railroad  cannot  defeat  condemnation  proceedings  by  claiming  it  should 
be  on  other  lands,  157. 

Rights  of  foreign  companies,  158,  159. 

Company  must  act  in  good  faith,  160. 

What  portion  of  right  of  way  may  be  taken,  161. 

Petition  to  condemn  right  of  way  over,  168. 

There  must  be  a  necessity  for  the  taking,  169. 

Telegraph  company  may  condemn  land  in  several  counties  in  one  proceed- 
ing, 170,  171. 

Proceedings  where  instituted,  IVl. 

Appointment  of  commissioners,  172. 

Duties  of  commissioners,  173. 

Special  court  for  proceedings,  174. 

Award  of  commissioners,  175. 

Either  party  have  new  award,  176. 

Duty  company  owes  to  railroad,  170. 

Measure  of  damages,  extent  of  injury,  177-179. 

No  exclusive  right  granted,  164. 

Contract  for  exclusive  right  invalid,  165. 

No  exclusive  right  under  state  legislation,  164,  166,  167. 

Act  of  Congress  prohibits  exclusive  right,  164. 

Power  of  railroad  in  constnacting  a  telegraph  line  for  its  use,  165. 
See  Eminent  Domain. 


INDEX  105.^ 

[The  figures  refer  to  sections] 

RATES, 

State  may  regulate  to  points  within  state,  232. 
Regulation  of,  by  state,  234-239. 
Fixed  by  statute  cannot  be  indirectly  evaded,  237. 
Statute  rates  must  be  reasonable,  238. 
State  cannot  fix  rate  on  interstate  business,  239. 

Municipality  cannot  regulate  without  express  authority.  241.  242.  245. 
Telegraph  company  cannot  unjustly  discriminate  in  charges,  251-253. 
Must  be  relatively  reasonable,  252. 
Reasonable  discrimination  in,  253. 
Determination  of  reasonable,  2.54. 

Telephone  company  must  not  unlawfully  discriminate.  256.  257. 
Mandamus  to  compel  telephone  company  to  comply  with  lawful,  268. 
Discrimination  in  rates  of  telephone  company,  257. 

Telephone  company  may  refuse  to  furnish  service  for  failure  to  pay,  260. 
Necessity  of  prepayment  of  charges,  279. 
See  Charges;  Equal  Facilities. 

RATIFICATION, 

Of  unauthorized  transfer  of  franchise,  48. 

REGULATION  AND  CONTROL, 

Federal  control,  222. 

Interstate  commerce,  222,  226,  227. 

Foreign  commerce,  222. 

Concurrent  power  of  state  and  United  States,  223. 

State  regulation  while  power  of  Congress  lies  dormant,  223. 

Telegraph  lines  over  Pacific  railroads,  224. 

Franchises  for  telegraph  lines,  224. 

Federal  control  of  lines,  224. 

Requirement  as  to  equal  facilities,  224. 

Exchange  of  business  with  connecting  lines,  224. 

Alienation  of  franchise,  224. 

Telegraph    companies    exercising    franchises    under    agreement 
with  railroad,  224. 
State  control. 

Under  police  power,  223,  225. 
Franchise  subject  to  police  power,  225,  226. 
Over  public  highways,  225,  226. 
Primary  duty  to  maintain  highway,  225. 
Police  power  not  to  be  surrendered  or  abridged,  225. 
Applies  to  construction  and  Operation,  225,  226. 
Applies  to  foreign  companies,  225. 
Right  of  foreign  company  to  enter  state,  225. 
License  for  use  of  streets,  226. 

Right  to  control  erection  and  maintenance  retained,  226. 
Requirement  as  to  map  of  route  and  location  of  poles  and  wires,  226. 
Primary  use  of  highway,  226. 
Other  uses  subordinate,  226. 
Power  of  Congress  not  affected,  226,  227,  244. 
The  taxing  power,  227. 
Taxing  interstate  lines,  227. 
Regulation  of  intrastate  commerce,  227. 
Interstate  commerce  and   commerce  within  the  state  distinguished, 

227. 
Penalty  for  delay  in  delivering  message,  222,  223,  228. 
Act  occurring  beyond  the  limits  of  the  state,  228,  229. 
Delivery  of  foreign  messages,  within  the  state,  228,  229. 
The  Pendleton  Case,  229. 

Total  failure  to  transmit  interstate  message,  229. 
State  law  incidentally  affecting  interstate  commerce,  229. 
Construction  of  statutes  imposing  penalties,  230. 
Prepayment  of  charges,  230. 


1054  INDEX 

[The  figures  refer  to  sections] 

REGULATION  AND  CONTROL— Continued, 

Requirement  as  to  keeping  office  open,  231. 

In  case  of  grant  of  franchise  from  Congress,  231. 
Requirement  as  to  equal  facilities  to  all,  232. 
As  to  foreign  company  filing  charter  with  state  officers,  231. 
As  to  appointing  a  local  agent  for  service  of  process,  223,  225,  232. 
Laws  restricting  contracts,  232. 
Statutes  of  limitation  for  suits,  222. 
Powers  belonging  exclusively  to   Congress,  233. 
Franchise  as  a  contract  which  cannot  be  impaired,  233. 
Regulation  of  charges,  234-239. 
Constitutionality  of  statute  regulating  charges,  235. 
Reasonable  charge  a  principle  of  common  law,  236. 
Fixing  maximum  charge,  236. 
Penalty  for  exceeding  maximum  charge,  236. 
Evasion  of  statutes  fixing  charge,  237. 

By  adding  charge  for  uousubscribers,  237. 

By  changing  from  rental  system  to  pay  station  plan,  237. 

By  making  separate  charge  for  different  parts  of  instrument,  237. 

Adding  charge  for  extra  bells,  237. 
Patent  rights  do  not  prevent  regulation  of  charges,  237. 
Reasonableness  of  statutes  regulating  charges,  238. 
Confiscatory  rates,  238,  245. 
Reasonable  profit  allowed,  238. 
Regulating  charges  on  interstate  messages,  239. 
Suit  for  penalty  not  exclusive  remedy,  240. 
Mandamus  to  compel  service,  240. 
Municipal  control,  241-245. 

Power  of  control  primarily  in  the  state,  241. 

INIay  be  delegated  to  city,  241. 

Powers  which  may  be  delegated,  242. 

Must  be  local  in  character  and  operation,  242. 

Delegation   of  power   to   regulate  cousLruction   and   maintenance   of 

lines  within  city  limits,  242. 
Power  to  regulate  location  and  construction  of  poles  and  wires  may 

be  embraced  in  general  power  of  police  regulation,  242. 
Requirement  as  to  map  of  route  and  location  of  poles,  242. 
Regulating  size  and  character  of  poles,  242. 
Height  of  wires,  242. 
Placing  lines  underground,  242,  243. 
Regulations  must  be  reasonable,  242. 
Power  of  city  to  revoke  franchise,  243. 

Changing  terms  of  franchise  in  the  interest  of  public,  243. 
Wires  and  poles  becoming  a  nuisance,  243. 
State  may  advance  rates  fixed  by  city,  243. 
State  cannot  tax  franchise  granted  by  Congress,  244. 
Nor  can  city  do  so,  244. 
May  control  location  and  construction  of  line  in  streets  in  case  of 

federal  grant,  244. 
Rental  charges  for  use  of  streets,  244. 
Rental  charge  must  be  reasonable,  244. 
Power  to  license  or  tax  may  be  delegated  to  city,  244. 
Taxes  must  be  reasonable,  244. 
City  cannot  tax  interstate  business,  244. 

City  cannot  regulate  charges  without  express  authority,  245. 
Power  to  regulate  use  of  streets  does  not  include  power  to  regulate 
charges,  245. 
Control  by  commission,  246. 

Delegation  of  power  by  state,  246. 
Wireless  telegraphy  controlled  by  Congress,  247. 
State  control  of  intrastate  wireless  business,  247. 
International  radio  telegraphic  convention,  247. 
Regulations  by,  247. 


INDEX 
[Ttie  figures  refer  to  sections] 

REGULATION  AND  CONTROL— Continued, 

Of   telephone   company    under    ordinance    relating   to    telegraph    compa- 
nies, 20. 
Of  telegraph  and  telephone  business,  23. 

REMOTENESS, 

Of  damages,  241,  530,  573. 

See  Damages ;    Measure  of  Damages. 

RENTAL, 

Telephone  company  may  enforce  payment  of,  354. 

What  are  reasonable  regulations  of  telephone  company  concerning,  354. 
For  lines  on  city  streets,  80,  81. 
Reasonableness  of  city  charge  of,  S3. 
See  Charges ;    Rates. 

REPEATING  MESSAGE, 
Stipulation  for,  376-385. 
Extra  charge  for,  considered,  379. 

Addressee's  right  of  action  when  message  not  repeated,  486. 
See  Limiting  Liability  by  Contract. 

RESOLUTIONS, 

Of  company  distinguished  for  rules  and  regulations,  339. 

REVOCATION, 

Of  franchise,  discussed,  55. 

By  city  of  right  of  way  granted,  81. 

RIGHT  OF  WAY, 
Definition  of,  50. 

Property  interest  of  company  in,  51. 
How  acquired,  51-56. 
Compensation,  52,  53. 
Federal  grant,  55-71. 

Conditions  must  be  complied  with,  58. 

Using  bridge  under,  59. 

State  interference  with  rights  under,  60. 

State  regulation,  tJl. 

Municipal  regulation,  61. 

Compensation  to  abutting  owner,  62,  63. 

Charges  by  city  for  use  of  streets,  63. 

Occupying  railroad  right  of  way  under,  compensation  and  proceed- 
ings to  condemn,  64—69. 

To  telegraph  company  does  not  include  telephone,  70. 

To  subsidized  railroads,  71. 
State  grants  distinguished  from  federal,  72. 

Construed,  73,  77. 

Not  to  interfere  with  operation  of  road,  74. 

Compensation  required  under,   75.  ^ 

Along  and  across  canals,  76. 

Conditions  of,  78. 

Requiring  consent  of  city  for  use  of  streets,  82. 
Municipal  grants,  79-85. 

Delegation  of  power  by  Legislature,  79. 

Contract  of  cannot  be  impaired,  79,  84. 

Must  be  exercised  in  reasonable  manner,  79. 

When  included  in  state  grant,  79. 

Rights  and  duties  of  city  under,  80,  81. 

Conditions  must  be  complied  with,  80,  81. 

Subject  to  police  power  of  state,  80,  81. 

Subject  to  taxing  power,  80. 

Compensation  to  abutting  owner.  SO. 

Conditious  must  be  reasonable,  SO.  SI. 

Where  legislative  grant  is  unconditional,  81. 

Not  subject  to  revocation,  81,  84. 


1056  INDEX 

[The  figures  refer  to  sections] 

RIGHT  OF  WAY— Continued, 

Compensation  to  city,  83. 
Rental  charges  must  be  reasonable,  83. 
Awarding  francliise  to  highest  bidder,  83. 
Question  of  reasonable  charge  for  court,  83. 
.  Termination  of  franchise,  84. 
Not  subject  to  forfeiture,  84. 

See  Streets  and  Highways;    Eminent  Domain;    Regulation  an(3 
Control. 

RIVERS  AND  STREAMS, 

Line  of  wires  across,  58,  59. 
Lines  not  to  obstruct  travel  upon,  78. 
Obstruction  to  navigation  by  cable,  187. 
Acquiring  right  of  way  over,  184-192. 

RULES   AND  REGULATIONS, 

Right  of  companv  to  make,  335. 

Limiting  liability  for  negligence,  .335,  336.  368,  369. 
Limiting  common-law  liability.  335,  368,  369. 
Affecting  duties  imposed  by  public  policy,  335. 
Notice  of  to  customer,  335. 
Rules  printed  on  message  blanks,  335. 
Reasonableness  of  rules,  336-338,  349. 
Reasonably  applied,  337. 

Relaxed  to  avoid  hardship  in  particular  cases,  337. 
Reasonableness  not  a  question  for  the  company  to  decide,  338. 
Question  for  court  or  jury,  338.  349. 
When  facts  are  undisputed,  338. 
When  a  mixed  question  of  law  and  fact,  338. 
By-laws,  distinguished  from  rules,  339. 
Particular  rules,  340-351. 

Writing,  requiring  message  to  be  in,  340. 

Numerals,  forbidding  use  of,  340. 

Language  of  place,  rule  as  to,  340. 

Immoral  and  indecent  language,  rule  forbidding,  340. 

Criminal  prosecution,  subjecting  company  to,  340. 

Libelous  language,  forbidding  use  of,  340. 

Gambling  transactions,  message  relating  to,  340. 

Requiring  sender  to  inform  operator  of  meaning  of  message,  341. 

Ambiguous  message,  duty  to  accept,  341. 

Doubtful,  as  to  subjecting  company  to  criminal  prosecution,  341. 

Delivery  of  message  at  office,  rule  requiring,  342. 

Delivery  to  messenger  boy,  rule  against.  342. 

Prepayment  of  charges,  rule  requiring,  343,  352. 

Prepayment  of  extra  charge  for  delivery  beyond  limits,  344, 

Deposit  for  answer,  rule  requiring,  345. 

Office  hours,  rules  establishing,  347-353. 

Failure  to  deliver  when  terminal  office  is  closed,  347. 

Messages  sent   after  business  hours,  347. 

Statutory  penalty,   in   case   of  messages   offered   after   business 
hours,  348. 

Rule  as  to  office  hours  must  be  reasonable,  349. 

Burden  on  company  to  show  that  rule  is  reasonable,  349. 

Duty  of  operator  at  sending  office  to  know  the  office  hours  of 
terminal  office,  351. 

Accepting  message  after  terminal  office  is  closed,  350,  351. 

Duty  as  to  receiving  message  after  office  hours,  352. 

Holding  until  terminal  office  is  open,  352. 

Prepayment  of  extra  charge  for  night  message,  352. 

Verbal  agreements  between  operator  and  sender  as  to  time  of 
delivery,  352. 

Sender's  knowledge  as  to  office  hours,  353. 


INDEX  1057 

[The  figures  refer  to  sections] 

RULES  AND  REGULATIONS— Continued, 

Duty  of  sender  after  office  hours  to  make  inquiry  as  to  time  of 

delivery,   353. 
Duty  of  operator  accepting  message  after  office  liours  to  inform 
sender  of  delay  in  delivery,  353. 
Telephone  companies,  right  to  make  rules,  354. 

As  to  hours  of  business,  354. 

Duty  of  company  to  find  party  called,  after  office  is  closed,  354. 

Payment  of  rental,  rule  as  to,  354. 

Removal  of  instrument  for  failure  to  pay,  354. 

Prepayment  of  tolls,  rule  as  to,  354. 

Requiring  yearly  contract,  354. 
Waiver  of  rules  and  regulations,  346,  350,  355. 

Waiver  may  be  expressly  or  by  implication,  355. 

A  question  of  law  and  fact,  355. 

By  repeated  failure  to  enforce  rule,  355. 

By  keeping  office  open  after  office  hours,  350,  351,  355. 

By  accepting  message  after  office  hours,  3.50,  351. 

Message  received  after  office  hours  must  be  sent,  350. 

Authority  of  agent  to  extend  hours,  350. 

By  accepting  oral  message,  355. 

By  accepting  message  over  phone,  355. 

By  accepting  message  verbally  through  a  messenger,  355. 

By  accepting  through  speaking  tube.  355. 

By  failing  to  require  prepayment,  355. 

Receiving  messages  forbidden  by  rules,  355. 


SALE, 

Of  franchise  of  company,  45-48. 

SALES, 

Messages  concerning,  duty  of  company,  552. 

Measure  of  damages  for  negligence  of  company,  message  relating  to,  553, 

554. 
Order  for  goods  not  delivered,  555,  556. 
Measure  of  damages,  556. 

When  order  for  goods  erroneously  transmitted,  duty  of  purchaser,  557. 
When  goods  shipped  to  wrong  place,  558. 

Errors  in  announcement  of  prices  or  state  of  market,  559,  565. 
Measure  of  damages,  delay  in  message  directing  agent  to  sell  or  purchase, 

5G0. 
Order  to  close  option  of  purchase,  561. 
Loss  of  exchange,  562. 

Negligence  of  company  inducing  shipment,  563. 
Deterioration,  564. 

Contemplating  shipping,  delay  in  message,  566. 
How  affected  by  statute  of  frauds,  720-728. 
Contracts  for,  made  by  telegram,  741-766. 

See  Contract ;    Contracts  Made  by  Telegraph. 

SECRECY, 

Duty  to  preserve  secrecy  of  message,  311-313. 
See  Messages. 
SERVICE, 

When  telephone  company  may  refuse  to  furnish,  258-260. 

Of  process  against  company,  497. 

Of  subpoena,  or  writ  to  produce  telegram,  736,  737,  739,  740. 

SIGNATURE, 

Proof  of.  to  message,  687. 

SPECIFIC  PERFORMANCE, 

Remedy  by,  against  company,  496. 

Jones  Tel. (2d  Ed.)— 67 


1058  INDEX 

[Tho  figures  refer  to  sections] 

SPECULATIVE, 

Damages  not  recoverable,  753. 

Rules  as  to  speculative  damages,  531,  535. 
See  Damages. 
STAMP, 

Duty  to  affix  to  message  when  required  by  law,  328. 

No  liability  for  refusal"  to  send  unstamped  message,  705. 
STATE, 

May  make  grants  of  right  of  way,  72. 

Statutes  granting  rights  to  companies,  87. 

Supreme  control  of  highways  and  streets,  88. 

Cannot  grant  exclusive  right  over  right  of  way  of  railroad,  164-166. 

Regulation  of  companies  by,  222. 

Power  of  regulation  and  control,  223. 

Control  and  regulation  of  lines,  by,  225. 

May  regulate  construction  of  lines,  226. 

Control  of  domestic  commerce,  227. 

May  regulate  rates  to  points  within  state,  232. 

Limitation  on  state  powers,  233. 

May  regulate  charges,  234-239. 

Statutes  regulating  charges  must  be  reasonable,  238. 

Regulation  of  charges  on  interstate  messages,  239. 

May  prevent  discrimination  in  charges,  255. 
See  Legislature  ;   Police  Power. 

STATUTE, 

Concerning  telegraphs,  when  embracing  telephones,  13-22. 

Declaring  companies  common  carriers,  considered,  34-37. 

Becomes  a  part  of  the  contract  of  companies,  37. 

Granting  rights  to  companies,  87. 

Regulating  condemning  right  of  way  for  additional  public  use,  155. 

No  exclusive  grant  of  right  of  way  under,  164-166. 

Imposing  liability  on  company  for  injuries  to  employe,  216. 

Imposing  duties  to  furnish  equal  facilities,  255. 

Statutory  requirement  to  transmit  messages  in  the  order  received,  250, 

257,  269c. 
Making  company  liable  for  mistakes,   286-287. 
Regulating  free  delivery  limit,  302. 
Imposing  penalty  for  failure  to  deliver  message,  310. 
Imposing  duty  to  preserve  secrecy  of  message,  312. 
Regulating  office  hours,  .348. 

Imposing  penalties  on  company  for  negligence,  369. 

Prohibiting  company  from  contracting  against  acts  of  negligence,  371. 
Imposing  penalties  on  companies  for  failing  to  perform  duties,  388.  389. 
Penalty  not  applicable  to  messages    of  necessity  and  charity  to  be  sent 

on  Sunday,  4.39. 
Making  initial  company  liable  over  connecting  line,  455. 
Requiring  connecting  line  to  accept  messages,  460. 
Right  of  action  under,  resulting  from  negligent  delays  in  transmissioa 

or  delivery  of  messages,  481. 
Right  of  action  under  special,  485. 
Allowing  damages  for  mental  anguish,  615. 
Imposing  penalty,  object  and  purpose,  629. 
Construction  of,  imposing  penalty,  630,  631. 

Imposing  penalty  has  no  extraterritorial  effect,  222,  223,  434,  488,  a34. 
Constitutionality  of  statutes  imposing  penalty,  635. 
Proof  of  breach  of  duty  imposed  by,  640,  641. 
Pleading  in  action  for  penalty  under,  642,  643. 
Action  for  statutory  penalty,  no  bar  to  action  for  damages,  645. 
Liability  of  connecting  line  for  penalty  under,  647. 
Defenses  to  action  to  recover  penalty  imposed  by,  648-654. 
Effect  of  repeal  of  statute  imposing  penalty,  656. 
Forbidding  disclosure  of  telegram,  733. 


INDEX  1059 

[The  figures  refer  to  sections] 

STATUTE — Continued, 

Statute  superior  to  agreement,  37,  38. 
Binding  force  in  foreign  state,  38. 
Statutes  declaratory  of  common  law,  433. 
State  statute  wben  applicable  to  interstate  message,  466,  4d4. 
Kegulating  charges,  239. 

Regulating  sending  and  delivery  of  messages,  ^Z6,  Z6J^ 
See  Constitutional  Law;    Penalty. 

STATUTE  OF  FRAUDS, 

Applicability  of,  to  company,  720. 

Subject-matter  to  which  statute  "applies,  721. 

How  statute  may  be  satisfied,  722. 

Company  as  agent  of  the  sender,  723. 

Effect  of  delivery  of  message  to  company,  72-1. 

Delivery  to  addressee  not  necessary.  724. 

Effect  of  delivery  of  telegram  to  addressee,  725. 

Where  company  is  not  acting  as  agent  of  sender,  725. 

In  case  of  altered  message,  725. 

What  telegram  should  contain  to  comply  with  statute,  T^o. 

Defective  memorandum  cannot  be  helped  out  by  telegram,  726. 

Must  be  between  the  parties  to  the  contract,  72G. 

Contract  of  purchase  of  land  by  telegrams  or  letters  and  telegrams,  72b. 

Time  of  delivery  with  respect  to  making  of  contracts,  727.  ■ 

Not  necessary  that  all  the  terms  be  embraced  in  one  message,  7-7. 

Written  contracts  adopted,  728. 

Companv  as  agent  of  sender  of  message,  757,  7o9. 

Admissibility  of  oral  testimony  to  supplement  message,   (2b. 

Where  operator  writes  message  for  sender,  759. 

STOCK  QUOTATIONS, 

Contracts  to  furnish,  427. 
See  Contract. 

STOCKS,  ^       ^^^ 

Measure  of  damages,  erroneous  message  for,  559. 
See  Damages. 

STORMS. 

Strength  and  stability  of  poles,  197. 
Failure  to  restore  line  after  storm,  199. 
Liability  for  injuries  from  broken  and  hanging  wires,  199. 
See  Negligence. 

STREETS  AND  HIGHWAYS, 

Use  of,  by  telegraph  and  telephone  companies,  61,  86-129. 
Control  of  streets  delegated  to  cities,  86. 
When  not  delegated  control  is  in  state,  79,  86. 
Use  of  by  telegraph  and  telephone  companies  a  public  use,  86. 
„,.>  Extent  of  interest  acquired  by  company  in,  87. 
•7  License  only  acquired,  86. 

Police  power  of  state  over,  retained,  87. 
Nuisance  of  wires  and  poles  may  be  abated,  87. 
Manner  of  use  subject  to  city  control,  88. 

Designation  of  particular  streets,  88,  89. 

Location  of  routes,  88,  89. 

Location  of  poles,  88,  89,  91. 

Height  of  wires,  88,  89. 
Petition  for  use  of,  by  company,  89. 
Filing  of  mai)s  of  routes,  80. 
Exclusion  under  guise  of  rpgulation,  90. 
Imposing  unreasonable  conditions,  90. 
Time  and  manner  of  making  repairs,  90. 
Power  of  court  in  case  of  unreasonalile  regulations,  90. 
Court  not  to  prescribe  action  in  advance,  00. 
Consent  of  abutting  owner  to  location  of  poles,  91. 


1060  INDEX 

[The  figures  refer  to  sections] 

STREETS  AND  HIGHWAYS— Continued, 

Location  of  poles  by  electrical  companies,  91. 
^Removal  of  lines,  power  of  city,  92. 
Extension  of  lines,  92. 
Chansce  of  location,  power  to  order,  92. 

Change  of  location  in  case  of  federal  grant  when  necessary,  92. 
Undei'ground  conduits,  when  required,   93. 

License  for,  granted  by  state  not  to  be  denied  by  city,  93. 
-^License  for,  cannot  be  revoked.   93. 

Building  without  authority,  ratification  by  state,  93. 
Requiring  existing  lines  to  be  put  underground,  94. 
The  above  requirements  not  a  taking  of  property  for  public  use, 

94. 
Power  to  make  such  requirement  may  be  vested  in  city,  94,  96. 
Regulation  of  manner  of  construction.  94. 
New  improvements,  adoption  of,  required,  94. 
Enforcing  order  to  place  underground,  91. 
Lines  built  under  federal  grant  may  be  ordered  placed  underground, 

94. 
Power  of  city  to  require   underground  conduits  must  be  expressly 

granted,  96. 
Placing  wires  underground  by  agreement,  96. 
Use  of  streets  as  an  additional  servitude  requiring  payment  of  compensa- 
tion to  abutting  owner,  64,  97-117. 
Taking  for  public  use  discussed,  9S-101. 
Differences  between  street  and  other  highway,  100,  101. 
Cases  holding  abutter  not  entitled  to  compensation,  102-107. 
As  an  additional  servitude  on  highways,  105. 
Legislature  may  provide  for  compensation,  105. 
Reasons  and  grounds  for  negative  view,  106,  107. 
Cases  holding  abutter  entitled  to  compensation,  108-117. 
Easement  in  highway  defined,  109. 
Primary  and  secondary  easements,  109. 
Nature  of  use  for  telephone  or  telegraph,  109-113. 
Compensation  when  fee  of  street  is  in  abutting  owner,  110-113. 
Use  for  telegraph  or  telephone  a  quasi  public  use,  112. 
Use  of  for  telegraph  or  telephone  different  from  original  use,  113. 
Compensation,  when  fee  is  in  public,  114-116. 
Right  of  abutter  to  injunction,  116. 
Interference  with  easement  of  travel,  116. 
Damages  for  obstructing  the  putting  out  of  fires,  116. 
Compensation  when  fee  is  in  third  party,  117. 

Damages  to  both  original  ov\'ner  and  abutter,  117. 
Interference  with  access  as  a  damage,  117. 
>-  Company  using  streets  under  grant  not  a  trespasser,  118. 
---  When  such  use  becomes  a  nuisance,  118. 
Measure  of  compensation  to  abutter,  64,  119-120. 
Damages  by  interference  with  free  access,  120. 
Punitive  damages,  120. 
Proof  of  damage  in  case  of  trespass,  120. 
Remedies  of  abutting  owner,  121. 
Action  for  damages,  121,  123. 
>"  Ejectment,  121. 

Abatement  of  nuisance,  121,  123. 
Injunction,  121,  124. 
Mandamus,  124. 
Construction  of  line  in  ignorance  of  rights,  122. 
Construction  of  line  without  authority,  121-123. 
Acquiescence  by  abuttei',  123. 
Unauthorized  use  of  street  enjoined,  124. 
No  compensation  for  use  of  streets  for  lighting  purposes,  125. 
Injuries  to  trees,  126-129. 
Compensation  for,  126. 


INDEX  lOGl 

[The  figures  refer  to  sections] 

STREETS  AND  HIGHWAYS— Continued, 

Trespass  on  adjoining  land  in  cutting,  126. 

Trees  when  a  nuisance,  12G. 

Punitory  damages  for  malicious  or  willful  act,  127-128. 

Liability  of  company  for  act  of  servant  in  cutting,  127. 

Question  of  good  faith  or  willful  intent  question  for  jury,  128. 

Location  of  trees,  whether  on  street  or  sidewalk  or  abutting  land,  129. 

Liability  for  injuries  caused  by  improper  location,   construction,  or 

maintenance  of  lines,  on  streets  and  highways,  19.V221. 
Regulation  and  control  of  lines  on  highways,  222-247. 
Taxation  of  company  by  city,  675. 
Use  of  street  by  telephone  company  under  act  relating  to  telegraph 

companies,  S5a. 
Use  of  force  to  remove  poles  from  streets,  85a. 

See   Eminent  Domain ;    Injuries  Caused  by  Improper  Location, 
Construction,  and  Maintenance. 

STRIKES,  ' 

Liability  for  injuries  caused  by,  363. 
Term  defined,  3^3. 

When  strike  is  caused  by  act  of  company,  363. 
Duty  of  company  in  supplying  places,  363. 
Contract  assuming  lial)ility  for  strikes,  364. 

SUBMARINE  TELEGRAPH   OR  CABLE, 
Defined,  3. 

SUBPCENA, 

Duces  tecum  to  produce  telegram,  736-740. 
Description  of  message  in  writ,  73S-740. 

SUBSCRIBER,- 

Refusal  of  telephone  company  to  furnish  service  to,  259,  260. 
See  Message ;    Equal  Facilities. 

SUMMONS, 

Service  of,  on  company,  497. 

SUNDAY, 

No  duty  to  send  messages  on,  435. 

Matters  of  necessity  and  charity,  437,  438. 

In  action  to  recover  statutory  penalty,  defense  that  message  was  delivered 

on,  439,  652. 
Sunday  contract  void,  436. 

SURVIVAL  OF  ACTIONS, 

Actions  for  mental  anguish  do  not  survive,  607. 
Actions  for  statutory  penalties  survive,  644. 


T 

TAXATION, 

Power  of  state  to  tax  telegraph  and  telephone  companies,  658,  659. 
Method  of  taxation,  660. 

On  capital  stock,  660. 

On  corporate  proyjerty,  660. 

On  the  franchise,  660. 

On  the  business  done  by  the  company,  660. 
Method  of  assessment,  659-661. 

In  the  discretion  of  Legislature,  659,  660,  661. 

Not  subject  to  supervision  of  courts,  660,  661. 

Projierty  of  telegraph  and  telephone  comijanies  may  be  assessed  dif- 
ferently from  that  of  other  corporations,  661. 

Classification  of  corporations  for  purpose  of  assessment,  661. 
Lien  of  assessment,  663. 

Depends  on  statute,  663. 


1062  INDEX 

[The  figures  refer  to  sections] 

TAXATION— Continued, 

In  case  whole  line  is  assessed  as  a  unit,  663. 
Limited  to  property  within  the  jurisdiction,  663. 
Uniformity  of  taxation,  661,  662. 

Equality  as  compared  with  property  of  other  corporations  or  per- 
sons, 662. 
Interstate  commerce,  227,  664-674. 

State  taxation  as  an  obstruction  of  interstate  commerce,  664. 
Property  of  telej^raph  and  telephone  companies  used  in  interstate 

commerce,  227,  658,  665. 
Must  be  limited  to  property  within  the  state,  665. 
Tax  on  interstate  business  cannot  be  imposed,  665,  667,  669,  670,  677. 
Tax  on  capital  stock  in  proportion  to  length  of  line  within  the  state, 

666. 
Mileage  basis  of  valuation,  667. 

License  tax  on  interstate  business  cannot  be  imposed,  669,  670. 
On  business  or  lines  wholly  within  the  state,  669. 
Distinction  between  property  tax  and  privilege  tax,  670. 
Excise  tax,  whether  enforceable  against  interstate  line,  671. 
Tax  on  gross  receipts  of  interstate  line,  672. 
Apportionable  tax  on  receipts,  672. 
Tax  on  interstate  message,  673. 

Tax  on  entire  number  of  messages.  Including  interstate  and  intra- 
state, 673. 
Tax  on  foreign  company  for  privilege  of  doing  business  within  the 
state,  674. 
Power  of  municipality  to  impose  tax,  675. 

Must  be  expressly  granted  by  Legislature,  675. 

License  tax  by  way  of  municipal  regulation,  valid,  244,  665,  675. 

License  tax  must  not  be  excessive,  675. 

Must  not  interfere  with  interstate  commerce,  675. 

Payment  of  privilege  or  license  tax  does  not  exempt  from  property 

tax,  665. 
Charge  of  fixed  amount  per  pole  not  enforceable  as  a  tax,  but  as  a 
police  regulation,  669. 
Taxation  of  franchises,  676. 

Valuation  of  franchises  for  such  purposes,  676. 
State  tax  on  franchise  derived  from  United  States.  677. 
Grant  of  right  or  franchise  from  United  States  as  affecting  right  of  state 

to  tax,  59,  61,  244,  677. 
Taxation  of  lines  belonging  to  railroads  and  used  in  the  operation  of 
trains,  151,  678. 
Lines  of  railroads  used  as  an  independent  business,  678. 
Assessment  of  telegraph  and  telephone  lines  in  New  York,  668. 
Remedies,  679. 

For  collection  of  license  tax,  679. 

Habeas  corpus  in  case  of  arrest  for  nonpayment  of  illegal  license 

fee,  679. 
Injunction  against  collection  of  illegal  license  fee,  679. 
Recovery  back,  in  case  of  payment,  679. 
Enforcing  penalty  for  nonpayment,  when  duress,  679. 
Interest  on  delinquent  taxes,  680. 
Special  assessments  for  local  improvements,  680a. 
Telephone  company  when  classed  as  telegraph  companies  for  purposes 

of  taxation,   16,  20,  21. 
Taxation  of  line  on  railroad  right  of  way,  151. 
TELEGRAM, 

Defined,  5,  682. 

See  Evidence;    Message. 
TELEGRAPH, 

Term   defined,   1. 

Distinguished  from  telephone,  11-22. 


INDEX  1063 

[The  figures  refer  to  sections] 

TELEGRAPH— Continued,  ^_   .^i 

Statute  regulating,  embraces  teleplione  company,  when,  13a-20,  131. 

See  Message. 
"Wireless,"  defined,  2. 
"Submarine,"  defined,  3. 

.  TELEGRAPH  STATION, 
Defined,  6. 
TELEGRAPHY, 
Defined,  4. 

TELEPHONE, 

Term  defined,  7. 

Distinguished  from  telegraph,  11-22.  oo   -n   i^i 

Embraced  in  telegraph  legislation,  when,  13a-22    '0'  |f i- 
Belonging  to  individuals,  when  under  control  of  public,  26. 
See  Message. 
TELEPHONE  EXCHANGE, 
Defined,  8. 

TERMINATION, 

Of  franchise  to  occupy  streets,  84. 
See  Franchise. 

'"^D?s?r1ct  telegraph  companies  and  such  as  furnish  "tickers,"  7G7-773. 
See  District  Telegraph  Company. 

In  which  claims  against  company  are  to  be  presented,  386-399. 

Stipulation  held  void  as  against  public  policy,  390. 

Of  delivery  of  messages,  300,  301. 

Deliverv  of  night  messages,  403.  . 

Effect  of  stipulation  of  tiiie  of  presenting  claim  in  action  for  statutorj 

penalty,  6.53. 

TOT  LS 

Telephone  company  may  enforce  payment  of,  354.  ^ 

What  aie  reasonable  regulations  of  telephone  company  concerning,  3o4. 
See  Charges;    Rates;    Rental. 

^^^Company  liable  for,  after  wrongful  alienation  of  franchise,  46 

Telegraph  company  need  not  receive  message  that  would  subject  it  to 

Action  fo?  damages  from  negligent  delays  in  transmission  of  message,  467. 

Measure  of  damages,  528. 

Exemplary  damages  in  actions  for,  61&^28. 

Action  by  addressee  of  message,  417,  418,  409^Sd. 

Character  of  action,  whether  in  tort  or  contract,  467,  474,  478,  488,  4\)S, 

494,  503. 
Declaration  in  tort,  503.  t.t     i-       „^ 

See  Action;    Damages;    Exemplary  Damages;    Negligence. 

TRANSMISSION, 

Of  messages,  270-318. 
See  Message. 
TTtEES 

Liability  of  company  for  cutting,  126-129. 
On  sidewalks,  liability  of  company,  129. 
On  sidewalks,  rights  of  owner,  129. 
Exemplary  damages,  wrongfully  cutting,  624. 
Powers  of  cities,  trees  on  city  streets,  129. 

TRESPASS, 

Of  company  cutting  trees,  127,  128. 
Injuring  or  destroying  lines.  220. 
Liability  of  company  for  malicious,  624. 


1064  INDEX 

[The  figures  refer  to  sections] 

TROLLEY  SYSTEM, 

Considered  and  explained,  220,  221. 

u 

ULTRA  VIRES, 

Transfer  of  francliise,  when,  45^ 
See  Franchise. 

UNAVOIDABLE  INTERRUPTION, 

Special  contract  against,  404. 
See  Contract ;    Message. 

UNDERGROUND  WIRES, 

Placing  wires  in  streets,  61,  93-95. 

Power  of  city  to  compel  company  to  place  wires  underground,  241,  242. 
See  Poles  and  Wires. 

V 

VERDICT, 

For  excessive  damages,  when  set  aside,  627. 
See  Damages. 

VERIFICATION, 

Of  petition  in  condemnation  proceedings,  139. 


w 

WAIVER, 

Of  damages,  owner  failing  to  take  action  against  wrongful  entry  of  com- 
pany, 53. 

By  company  of  extra  compensation  for  delivery  beyond  free  limit,  302. 

By  company  of  prepayment  of  charges,  346. 

Of  office  hour  regulation,  350. 

Of  regulations  of  telephone  company,  355. 

Of  written  claim  against  company,  395. 

Of  stipulation  limiting  liability  of  company,  410. 

Of  requirement  of  writing  message  on  blank  of  company,  639. 
WAR, 

Companies  not  liable  for  injuries  caused  by,  360^364. 
WIRES, 

Character  of  property,  24. 

Obstruction  in  streets,  placing  under  ground,  61,  93,  95,  241,  242 

Elevation  of  in  .streets,  89. 

Placing  imder  ground,  93,  95,  241,  242. 

Injuries  from  abandoned  wires,  195. 

Liability  for  injuries  from  broken  and  hanging  wires,  194,  195,  199. 

Liability  for  improper  construction  in  street,  19G. 

Injuring  or  destroying,  220. 

Regulation  of,  by  cities,  241,  242. 

Exemplary  damages  in  case  of  injury  from  fallen  wires,  625. 

Insulation  of  wires,  198a,  200. 

Parallel  and  intersecting  wires,  201,  202. 

Height  of  wires  crossing  highways  or  railroads,  204. 

Injuries  to  employes  by  wires,  211. 

Liability  for  injuries  from  wires  as  between  landlord  and  tenant,  219. 

Interference  with  wires  of  company  by  others.  220. 

Interference  in  case  of  companies  using  same  street.  221. 

Induction  and  conduction,  221  et  seq. 

See  Liability  for  Injuries  by  Improper  Location,  Construction,  and 
Maintenance ;    Negligence. 


INDEX  1065 

[The  figures  refer  to  sections] 

WIRELESS  TELEGRAPHY, 

Proof  of  message  by,  discussed,  702,  703. 

Defined,  2. 

Company  may  condemn  land  for  stations  and  towers,  144. 

State  and  federal  control  of,  247. 

International  radio-telegraphic  convention,  247. 

WIRELESS  TELEPHONY, 
Defined,  10. 

Whether  included  in  statutes  relating  to  telegraph  and  telephone  com- 
panies, 21,  41. 

WITNESSES, 

Testimony  of,  in  actions,  704. 
See  Evidence. 


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